People v. Weissman CA6

Filed 2/26/21 P. v. Weissman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045863
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F25241)

v.

STEVEN IRVING WEISSMAN,

Defendant and Appellant.

A jury found that defendant Steven Irving Weissman had sexually molested six
young boys over a period of more than 15 years. He was convicted of 12 counts of lewd
1
act on a child under 14 (Pen. Code, § 288, subd. (a)), one count of lewd act on a child of
14 or 15 (§ 288, subd. (c)), and one count of aggravated sexual assault on a child (§ 269,
subd. (a)(4)), and the jury also found true a multiple victims allegation (§ 667.61,
2
subds. (b), (c)(8), (e)(4)) as to the counts of lewd act on a child under 14. The trial court

1
All further statutory references are to the Penal Code unless otherwise indicated.
2
Two additional lewd act counts and an indecent exposure count were dismissed
before the case was submitted to the jury. The jury returned guilty verdicts on the
remaining counts except that it deadlocked on one additional lewd act count and
acquitted defendant of another additional lewd act count that involved a seventh alleged
victim. The prosecution dismissed the deadlocked count. An oral copulation of a child
(§ 288.7, subd. (b)) count concerning a 1998 act, which was an alternative to the
aggravated sexual assault count, was dismissed on ex post facto grounds after the jury’s
verdicts. Section 288.7 was first enacted in 2006. (Stats. 2006, ch. 337, § 9.)
denied defendant’s new trial motion and sentenced defendant to prison for 105 years
3
8 months to life.
On appeal, he contends: (1) most of the counts are not supported by substantial
evidence of sexual intent, (2) the prosecutor misdescribed the sexual intent element to the
jury, (3) the prosecutor violated defendant’s constitutional rights when he contacted an
excused juror before closing arguments, (4) the prosecutor committed prejudicial
misconduct by “vouching” for some of the victims during closing arguments, (5) the
prosecutor prejudicially violated defendant’s due process rights by failing to correct false
testimony by one of the victims, (6) the prosecutor failed to comply with his obligation to
disclose that an employee of the district attorney’s office had given gifts to one of the
victims and that the same victim had been arrested, (7) defendant’s trial counsel was
prejudicially deficient in failing to object to the prosecutor’s elicitation of evidence that
defendant lacked any heterosexual relationships, (8) defendant’s trial counsel was
prejudicially deficient in failing to object to the prosecutor and witnesses characterizing
defendant as a “pedophile,” (9) defendant’s trial counsel was prejudicially deficient in
failing to present impeachment evidence, (10) the trial court prejudicially erred in
instructing the jury that a witness’s degree of certainty was relevant in evaluating the
4
witness’s identification testimony, (12) errors were cumulatively prejudicial, and
(13) the jury’s finding on the multiple victims circumstance under the one-strike law
cannot be upheld because the trial court failed to instruct on it and, as to those counts that
predated the September 2006 amendment of the one-strike law, the jury’s findings
violated the prohibition on ex post facto laws.

3
The sentence was composed of 15-years-to-life terms for all counts except for
the lewd act on a child of 14 or 15, for which the court imposed an eight-month term.
4
This issue is currently before the California Supreme Court in People v. Lemcke
(S250108).

2
 We find that the prosecutor’s prejudicial failure to correct false testimony requires
reversal of nine of the counts. We reject defendant’s other claims and remand the matter
with directions to give the prosecutor the option to either retry those counts or proceed to
resentencing on the remaining five counts.
I. THE PROSECUTION’S CASE

A. Victim K.C. (Aggravated Sexual Assault (Count 7) and Lewd Act
(Count 9)); 1997-1998)
K.C. was born in 1988. Defendant was a yard duty supervisor at K.C.’s
elementary school. K.C. became friends with defendant’s adopted son, Charlie
5
Weissman. K.C. was invited to go with Charlie and defendant to “see a movie that had
just come out called The Borrowers.” Defendant sat between K.C. and Charlie during the
movie, which K.C. thought “strange.”
The following week, defendant invited K.C. to defendant’s home to play with
Charlie. At defendant’s home, defendant took K.C. to see defendant’s snakes in his
garage. After they had looked at the snakes for a while, defendant said to K.C: “I want
to see your weiner.” Defendant unbuttoned and unzipped K.C.’s pants and pulled them
down. Defendant then pulled down his own pants and pulled his penis and testicles out
of his underwear. He told K.C. to open his mouth, and defendant forced his penis into
K.C.’s mouth. K.C. tried to pull away, but defendant overcame his resistance and told
him to “suck it like a lollipop.” K.C. continued to resist, and he was able, after about
20 seconds, to push defendant away. Defendant told K.C. to pull up his pants, and he
said “that I was being a bad boy and not to tell anybody . . . .”

5
Charlie testified that he did not know K.C., had not been in any class with him,
had never had K.C. over to his house, and had never gone to a movie with K.C. and
defendant.

3
 K.C. felt “afraid and ashamed.” He thought if he told anyone he would be
punished for having done something wrong. K.C. avoided defendant and Charlie after
this incident.
K.C. did not tell anyone about this incident until 2007 when he was 18 years old.
The first time he told anyone anything about it was when he and his close friend, Daniel
C., had taken LSD and K.C. had drunk some whiskey. The LSD did not cause K.C. to
have hallucinations, but it “made me feel a little bit loose I guess.” K.C. cried and told
Daniel that when he was “a little boy” a “neighbor” who “would watch him from time to
time” “hurt him.” K.C. did not tell Daniel anything else about the incident. K.C. “had a
great sense of relief” after this disclosure.
Not long after telling Daniel, K.C. told his then-girlfriend. A couple of years later,
K.C. told his mother that defendant had molested him. K.C. also told two subsequent
girlfriends and his father. K.C. was drunk when he told his mother and when he told his
father. K.C. told another girlfriend in 2009, but he did not identify the perpetrator.
K.C. did not want to tell the police because he did not want to relive the
experience or go into a courtroom. However, after K.C. heard that defendant had been
arrested in 2013 for molesting another child, he felt that he needed to come forward.
When K.C. first talked to the police, he did not mention the LSD because he was afraid
he would get in trouble.
B. Victim R.A. (Lewd Act (Count 20); 2003-2006)
R.A. was born in 1991. When he was eight or nine years old, R.A. became friends
with Charlie. Defendant was a yard duty supervisor at the elementary school that R.A.
and Charlie attended. Charlie invited R.A. to his home, and R.A. came over and played
with Charlie. R.A. sometimes helped defendant with his snakes.
On one occasion, after R.A. told defendant that his back hurt and was stiff,
defendant asked R.A. if he wanted defendant to “crack” R.A.’s back. R.A. said “okay,”
so defendant had R.A. sit on his lap facing away from him. R.A.’s buttocks was pressed

4
against defendant’s groin. Defendant grabbed R.A.’s arms and then his knees and rocked
back and forth three times. R.A. thought this was “kind of weird” and “wiggled” away.
It did not help his back.
About a year later, when R.A. was 12 or 13 years old, R.A. spent the night at
defendant’s home. In the night, R.A. wandered into the master bedroom where defendant
was using his computer. R.A. asked defendant about the Tempurpedic bed, and
defendant invited him to lie down on it. R.A. fell asleep on the bed for 10 or 15 minutes
and awoke to find defendant lying “right behind” him and “spooning” him. Defendant’s
body was in contact with R.A.’s body from defendant’s chest to defendant’s knees. R.A.
could feel defendant’s erect penis poking him. When defendant realized R.A. was
awake, he immediately got up.
C. Victim S. (3 counts of Lewd Act (Counts 16, 17, and 18); 2005-2008)
6
S. was born in 1997. Defendant was a yard duty supervisor at S.’s elementary
school, and S. met defendant in 2005 when S. was eight years old and in third grade.
Like some of the other boys defendant abused, S. lived with his mother, and his father
was no longer involved in his life. S. saw defendant as a “father figure.” Defendant told
S. that he had previously been married, which was not true. Defendant invited S. to his
home to help him with his snakes. S. started coming over to defendant’s home three or
four times a week.
S. and defendant would greet each other with “[l]ong-lasting deep hugs.” One
time, defendant gave S. “a quick kiss” on the lips after giving him a hug. S. did not see
defendant hug other boys. S. sometimes sat in defendant’s lap. S. would “[h]ang out”
and watch television at defendant’s home, and go places and “get food” with defendant.
S. began spending the night at defendant’s home in 2005 after they had known
each other for a couple of months. The first time S. spent the night at defendant’s home,

6
S.’s last initial is not in the record.

5
defendant offered eight-year-old S. a sleeping pill. Although defendant offered sleeping
pills many other times, S. only sometimes took them. S. and defendant always “would
sleep in the same bed together” when S. spent the night.
Sometimes defendant gave S. massages in the bed, during which he massaged S.’s
back and legs, but not his buttocks. The massages happened two or three times a week
for three years. Over time, S. noticed that defendant made “inappropriate jokes” about
women’s bodies and “talk[ed] about sex,” “heterosexual talk.” Defendant also told S.
20 times that he wanted S. to get circumcised. He told S. that his penis would “stay small
and it would never grow to full size” if he did not get circumcised.
When the two of them watched television, they would sit next to each other and
“kind of snuggle.” Defendant frequently rubbed S.’s legs “[s]ensually,” including his
7
thighs. During a trip with two other boys, S. saw defendant pull down the sheets
covering the other two boys and take photos of them as they slept.
In the fall of 2007, one of defendant’s fellow yard duty supervisors heard S.
conversing with defendant. Defendant asked S. “ ‘Do you plan on spending the night at
my house?’ ” S. responded: “ ‘Yes, if you don’t get drunk.’ ” She reported this
conversation to the principal, who contacted child protective services (CPS).
The principal terminated defendant without giving a reason, and defendant became very
upset. He continued to come to the school to pick up S.
In 2008, S. found a “spy camera” hidden in a radio in the bathroom at defendant’s
house. The camera was aimed at the toilet and the shower, which had a clear shower
curtain. S. discovered that the camera was linked to defendant’s television. S.
considered that “it was just the last straw, where I realized that he is a pedophile.” About
two weeks later, he told his mother about the camera “and that I was pretty sure that he

7
S. denied that his trial testimony was the first time that he had used the word
“sensual.”

6
was a pedophile.” However, he did not provide her with any information about the
interactions between him and defendant. S.’s mother confronted defendant, and
defendant admitted that there was a camera in the bathroom.
S.’s relationship with defendant ended in 2008. After defendant was arrested, S.
did not want to come forward, even after the police tried to contact him, because he felt
“incredibly guilty” and did not want to talk about it. He testified at trial “under
subpoena” and did not “really want to be here.”
D. Victim T.B. (Two counts of Lewd Act (Counts 12 and 13); 2013)
T.B. was born in 2003. His mother physically abused him, beating him with
shoes, belts, and other objects. When he was two or three years old, T.B.’s mother was
giving him a bath and washed his penis with her hand in a way that made him
8
“uncomfortable.” There was nothing “sexual” about the incident. He pushed her hand
away and said “No.” T.B. developed “anger problems” arising from his mother’s
physical abuse.
While he was living with his mother, T.B. was hearing voices and “seeing things
that weren’t there.” He “would see like dead people on walls.” T.B. was half aware that
the things he was seeing and hearing were not real. In 2010 or 2011, T.B. stopped living
with his mother and went to live in a group home and then with his father and
stepmother. He did not see or hear things that were not there while he was living with his
father or thereafter. Unfortunately, his inability to control his anger made it impossible
for him to continue living with his father. His father had to call the police and have him
removed in late 2011. T.B. was placed in hospitals and mental hospitals for some time
and prescribed medications to help stabilize him. T.B.’s medications included a “mood

8
On cross-examination, T. testified that he originally thought his mother’s
touching of his penis was sexual but then realized that it was not.

