People v. Tran CA4/3

Filed 1/11/22 P. v. Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059232

v. (Super. Ct. No. 19WF1734)

PHUC MINH QUYEN TRAN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Kathleen
E. Roberts, Judge. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, and Quisteen
S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
 In the early morning hours, just minutes after J.E.’s boyfriend left for work,
Phuc Minh Quyen Tran entered J.E.’s home, made his way to her room, and climbed into
bed with her. Believing it was her boyfriend, J.E. did not resist Tran as he kissed her and
digitally penetrated her. Tran fled once J.E. realized it was not her boyfriend in bed with
her and she started screaming. Tran left behind his jacket and an iced tea bottle.
Although J.E. was unable to identify her attacker, forensic analysis of the jacket and
bottle produced a male DNA profile matching Tran’s.
A jury convicted Tran of assault with the intent to commit forcible sexual
penetration during the commission of a first degree burglary. (Pen. Code, § 220, subd.
(b).) 1 In his appeal, Tran contends (1) the evidence was insufficient to prove he intended
to commit forcible sexual penetration, (2) the evidence was insufficient to support the
jury’s finding he entered the house with the intent to commit forcible sexual penetration
or any felony, (3) the court misinstructed the jury on an element of burglary, (4) the court
erroneously denied his new trial motion, in which he argued testimony concerning the
DNA evidence violated his constitutional right to confront witnesses because the witness
was a technical reviewer and did not actually perform the DNA testing, and (5) the court
should have granted his new trial motion on the ground the prosecutor committed
misconduct during closing argument. We find no error and affirm the judgment.
FACTS
I. Substantive Facts
A. Prosecution Evidence
J.E. lived in a four-bedroom house with her boyfriend (Boyfriend), his
father (Father), Boyfriend’s sister (Sister), and Boyfriend’s nephew. J.E. and Boyfriend
slept in one bedroom of the house, while Father and Sister had their own separate
bedrooms.

1 All further statutory references are to the Penal Code, unless otherwise
indicated.

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 Boyfriend typically woke up around 3:45 a.m. because he had to be at work
by 4:30 or 5:00 a.m. Sometimes J.E. would wake up with him, but most mornings, she
stayed in bed sleeping or trying to sleep. Boyfriend had a morning routine he usually
followed. After getting dressed and ready to go to work, he would get back into bed with
J.E. and lay down for a few minutes. He would cuddle with her and try to get a couple
more minutes of sleep. Before leaving, he would caress J.E. and say goodbye.
On Thanksgiving Day 2018, the family celebrated the holiday at home with
friends. Father’s girlfriend spent the night at the house, as did Sister’s boyfriend. The
next morning, Boyfriend got up around 3:45 or 4:00 a.m. to get ready for work. While he
was getting ready, he did not see anyone else up in the house.
Around 4:30 a.m., Father heard Boyfriend moving about the house. Father
went to the kitchen to get some coffee and leftover pumpkin pie. He saw Boyfriend walk
back toward J.E.’s bedroom. Father returned to his bedroom with his coffee and pie.
Later, he heard the front door close and assumed it was Boyfriend leaving.
J.E. was asleep when someone came into her bedroom. She woke up and
saw a figure standing at the corner of her bed. The bedroom light was off. She assumed
it was her boyfriend looking for his keys or wallet. She got up to help but laid back down
when he just stood there and did not say anything.
J.E., who sleeps naked, laid down on her left side under the covers. Tran
got into the bed laying on his right side and facing her. He kissed her “aggressively” by
sticking his tongue in her mouth. Beginning at her shoulder, he ran his hand down her
body and digitally penetrated her.
When Tran got into the bed, J.E. thought it was Boyfriend. She caressed
his face and ran her fingers through his hair as she often did. But the hair and face felt
different. J.E. noticed the hair was gelled and combed to the side, unlike the way her
boyfriend wore his hair to work. The kiss felt different too.

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 When Tran moved down to orally copulate her, J.E. grabbed his head and
asked what he was doing. As J.E. tried to pull his face toward her, Tran pulled away.
When she tried to feel his face to determine if it was her boyfriend, Tran pulled away.
She asked, “‘Is this you?’” a couple of times but did not receive a response. She then
asked, “‘Who is this?’” Tran replied, “‘I’m your baby daddy.’” Hearing his voice, J.E.
knew it was not Boyfriend. Her utterances of “‘No, no, no, no’” grew increasingly louder
until she was screaming “at the top of [her] lungs.”
Tran got out of the bed and was standing next to it. J.E. grabbed him. She
had ahold of his jacket and was trying to keep him there long enough for someone in the
house to come help her. The two wrestled as Tran tried to get away. Shedding his
jacket, Tran escaped J.E.’s grasp and ran down the hallway. J.E. gave chase. Tran ran
out of the house through the open front door and down the street. J.E. stopped at the
front door because she was unclothed.
Father and his girlfriend were eating leftovers in his bedroom and watching
the news when they heard J.E. screaming and the thumping of feet running down the
hallway. J.E.’s screams roused everyone in the house, and they came running out of their
bedrooms to see what was wrong. When Sister came out of her room, she saw J.E.
running through the living room toward the front door but did not see whom J.E. was
chasing. J.E. was in the living room, screaming hysterically when Father saw her. He
asked what was wrong, but she did not respond. Sister’s boyfriend and Father ran out of
the house not knowing who they were looking for, but regardless, they did not see anyone
in the dark. J.E. got dressed. Sister called 911 and reported J.E. had been sexually
assaulted. J.E. told the dispatcher the man was White or possibly Asian and in his 20’s or
30’s. J.E. called Boyfriend, and he returned home.
The police received the call around 5:00 a.m. and arrived within a few
minutes. J.E. described her assailant as being between five and one-half feet to six feet

