Filed 6/8/22 P. v. Leonard CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C090650
v. (Super. Ct. No. 17FE020029)
THOMAS FREDERICK LEONARD,
Defendant and Appellant.
A jury convicted defendant Thomas Frederick Leonard on 11 counts of lewd and
lascivious acts upon six-year-old A., and one count of sexual penetration of A. The trial
court sentenced defendant to a determinate term of 26 years and an indeterminate term of
15 years to life in prison.
Defendant now contends (1) that although there was sufficient evidence he
touched A.’s genitals with the requisite intent, there was insufficient evidence he did so
more than once; (2) the trial court should have allowed evidence that A. previously
accused her cousin of sexually molesting her; (3) the trial court should not have allowed
a psychologist’s testimony that false allegations of child sexual abuse were infrequent;
(4) A.’s trial testimony, and the admission of her out-of-court statements, violated
defendant’s constitutional right to confrontation because he was unable to adequately
cross-examine her; (5) defendant’s trial counsel was ineffective in failing to object to
prosecutorial arguments that played on the jury’s sympathies and disparaged defendant
1
and his trial counsel; (6) cumulative error requires reversal; and (7) the trial court erred in
not staying punishment on count one pursuant to Penal Code section 6541 because counts
one and five were based on the same act.
We conclude (1) substantial evidence supports the jury’s finding of two lewd or
lascivious acts involving defendant’s fingers or hand touching A.’s genitalia; (2) the trial
court did not abuse its discretion in excluding the prior-accusation evidence; (3) the error
in admitting Dr. Washington’s testimony that children very infrequently lie about sexual
abuse was harmless; (4) defendant’s right to confrontation was not violated; (5) defendant
fails to establish that any deficient representation unduly prejudiced him; (6) defendant’s
cumulative error claim is without merit; and (7) the trial court should have stayed the
sentence on count one or five under section 654.
We will affirm the judgment of conviction but reverse the sentence and remand
the matter to the trial court with directions to resentence defendant and stay the sentence
on count one or count five under section 654.
BACKGROUND
A. had an auditory processing disorder and was diagnosed with atypical autism on
the spectrum. She lived with her mother Taylor, Taylor’s boyfriend, defendant, and
defendant’s wife Tammie.2 Defendant was a father figure to Taylor, and A. called
defendant grandpa.
On September 16, 2016, six-year-old A. told Taylor that defendant pulled A.’s
pants down. A. appeared scared. Taylor did not continue the conversation because
defendant kept walking by her bedroom door, throwing things and slamming doors. She
took A. to the park the next day. There, A. disclosed that defendant had her watch
1 Undesignated statutory references are to the Penal Code.
2 We will refer to certain individuals by their first names for clarity.
2
“illegal videos,” had sex with her, put his mouth on her privates, put his penis in her
mouth and had her touch his penis.
Taylor took A. to UC Davis Medical Center the next morning, where A. was
interviewed by a social worker and Sacramento County Sheriff’s Deputy Tim Mullin. A.
told the UC Davis Medical Center social worker that someone touched A.’s vagina and
kissed A. on the lips. A. told Deputy Mullin that defendant showed A. videos with naked
adults and children touching each other on the computer, and defendant lifted A.’s shirt
up and touched her chest, pulled down her underwear, touched her vagina, sucked on her
front private area, put his finger in her anus and put his penis in her mouth, vagina and
anus.
A social worker working in conjunction with law enforcement officers interviewed
A. during what was called a SAFE interview two days later. A recording of that
interview was played at the trial. A. told the SAFE interviewer that defendant made her
watch “illegal videos” that had sex in it with adults and kids, made her touch his privates,
touched her butt, and kissed her on the lips with his tongue in her mouth. She said
defendant also kissed her privates under her shirt, put his penis in her vagina and butt,
and made her suck his penis.