7
stabilizer,” another medication “to keep me calm,” a medication for “the voices I used to
hear in my head,” and another “to help me go to sleep.”
On June 10, 2013, 10-year-old T.B. came from a mental hospital to stay at
defendant’s house as a foster placement. T.B. was not having any problems with hearing
voices or seeing things that were not real while he was at defendant’s home or when he
was at the mental hospital before going to defendant’s home. T.B. slept in the guest
room at defendant’s home, but he used the bathroom in the master bedroom because the
other upstairs bathroom was devoted to defendant’s cats’ litter box. The master bathroom
had no door, so defendant could see T.B. when he was using that bathroom.
When T.B. went to sleep in the guest bedroom, he would close the door and cover
9
himself with the blankets. However, sometimes he would wake up and find the door
open or the blankets removed. This happened three or four times. One night a few days
after he arrived at defendant’s home, about 45 minutes after he went to bed, while he was
only partway asleep, he heard the door open and felt someone sit down on the foot of his
bed and pull down his blankets. T.B. stretched his legs, and his leg hit another person’s
body. He then felt a person put a hand inside his underwear and start rubbing his penis.
Although T.B. could not see the person’s face in the dark, the only other person in the
house was defendant. The rubbing continued for three or four minutes. T.B. was afraid
to open his eyes, but he eventually opened his eyes and moved around, which caused the
person to get up, look around the room, and then leave.
A similar event happened on another night, but this time defendant looked around
T.B.’s room before he sat down on T’s bed. Defendant seemed to be mumbling, and,
when he sat on the bed, “it sounded like he was talking to someone,” though there was no

9
T. testified that in June it was hot in Santa Cruz, but “the AC was on at night, and
it got cold in the house.”

8
one else in the room besides T.B. The touching of his penis was shorter the second time
10
because T.B. moved around more quickly.
Three days after T.B. arrived at defendant’s home, a seven-day notice for change
of placement was given by either defendant or the agency that had placed T.B. in
defendant’s home. T.B. was removed from defendant’s home on June 20, 2013, after
being there for 10 days. T.B. was interviewed by CPS on August 20, 2013 and asked if
defendant had touched him. T.B. said no because he was too scared and embarrassed to
talk about it. T.B. also told his father that defendant had not touched him.
At some point, T.B. saw on the news that defendant had been arrested and charged
with sexual molestation. He started having “flashbacks” and “dreams” about defendant
molesting him. About six months later, T.B. told his social worker, a woman he trusted,
that defendant had molested him. He later made a videotaped statement to an
investigator in Modesto, and after that spoke to the prosecutor and his investigator about
the molestations.
E. Victim A. (Two counts of Lewd Act (Counts 10 and 11); 2013)
11
A. was born in 2004. A.’s mother enrolled A. in the Big Brothers Big Sisters
program, and defendant was assigned to be A.’s Big Brother in May 2013. Defendant
and nine-year-old A. met once a week, usually at defendant’s house. After a couple of
months of these visits, defendant asked if A. could spend the night at his house on
July 30, 2013. A.’s mother agreed, and A. spent that night at defendant’s house.
When A. was getting ready to go to sleep that night, defendant said he would give
A. a massage. Defendant gave A. a massage on the middle of his back over his pajamas
and the blankets. Afterwards, defendant got off the bed and tapped A.’s back and butt

10
Although T.B. thought there were one to three additional times that defendant
touched T.B.’s penis, he could not remember those events.
11
A.’s last initial is not in the record.

9
lightly. A few days later, A.’s mother learned that defendant had been “accused of doing
something he wasn’t supposed to with kids.” A.’s mother asked A. if defendant had
touched him when he spent the night, and A. confirmed that defendant had touched him.

F. Victim J.K. (Three counts of Lewd Act (Counts 1, 2, and 3); and one
count of Lewd Act on a Child of 14 or 15 (Count 5) (2008-2013)
J.K. was born in 1999. In 2008, when he was eight years old, he and his mother
were “very poor,” and his mother “was working all . . . the time.” J.K. had never met his
father. Defendant was living in the same neighborhood as J.K., and J.K. met defendant
through another young boy named “Sam” who knew defendant. When J.K. was nine or
10 years old, defendant offered to take J.K. and Sam to the Boardwalk, and they went.
Afterwards, defendant took J.K. to defendant’s house to see his snakes.
Within a month or so, defendant began paying J.K. to help him with his snakes.
J.K. started spending a lot of time at defendant’s home, watching television and eating,
and sleeping over, and defendant would also take J.K. to the movies and to “the pool.”
J.K. did not like being at his own home because his mother “was always really angry and
there wasn’t enough food.” J.K. saw defendant as “like a father figure.”
At some point early on in the relationship between J.K. and defendant, J.K.’s
mother became suspicious that defendant was “a pedophile” after she received an
anonymous telephone call, but she eventually decided that it was okay for J.K. to
continue to spend time with defendant. J.K. understood “pedophile” to mean someone
who was “sexual towards a child.”
Defendant customarily hugged J.K. when he arrived and when he left defendant’s
home. There was nothing sexual about these hugs. Defendant also hugged his friends
and relatives when they arrived and left. Defendant also had other physical contact with
J.K. Three times, when they were watching television, J.K. sat on defendant’s lap.
Defendant at times would kiss J.K. on the forehead when he left the house. J.K. had a lot

10
of back pain, and defendant often massaged J.K.’s upper back (a few times a month)
when J.K. was in middle school.
After a while, defendant began to “pressure” J.K. to spend more time at
defendant’s home and to spend the night more often. Defendant took J.K. and others on
“trips to the desert,” and he bought J.K. an iPod and a computer. When J.K. was in
eighth grade, defendant told him that he would buy him a new wetsuit if he would spend
the night once a week. Defendant controlled J.K.’s cellphone account and once cut off
J.K.’s cellphone because he was upset at J.K. Defendant told J.K. that he had $3 million,
that he would pay for J.K.’s college, and that his will would leave J.K. $1.5 million.
J.K. usually slept in the master bedroom of defendant’s home, and defendant “was
supposed to sleep downstairs.” Sometimes J.K. woke up and found defendant sleeping in
the same bed with him. J.K. told him not to do that, but it continued. About 10 times a
year, J.K. would find defendant in bed with him. A few times J.K. was awake at
3:00 a.m., and defendant gave him “a piece of a sleeping pill” and told him to take it.
In 2011, when J.K. was in sixth grade, he awoke in the middle of the night to find
defendant “trying to get my penis out of my pajama . . . pants . . . .” Defendant did not
12
actually touch J.K.’s penis. J.K. “yelled at him saying I’m leaving in the morning and
that he’s a pedophile . . . .” However, he continued his relationship with defendant. J.K.
tried to block this event out of his memory because he could not accept that he “had been
spending the night at a pedophile’s house . . . .”
In 2012, J.K. turned on a television in defendant’s bedroom and saw a camera that
was showing a toilet. Defendant saw him make this discovery and told him that he
“didn’t see anything.” J.K. stopped coming to defendant’s home for a while, but he then
resumed coming there. In late July 2013, J.K. told his doctor about defendant, and his

12
The jury deadlocked on the count associated with this conduct.

11
 13
doctor warned him to be “really careful” and be “looking out for red flags.” J.K.
understood the red flags to be “[a]bout him being a pedophile.”
In early August 2013, the day before J.K.’s 14th birthday, defendant had some
friends over to play poker. After the friends left, defendant was “acting really weird to
me” and “kind of creepy.” Defendant was not a big drinker, but that night he had had
several alcoholic drinks. Defendant told J.K. to go to bed, and J.K. did so. J.K. covered
himself with a sheet and two blankets, but he stayed awake with his eyes closed to see
“what happens.”
J.K. was still awake but with his eyes closed when, around 3:30 a.m., defendant
came into the bedroom, turned on the lights, and then moved around the bedroom for a
while. After doing so, he moved J.K.’s blanket down “to just above waist level,” and
moved J.K.’s arm off of his chest. Right after doing so, defendant got into the bed next to
J.K., pulled a sheet up over himself, and started masturbating about a foot away from J.K.
J.K. heard the sounds of defendant masturbating, looked over at defendant, and saw
defendant staring at him. J.K. jumped out of the bed, pulled down the sheet, and saw
defendant’s partially erect penis protruding from his boxers. Defendant tried to cover
himself with his hands. J.K. asked defendant what he was doing. Defendant denied
doing anything, but he stood up and a used condom fell out of his hand. J.K. ran out of
the house, went home, and immediately told his mother what had happened. J.K. told his
mother “Steve is a pedophile.”
J.K. was interviewed by law enforcement later that day. Part of his motivation for
reporting defendant’s conduct was that he knew that defendant was a “Big Brother” to A.
J.K. told law enforcement that defendant was drunk the previous night, and he explained
that he believed that “people who are pedophiles . . . repress it” and it “comes out more”

13
J.K.’s doctor testified at trial and confirmed that he had warned J.K. about
expensive gifts from an older man. He had asked J.K. if he had been sexually touched,
and J.K. had denied that he had been.

12
when “they drink.” “[H]e was acting weird cause he was drunk.” Over the next couple
14
of days, J.K. was interviewed twice more about his relationship with defendant. He told
the police what he could remember, but he said “I keep remembering more.” He did not
tell the police about the 2011 pajama incident and denied to them that there had been any
touchings before August 2013.
J.K. testified at trial that he did not tell the police about the pajama incident or the
camera incident because he “thought it would make me sound dumb, if I stayed around
there after that.” He first disclosed those incidents a week before trial, on August 4,
2016. He told the prosecutor and his investigator that he had just remembered those
incidents a month earlier. J.K. had considered filing a lawsuit against defendant “for
emotional damages.” “I deserved some money. This ruined my life.” J.K. did not know
K.C. or R.A., but he had met T.B. when T.B. was at defendant’s home. J.K. had also
seen S. once at defendant’s house.
G. Other Prosecution Evidence
Defendant’s computers were seized by the police on August 5, 2013. Condoms
were found in defendant’s bathroom. A forensic search of defendant’s computers did not
turn up any child pornography. The computers were also searched for any instance of the
word pedophile or pedophilia. J.K. had a user account on one of the computers, which
appeared to be a computer devoted to “gaming.” That computer had no mention of
pedophile or pedophilia.
The other computer had only one user account, named “Steve.” On that computer,
the forensic search turned up a Google search for “pedophiles” from March 8, 2013.
Similar searches had occurred on that computer on March 10 and March 13, 2013 for
“pedophile.” The forensic search also found four articles on that computer’s hard drive
that contained the term “pedophile.” One of the articles appeared on the hard drive on

14
These interviews were recorded and played for the jury at trial.

13
May 31, 2013. Three other articles appeared on the hard drive on July 31, 2013, and they
all concerned pedophilia. In the “unallocated space” on the computer, there were several
additional references to pedophilia. The presence of these articles and other references
showed only that someone had clicked on a link to that material. There was no indication
of whether the computer was password protected.
Ellen Buckingham, a former neighbor of defendant, testified that her son had
gotten to know defendant and had begun spending time at defendant’s home in the
mid-1980s. Her son started spending the night at defendant’s home when her son was
10 years old. Once, when defendant’s parents were visiting, defendant asked
Buckingham to masquerade as his girlfriend to “appease” his parents, who “were
concerned he didn’t have a girlfriend.” She did so. Buckingham’s son spent the night at
defendant’s home a number of times, but Buckingham eventually limited and then cut off
contact between her son and defendant because she learned that her son and defendant
were sleeping in the same bed. Defendant was angered by her restrictions, and she
15
ultimately had to get a restraining order against him.
Sibylle Peters was defendant’s friend and housecleaner. They remained friends
for 18 years, and she continued to clean his house throughout that period. They never
had a romantic relationship. Her son became friends with Charlie, and this led to her son
spending the night at defendant’s home frequently beginning sometime around 1998.
After defendant was arrested, he told Peters that he “was freaked out that he made a
mistake.” He told her that he “was drinking, and J[.K.] was on the bed already, and he
was jacking off.”