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tall, having a regular build, and strong. Police officers canvassed the neighborhood for
suspects or witnesses but found neither.
Boyfriend told the responding officers he left for work about 4:35 a.m. that
morning, leaving through the kitchen door, and locking it as he left. The front door was
closed but he was not sure if it was locked.
The police collected evidence from J.E.’s bedroom, including the jacket
from the floor and the bedding. They also collected a bottle of iced tea found on the
stairs leading to J.E.’s bedroom, which had not been there when J.E. went to bed the
night before or when her boyfriend got up in the morning. The interior and exterior
doorknobs to J.E.’s bedroom were swabbed for DNA. Later that morning, a nurse
performed a sexual assault examination of J.E. and collected swabs for DNA analysis.
The iced tea bottle, jacket, and swabs taken during J.E.’s sexual assault
examination were sent to the Orange County Crime Lab (OCCL) for forensic testing.
The iced tea bottle was fingerprinted and swabbed for DNA. A forensic specialist
collected one DNA swab from the bottle’s exterior and another from the mouth of the
bottle and interior of the bottle’s cap. The two swabs from the bottle were analyzed, and
the DNA profile from the mouth of the bottle matched Tran’s DNA profile.
The jacket’s interior collar was also swabbed for DNA. Forensic analysis
found a DNA mixture that had two main contributors—J.E. and Tran. There was also
low level or trace DNA, possibly from two contributors but it was at a level the lab found
inconclusive.
In February 2019, Detective Daniel Flynn was informed of a match in a
DNA database between Tran’s DNA profile and the DNA profile obtained from the items
of evidence. Flynn contacted J.E. and Boyfriend to see if they knew Tran but neither did.
J.E. was shown a photographic lineup that included Tran’s photo, but she was unable to
identify anyone.

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 During their investigation, the police learned Tran worked at a construction
site near J.E.’s house. Tran’s physical appearance was generally consistent with J.E.’s
description of her attacker as Tran wore his hair in the same fashion and he was five feet,
six inches tall and weighed 135 pounds. A police sergeant arrested Tran outside his
residence in July 2019.
B. Defense Evidence
Tran testified in his own defense and denied committing the offense. He
did not know J.E. but lived near her home and often worked at a nearby construction site.
He did not have a car so he would walk to work or get a ride from coworkers. To get to
work, he usually left his house around 7:15 a.m.; he never left before 5:00 a.m.
Tran admitted the jacket recovered from J.E.’s bedroom was his. He had
lost this jacket at the construction site a few weeks before J.E. was attacked. Tran had
worn the jacket to work and taken it off when he got hot. He left the jacket at the work
site that evening, and when he returned the next day, it was gone. As for the iced tea
bottle, it could have also come from the construction site. Tran drank lots of fluids while
at work, including iced tea. He had forgotten food and beverage containers at work, and
they were gone the next day.
Corporal Jeremy Fletcher responded to the 911 call at J.E.’s house and
canvassed the neighborhood for possible suspects. J.E. suspected her assailant might
have been a young Asian male who lived in the neighborhood (not Tran). Fletcher and
two other officers attempted to contact this individual at his home, but no one answered
when they knocked. Fletcher did not make any further efforts to locate this suspect.
However, Fletcher did locate a surveillance camera at a house down the street from
J.E.’s, and he viewed the footage from that morning. The video did not capture anyone
walking by but showed one vehicle driving past.

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II. Procedural Facts
A jury convicted Tran of the single charge of assault with the intent to
commit a violation of section 289 (sexual penetration) during the commission of a first
degree burglary. (§ 220, subd. (b).) Tran subsequently filed two motions for a new trial,
and the trial court denied both.2 The court sentenced Tran to prison for life with parole
eligibility after a minimum of seven years.
DISCUSSION
I. Sufficiency of the Evidence Claims
Tran contends the evidence was insufficient to support his conviction for
assault with the intent to commit forcible sexual penetration in the commission of first
degree burglary. Specifically, he asserts the evidence was insufficient to support the
jury’s findings he (1) intended to commit forcible sexual penetration, and (2) entered the
residence with the intent to commit forcible sexual penetration or any felony. We
disagree.
A. Applicable Law
1. Standard for Evaluating the Sufficiency of the Evidence
“In evaluating whether the judgment is supported by substantial evidence,
we review the entire record in the light most favorable to the judgment, presume in
support of the judgment every fact that can reasonably be deduced from the evidence in
the record and determine whether any reasonable finder of fact could have found that the
prosecution sustained its burden of proof beyond a reasonable doubt. [Citation.] We do
not reweigh conflicting evidence or reevaluate the credibility of witnesses. [Citation.]”
(People v. Skiff (2021) 59 Cal.App.5th 571, 579.) This standard of review also “applies
to cases in which the prosecution relies mainly on circumstantial evidence [citation] . . . .
An appellate court must accept logical inferences that the jury might have drawn from the

2 Because Tran challenges the court’s denial of his two new trial motions, we
discuss them in more detail post.

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circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396
(Maury).)
“‘“‘“If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”
[Citation.]’ [Citations.] The conviction shall stand ‘unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’
[Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 508.)