Dr. Angela Vickers conducted a nonacute evidentiary exam on A. on
September 20, 2016. The exam yielded no abnormal findings. Dr. Vickers testified it
was common to have a normal exam in young children who disclosed sexual abuse
because the tissues around the genitals heal very quickly. She said an adult penis could
penetrate a seven-year-old’s anus and not cause injury.
Taylor recorded a conversation with A., using a cassette recorder law enforcement
officers had given Taylor to record pretext calls with defendant. The prosecutor played
the recorded conversation between Taylor and A. at the trial. A. told Taylor that
defendant sucked A.’s privates, A. sucked defendant’s privates, defendant put his “carrot
private” in A.’s mouth, and defendant put A.’s private in his private and kissed A. like an
3
adult. She also said defendant sucked her nipples. She said she and defendant started to
do sex 10 times after Tammie went to bed. When asked what they did, A. said “private,
butt and nipples” and “mouth, mouth tongue nipples privates and butt.”
The prosecutor also played recordings of pretext calls by Taylor to defendant.
Defendant told Taylor that A. called defendant her fiancé and said she and defendant
were going to have sex and A. got mad when defendant told her no. Defendant claimed
A. “got pissed off at [defendant], and fabricated something . . . .” He said he caught A.
watching a video of a woman giving oral sex to a man and A. thought she was going to
do that to defendant but she never had. He said he did not tell Taylor a lot of things
because he was afraid Taylor would beat A. and he did not believe in spanking so he tried
to correct A.’s conduct himself. He described various “inappropriate gestures” by A. He
said A. crawled into his bed with only her underwear on and grabbed his privates when
he was asleep. A. tried to grab his privates another time. He said A. had seen his penis
two or three times. About a month and a half to two months prior, A. grabbed his hand
and shoved his finger in her vagina when he was sitting on the couch watching television.
He said A. grabbed his hand and put it in her vagina probably half a dozen times. He told
Taylor that A. pulled her pants down and shoved her butt into him and he lied to Taylor
and Tammie about what happened. Defendant denied that he pulled A.’s pants down,
touched A. with his penis, put his fingers in her anus, or that A. gave him oral sex.
Sheriff’s deputies searched defendant’s apartment about two weeks after the
pretext calls. Pornographic videos, some featuring younger-looking females, were found
in defendant’s bedroom. Forensic examination of defendant’s computer showed internet
searches for “seven-year-old girl wants sex with grandpa” and “young girl’s hand job.”
There were also searches for cartoon hand job, “very young girls give head,” and “10-
year-old hand job.” Sexually explicit images found on defendant’s computer included an
anime depicting a female who could be under the age of 18. No child pornography was
found.
4
Defendant’s wife Tammie told Sergeant Kimberly Mojica that she caught A.
wiggling her butt on defendant’s crotch, with her pants and underwear down. Tammie
said she confronted defendant about it but defendant did not say much. Tammie also
reported seeing the following: A. rubbing her naked chest on defendant while he sat in a
chair, A. grabbing defendant’s penis, and A. grabbing defendant’s hand and shoving it
into her vagina when defendant was on the bed. Tammie claimed A. was trying to
“manhandle” defendant and break up her marriage. Tammie also claimed that Taylor
owed $150 on a utility bill and defendant kicked Taylor and A. out. At trial, Taylor
denied there was an argument about money prior to A.’s disclosure or that she was told to
move out.
Sergeant Mojica interviewed defendant the day after the search. The prosecutor
played a recording of that interview for the jury. Defendant told Sergeant Mojica that
defendant was the victim. Defendant said A. was infatuated with and sexually attracted
to him. He said she was good at storytelling and made up a story to get back at him.
Also, Taylor left after he told her he needed her to help with a $500 utility bill.
Defendant said A. “started doing all these gestures” in 2015. She called him her fiancé
and said they were going to have sex. She kissed him on the lips. She tried to put her
face down toward his penis, with her mouth open, a couple of times but he moved away.