15
In 1993, 1996, and 1997, defendant violated the restraining order by harassing
Buckingham.

14
 Defendant was interviewed by the Sheriff’s Office on August 5, 2013. He was
asked if he was in a relationship, and he said he was in a relationship with Peters, though
it was “not really serious.”
II. THE DEFENSE CASE
A defense expert testified about the effects of LSD and alcohol. He opined that
LSD “distorts” memory. When LSD is combined with alcohol, “[i]t makes memories
even more questionable.” LSD can produce “false memories” while the user is under the
influence of the drug. These are largely false memories of the time spent on LSD,
including altered perceptions, though LSD could distort memories of the past at least
while the user is on LSD. When a user does not experience visual distortions, that
probably means that the dosage was low. A low dosage is less likely to distort memory.
LSD users generally are aware afterward that their altered perceptions were not accurate.
LSD does not affect the “retrieval of memor[ies]” from a time prior to the use of LSD.
Buckingham’s son, D.B., who was born in 1979, testified for the defense. D.B.
testified that he “kind of latched onto [defendant] as a father figure” when D.B. was a boy
and defendant was his neighbor. D.B. believed that his mother and defendant were
dating. D.B. continued to “hang out” with defendant even after they were no longer
neighbors. He spent the night at defendant’s home many times, and he sometimes slept
in the same bed with defendant. D.B. saw other adults, both male and female, at
defendant’s house regularly. Defendant never touched D.B. inappropriately.
Richard Martinez, who was born in 1969, testified that he met defendant when he
was 13 or 14 years old and defendant was in his 20s. Martinez frequently visited
defendant’s home in the 1980s and 1990s. Defendant never touched him inappropriately.
Martinez saw defendant less frequently after the early 1990s, and he last saw defendant in
2011. Several other boys who had spent the night at defendant’s home testified that he
had never touched them inappropriately.

15
 Leslie Karst testified that she met defendant when they were in college at the
University of California at Santa Cruz. She and defendant remained friends with each
other thereafter and with numerous other college friends. Karst had visited defendant’s
home on average about twice a month from 1990 until his arrest. She had never seen
defendant touch a child inappropriately.
III. DISCUSSION
A. Substantial Evidence
Defendant contends that there was insufficient evidence of sexual intent to support
his convictions on counts 1, 2, 3, 10, 11, 16, 17, and 18. These counts involved three of
defendant’s six victims. Counts 1, 2, and 3 were based on defendant massaging and
hugging J.K. and having J.K. sit on his lap. Counts 10 and 11 were based on defendant
massaging and tapping the bottom of A. Counts 16, 17, and 18 were based on defendant
hugging, kissing, snuggling, and massaging S. Defendant argues that there was no
evidence that he harbored a “sexual intent” when he engaged in these acts. He
acknowledges that the jury was entitled to consider “surrounding circumstances and rely
on them to draw inferences about his intent,” but he insists that there was no evidence
that he engaged in these acts “for sexual gratification.”
“Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a conviction.”
(People v. Bloom (1989) 48 Cal.3d 1194, 1208.) “[T]he standard of review that applies
to insufficient evidence claims involving circumstantial evidence is the same as the
standard of review that applies to claims involving direct evidence. ‘We “must accept
logical inferences that the jury might have drawn from the circumstantial evidence.
[Citation.]” . . . Where the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal. [Citation.]’ [Citation.]”
(People v. Manibusan (2013) 58 Cal.4th 40, 87.)

16
 The specific intent element of a lewd act offense requires proof that the defendant
touched the child “with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child . . . .” (§ 288, subd. (a).)
“[A] ‘touching’ of the victim is required, and . . . sexual gratification must be presently
intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or
nature of the offending act is not otherwise restricted. . . . [A] lewd or lascivious act can
occur through the victim’s clothing and can involve ‘any part’ of the victim’s body.”
(People v. Martinez (1995) 11 Cal.4th 434, 444.) “[A]ny touching of an underage child is
‘lewd or lascivious’ within the meaning of section 288 where it is committed for the
purpose of sexual arousal.” (Id. at p. 445.) “[T]he touching of an underage child is ‘lewd
or lascivious’ and ‘lewdly’ performed depending entirely upon the sexual motivation and
intent with which it is committed.” (Id. at p. 449.) “[T]he lewd character of an activity
cannot logically be determined separate and apart from the perpetrator’s intent. It is
common knowledge that children are routinely cuddled, disrobed, stroked, examined, and
groomed as part of a normal and healthy upbringing. On the other hand, any of these
intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending
upon the actor’s motivation, innocent or sexual, such behavior may fall within or without
the protective purposes of section 288.” (Id. at p. 450.)
Defendant argues that there was no evidence that “any single hug, any particular
massage, or any instance of a child sitting on [defendant]’s lap was done for sexual
gratification.” He asserts that “[t]here was no evidence that [defendant] was aroused
during any of the massages, hugs, or when the children were sitting on his lap. Also,
there was no evidence that [defendant] had any sexual fetish for hugging or massaging
16
children or having them sit on his lap.”

16
Defendant inaccurately claims that the prosecutor “did not dispute that many of
the massages, hugs and sitting on [defendant]’s lap were done with innocent intent or
appropriate affection of a foster parent.” In fact, the prosecutor simply conceded, after

17
 Defendant puts misplaced reliance on two elderly cases. In People v. Perkins
(1982) 129 Cal.App.3d 15 (Perkins), the defendant was convicted of both lewd act on a
child and unlawful sexual intercourse with a minor. (Id. at pp. 17-18.) He had first put
his arm around the young girl, and he later had sex with her. The court imposed a prison
term for the lewd act count and stayed under section 654 sentence for the unlawful sexual
intercourse count. (Perkins, supra, at p. 18.) On appeal, the defendant contended that he
could not suffer a “separate conviction” for the lewd act count because it was “based
upon an act which was preparatory to” the unlawful sexual intercourse. (Ibid.)
The Court of Appeal agreed with the defendant’s argument that the lewd act was “not a
separate offense from the unlawful sexual intercourse” but affirmed the judgment
because, in its view, the section 654 stay “cured” the problem. (Perkins, supra, at p. 18.)
The Perkins opinion, while not a substantial evidence case, does contain some
language that defendant cites as support for his argument that a preparatory act does not
violate section 288. However, the holding in Perkins was limited to the court’s
conclusion that the defendant could not be punished for both the section 288 offense and
the section 261.5 offense. That holding is not relevant to defendant’s substantial
evidence challenge.
The other case defendant relies on is even more elderly and no more helpful.
In People v. Webb (1958) 158 Cal.App.2d 537 (Webb), the defendant put his arm around
a young boy’s shoulder and led him into a restroom, where the defendant forced the boy
to orally copulate him. (Id. at p. 539.) He claimed on appeal that he could not be
convicted of both a lewd act count and an oral copulation count for the same act. (Id. at
p. 540.) The Attorney General argued that the two offenses were based on separate acts,
with the lewd act count being based on the defendant putting his arm around the boy’s

the trial, that “[m]any of the touchings by [defendant] could be open to interpretation.”
In other words, whether these touchings were lewd acts within the meaning of the statute
depended on the circumstantial evidence of defendant’s intent.

18
shoulder. (Id. at p. 542.) The Court of Appeal reasoned that “[r]egardless of any intent
[that] defendant might have had” when he put his arm around the boy’s shoulder, “that
act” did not come within the meaning of section 288 because it was not “lewd.” (Webb,
supra, at p. 542.) This aspect of the Webb court’s analysis plainly conflicts with the
California Supreme Court’s analysis in Martinez, several decades later, so defendant’s
reliance on it is inapt.
The circumstantial evidence that defendant had a sexual interest in young boys and
that he pursued contact with them for sexual gratification was sufficient to support a
reasonable inference that when defendant massaged, hugged, kissed, and snuggled these
boys, had a boy sit on his lap, and touched a boy’s buttocks, he did so for sexual
gratification. The jury could have reasonably drawn this inference based on evidence that
he engaged in other touchings of some of these boys and other boys under similar
circumstances with more obvious sexual intent. For instance, the fact that he had an
erection when he spooned R.A. and that he masturbated as he looked at J.K. supported a
reasonable inference that his massages, huggings, kissings, snugglings, and other
potentially innocuous conduct were sexually motivated. Defendant’s argument ignores
the fact that the jury was entitled to draw reasonable inferences from defendant’s other
more clearly sexually motivated acts. We reject his claim that the evidence was
insufficient to support the jury’s findings that he harbored the requisite intent when he
17
committed these acts.

17
While defendant alludes to other claims in the section of his brief addressing
sufficiency of the evidence, they do not merit any analysis. The California Rules of
Court require an appellant to “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible, by citation
of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B), 8.360(a).) Under the sufficiency
of the evidence heading in his opening brief, defendant mentions (but does not develop) a
claim that the prosecutor was required to make an “election” as to which specific act
formed the basis for each count and seems to suggest that a unanimity instruction might
have been required. He mentions this assertion again, this time with a subheading, in his

19
 B. Prosecutor’s Description of Sexual Intent Element
Defendant claims that the prosecutor “repeatedly misstated the law regarding the
element of the union of the act of touching and sexual intent.” He asserts that the
prosecutor improperly argued that “concurrent sexual intent” was not necessary.
The trial court accurately instructed the jury on the required union of intent and
act. “For you to find a person guilty of the crimes in this case, that person must not only
intentionally commit the prohibited act, but must do so with a specific intent and mental
state.” “The crimes charged in this case require the proof of a union or joint operation of
act and wrongful intent. [¶] For you to find a person guilty of the crimes in this case,
that person must not only intentionally commit the prohibited act, but must do so with the
specific intent and mental state.” The court told the jury that the prosecution was
required to prove that “the defendant committed the act with the intent of arousing or
appealing to or gratifying the lust, passions, or sexual desires of himself or the child.”
And the court instructed the jury: “You must follow the law as I explain it to you, even if
you disagree with it. [¶] If you believe that the attorney’s comments on the law conflict
with my instructions, you must follow my instructions.”
Defendant’s argument is based on two statements made by the prosecutor.
The prosecutor told the jury that “the touching doesn’t have to be sexual” and that
“[t]he touching itself can be set up, grooming, getting a child ready for levels of physical
contact. As long as it’s coupled with a sexual purpose, that is sufficient.”
Context matters. The two statements that defendant attacks were not inconsistent
with the trial court’s instructions, especially when we consider that these two statements
were immediately preceded by the prosecutor’s explicit acknowledgement that he was
required to prove a “combination of touch and intent.” (Italics added.) And the

reply brief, but again without developing it. It is improper to raise a new argument in a
reply brief. (People v. Taylor (2004) 119 Cal.App.4th 628, 642). Since defendant has
not properly raised these possible claims, we do not address them.