2. Assault with the Intent to Commit Forcible Sexual Penetration During the
Commission of First Degree Burglary
Section 220, subdivision (b), states, “Any person who, in the commission
of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults
another with intent to commit rape, sodomy, oral copulation, or any violation of Section
264.1, 288, or 289 shall be punished . . . .” In the information, the prosecution alleged
Tran violated section 220, subdivision (b), by committing an assault with the intent to
commit sexual penetration in violation of section 289 during the commission of a first
degree burglary. One of the ways section 289 is violated is by accomplishing “an act of
sexual penetration . . . against the victim’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim . . . .” (§ 289,
subd. (a)(1)(A).) Here, the jury was instructed on the theory of assault with the intent to
commit sexual penetration by force, fear, or threats.
The offense of assault with the intent to commit sexual penetration by force
does not require the application of any force. The offense can be committed before any
force has been applied and without the use of threats or fear. (People v. Cook (2017) 8
Cal.App.5th 309, 311.) The reason is “[a]n assault is an unlawful attempt, coupled with a
present ability, to inflict a violent injury on a person . . . [and] does not require contact
with the victim.” (Id. at p. 313.) An assault with the intent to commit sexual penetration

8
by force has the added element of “the perpetrator’s subjective intent, during the
commission of the assault,” to commit a sexual penetration by force. (Ibid.)
Here, the court instructed the jury on the offense as follows: “The
defendant is charged in Count 1 with assault with intent to commit sexual penetration
while committing first degree burglary in violation of . . . section 220(b). [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] 1. The
defendant did an act that by its nature would directly and probably result in the
application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When
the defendant acted, he was aware of facts that would lead a reasonable person to realize
that his act by its nature would directly and probably result in the application of force to
someone; [¶] 4. When the defendant acted, he had the present ability to apply force to a
person; [¶] AND [¶] 5. When the defendant acted, he intended to commit sexual
penetration[;] [¶] AND [¶] 6. When the defendant acted, he was committing a first
degree burglary.” (CALCRIM No. 890.) The instruction advised the jury to refer to the
instruction on sexual penetration (CALCRIM No. 1045) “[t]o decide whether defendant
intended to commit sexual penetration” and explained first degree burglary was defined
in separate instructions (CALCRIM Nos. 1700 & 1701).
3. Proof of Intent
Tran’s contentions of insufficient evidence focus on the offense’s intent
elements within the assault and first degree burglary components. Our Supreme Court
has explained: “‘“The essential element of [assault with intent to commit [a sexual act]]
is the intent to commit the act against the will of the complainant. The offense is
complete if at any moment during the assault the accused intends to use whatever force
may be required.”’ [Citation.] ‘“[I]f there is evidence of the former intent and acts
attendant to the execution of that intent, the abandonment of that intent before
consummation of the act will not erase the felonious nature of the assault.”’ [Citation.]”
(Maury, supra, 30 Cal.4th at pp. 399-400.)

9
 A conviction for assault with the intent to commit a sexual act requires
proof of an assault and that the defendant had the intent “‘to use whatever force [was]
required to complete the sexual act against the will of the victim.’ [Citation.]”
(People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, disapproved on other grounds in
People v. Rayford (1994) 9 Cal.4th 1, 21.) “‘It is the state of mind of the defendant . . .
which is in issue.’ [Citations.] . . . ‘The question whether the intent existed is one for the
jury to determine from the conduct of the defendant and the surrounding circumstances.’
[Citations.]” (People v. Bradley, supra, 15 Cal.App.4th at p. 1154.) “Intent is rarely
susceptible of direct proof and usually must be inferred from the facts and circumstances
surrounding the offense. [Citations.]” (People v. Pre (2004) 117 Cal.App.4th 413, 420;
accord, People v. Davis (2009) 46 Cal.4th 539, 606 (Davis) [“‘[s]pecific intent may be,
and usually must be, inferred from circumstantial evidence’”].)
B. Sufficient Evidence of Intent to Commit Forcible Sexual Penetration
With these principles in mind, we consider Tran’s contention the evidence
was insufficient to prove he intended to commit forcible sexual penetration because there
was no evidence he used force to overcome J.E.’s will. We conclude the jury could draw
a reasonable inference from the circumstances under which the offense was committed
that Tran intended to use whatever force was necessary to complete the act of sexual
penetration against J.E.’s will.
The most notable circumstances are that Tran, a stranger, entered J.E.’s
bedroom in the dark of the early morning, got into bed with her, “aggressively” kissed
her, ran his hand over her body, and digitally penetrated her. He then attempted to orally
copulate J.E. but was unable to when she realized he was a stranger. Based on Tran’s
conduct and the surrounding circumstances, the jury could reasonably conclude he
assaulted J.E. with the intent to commit forcible sexual penetration. Indeed, the evidence
showed he not only intended to commit forcible sexual penetration but actually did so.