She looked at pornography sites on Taylor’s cell phone, and she saw Taylor performing
oral sex. He caught A. watching videos depicting oral sex in August 2016. His fingers
were inside A. only once, in August 2016, when A. took his hand and shoved his fingers
in her privates when he was on the couch watching television with her. In the first week
of September, A. pulled his pants down twice when he was in the kitchen and grabbed his
penis. On about September 11 or 12, A. got into his bed wearing only her underwear and
grabbed his privates when he was asleep. A. stood between his legs, dropped her pants
and wiggled her butt into his privates three times. He tried to discipline A. on his own
because Taylor beat A. and he feared for A.
5
A. testified at trial when she was nine years old. She said defendant showed her
videos with naked boys and girls. She did not look up the videos herself. Defendant
kissed her on the lips once and it made her feel weird. Defendant touched her butt with
his penis, put his penis in her mouth and touched her vagina with his fingers. A. denied
that she told lies about defendant.
A number of witnesses, including Tammie, defendant’s daughters Luarra and
Sarrah, stepdaughter Nelta, and an individual named Jocelyn, testified that they never
saw any sexually inappropriate conduct by defendant toward A. Defense witnesses
testified about A.’s inappropriate conduct toward defendant and other men. Tammie said
A. called defendant her husband all the time and said she and defendant were going to
have sex. Tammie told the jury she saw A. grab defendant’s hand and put his hand
toward A.’s privates. And she saw A. try to give defendant oral sex when he was asleep.
Tammie also saw A. jump off defendant’s lap and pull her pants up after Tammie heard
defendant say, “[A.], what are you doing? Get off me.”
Defendant’s daughter Elezebeth testified that A. was “attention seeking” and had
“boundary issues.” According to Elezebeth, A. tried to be sexual with defendant. A.
tried to give defendant a prolonged kiss and got angry when he stopped her. A. called
defendant and other males her boyfriend. She talked about wanting to have a boyfriend
so she could have sex. She wore heels and her top like a bikini and said she was trying to
get a boyfriend.
Nelta testified that A. was hypersexual. Nelta saw A. “hump” the couch or a
chair. According to Nelta, A. frequently used her hands to squish her own breasts,
pointed them at others and shook them. Sarrah testified that A. was very clingy with
defendant and called him her boyfriend and fiancé. A. borrowed Sarrah’s cell phone to
play a game once, but Sarrah caught A. watching pornography on it. Sarrah’s boyfriend
Max also testified that A. looked up pornography on his cell phone. He said A. tried to
kiss him on the lips once and he told her it was inappropriate and stopped her. She also
6
tried to touch Max on his thigh and he stopped her. Luarra’s boyfriend Zachary testified
that A. referred to him as her boyfriend a lot and tried to sit close to him on the couch,
making him uncomfortable. A. also tried to kiss him on the cheek, but he stopped her. A
witness named Kristin likewise recounted that A. was “very touchy” and rubbed her
husband’s arm and tried to sit on his lap. Several defense witnesses testified that they
saw A. twerk.
Defense witnesses criticized Taylor. Kristin testified that Taylor had a detailed
conversation about masturbation and blow jobs in front of A. Sarrah confirmed she and
Taylor discussed what semen tasted like in A.’s presence. Jocelyn testified that Taylor
made out with her boyfriend in front of A. and used “sexual language” around A. many
times. Max likewise testified that Taylor made out with her boyfriend in front of A.
According to Tammie, Taylor performed oral sex on her boyfriend in the living room
while A. was asleep on the couch. Tammie said she talked to Taylor three or four times
about A.’s sexualized behavior and Taylor did nothing. Other defense witnesses testified
similarly.
Defendant also presented evidence regarding the use of his computer. Tammie
and Elezebeth testified that many people used defendant’s computer. But defense
witnesses denied searching topics such as 10-year-old hand jobs or cartoon blow jobs.