20
challenged statements were immediately followed by the prosecutor’s statement that
“[a]s long as it’s coupled with a sexual purpose, that is sufficient,” again expressly
acknowledging the “union” requirement. (Italics added.) And the prosecutor went on to
tell the jury: “That touching has to be motivated by his sexual desires. It has to be done
with the intent to appeal or gratify his desires.”
The context of the prosecutor’s remarks fully rebuts defendant’s claim that
“the prosecutor’s argument that the touching does not have to be sexual, and that a
grooming touching done in anticipation of a future sexual act violates § 288 . . . is
contrary to settled law.” Taken in context, it is clear that the prosecutor did not argue that
a touching “in anticipation of a future sexual act” would satisfy the intent requirement.
At every point, the prosecutor’s argument confirmed that the required touching and the
required intent had to be in “combination” or “coupled with” one another in order to
satisfy the statute. While the prosecutor did argue that a touching could be a “set up” for
a subsequent sexual act, he consistently told the jury that the touching and the sexual
intent were required to be “coupled,” which is consistent with the requirement that there
be a “union” of the act and the intent. Thus, the prosecutor did not misdescribe the
sexual intent element of a lewd act offense.
C. Prosecutor’s Contact with Excused Juror No. 1
Defendant argues that the prosecutor’s contact with an excused juror between the
close of evidence and closing arguments violated his constitutional rights and requires
reversal. While we agree with the trial court that the prosecutor’s conduct was improper,
we also agree with the trial court that the misconduct was not prejudicial and therefore
does not merit reversal in this case.
1. Background
Karst was a defense witness. She and defendant had been friends since they met
in college. Karst testified that defendant had remained friends with a number of men and
women from college. She also testified that defendant had lived with a girlfriend named

21
Mabel after college for a few years. After defendant and Mabel broke up, defendant was
“devastated” and “very upset.” Karst had seen defendant look at women with large
breasts. Karst testified that defendant “is definitely a hugger,” and he was known to kiss
his friends on the lips. On a trip to Palm Springs, Karst had shared a bed with defendant
even though Karst, who is a lesbian, was not romantically involved with defendant.
Karst testified that she had never seen defendant touch a child inappropriately.
A juror submitted a question to the court, apparently during Karst’s testimony.
It read: “Is Leslie K[a]rst’s wife in court today? [¶] If so has she been listening to other
witness’s testimony? [¶] Does she know the other people in the court? [¶] If so have
they spoken together?”
On cross-examination, Karst testified that she had talked to defendant and “the
defense team” about the case. She had also talked to Martinez about the case. Karst
admitted that she wanted to help defendant. She went on to have a testy exchange with
18
the prosecutor. The prosecutor asked Karst to identify her wife, and she did so. He also
elicited that her wife was in the courtroom, that her wife had been in the courtroom on
some of the days of the trial, that her wife was also a friend of defendant, and that her
wife had been listening to the testimony and taking notes. Karst insisted that her wife
had not shared with her any of the witness testimony or anything that had happened in the
courtroom, though she had told Karst who else had been in the audience.
After the close of evidence but before closing arguments, Juror No. 1 was excused
because she had an interview on the following Monday for medical school that could not
be rescheduled. When she was leaving the courtroom after being excused, the prosecutor
followed her and asked for her phone number, which she provided. He said, “he wanted

18
The trial court observed that “[t]here’s a little bit of energy here that’s probably
not healthy” and directed everyone to “take a little bit of breath right now.”

22
to talk to me about the case” and would call her later that evening to obtain her
“impressions of the trial.”
When he called her that evening, they talked for “[l]ess than an hour” about
“most” of the witnesses, focusing largely on the complaining witnesses, and her “general
opinions of them.” The prosecutor asked her “about each of the witnesses that testified at
the trial” and asked whether she “thought each witness was credible or not.” She
“answered his questions and provided him with the information he requested.”
One of the witnesses they discussed was Karst. Excused Juror No. 1 was “a little
suspicious” of Karst’s testimony because “it seemed like she had some prior knowledge
of what had gone on in the courtroom . . . .” Excused Juror No. 1 thought Karst’s wife,
who had been sitting in the courtroom, had been sharing her notes with Karst. Excused
Juror No. 1 believed Karst was biased and had been “coached.” However, excused
19
Juror No. 1 did not recall telling the prosecutor about her opinion of Karst. Excused
Juror No. 1 also texted the prosecutor to challenge defendant’s trial counsel’s suggestion
that defendant had moved the blanket off of J.K. because it was hot. Excused Juror No. 1
noted that “Santa Cruz is not hot at night even in the summer. Everyone on the jury lives
20
in Santa Cruz and knows that.”
During his closing argument, the prosecutor argued to the jury: “One juror noted
right away that Ms. Karst, quite frankly, has her own bias, motives, and agendas coming
in here. You want to talk about someone that had some honesty issues, that’s a lady that
21
was a little hard to believe. She was the only one.”

19
Defendant claims that excused Juror No. 1 told a defense investigator that she
had discussed Karst with the prosecutor. However, defendant’s citation to the record
does not support this claim.
20
However, T.B. testified that the interior of defendant’s house was cold due to
the air conditioning. (See fn. 8.)
21
The court had instructed the jury: “Nothing that the attorneys say is evidence.”

23
 One of the grounds on which defendant sought a new trial was that the
prosecutor’s contact with excused Juror No. 1 had violated his constitutional rights.
The trial court held an evidentiary hearing on this issue. At the evidentiary hearing, the
prosecutor admitted that he had found excused Juror No. 1’s “insight” “useful”:
“Absolutely it was useful.” However, “it wasn’t really like she was providing me any
direct insight into specific witnesses. . . . [I]t was a feel good conversation that she was
seeing it the same way I did.” His closing argument had already been “mostly written at
that point.” The prosecutor denied that his mention of Karst in closing argument was
based on his conversation with excused Juror No. 1. “I thought that -- as I’m trying to
remember now there was a juror question that came in about who was in the audience and
then that was how the question developed. And so I believe it came from a juror question
that noted, oh, look, Ms. [K]arst has been with this one woman the entire time. I thought
that’s where it came from.” “I think it was a juror question saying that they spotted it but
22
it was definitely not from [excused Juror No. 1].”
After the evidentiary hearing, the court found that “the contact with the excused
juror should not have occurred is indeed a violation of the Rules of Professional
Conduct.” The court nevertheless found that a new trial was not merited because excused
Juror No. 1 had no contact with other jurors and there was no “change in tactics or
strategy by the prosecutor based upon this contact.”
2. Analysis
The prosecutor’s conduct was indisputably improper. “During trial, a lawyer
connected with the case shall not communicate directly or indirectly with any juror.”
(State Bar Rules of Prof. Conduct, rule 3.5(e); see also former rule 5-320 [replaced by

22
The prosecutor testified: “My memory was it came from a juror . . . I could be
wrong.” “I could be wrong about the juror question.”

24
rule 3.5 in 2018].) “For purposes of this rule, ‘juror’ means any empaneled, discharged,
or excused juror.” (Cal. State Bar Rules of Prof. Conduct, rule 3.5(l).)
The trial court found that the prosecutor’s conduct was improper, and the parties
agree. Nevertheless, after a contested evidentiary hearing, the trial court found that the
prosecutor’s improper conduct was not prejudicial. Defendant argues that the
prosecutor’s improper conduct was structural error that is per se reversible, while the
Attorney General maintains that the improper conduct was not prejudicial.
Defendant’s structural error argument lacks merit. His reliance on Hobson v.
Wilson (D.C. Cir. 1984) 737 F.2d 1 is puzzling. In Hobson, a civil case, an excused juror
was contacted by one of the plaintiffs’ attorneys between the close of evidence and
closing arguments. (Id. at p. 46.) The excused juror provided the attorney with her
opinions about the evidence. (Ibid.) The Hobson court did not find the error to be
structural or to merit per se reversal. Indeed, the court noted “that in the case of an
excused juror, rebuttal [of a presumption of prejudice] will be more easily accomplished,
and the trial judge will find actual prejudice with less frequency.” (Id. at p. 48.)
The Hobson court upheld the trial court’s finding that the improper contact was not
prejudicial. (Id. at pp. 49-50.)
Two United States Supreme Court decisions, Mattox v. United States (1892) 146
U.S. 140 (Mattox) and Remmer v. United States (1954) 347 U.S. 227 (Remmer), informed
the Hobson court’s analysis. Mattox and Remmer both concerned improper contact
between a prosecutor in a criminal case and a sitting juror during a trial. Neither case
concluded that the error was structural or that it merited per se reversal. Instead, in both
cases, the United States Supreme Court applied a rebuttable presumption of prejudice.
“In a criminal case, any private communication, contact, or tampering directly or
indirectly, with a juror during a trial about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known
rules of the court and the instructions and directions of the court made during the trial,

25
with full knowledge of the parties. The presumption is not conclusive, but the burden
rests heavily upon the Government to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to the defendant.” (Remmer,
supra, at p. 229; accord Mattox, supra, at p. 150.)
Defendant clings to his assertion that prejudice analysis is inappropriate, and he
repeatedly claims that the prosecutor’s improper conduct violated his right to an
“impartial jury.” No case authority supports his structural error argument, and nothing in
the record supports his claim that the prosecutor’s improper conduct had any impact on
his right to an impartial jury. Excused Juror No. 1 did not serve on the jury that
convicted defendant; she was excused before closing arguments. She had already been
excused from the jury before the prosecutor contacted her, and it was undisputed that she
had not discussed the case with her fellow jurors and had no contact with the trial jurors
between her excusal and the verdicts. Consequently, we reject defendant’s claim that the
prosecutor’s improper contact with excused Juror No. 1 was structural error and denied
him his right to an impartial jury.
Defendant claims that the standard for reversal should turn on whether the contact
was “trivial,” but the very cases he cites establish that the actual standard is whether the
23
presumption of prejudice has been rebutted. (Hobson, supra, 737 F.2d at pp. 48-50;
Remmer, supra, 347 U.S. at p. 229; Mattox, supra, 146 U.S. at p. 150.) He also maintains
that we review the trial court’s ruling de novo. We question whether that is the correct
standard of review here. We ordinarily deferentially review a trial court’s credibility

23
Defendant asserts that reversal is required because the trial court failed to apply
a presumption of prejudice, but the record contains no indication that the trial court failed
to apply the appropriate standard. Indeed, the trial court expressly cited Hobson, which
applied a presumption of prejudice, when it was explaining its decision that the improper
conduct was not prejudicial. In any case, since we would reach the same conclusion
applying independent review, the trial court’s failure to expressly state that it was
applying a presumption of prejudice is of no moment.

26
determinations in ruling on a new trial motion. (People v. Stanley (2006) 39 Cal.4th 913,
951.) Here, the issue of the prosecutor’s improper contact with excused Juror No. 1 was
raised in defendant’s new trial motion and resolved after an evidentiary hearing. In any
case, we would reach the same conclusion if we applied de novo review as we reach
under a more deferential review standard.
The prosecutor’s only opportunity to act on the information he received from
excused Juror No. 1 was in making his closing arguments. The prosecutor did testify that
he found excused Juror No. 1’s comments “useful,” but he made it clear that she simply
boosted his confidence in his case, rather than providing him with any information that he
used to craft his closing arguments. The trial court credited the prosecutor’s testimony
that his closing argument reference to a juror’s assessment of Karst was not based on
excused Juror No. 1’s comments but on the juror question, and we too find the
24
prosecutor’s testimony credible because it is completely consistent with the record.
Furthermore, the credibility of Karst’s testimony was not an important issue at trial.
She was a very weak defense witness testifying about largely tangential issues. We agree
with the trial court that the prosecution rebutted the presumption of prejudice based on
the prosecutor’s improper contact with excused Juror No. 1.
D. Vouching
Defendant argues that the prosecutor committed misconduct when he “vouched in
closing argument that he had not influenced the witnesses during their unrecorded
conversations.” Defendant’s “vouching” claim is directed at a portion of the prosecutor’s
closing argument in which he was responding to defendant’s trial counsel’s closing
argument assertion that the prosecutor had “interjected himself in this case with his

24
Defendant asserts that the prosecutor’s mention of the juror question was
improper because it was not in evidence. As there was no objection to this argument and
the subject matter of Karst’s bias was fully explored during the prosecutor’s cross-
examination of her, we see no prejudicial misconduct in this regard.