10
We will not substitute our judgment for the jury’s when the verdict is supported by
substantial evidence.
In arguing the evidence was insufficient to support the jury’s intent finding,
Tran focuses on his actions of leaving as soon as J.E. “expressed resistance.” He asserts
this shows he did not intend to forcibly penetrate her. But Tran’s flight came after he had
already assaulted J.E., completed the act of sexual penetration against her will, and was
attempting to commit oral copulation. Tran’s subsequent actions did not erase the assault
or negate his intent. (Maury, supra, 30 Cal.4th at p. 400 [abandonment of intent before
consummation of sexual act does not erase the assault].) The facts demonstrated Tran
intended to use whatever force was necessary to complete the sexual penetration against
J.E.’s will because he had already done so. That Tran stopped and fled before
committing another sexual act does not change the evidence demonstrating his intent to
commit forcible sexual penetration. Nor does it render the jury’s verdict unsupported.
Tran contrasts his case with the situation in Bradley, supra, 15
Cal.App.4th 1144. But Bradley does not compel a different result. There, defendant
contended the evidence was insufficient to prove his intent to commit rape, an element of
his convictions for kidnapping with the intent to commit rape and assault with the intent
to commit rape. (Id. at p. 1149.) Rejecting this contention, the Court of Appeal held,
“There was ample objective evidence supporting the jury’s finding Bradley intended to
complete a sexual act during his encounter with [the victim], employing the force
required to overcome her will, and, thus, had the requisite specific intent to commit rape.”
(Id. at p. 1155.)
In Bradley, the Court of Appeal reiterated the “specific intent element is
sufficiently met when the defendant sets out to ‘use whatever force is required to
complete the sexual act against the will of the victim.’ [Citation.]” (Bradley, supra,
15 Cal.App.4th at p. 1154.) The Bradley court explained the jury could look at the
victim’s characteristics (age, maturity, experience) when determining “what amount of

11
force [was] sufficient to overcome the victim’s will to resist” and noted a victim is not
“required to resist violently, or with all possible resistance. [Citations.]” (Id. at p. 1155.)
Based on the facts before it, the Court of Appeal concluded there was sufficient evidence
the force defendant used was the amount required to overcome the victim’s will. There,
the evidence showed defendant grabbed the 16-year-old victim’s arm, who was unable to
scream or resist due to fright, and led her to a nearby dumpster enclosure area while
tightly holding her arm. (Ibid.) Additional evidence defendant kissed the victim’s neck,
fondled her breasts, placed his hand in her shorts, and pressed his erection against her
supported the jury’s finding he intended to complete a sexual act against the victim.
(Ibid.)
Tran contends his case “stands in stark contrast” to Bradley because in his
case there is an “absence of circumstances to draw an inference of assault with intent to
commit penetration by force.” He asserts the evidence shows “the person kissed [J.E.]
and penetrated her without resistance, and when she realized the person was not
[Boyfriend], it was she who grabbed him, not the other way around, and it was he who
escaped her grasp and immediately fled.” At its core, Tran’s argument is J.E. did not
resist his act of sexual penetration, and therefore, there is no evidence he intended to use
force to overcome her will had she resisted. To say we disagree is putting it mildly.
Tran’s assertion the evidence was insufficient ignores the circumstances
surrounding the offense and the principle Bradley emphasizes—the determination of
what amount of force was required to overcome the victim’s will takes into account the
amount of the victim’s resistance. (Bradley, supra, 15 Cal.App.4th at p. 1155.) Let us be
clear. J.E. was under no obligation to resist. When a defendant is charged with assault
with the intent to commit forcible sexual penetration, the prosecution does not have to
prove the victim resisted. (Cf. People v. Barnes (1986) 42 Cal.3d 284 [amendment to
§ 261 in 1980 removed requirement prosecuting witness must resist or be prevented from
doing so by threats].) Considering the circumstances under which Tran committed his

12
offense, J.E.’s lack of initial resistance is understandable. J.E. was asleep in her
bedroom, a space where she only expected her boyfriend to enter in the early morning
hours. Instead, Tran, a complete stranger, entered her bedroom, got into bed with her,
and began kissing and touching her. J.E. did not initially resist because she believed it
was her boyfriend. The force Tran used to sexually penetrate J.E. was the amount
required to overcome her will to resist. Tran’s abandonment of his efforts to commit
additional sexual acts when J.E. realized he was not her boyfriend and resisted his efforts
did not erase his intent to commit the completed forcible sexual penetration. Thus, we
conclude the jury’s finding Tran intended to commit forcible sexual penetration is
supported by substantial evidence.
C. Sufficient Evidence of Burglary
Tran also challenges the sufficiency of the evidence supporting the intent
element of the first degree burglary component of the offense. He asserts the evidence
was insufficient to prove he entered the residence with the intent to commit any felony.
We disagree.
Concerning the first degree burglary component, the court instructed the
jury the prosecution had to prove “[w]hen [Tran] entered a building, he intended to
commit Sexual Penetration.” (CALCRIM No. 1700.) As mentioned ante, “‘[s]pecific
intent may be, and usually must be, inferred from circumstantial evidence.’ [Citation.]”
(Davis, supra, 46 Cal.4th at p. 606.) Tran contends “there was no circumstantial
evidence from which it could be inferred that . . . he entered the residence with the intent
to commit the felony offense of sexual penetration by force, and without such intent there
was no burglary.” For the most part, this contention is a rephrasing of his first argument
there was no evidence of an intent to commit forcible sexual penetration because J.E. did
not initially resist him. As we have already discussed, there was substantial evidence
Tran intended to commit forcible sexual penetration. Moreover, evidence of his conduct
upon entering J.E.’s home supports a reasonable inference he intended to commit forcible