27
questioning method” when he talked to the victims before trial and when he examined
them at trial. Defendant characterizes the prosecutor’s response to this assertion as
“vouching” and “testifying.”
1. Background
a. Trial Testimony
J.K. testified that he had only one meeting with anyone in the prosecutor’s office,
and that meeting was with the prosecutor and his investigator. During that meeting,
shortly before the 2016 trial, he told them about the camera and pajama incidents that he
had not told the police about during his 2013 interviews.
25
At trial, S. testified that defendant frequently rubbed S.’s legs “[s]ensually.”
On cross-examination, defendant’s trial counsel questioned him about his use of “the
term ‘sensual touch’.” He asked: “[D]id you use the term ‘sensual touch,’ having to do
with those, [the prosecutor] used it or because you thought those touchings were
sensual?” S. responded: “I thought they were.” Defendant’s trial counsel asked S:
“You never used the word ‘sensual,’ did you?” S. responded: “But that’s what they
were.” Defendant’s trial counsel asked: “And the first time you’ve used the word
sensual was after [the prosecutor] did here in court; right?” S. replied “No.”
Before trial, R.A. had never mentioned that defendant’s penis was erect during the
“spooning” incident. On direct examination, R.A. said nothing about defendant’s penis
having been erect. On cross-examination, responding to a question about whether he had
been touched by defendant during the “spooning” incident, R.A. responded: “I do
remember him being up along my back side and I felt him like somewhat eject [sic].
I did feel something poke me.” Defendant’s trial counsel asked “Somewhat erect?” R.A.

25
S. denied that his trial testimony was the first time that he had used the word
“sensual.”

28
said “Yes.” Defendant’s trial counsel proceeded to ask R.A. if he had ever said this
before. R.A. testified: “I said it when I was talking with them.” (Italics added.)
This colloquy then occurred: “Q. Oh. So was there another time that you talked
with the District Attorney which was not recorded? [¶] A. Uh-huh. [¶] Q. Is that
correct? [¶] A. One time, yes. [¶] Q. When was that? [¶] A. Last week.”
Defendant’s trial counsel then asked “did you forget to mention erect when you were
being recorded?” R.A. responded: “I could have sworn that I said that when I was
talking to them.” He admitted that the recorded interview, which was with the
prosecutor’s investigator, did not reflect a mention of “erect.” After that recorded
interview, he testified that there was an unrecorded interview “with [the prosecutor].”
On redirect, the prosecutor elicited R.A.’s testimony that he could feel defendant’s
penis when defendant was spooning him. On recross, defendant’s trial counsel asked:
“The way he just questioned you with the leading questions, is that what he did off tape?”
R.A. responded: “Yes.” On redirect, the prosecutor asked R.A. if he knew “what a
leading question is,” and R.A. responded “trying to gather information out of what I’m
saying.” R.A. testified that the prosecutor had asked “open-ended questions,” and he was
“not asking leading questions.” On further recross, R.A. testified that the memory of
feeling defendant’s penis had surfaced between the recorded and unrecorded interviews.
b. Closing Arguments
Defendant’s trial counsel made an extensive argument to the jury in which he
suggested that the victims “changed their story” “after interviews with [the prosecutor].”
“The police do an interview. And then [the prosecutor] does an interview and the story
changes from what was told to the police—without a recorder.” “[Y]ou’ll never know
what happened during those interviews . . . .” “[The prosecutor] plants a word, with a
suggestion.” “There is a pattern in this case of changing of stories after it goes from the
police to [the prosecutor].” Defendant’s trial counsel asked the jury to compare the
prosecutor’s “questioning methods” at trial to those of the police. He argued that the

29
prosecutor would have used the same type of questioning “when he is alone and there’s
no tape.” Defendant’s trial counsel asserted that “[the prosecutor] interjected himself in
this case with his questioning method.”
He applied this argument to the testimony of several of the victims. As to J.K., he
argued that J.K.’s testimony about the camera and pajama incidents was suspect because
he first revealed these incidents to the prosecutor in an unrecorded interview. He argued
that R.A.’s testimony about the erection was suspect because R.A. had “changed” his
“story” after a “private” interview with the prosecutor. He told the jury: “It changed
after meetings, unrecorded, and he then changed to he felt an erection. But what did he
originally say? ‘He didn’t molest me. He didn’t touch me. He didn’t interact with
me.’ ” As to S., defendant’s trial counsel argued at length that the prosecutor, at trial,
“introduces the term ‘sensual’ ” and “finally [S.] repeats it back one time.”
The prosecutor responded to this attack in his closing argument. “And today,
apparently, evil me with my devil horns is coming in here and playing with my lab rats --
which I apologize if anyone got that impression. That wasn’t really what I was doing in
the slightest.” The prosecutor discussed defendant’s trial counsel’s attack on T.B.’s
testimony. “The claims of influence on T[.B.], again, he is asking you to speculate about
a witness that didn’t show, that you have no evidence about any conversation, and from
that you are supposed to infer something. [¶] Here is all I do know: whatever influence
that was claimed, T[.B.] denied. There was no changing or controlling of his mind.
He didn’t become a lab rat that got manipulated. Okay? It was only when he felt
comfortable that he said anything. [¶] And the level of accuracy and honesty that he
brought to you is evident by the fact that when T[.B.] was asked, was there three or four
touchings, he backed off of that. I wasn’t in his mind. No one was pressuring him.”
Responding to defendant’s trial counsel’s attack on S.’s testimony, the prosecutor
argued: “I know he wants to blame me for the word ‘sensual touch.’ I am the one that,
again, controlled his mind and controlled your mind, and I’m going to take over the

30
universe with my evil powers.” The prosecutor argued that, if this had been the first time
S. characterized the touching that way, defendant’s trial counsel would have impeached
him on that point. “Why is he blaming me for it?” “But I guess if the law and the facts
26
aren’t on your side, it’s kind of bash me. I’m not the boogie man here on this.”
2. Analysis
Defendant argues that the prosecutor “essentially testif[ied] in closing
argument . . . that he had not improperly influenced the witnesses,” thereby vouching for
the credibility of the witnesses.
“Impermissible vouching occurs when ‘prosecutors [seek] to bolster their case
“by invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it.” [Citation.] Similarly, it is misconduct
“to suggest that evidence available to the government, but not before the jury,
corroborates the testimony of a witness.” ’ ” (People v. Linton (2013) 56 Cal.4th 1146,
1207.)
Defendant’s “vouching” argument is based on a strained and implausible reading
of the prosecutor’s remarks. We see no vouching whatsoever. The most reasonable
reading of the prosecutor’s comments is that he was referring to his direct examination of
the witnesses at trial, not to anything that had occurred at an unrecorded pretrial
27
interview. So understood, nothing the prosecutor said was improper. We reject

26
Defendant also challenges as “vouching” the prosecutor’s statement, in
discussing the camera incident: “I’m here to tell you, there is not a chance [defendant]
wouldn’t have said, ‘That camera was in my bedroom.’ No, no, no. [Defendant’s trial
counsel] literally just invented that story.” This statement was a response to defendant’s
trial counsel’s extended argument that someone other than defendant must have taken the
camera from somewhere “where it’s guarding valuables” and put it in the bathroom as “a
prank.” In this context, it is clear that the prosecutor’s comment, suggesting that
defendant would have supported that story, was not any sort of vouching.
27
Defendant seems to suggest that the prosecutor committed misconduct simply
by interviewing the witnesses without recording those interviews. He cites no rule

31
defendant’s strained and unreasonable reading of the prosecutor’s comments.
Accordingly, we reject defendant’s contention on the merits and need not address his
ineffective assistance argument.
E. R.A.’s Testimony About Defendant’s Erection During Spooning
Defendant contends that reversal is required because the prosecutor “failed to
correct known false testimony from R.[A.]” about what R.A. had told the prosecutor
during an unrecorded pretrial interview.
1. Background
Before trial, R.A. had never mentioned that defendant’s penis was erect during the
“spooning” incident. On direct examination, R.A. said nothing about defendant’s penis
having been erect. On cross-examination, R.A. testified that he felt defendant’s erect
penis during the “spooning” incident. When asked if he had ever said this before, R.A.
said: “I said it when I was talking with them.” R.A. admitted that the recorded
interview, which was with the prosecutor’s investigator, did not reflect that he had
mentioned this. R.A. testified that he had mentioned the erection during an unrecorded
interview with the prosecutor a week prior to his testimony. R.A. testified: “I could have
sworn that I said that when I was talking to them.” On redirect, the prosecutor elicited
R.A.’s testimony that he could feel defendant’s penis when defendant was spooning him.
On further recross, R.A. testified that the memory of feeling defendant’s penis had
surfaced between the recorded and unrecorded interviews. In argument to the jury, the
prosecutor mentioned R.A.’s testimony that he had felt defendant’s erect penis.
Defendant’s new trial motion asserted that either R.A. had testified falsely about
the erection or the prosecutor had failed to provide discovery of R.A.’s statement.
The prosecutor conceded that R.A. had not told him or his investigator prior to trial that

categorically barring a prosecutor from having unrecorded conversations with
prosecution witnesses.

32
 28
R.A. had felt an erection when defendant spooned him. When R.A. testified at trial
about the erection and said he had told the prosecutor about it, the prosecutor was
“surprised” because he knew R.A. had not done so. The prosecutor stated that he
“believe[d]” that he told defendant’s trial counsel after R.A.’s testimony that R.A. had
never told him that. “I have a belief that I informally discussed the matter with
[defendant’s trial counsel] at the break. I do not have a strong memory of that, and could
be wrong.” The court found that the prosecutor had not presented false testimony
because R.A.’s testimony “could have been a good faith misrecollection,” and that
testimony was elicited by the defense.
2. Analysis
Defendant, citing Napue v. Illinois (1959) 360 U.S. 264 (Napue), contends that
reversal is required due to the prosecutor’s prejudicial “failure to correct R.[A.]’s known
false testimony.”
In Napue, the primary prosecution witness in a murder case was serving a
199-year term for the same murder. This witness testified on direct examination that he
had received no promise of consideration for his testimony. This was false, and the
prosecutor, who elicited this testimony, knew that it was false. However, he did nothing
to correct this false testimony. (Napue, supra, 360 U.S. at p. 265.) The Napue court
noted that the obligation to correct false testimony applies even when the prosecution
does not elicit the false evidence and even when the evidence “goes only to the credibility
of the witness.” (Id. at p. 269.) Because the false testimony “may have had an effect on
the outcome of the trial,” the court held that reversal was required. (Id. at p. 272.)
“Under well-established principles of due process, the prosecution cannot present
evidence it knows is false and must correct any falsity of which it is aware in the

28
The prosecutor testified at the evidentiary hearing that he had talked to R.A.
once or twice before trial but did not participate in the recorded interview with R.A.,
which was conducted by his investigator.