13
sexual penetration when he entered the residence. (People v. Holt (1997) 15 Cal.4th 619,
669-670 [explaining when defendant challenged the sufficiency of the evidence proving
his intent when he entered the residence, the question “is whether the evidence, including
that of defendant’s conduct during and after his entry, supports a reasonable inference
that the intent to commit [a felony] existed at the time he entered the home”].)
The evidence indicates Tran entered the home and made his way to J.E.’s
bedroom, where he sexually assaulted her. He did not go into the other bedrooms and
nothing was reported stolen or appeared out of order, other than the items Tran left
behind.
Movements of the house’s occupants reveal Tran did not linger about the
house but instead quickly went to J.E.’s room. The trial evidence indicated Boyfriend
left the house about 4:35 a.m. Around this time, Father and his girlfriend got up, went to
the kitchen for leftovers, and then returned to Father’s bedroom. Although unsure of the
time, Father believed he had been back in his bedroom for only five or ten minutes when
he heard J.E. screaming.
Tran’s conduct once he entered J.E.’s bedroom also reveals his intent. He
did not attempt to take items from the room and leave while she slept. Instead, he
climbed into bed with her and began sexually assaulting her. Accordingly, we conclude
the evidence was sufficient to support the jury’s finding Tran entered the residence with
the intent to commit forcible sexual penetration.
II. Instructional Error Claim
The trial court instructed the jury with CALCRIM No. 890 on the charged
offense of assault with the intent to commit sexual penetration during the commission of
first degree burglary. This instruction explained to the jurors one of the elements they
had to find was “[w]hen the defendant acted, he was committing a first degree burglary.”
The instruction referred the jurors to a separate instruction defining first degree burglary.
First degree burglary was actually defined in two instructions. CALCRIM No. 1700

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stated the elements of burglary, and CALCRIM No. 1701 defined first and second degree
burglary. Tran’s claim of instructional error concerns the intent element of the burglary
instruction, CALCRIM No. 1700.
As given, CALCRIM No. 1700 repeated that Tran was charged with assault
with the intent to commit sexual penetration during the commission of first degree
burglary. The instruction stated: “To prove that the defendant was in the commission of
a First Degree Burglary, the People must prove that: [¶] 1. The defendant entered a
building; [¶] AND [¶] 2. When he entered a building, he intended to commit Sexual
Penetration. [¶] To decide whether the defendant intended to commit Sexual Penetration
by force, please refer to the separate instructions that I will give you on that crime. [¶] A
burglary was committed if the defendant entered with the intent to commit Sexual
Penetration. The defendant does not need to have actually committed Sexual Penetration
as long as he entered with the intent to do so. The People do not have to prove that the
defendant actually committed Sexual Penetration.”
The court instructed the jury on the elements of forcible sexual penetration
by giving CALCRIM No. 1045. Tran does not assert the jury was misinstructed on the
elements of the offense of forcible sexual penetration.
Focusing on the burglary instruction (CALCRIM No. 1700), Tran asserts
for the first time on appeal the court failed to properly instruct the jury on the intent
element of burglary. Tran contends the burglary instruction “was insufficient because it
did not apprise the jury that it was necessary [to] find that the person entered the building
with the intent to commit any felony, because ‘sexual penetration’ itself is not a felony.”
We disagree. The instructions, read as whole, properly instructed the jury on the
elements of burglary, which in turn was a component of the assault charge.
A. Forfeiture
Preliminary, we address the Attorney General’s contention Tran forfeited
his instructional error claim by failing to request modification of the burglary instruction

15
in the trial court. Generally, “‘[a] party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete unless the
party has requested appropriate clarifying or amplifying language[ ]’” in the trial court.
(People v. Covarrubias (2016) 1 Cal.5th 838, 901.) Responding to the Attorney
General’s forfeiture argument, Tran asserts forfeiture does not apply despite his failure to
request modification of the instruction below because the court had a sua sponte duty to
correctly instruct on all of the elements of first degree burglary. Tran also contends
misinstruction on the intent element of burglary deprived him of his rights to due process
and a fair trial. The “failure to object to instructional error will not result in forfeiture if
the substantial rights of the defendant are affected.” (People v. Mitchell (2019) 7 Cal.5th
561, 579 (Mitchell).) To determine whether Tran forfeited his claim of instructional
error, we must ascertain whether his substantial rights were affected. Thus, we proceed
to the merits of Tran’s claim.
B. Applicable Law
“The trial court has a sua sponte duty to instruct the jury on all essential
elements of a charged offense. [Citation.] . . . [Citation.] All criminal defendants have
the right to ‘a jury determination that the defendant is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.’ [Citations.]” (People v.
Merritt (2017) 2 Cal.5th 819, 824.)
“An appellate court reviews the wording of a jury instruction de novo and
assesses whether the instruction accurately states the law. [Citation.] In reviewing a
claim of instructional error, the court must consider whether there is a reasonable
likelihood that the trial court’s instructions caused the jury to misapply the law in
violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’
[Citation.]” (Mitchell, supra, 7 Cal.5th at p. 579.)

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C. There was no Instructional Error
Tran contends the court misinstructed the jury on the intent element of
burglary because the instruction stated the jury had to find “‘[w]hen he entered a
building, he intended to commit Sexual Penetration.’” Tran asserts “‘[s]exual
penetration’ itself is not a felony,” and therefore, the instruction “allowed the jury to find
[him] guilty of burglary without the intent to commit a felony.” He acknowledges jury
instructions are to be viewed as a whole and the jury was separately and correctly
instructed on the elements of forcible sexual penetration. But he argues the separate
instruction on forcible sexual penetration was insufficient to inform the jury it must find
he intended to commit sexual penetration by force when he entered the building. He
further argues, “The fact that the CALCRIM [No.] 1700 instruction referred one time to
‘sexual penetration by force’ and three times to ‘sexual penetration’ suggested that the
two were not necessarily the same.” Tran’s argument is not persuasive.
It is not reasonably likely the jury was confused or misunderstood the law.
The burglary instruction directed the jurors to refer to the instruction on forcible sexual
penetration “[t]o decide whether the defendant intended to commit Sexual Penetration by
force” and the jury was properly instructed on the elements of forcible sexual penetration.
We presume the jurors followed the direction in the burglary instruction to refer to the
instruction on sexual penetration by force. (People v. Avila (2006) 38 Cal.4th 491, 574.)
Tran’s argument, essentially, is the target offense in the burglary instruction
should have been described as sexual penetration by force rather than sexual penetration.
The court’s use of an abbreviated title in the burglary instruction for the sexual
penetration by force instruction does not mean the jury was misinstructed on the elements
of burglary. Referring to the target offense in part of the burglary instruction as sexual
penetration rather than sexual penetration by force did not create a misleading or
confusing instruction. The jury was given one instruction on sexual penetration,
CALCRIM No. 1045, which defined the elements of sexual penetration by force, fear, or

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threats. Thus, any doubt or confusion as to whether Tran had to intend to commit a
sexual penetration or forcible sexual penetration was remedied by the instruction on
sexual penetration by force, fear, or threats. Viewing the instructions as a whole, as we
must, it is not reasonably likely the jury applied the instructions in an impermissible
manner. Thus, there was no instructional error.
III. Denial of New Trial Motions
Tran contends the trial court erred by denying his two motions for a new
trial. In one new trial motion, Tran argued testimony by Aimee Yap, a technical reviewer
from the OCCL, concerning the DNA results and conclusions drawn by other analysts
violated his Sixth Amendment right to confrontation. Tran asserted in his other new trial
motion he was entitled to a new trial under section 1181, subdivision (5), because the
prosecutor committed prejudicial misconduct during her rebuttal argument.
“‘“‘“We review a trial court’s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.” [Citations.] “‘A trial court’s ruling on a
motion for new trial is so completely within that court’s discretion that a reviewing court
will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.’”’”’ [Citation.]” (People v. Hoyt (2020) 8 Cal.5th 892, 957.) Here, we
conclude the court did not abuse its discretion by denying Tran’s new trial motions.
A. Tran’s Confrontation Clause Claim
In one motion, Tran asserted his constitutional rights to due process and
confrontation had been violated by the admission of Yap’s testimony concerning the
DNA evidence. His motion relied on a decision from this court that was not certified for
publication until after the hearing on his motion—People v. Ogaz (2020) 53
Cal.App.5th 280 (Ogaz). Denying the motion, the trial court concluded no error occurred
because “all of these things [Yap] testified to were the purview of her opinion” and she
was not “merely a conduit to get some results in” evidence. We agree.