33
evidence it presents, even if the false evidence was not intentionally submitted.”
(People v. Seaton (2001) 26 Cal.4th 598, 647.) We independently review whether such
an error was prejudicial (People v. Adams (1993) 19 Cal.App.4th 412, 427), and the
applicable standard is whether the Attorney General has established that the error was
harmless beyond a reasonable doubt (In re Jackson (1992) 3 Cal.4th 578, 597-598 &
fn. 10 (Jackson), disapproved on a different point in In re Sassounian (1995) 9 Cal.4th
535, 545; People v. Dickey (2005) 35 Cal.4th 884, 909 (Dickey)).
The Attorney General claims that any error was “forfeited” because defendant did
not object to this error as “prosecutorial misconduct” during R.A.’s testimony. The
Attorney General’s forfeiture argument is meritless. Until the prosecutor admitted in
response to defendant’s new trial motion that R.A.’s testimony was false, defendant had
no basis to object on this ground. We decline to find forfeiture. The Attorney General
then argues that no error occurred because the prosecutor did not “knowingly” fail “to
correct false evidence.” The record is to the contrary. The prosecutor conceded below
that he knew R.A.’s testimony that he had told the prosecutor prior to trial about the
erection was false.
The Attorney General attempts to distinguish Napue on the grounds that there was
no evidence that the prosecutor “knowingly offered perjured testimony.” He cites People
v. Vines (2011) 51 Cal.4th 830 for the proposition that “[m]ere inconsistencies between a
witness’s testimony and her prior statements do not prove the falsity of the testimony.”
(Id. at p. 874.) In Vines, the witness’s testimony was inconsistent with a prior statement
to a third party, so the prosecutor could not have known which of the two statements was
false. (Ibid.) Here, on the other hand, the prosecutor knew that R.A.’s statement that he
had told the prosecutor about the erection was false. The Attorney General’s reliance on
People v. Riel (2000) 22 Cal.4th 1153 is similarly misplaced. In Riel, there was a conflict
between the testimony of the witnesses, but the prosecutor “did not know whether or to
what extent Edwards might be lying at trial.” (Id. at p. 1182.) The prosecutor in this case

34
admitted that he knew that R.A. had not told him about the erection. Because the
prosecutor knew that R.A., a prosecution witness, had presented false testimony, his
failure to correct that false testimony by ensuring that the jury was informed of its falsity
29
violated defendant’s right to due process.
The remaining question is whether the Napue error was prejudicial. The Attorney
General fails to make any showing that the error was harmless beyond a reasonable doubt
because he refuses to acknowledge that this is the applicable standard. He ignores the
fact that the California Supreme Court long ago recognized that this is the applicable
standard. (Jackson, supra, 3 Cal.4th at pp. 597-598 & fn. 10.) We proceed to apply this
standard.
“[T]he beneficiary of a constitutional error [is required] to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.”
(Chapman v. California (1967) 386 U.S. 18, 24.) “To say that an error did not
‘contribute’ to the ensuing verdict is not, of course, to say that the jury was totally
unaware of that feature of the trial later held to have been erroneous.” (Yates v. Evatt
(1991) 500 U.S. 391, 403 (Yates), disapproved on another point in Estelle v. McGuire
(1991) 502 U.S. 62, 72, fn. 4.) “To say that an error did not contribute to the verdict is,
rather, to find that error unimportant in relation to everything else the jury considered on
the issue in question, as revealed in the record.” (Yates, supra, at pp. 403-404.) “[T]he
appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error.’ (Sullivan v. Louisiana (1993) 508 U.S.
275, 279, italics original.)” (People v. Quartermain (1997) 16 Cal.4th 600, 621; accord
People v. Neal (2003) 31 Cal.4th 63, 86.)

29
All that would have been required was a stipulation that R.A.’s testimony was
false.

35
 Thus, we must ask whether the jury’s verdicts were “surely unattributable” to the
prosecutor’s failure to correct R.A.’s false testimony. The Attorney General contends
that the error was harmless because defendant “had the opportunity to cross-examine and
test the witness’s credibility and did in fact do so.” The problem with this argument is
that defendant’s ability to “test the witness’s credibility” was hamstrung by R.A.’s false
testimony coupled with the prosecutor’s failure to correct R.A.’s false testimony. Had
the jury known that R’s claim to have told the prosecutor about defendant’s erection prior
to trial was false, it might have doubted the reliability of R.A.’s claim that he felt
defendant’s erection, a claim made for the first time at trial, more than a decade after the
spooning incident.
The prosecutor admitted that R.A.’s erection testimony was important evidence.
Thus, the credibility of R.A.’s erection testimony was likewise important. Like some of
the other counts, the spooning count, in the absence of the erection testimony, involved
conduct that in and of itself did not necessarily demonstrate a sexual intent. Indeed,
defendant’s defense to the spooning and other similar counts was that he was not guilty
of lewd conduct because he lacked the required sexual intent. The erection testimony
provided very strong evidence that he did in fact have the required sexual intent for the
spooning count, and it raised a reasonable inference that he harbored the same intent
when he had engaged in other similar conduct. Under these circumstances, we cannot
say that the jury’s verdicts on the spooning count and the other similar counts were surely
unattributable to the prosecutor’s failure to correct R.A.’s false testimony.
We reach a different conclusion as to five of the counts since these five counts
bore no similarity to the spooning count. The evidence of defendant’s sexual intent for
the acts upon which these five counts were based was so overt that the jury’s verdicts on
these counts were surely unattributable to the prosecutor’s failure to correct R.A.’s false
testimony. These five counts are the two counts based on defendant’s act of forcing K.C.
to orally copulate him, the two counts based on his touchings of T.B.’s penis, and the

36
count based on the final touching of J.K., which was accompanied by defendant
masturbating. As to these five counts, the Napue error was harmless beyond a reasonable
doubt because these counts were not similar to the R.A. count and proof of defendant’s
sexual intent could not have depended in any way on an inference from R.A.’s erection
testimony.
In sum, we conclude that the Napue error requires reversal of nine of the
14 counts.
F. Gifts to Victim T.B.
Defendant contends that reversal of the remaining counts is required because the
prosecutor failed to disclose to the defense that an employee of the District Attorney’s
30
office had given T.B. a laptop computer and a gift card.
1. Background
T.B. testified at an Evidence Code section 402 hearing on August 16, 2016 and at
trial on August 18, 2016. While he was in the victim-witness area of the District
Attorney’s office waiting to testify on those days, T.B. spent some of his time taking
apart and putting back together an old broken laptop. He asked if there were any games
he could play or an old laptop he could borrow to pass the time.
Brian Airoldi, a claims specialist who worked for the California Victim
Compensation Board in the District Attorney’s office, often interacted with
victim-advocates in the District Attorney’s office. He was aware that Michelle Cardinale
was T.B.’s advocate. Sylvia Nieto was the supervisor of both Airoldi and Cardinale.
Airoldi heard some of the advocates talking about T.B. and saying that T.B.’s laptop was
broken.

30
Defendant raised this issue in his new trial motion, and the trial court held an
evidentiary hearing on it.

37
 On August 16, 2016, Cardinale asked Airoldi if “we could maybe refurbish” an
old laptop computer to give to T.B. because his laptop was broken. Airoldi asked Nieto
if it was okay to do so. Both Nieto and Cardinale told Airoldi not to say anything to T.B.
or give him anything until after T.B. was done testifying. Airoldi tried to fix two old
laptops they had in the office, but those laptops turned out to be too obsolete to be
refurbished. Airoldi asked Nieto if he could give T.B. an old personal laptop, which he
had been planning to donate to charity. He also informed Cardinale of this plan.
On August 18, 2016, before T.B. was done testifying, he was told that “there was a
laptop being fixed up for me” to borrow. When T.B. was done testifying, Cardinale told
him that he “did a good job,” “helped a lot of people,” and was “helping other children.”
She told him “as long as I tell the truth, that’s the only thing that they want is for me to
tell the truth.”
After Cardinale told Airoldi that T.B. was done testifying, Airoldi gave T.B. his
old personal laptop. Airoldi had not spoken to T.B. about the laptop before Airoldi gave
T.B. the laptop. When he gave T.B. the laptop, he talked to T.B. for five to 10 minutes.
T.B. “wanted to play games on it,” so Airoldi went out and bought T.B. a $50 gift card so
he could buy games for the laptop. Airoldi gave T.B. the laptop and the gift card in the
late afternoon, and Airoldi understood that T.B. had finished testifying earlier that day.
T.B. did not know that he would be able to keep the laptop until after he was done
testifying. No one told him until he was done testifying that the laptop they were fixing
up for him to use would be for him to keep. Until then, he believed that a laptop was
being fixed up just for him to temporarily use. T.B. testified that he was “happy” to get
the laptop but “[e]ven if I didn’t get that laptop,” what mattered to him was “that I helped
people.” T.B. testified that he also received “witness fees,” less than $100, for testifying.
He did not learn of these fees until after he was done testifying.

38
 The prosecutor testified at the evidentiary hearing that he knew nothing about the
laptop given to T.B. The court found that the gifts had no impact on T.B.’s testimony
and that there had been no violation of the prosecutor’s disclosure obligation.
2. Analysis
Defendant argues that the prosecutor’s failure to disclose to the defense the gifts to
T.B. violated the prosecution’s obligation to disclose material favorable evidence to the
defense.
“[S]uppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady v.
Maryland (1963) 373 U.S. 83, 87.) “[F]avorable evidence is material, and constitutional
error results from its suppression by the government, ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.’” (Kyles v. Whitley (1995) 514 U.S. 419, 433.) “The question is not
whether the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different
result is accordingly shown when the government’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’ ” (Id. at p. 434.) Evidence is not material if
“it would have added little to the cumulative impact of the other impeachment evidence.”
(Dickey, supra, 35 Cal.4th at p. 908.)
Defendant has failed to persuade us to that evidence that T.B. was given an old
laptop and a $50 gift card after he had finished testifying would have added anything to
“the cumulative impact of the other impeachment evidence.” T.B. was impeached with
evidence that he had initially repeatedly denied that defendant had molested him,
considerable evidence that he had a history of mental health issues, including
hallucinations, his admission that he had previously suggested that his mother had

39
sexually molested him, and his admission at trial that he had a “history of lying.” The
gifts truly would have “added little to the cumulative impact of this other impeachment
evidence.”
Nevertheless, defendant claims that the gift evidence would have “provided a
selfish motive for T.[B.] to testify—for personal monetary gain.” We see no materiality
here. T.B.’s testimony was consistent with his several prior statements, made long before
he had been offered or received any gifts. Defendant does not explain how gifts that had
never been mentioned to T.B. previously and were given to T.B. on the day of his trial
testimony could have influenced his trial testimony, which was entirely consistent with
his prior statements detailing defendant’s molestation of him. We reject defendant’s
contention concerning the gifts to T.B.
G. Victim T.B.’s Fresno County Arrest
Defendant claims that reversal is required because the prosecutor failed to fully
disclose information about the circumstances surrounding T.B.’s arrest for theft, his being
charged with theft, and the dismissal of the theft charge in Fresno County the month
before T.B. testified at trial. He also contends that his trial counsel was prejudicially
deficient in failing to further investigate and present such evidence to impeach T.B.’s
testimony.
1. Background
On July 6, 2016, 13-year-old T.B. was arrested in Fresno County for stealing an
expensive purse from his foster mother’s niece. He had also stolen jewelry from his
foster mother. T.B. admitted to the police that he had taken the purse. Two days later he
was charged by a Fresno County juvenile petition with felony grand theft (§ 487,
subd. (a)). On July 25, 2016, the Fresno County juvenile court dismissed the petition at
the request of the probation department and released T.B. to a Santa Cruz County social
worker with the direction that he was to remain under dependency jurisdiction. When the
prosecutor learned before trial about the Fresno County case from a Santa Cruz County

40
social worker, he informed defendant’s trial counsel of T.B.’s “outstanding theft case” in
Fresno.
On August 16, 2016, during trial, defendant’s trial counsel told the court that T.B.
“was recently arrested and we don’t know what for and we have to look at whether or not
there is evidence that would be admissible for impeachment purposes.” The prosecutor
stated “I disclosed that to counsel” and asserted that he had offered to agree to a pretrial
continuance but had been turned down.
T.B. testified at an Evidence Code section 402 hearing on August 16, 2016, but
there were no questions about his arrest. T.B.’s trial testimony occurred on August 18,
31
2016. T.B. admitted on cross-examination that he “had a history of lying.”
Defendant’s trial counsel did not ask T.B. about his arrest.
In his new trial motion, defendant asserted that his trial counsel had been
prejudicially deficient in failing to raise issues about T.B.’s theft arrest as impeachment at
trial. The trial court found that the jury’s rejection of the other strong challenges to
T.B.’s credibility meant that trial counsel’s decision not to present the theft evidence was
32
reasonable. The court also found no evidence that T.B. had received favorable
treatment in the Fresno County case.
2. Analysis
Defendant claims that the prosecutor breached his disclosure obligations by failing
to “obtain and review” T.B.’s juvenile file and “provide the exculpatory information”
about T.B.’s “multiple recent felony thefts and lies to the police” to defendant’s trial
counsel. He acknowledges that the prosecutor informed defendant’s trial counsel of

31
Defendant’s trial counsel also tried to suggest that T.B.’s testimony had been
influenced by the prosecutor. He argued to the jury: “I asked [T.B.] what he was talking
about when he and [the prosecutor] met. And he said: ‘I’m not answering that.’ And
immediately, [the prosecutor] asked for a break, just boom, right then.”
32
No evidentiary hearing was held below on this claim.