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 Tran’s case is readily distinguishable from the situation in Ogaz, supra,
53 Cal.App.5th 280. There, this court concluded “the trial court erred in admitting
evidence regarding the OCCL’s drug testing results, absent testimony from the person
who actually conducted the testing” and the error violated defendant’s Sixth Amendment
right to confrontation. (Id. at p. 284.) However, this court explained there would have
been no error if the testifying witness “had formulated his own independent opinions
based on the data [the analyst] produced during the testing process.” (Id. at p. 293.) That
is what happened here. Yap testified she personally compared the mixture DNA profile
from the jacket to Tran’s DNA profile, and in her opinion, Tran was a main contributor to
the mixture sample. Yap testified she personally looked at the profiles to see if either J.E.
or Tran could be contributors for or the source of the DNA detected on the iced tea bottle.
She determined there was one contributor from the swab taken of the mouthpiece and
interior cap of the bottle. Yap indicated she personally compared the DNA profile
obtained from the bottle cap’s interior and mouthpiece to the known samples. When the
prosecutor asked whether there was a match, Yap responded, “The profile from the bottle
mouth area was the same as the profile obtained from Tran’s DNA sample.” Yap’s
testimony did not violate Tran’s Sixth Amendment right to confrontation, and therefore,
the court did not abuse its discretion by denying Tran’s new trial motion.
We further conclude the trial court did not abuse its discretion by denying
Tran’s new trial motion on this ground because Tran did not object to the admission of
Yap’s testimony, prior to or during the trial, on the ground it violated his right to
confrontation or was inadmissible hearsay under Crawford v. Washington (2004)
541 U.S. 36 or People v. Sanchez (2016) 63 Cal.4th 665. Tran’s failure to raise a Sixth
Amendment objection until after the trial provided an additional, independent basis for
denying his new trial motion.
Before trial, the prosecution filed an in limine motion to admit evidence of
the DNA analysis through the testimony of the forensic scientist case manager or

19
technical reviewer. The motion explained that at the OCCL, “evidentiary items are
analyzed for DNA using batch processing” and each step of this process may be
performed by a different analyst. But at the final stage, the case manager, relying on his
or her own work and the work of other scientists in the lab, forms an opinion as to
whether the DNA matches a particular person or suspect. The prosecution argued
admission of the DNA evidence through the testimony of the case manager did not
violate the Sixth Amendment because the DNA test results were not testimonial as the
analysts’ reports did not contain the necessary degree of formality and they were not
prepared with the primary purpose of targeting an individual.
At the hearing on the prosecution’s motion, Tran’s counsel did not object to
the admission of the DNA evidence through the testimony of a forensic case manager or
technical reviewer. The court ruled the prosecution could admit evidence of the DNA
analysis through the case manager or supervising forensic scientist if the prosecution
could lay a sufficient foundation. Defense counsel made no Sixth Amendment,
Crawford, or Sanchez objection during Yap’s testimony. Raising the confrontation issue
in the new trial motion was too late. (Evid. Code, § 353, subd. (a) [a verdict shall not be
set aside unless an objection was timely made and the specific ground clearly stated].)
B. Tran’s Prosecutorial Misconduct Claim
In his other new trial motion, Tran contended the prosecutor committed
misconduct during her rebuttal argument by misleading the jury regarding the state of the
DNA and identification evidence and by accusing defense counsel of fabricating a
defense. Denying the motion, the court found the prosecutor’s “closing argument was
appropriate” and there was no prosecutorial misconduct. Again, we agree with the trial
court.
“A prosecutor’s misconduct violates the Fourteenth Amendment to the
federal Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be

20
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial
fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]”
(People v. Harrison (2005) 35 Cal.4th 208, 242.)
“In evaluating a claim of prejudicial misconduct based upon a prosecutor’s
comments to the jury, we decide whether there is a reasonable possibility that the jury
construed or applied the prosecutor’s comments in an objectionable manner.
[Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) A judgment of
conviction will be reversed based on prosecutorial misconduct “only when, after
reviewing the totality of the evidence, we can determine it is reasonably probable that a
result more favorable to defendant would have occurred absent the misconduct.
[Citations.]” (People v. Castillo (2008) 168 Cal.App.4th 364, 386.)
1. Misstatement of the Evidence
In his new trial motion, Tran’s contention of prosecutorial misconduct
focused on multiple statements the prosecutor made during her rebuttal argument
referring to Tran’s DNA as the “only” DNA found at the scene.
To provide context, we quote the prosecutor’s argument at length and
italicize the complained-of statements. The prosecutor argued: “The DNA evidence in
this case is significant. I talked about it in my first argument with regard to there only
being two main contributors on the collar of the jacket. Two. And that there being one
sole contributor to the interior mouthpiece of the bottle and the cap. One. In this case we
don’t have to rely on eyewitness identification. We don’t have to rely on [J.E.’s]
description. We don’t have to rely on grainy surveillance video. DNA is the silent
witness to the truth.
“These crimes happened the way they are committed; in the middle of the
night, with no witnesses, avoiding detection, and running when you think you’re caught.

21
That’s how these crimes occur. But his DNA is the only DNA at the scene, and he can’t
run from that.” (Italics added.)
Defense counsel objected the prosecutor misstated the evidence. The court
did not rule on the objection but admonished the jurors it was up to them to determine
what the evidence showed. The court also reminded the jurors: “What counsel says
during argument is just that, argument. So it’s up to you to think back what the evidence
was and determine what the facts are and make up your own mind.”
The prosecutor resumed her argument, stating: “I’m not ignoring the fact
that there is trace DNA on these items. That was talked about a lot this morning. But
what wasn’t talked about with regard to trace DNA is how unreliable it is and how the
crime lab can’t interpret anything from it. Defense wants to hang their hat on there’s
trace DNA, that must be the person who committed this crime. It’s trace DNA. There’s
no evidence to support that.
“But we have more than DNA in this case. His hairstyle matched the
description from [J.E.], his accent and his tone match the description, his height matched
the description. He lived in that close of a proximity to her, and he ran in the direction
where he lived. Ladies and Gentlemen, I wouldn’t argue . . . to you that each of these on
their own is proof beyond a reasonable doubt. It’s the fact that all of these things are
happening at once in conjunction with the DNA.
“[¶] . . . [¶]
“For you to buy into what the defense is arguing to you, you would have to
believe that Mr. Tran is the most unlucky person in all of Orange County. You would
have to believe, based on the evidence, that it’s reasonable that someone took his jacket
two months before the crime occurred and never got their DNA on it; that someone found
his iced tea bottle -- not necessarily by the jacket. It could have been at a trash pile in
Garden Grove. But found his iced tea bottle, never took a drink from it, never got their
DNA from it, just carried it around.