41
T.B.’s arrest and argues that his trial counsel was prejudicially deficient in failing to
investigate further and use this information to impeach T.B. at trial.
Defendant ignores the fact that the prosecutor could not have disclosed
information in a juvenile file to the defense. The prosecutor acknowledged in his
declaration below that he was “concerned that I might not be authorized to disclose” even
the information that T.B. had been arrested, but he disclosed that information because he
knew it was potential impeachment evidence. Juvenile case files are protected from
disclosure by Welfare and Institutions Code section 827 and may be disclosed only if a
petition for disclosure is granted. (Welf. & Inst. Code, § 827, subds. (a)(1)(Q), (a)(4),
(e).) Thus, the prosecutor could not have disclosed anything further to the defense.
(People v. Stewart (2020) 55 Cal.App.5th 755, 773, 776.) Instead, the prosecutor
fulfilled his obligation by informing defendant’s trial counsel of the existence of the
impeachment evidence. “[T]he government’s Brady obligations with respect to juvenile
records are satisfied if the prosecutor informs the defendant that there is Brady material in
the relevant files and the defense can then avail itself of juvenile court review of the
relevant files under section 827 to identify and turn over to the defense any exculpatory
or impeachment material.” (Id. at p. 774.) By telling defendant’s trial counsel of T.B.’s
arrest and offering to stipulate to a continuance, the prosecutor complied with his
disclosure obligations. (Id. at pp. 774-776)
Defendant also claims that his trial counsel was prejudicially deficient in failing to
further investigate and use T.B.’s arrest to impeach T.B.’s testimony. “To succeed on an
appellate claim of ineffective assistance, a defendant must establish that his trial
counsel’s performance was deficient and that his defense was prejudiced by the
deficiency. [Citations.] ‘The defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ [Citation.] Whenever counsel’s conduct can be reasonably attributed to sound
strategy, a reviewing court will presume that the conduct was the result of a competent

42
tactical decision, and the defendant must overcome that presumption to establish
ineffective assistance. [Citation.]” (People v. Fromuth (2016) 2 Cal.App.5th 91, 113.)
“It is not deficient performance for a criminal defendant’s counsel to make a reasonable
tactical choice.” (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
The record in this case does not establish that it was an unreasonable strategic
choice for defendant’s trial counsel to decide not to pursue further investigation of T.B.’s
arrest for theft. Defendant’s trial counsel chose to concentrate his impeachment of T.B.’s
testimony on T.B.’s history of lying and hallucinations. Evidence that 13-year-old T.B.
had stolen from his foster mother and her niece would not have added anything of
significance to this impeachment. For the same reason, defendant cannot establish that
his trial counsel’s choice was prejudicial. Our confidence in the outcome is not shaken
by the absence of this impeachment evidence, which was minor in comparison to the
other evidence used to impeach T.B.
H. References to Defendant’s Relationships
Defendant asserts that the prosecutor erroneously argued that defendant was
sexually attracted to children because he lacked any “heterosexual relationships.”
He argues that linking his sexual orientation to his motivation to commit the charged
offenses was federal constitutional error. Defendant claims that his trial counsel was
prejudicially deficient in failing to object to these arguments.
The problem with this argument is that the prosecutor did not target defendant’s
lack of “heterosexual relationships” or link defendant’s intent to his “sexual orientation.”
(Italics added.) Instead, from the very start, in the prosecutor’s opening statement, it was
clear that the prosecutor was actually highlighting defendant’s lack of “any kind of
significant adult relationship.” (Italics added.) When the prosecutor questioned
witnesses, he asked if defendant had “an intimate partner relationship with a man or a
woman.” (Italics added.) He asked witnesses if defendant had “any consistent adult
company” or “an adult relationship,” “male or female.” (Italics added.) He asked

43
whether a neighbor had seen “a romantic adult girlfriend” or “a romantic adult male
partner” regularly visiting defendant at his home. The prosecutor questioned defendant’s
adopted son, Charlie, about whether defendant had been “in a dating relationship” with
“any man” or “any woman” or “any kind of adult romantic relationship” during the
22 years Charlie had known defendant. The prosecutor never suggested that defendant’s
lack of “heterosexual” relationships was at issue or that his sexual orientation was
relevant. He directed his attention only to defendant’s lack of any male or female adult
33
romantic relationship.
The only times that the prosecutor mentioned “heterosexual” relationships was
when he argued that defendant had expressly represented himself to the parents of the
children as “a heterosexual male” and to the police by claiming that Peters was his
girlfriend. “Of course, there’s lies about his heterosexuality. . . . ” “Literally from the
word go with the police, he’s ready to use the same lies of I have a heterosexual
background. I’m heterosexual. I like women. Your belief that I like boys is just
unfounded.” Except for those specific references to defendant’s explicit claims that he
was heterosexual, the prosecutor limited his argument to defendant’s lack of “an adult
male or female relationship in, like 25 years.” (Italics added.) “[A] consistent
pattern . . . since 1985” of “[n]o adult relationships.” (Italics added.)
Defendant’s argument founders on the lack of record support for his claim that the
prosecutor targeted his sexual orientation. The prosecutor’s questioning and argument
were addressed to defendant’s lack of any male or female adult sexual relationships.
Defendant does not suggest that the prosecutor was not permitted to address defendant’s
lack of any adult sexual relationships. Nor does he explain why it would be improper for
the prosecutor to highlight defendant’s repeated false representations that he had been or

33
Defendant’s trial counsel followed suit by asking one of defendant’s friends if
he had ever been aware of defendant having “a girlfriend or boyfriend.”

44
was currently involved in adult heterosexual relationships. These arguments were aimed
at the motivation for defendant’s lies, not at defendant’s sexual orientation. Since
defendant has failed to show that the prosecutor engaged in any impropriety in this
regard, defendant’s trial counsel’s failure to object was not a deficiency.
I. Use of the Word Pedophile
Defendant claims that “the prosecutor erred by eliciting inadmissible lay
testimony opining that [defendant] was a ‘pedophile,’ after the trial court
had excluded such evidence and after the prosecutor had assured the court
that he would caution witnesses not to use such language.” He asserts that his trial
counsel was prejudicially deficient in failing to object to the “pedophile” references.
1. Background
Defendant sought an in limine ruling that “the use of the term pedophile should be
excluded” under Evidence Code section 352. The prosecutor brought an in limine motion
concerning two parents who allegedly tried to stop defendant from seeing their children.
Defendant’s trial counsel responded: “The only thing I’m concerned with is the
inflammatory language. These people use inflammatory language. You know, they love
the pedophile word ever since everything was used in the newspaper. I would just think
that -- your observations I have no problem. I don’t know if he’s attempting to introduce
them as negative character or not.” The prosecutor responded: “In direct examination
I was never intending for them to use the word pedophile or elicit their, quote, opinions
about [defendant]’s interest in boys in general.”
The court stated: “I mean I agree with [defendant’s trial counsel]. I don’t think
there should be inflammatory material in terms of people [using] the term pedophilia or
pedophile. I am concerned about lay opinion testimony.” Defendant’s trial counsel
expressed concern that the parents be limited to “facts.” “Her [(one of the parents’)]
rational[e] I think we are going down a slippery slope because they might not use the
word pedophile but he is a sicko. That’s another one that they use.” The court

45
responded: “Well, I don’t want to hear anything like that and I don’t think [the
prosecutor] would ever elicit that and I think -- well, I know [the prosecutor] is going to
advise these witnesses not to use information like that.” The prosecutor affirmed “I have
by the way.”
After a lengthy discussion about proposed testimony by Buckingham, the court
ruled: “There’s going to be no inflammatory lay opinion. There’s going to be no
reference to pedophilia or being a pedophile. She’s going to be able to testify that I had a
concern. If counsel want to work out a different verb for that or a different noun for that,
that’s fine, but I’m concerned about the manner in which [defendant] showed interest in
my child. She then is going to be able to testify as to what she did and as to the response
by [defendant]. That’s Ms. Buckingham.” The trial court voiced concern about the
scope of testimony by parents of children who were not alleged to have been molested,
and the prosecutor responded: “I’ve read a lot of [defendant’s trial counsel]’s motions
about don’t call people pedophiles and I’m not going to -- that’s not what’s happening
here. I’m going to keep the game -- I’m sorry keep the testimony of them very simple.”
The court made clear that this discussion concerned Buckingham and
“Ms. Davis.” The court stated: “[T]here is a concern as to testimony of a conclusionary
nature as to pedophilia, pedophile. We’re not going to have that type of inflammatory
information.” Later, in connection with a group of witnesses who were going to testify
about their observations of defendant at the Chaminade pool, the court said: “I don’t
think it’s appropriate for a witness to use a term like he preyed on someone. I think that’s
improperly conclusionary and inflammatory in nature.”
Some pedophile references occurred at trial, but defendant’s trial counsel did not
object to any of them. Defendant sought a new trial based on pedophile references. He
submitted his trial counsel’s declaration in support of his motion. Defendant’s trial
counsel declared that he understood that the court and the prosecutor had agreed that no
pedophile references would occur after he brought his in limine motion. He asserted that

46
he had no strategic reason for limiting his request to Buckingham and Davis.
Defendant’s trial counsel declared that he believed that his in limine motion was adequate
to preserve his objection. He claimed that he had no strategic reason for failing to object
to the pedophile references.
The trial court rejected this claim. It found that “part of the defense strategy was
to allow witnesses to offer testimony and to then attempt to undermine what may have
been perceived as over reactions or non meritorious concerns by those witnesses.”
2. Analysis
Defendant asserts that the prosecutor “repeatedly elicited” lay opinion testimony
that defendant was a pedophile. The only pedophile references he identifies as the
foundation for this claim are a few references in testimony by S. and S.’s mother, none of
34
which were objected to by defendant’s trial counsel.
S. used the word “pedophile” three times. He testified that after he found the
camera in the bathroom “it was just the last straw, where I realized that he is a
pedophile.” About two weeks later, he told his mother about the camera “and that I was
pretty sure that he was a pedophile.” S. also testified that he felt “guilt” for getting his
friends involved with defendant “once I realized that he was pedophile.” None of the
prosecutor’s questions sought any opinion testimony from S.

34
The word “pedophile” could not have been banished from this trial because it
was relevant to issues about the searches on defendant’s computer. The prosecutor
asserted in his opening statement, without objection, that between March and August
2013, defendant “is searching on his computer for the term pedophile.” “He is searching
the term pedophile. He’s actually going to self help sites searching pedophile. He is
looking at articles talking about the treatment of pedophilia.” The defense claimed that
these searches had been done by someone other than defendant. Hence, the defense was
motivated to show that other people who had been in defendant’s home used the term
“pedophile.” This explains why defendant’s trial counsel elicited multiple pedophile
references during his cross-examination of J.K., including that J.K. thought “[defendant]
was repressing he was a pedophile.”

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 After these three references, the prosecutor asked S.: “You’ve been using the
word ‘pedophile.’ You felt violated about it. Why not just go to the police and say,
‘This is it’?” S. explained that he was “under so much mental stress” and “wanted to kill
myself,” and he “couldn’t deal with it at the time.” Since it was clear that S.’s pedophile
references were not opinion testimony but simply his means of describing his experience
of being abused by defendant, we can see no basis for finding that defendant’s failure to
object to these references was either deficient or prejudicial. No reasonable juror would
have taken S.’s pedophile references to reflect an opinion on defendant’s status rather
than as a factual description of S.’s personal experiences with defendant.
S.’s mother also used the word pedophile several times in her testimony. When
the prosecutor was asking her about her confrontation with defendant, he inquired
whether she had asked defendant if he was sleeping in the same bed as S. She replied:
“I don’t think I actually came out and said that. Then the whole thing came up, that I was
concerned that maybe [defendant] was a pedophile and I asked him point blank to his
face, ‘Should I call the police? Should I be worried about this?’ ” She testified that
defendant “looked at me straight in the eye and said, ‘If you feel that that’s what you
need to do.’ ” None of the prosecutor’s questions sought opinion testimony. After this
testimony, the prosecutor asked her: “He denied being a pedophile; right?” S.’s mother
said “Of course.” The prosecutor then asked her about her discussions with S. around the
same time. She testified that she was concerned that “maybe I’m overreacting. I’m not a
pedophile, so . . . I’m just kind of confused by the whole thing . . . .” She wanted to find
out from S. whether S. “ ‘want[ed] to go back and hang with [defendant].’ ” S.’s mother
testified that she was concerned about “whether or not [defendant] is a pedophile or was a
pedophile. I was confused about what to do.” Again, none of the prosecutor’s questions
sought opinion testimony.
We can see no basis for a finding that defendant’s trial counsel was prejudicially
deficient in failing to object to these pedophile references. This was not lay opinion

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testimony. S.’s mother did not express the opinion that defendant was a pedophile.
She instead testified only about her concerns based on what she had been told by S.
No reasonable juror would have understood this testimony to express S.’s mother’s
opinion that defendant was a pedophile, since she expressly stated that she did not know
whether he was or was not.
We reject defendant’s claim that his trial counsel was prejudicially deficient in
failing to object to these pedophile references. We also reject his argument that the
prosecutor acted improperly, as none of his questions sought such references or any
opinion testimony from either S. or S.’s mother.
J. Timing of the Release of The Borrowers Movie
Defendant contends that his trial counsel was prejudicially deficient because he
failed to present evidence at trial that the movie The Borrowers was not released until
February 1998, though K.C. testified that defendant abused him in 1997 after they went
to see The Borrowers movie.
1. Background
K.C. testified at trial that, when K.C. was eight years old and in third grade, he
went with Charlie and defendant to “see a movie that had just come out called The
Borrowers.” At trial, K.C. accurately described the plot of the Borrowers. During cross-
examination of K.C., defendant’s trial counsel asked K.C. if he had been in third grade
“in ’97, ’98 or ’96, ’97?” K.C. responded: “I don’t know.” Defendant’s trial counsel
then asked: “Did The Borrowers come out after that, after the time you claimed you were
molested?” K.C. responded: “We saw the movie before the incident.” K.C.’s mother
testified that K.C. was eight or nine years old at the time that he interacted with
defendant. K.C. was nine years old in February 1998.
Defendant’s trial counsel mounted a strong attack on K.C.’s testimony. He
presented evidence intended to show that K.C.’s LSD consumption when he first
disclosed the molestation could have altered K.C.’s memories. He pointed out that K.C.

49
had not told the police about his LSD use initially, and that K.C. had drunk hard alcohol
on several of the occasions when he disclosed the molestations. Defendant’s trial counsel
adduced testimony that K.C. had told his friend, when he first disclosed the molestation,
that the molester was a neighbor, but defendant was not K.C.’s neighbor. Charlie
testified that he had never known K.C. or been to a movie with him. Defendant’s trial
counsel adduced a great deal of testimony aimed at establishing that K.C.’s description of
defendant’s house and of how he came to know Charlie were inaccurate. And he
highlighted the inconsistency between the nature of the acts described by K.C. and the
nature of the acts described by the other victims.
Defendant’s new trial motion asserted that the movie The Borrowers was not
released in the United States until February 1998, and it was not shown in Santa Cruz
until February 1998. The court found that evidence of the release date of the movie
would not have made any difference because K.C.’s testimony had been “thoroughly and
consistently attacked.”
2. Analysis
Defendant concedes that his trial counsel made a strategic decision not to present
this evidence. He claims only that this decision was “unsound.” We disagree.
Defendant’s trial counsel could have reasonably decided that diverting jury
attention to this minor timing misrecollection would detract from his other more
substantive attacks on the reliability of K.C.’s testimony based on the impact of K.C.’s
LSD and alcohol use on the accuracy of his memories, his friend’s recollection that K.C.
described the molester as his neighbor, Charlie’s testimony that he had never known
K.C., and defense allegations that K.C. had inaccurately described the location of the
molestation. Defendant’s trial counsel could have concluded that evidence of K.C.’s
misrecollection of the precise timing 18 years after the event was trivial and unworthy of
presentation to the jury.

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 Defendant makes much of the fact that the information charged that the K.C.
counts occurred in 1997. The information actually charged that these counts occurred
“[o]n or about or between 01/01/1997 and 12/31/1997.” (Italics added.) “ ‘The law is
clear that, when it is charged that an offense was committed “on or about” a named date,
the exact date need not be proved unless the time “is a material ingredient in the offense”
(Pen. Code, § 955), and the evidence is not insufficient merely because it shows that the
offense was committed on another date.’” (People v. Garcia (2016) 247 Cal.App.4th
1013, 1022.) Here, the “on or about” charging did not require the prosecution to prove
that the K.C. counts actually occurred in 1997, rather than a couple of months later.
We reject defendant’s contention.
K. Instruction on Eyewitness Certainty
Defendant contends that the trial court prejudicially erred when it instructed the
jury that “[i]n evaluating identification testimony” it should “consider” “[h]ow certain
was the witness when he or she made the identification.” Although he claims that this
instruction was prejudicial as to the K.C., T.B., and J.K. counts, he does not identify any
testimony by K.C., T.B., or J.K. concerning “[h]ow certain” they were of their
identification of defendant as their molester. Thus, even assuming that this instruction
was erroneous, it had no application to the testimony in this case, so it could not have
been prejudicial to defendant.
L. Cumulative Prejudice
Defendant claims that we should reverse due to cumulative prejudice. However,
except for the Napue error that requires reversal of nine counts, we have found no other
significant errors that caused any prejudice. Consequently, we reject his cumulative
prejudice argument.
M. Failure to Instruct on Multiple Victims Circumstance
Defendant contends that the jury’s finding on the multiple victims circumstance
must be reversed because the trial court failed to instruct on it.

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 1. Background
CALCRIM No. 3181 is the pattern instruction that addresses a charged multiple
victims circumstance allegation: “If you find the defendant guilty of two or more sex
offenses, as charged in Counts ___, you must then decide whether the People have
proved the additional allegation that those crimes were committed against more than one
victim in this case. [¶] The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find that this
allegation has not been proved.” (CALCRIM No. 3181.)
The trial court did not instruct the jury with CALCRIM No. 3181 or give any other
instruction on the multiple victims circumstance allegation. Nevertheless, the jury
returned a verdict form on the multiple victims circumstance: “We, the jury in the
above-entitled case, having found the defendant guilty of felony offenses in violation of
Penal Code section section [sic] 288 subdivision (a), as described in Penal Code section
667.61 (c) , find the special allegation that the defendant committed an offense against
more than one victim, to be TRUE pursuant to Penal Code Section 667.61 (b) (c) (e).”
In his new trial motion, defendant challenged the multiple victims circumstance on
the ground that the court had failed to instruct on it, but the court found the error
harmless. It concluded: “The jury understood that there were a series of verdicts that
they had to evaluate separate and distinct from each other. The jury understood that the
verdicts were separately laid out regarding each of the complaining witnesses. The jury
came to a conclusion that there were multiple victims involved in the series of events that
they were presented with. The jury was instructed that the burden of proof regarding all
aspects and assertions by the People was beyond a reasonable doubt. So from the Court’s
perspective I don’t see an issue that presents traction for purposes of a new trial . . . .”
“[T]he jury clearly filled out various verdict forms which describe each alleged victim by
name. There was no confusion as to the jury’s findings regarding multiple victims.”
“[T]his Court finds that it was harmless error pursuant to the Jones and Marshall

52
opinions. The jury knew of allegations involving several alleged victims and received
verdicts including each victim by name. The jury clearly understood the number of
victims and came to clear unambiguous verdicts.”
2. Analysis
Defendant contends that the court’s failure to instruct on the multiple victims
circumstance was a “structural” error that requires reversal per se. Yet he identifies no
basis for deeming this instructional error structural. The multiple victims circumstance
was properly charged, and the jury returned a proper verdict on it. The verdict form itself
required the jury to make precisely the findings that the instruction would have required it
to make. We can see no basis for finding the error structural.
He argues that even if the error is subject to harmless error review it was
prejudicial because some of the counts related to pre-September 2006 conduct. The only
count that we are not ordering vacated due to the Napue error that relates to
35
pre-September 2006 conduct is the section 288 K.C. count. Defendant separately
contends that the multiple victims circumstance finding was invalid as to that count
because section 667.61 was amended in September 2006. We address that contention in
the next section of the opinion. He makes no other claim that the trial court’s
instructional error was prejudicial, and we conclude that it was not. The very simple
instruction omitted by the trial court would not have required the jury to do anything
more than the verdict form required it to do. The trial court’s error was harmless beyond
a reasonable doubt.

35
The other K.C. count was an aggravated sexual assault on a child count, not a
section 288 count, and the multiple victims circumstance did not apply to it.

53
 N. Ex Post Facto
Defendant claims that the multiple victims circumstance violated ex post facto as
to counts that charged acts that occurred prior to September 20, 2006. The only
36
remaining count that meets this description is the section 288 K.C. count.
In 1998, section 667.61 applied to “[a] violation of subdivision (a) of Section 288,
unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”
(Stats. 1997, ch. 817, § 6.) At that time, section 1203.066 barred probation for “[a]
person who is convicted of violating Section 288 or 288.5 when the act is committed by
the use of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.” (Stats. 1997, ch. 817, § 13.) And section
1203.066, subdivision (c) did not provide for any exception to that probation bar. (Stats.
1997, ch. 817, § 13.)
Here, the jury convicted defendant of the aggravated sexual assault K.C. count.
The instructions on that count required the jury to find that defendant had committed the
act “by force, fear or threats.” Since the aggravated sexual assault count and the lewd act
count on K.C. were based on the same act, the jury’s verdict on the aggravated sexual
assault count precluded defendant from having qualified for probation under former
section 1203.066, subdivision (c). Consequently, the multiple victims circumstance
properly applied to the lewd act K.C. count. We reject defendant’s contention.
IV. DISPOSITION
The judgment is reversed. On remand, the court shall vacate the jury’s verdicts on
counts 1, 2, 3, 10, 11, 16, 17, 18, and 20, and it shall permit the prosecutor to elect
whether to retry defendant on those counts. If the prosecutor declines to retry those
counts, the trial court shall resentence defendant on counts 5, 7, 9, 12, and 13.

36
The T.B. and J.K. counts that survive our reversal occurred in 2016.

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 _______________________________
ELIA, J.

WE CONCUR:

_____________________________
GREENWOOD, P.J.

_____________________________
BAMATTRE-MANOUKIAN, J.

People v. Weissman
H045863