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 “And you would have to believe that that person decided to bring those two
items -- those two items of the defendant’s into [J.E.’s] home at the time that he sexually
assaulted her. You would have to believe that it’s reasonable that he was wearing the
defendant’s jacket without getting any of his own DNA on it while simultaneously [J.E.],
in removing the defendant’s jacket, pulling it off of him in a matter of seconds, and then
her being disgusted by it. Just that slight of touching, she is a main contributor to the
DNA. Main.
“[Defense counsel] said it’s possible for someone to touch an item and not
get DNA on it. Of course, that’s possible. Look at it in the light of this case. This person
was wearing the jacket, meanwhile [J.E.] who touches it for less than a few seconds, in
pulling it off, she’s a main contributor, and he gets nothing on it.
“Meanwhile, the bottle of iced tea, he just decided to carry that thing in
there and dropping it on the ground without ever taking a drink from it. Then you would
have to believe that this same person who -- like defense has said, our DNA is
everywhere. It gets everywhere. This person’s doesn’t, right? Because the true
perpetrator’s DNA isn’t anywhere at the scene; only the defendant’s.” (Italics added.)
Defense counsel again objected the prosecutor was misstating the
testimony. The court again advised the jurors to decide for themselves what the evidence
showed.
“This same person who’s had the defendant’s jacket for two and [one-]half
months and happened to find the defendant’s bottle with his DNA and not drink from it
and not get his own DNA on it broke into [J.E.’s] house sexually assaulted her happens to
have the same hairstyle as him, happens to speak in a similar accent or tone as him,
happens to be the same height as him, happens to run in the direction of his house which
is .2 miles away.
“It’s all of those things, ladies and gentlemen, taken into consideration, not
just one thing. It’s all of that happening at once. That is unreasonable. That would make

23
Mr. Tran the unluckiest person in all of Orange County. It’s not reasonable when you
look at all of the evidence.
“[¶] . . . [¶]
“. . . And when you put it all together, is it reasonable or are we here -- are
we here [sic] that he’s the most unlucky person in all of Orange County? Because that’s
the only interpretation, other than the fact that he’s guilty. And that is not reasonable.
“The only reasonable conclusion is that he’s guilty. He wasn’t acting like
[a] completely innocent person after the crime. He was acting like someone who thought
he got away with it. And here he is I’m asking that you hold him accountable based
on the evidence and find him guilty. . . .” (Italics added.)
The law is well established. “‘Although it is misconduct to misstate facts,
the prosecutor “enjoys wide latitude in commenting on the evidence, including the
reasonable inferences and deductions that can be drawn therefrom.”’ [Citation.]”
(People v. Powell (2018) 6 Cal.5th 136, 183-184.) Here, the prosecutor’s comments were
well within the latitude given in closing argument and were fair comments based on the
defense evidence and argument. The prosecutor’s argument urged the jury to focus on
the relevant evidence, and the prosecutor permissibly argued to the jury the reasons why
she believed the defense’s argument should be rejected. We discern no prosecutorial
error in the prosecutor’s rebuttal argument. Moreover, both times defense counsel
objected, the trial court admonished the jurors they were the exclusive judges of the
evidence. We assume the jury adhered to the court’s admonition and any prejudice was
therefore avoided. (People v. Bennett (2009) 45 Cal.4th 577, 614.)
2. Disparaging Defense Counsel
In his new trial motion, Tran also asserted the prosecutor impermissibly
accused defense counsel of fabricating a defense by arguing during her rebuttal argument,
“‘For you to buy into what the defense is arguing to you, you would have to believe that

24
Mr. Tran is the most unlucky person in all of Orange County.’” Again, we discern no
prosecutorial misconduct.
It is prosecutorial misconduct for the prosecutor to disparage defense
counsel in front of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1193 [accusing
defense counsel of lying to jury].) However, our Supreme Court has found no
impropriety in egregious prosecutorial remarks aimed solely at the persuasive force of
defense counsel’s closing argument. (People v. Zambrano (2007) 41 Cal.4th 1082, 1155,
[cataloguing cases and prosecutor’s remarks], overruled on other grounds in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the prosecutor did not accuse defense
counsel of fabricating a defense or deceiving the jury. The prosecutor was simply
arguing the defense should be rejected based on the evidence.
Because it was not reasonably likely the jury construed the prosecutor’s
comments in an objectionable manner, the trial court properly denied Tran’s new trial
motion.
DISPOSITION
The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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