The jury found defendant not guilty on count six (fingers in A.’s genitalia in the
kitchen -- § 288, subd. (a)), but convicted defendant on 11 counts of lewd and lascivious
acts upon a child under the age of 14 years with the intent of arousing, appealing to or
gratifying the lust, passions or sexual desires of defendant or the child, along with one
count of sexual penetration of a child who is 10 years of age or younger (counts one
through five and seven through thirteen -- §§ 288, subd. (a), 288.7, subd. (b)). The trial
court sentenced defendant to a determinate term of 26 years and an indeterminate term of
15 years to life in prison.
7
Additional background facts are included in the discussion as relevant to
contentions on appeal.
DISCUSSION
I
Defendant contends that although there was sufficient evidence that he touched
A.’s genitals with his hand with the intent of sexual gratification, there was insufficient
evidence that he did so more than once; therefore, the conviction on count one or count
two must be reversed.
In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence --
evidence that is reasonable, credible and of solid value -- such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v.
Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) “ ‘Conflicts
and even testimony which is subject to justifiable suspicion do not justify the reversal of
a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.’
[Citation.] Unless it describes facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a conviction.”
(People v. Elliott (2012) 53 Cal.4th 535, 585.) The effect of this standard of review is
that a defendant challenging the sufficiency of the evidence to support his or her
conviction bears a heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th
1268, 1287.)
8
Defendant was charged in counts one and two with violating section 288,
subdivision (a) (lewd or lascivious act upon a child under the age of 14 years). Count one
alleged that around July 2016, defendant willfully put his fingers to A.’s genitalia when
he was on the couch. Count two alleged that between January 1, 2016, and September
30, 2016, defendant willfully put his hand to A.’s genitalia when they were at the
apartment.
The elements of a section 288, subdivision (a) offense include the following:
(1) the willful commission of a lewd or lascivious act, that is, an act that is lustful,
immoral, seductive or degrading; (2) upon or with the body, or any part thereof, of a child
under 14 years of age; (3) with the intent of arousing, appealing to or gratifying the lust,
passions or sexual desires of the defendant or the child. (§ 288, subd. (a); People v.
Memro (1985) 38 Cal.3d 658, 697, overruled on another ground by People v. Gaines
(2009) 46 Cal.4th 172, 181, fn. 2.)
A. testified that defendant touched her vagina with his fingers but she did not state
how many times defendant had done so. Nevertheless, defendant admitted during a
pretext call that his fingers or hand touched A.’s vagina probably half a dozen times.
Defendant described an incident about a month and a half before the September 23, 2016
pretext call when he was on the couch watching television with A. and A. shoved his
finger in her vagina. He described another incident when he was half asleep with A.
cuddled up to him in the bed and A. grabbed his hand and “shoved me in there.” He also
said about a month before the September 23, 2016 pretext call, he and A. were playing
when all of a sudden A. put his hand in between her legs and started moving.
There was other evidence of defendant touching A.’s vagina. During his interview
with Sergeant Mojica defendant repeated his pretext call admission that his fingers were
in A.’s privates during an incident on the couch. Dr. Christopher Fisher testified that
defendant told the doctor that defendant’s fingers or hand touched A.’s vagina more than
once. Nelta testified she was aware that defendant stuck his fingers in A.’s vagina more
9
than once. Elezebeth testified defendant told her that A. tried to masturbate herself with
his hand when the two were sitting on the couch. And consistent with defendant’s pretext
call admission, Tammie reported to Sergeant Mojica and testified at trial that when
defendant and A. were on defendant’s bed, A. grabbed defendant’s hand and shoved it in
A.’s vagina or towards A.’s privates. The above is substantial evidence from which the
jury could find beyond a reasonable doubt at least two lewd or lascivious acts involving
defendant’s fingers or hand touching A.’s genitalia.
II
Defendant next contends the trial court erred in excluding evidence that A.
previously accused her cousin of sexually molesting her.
A
The People moved in limine to exclude evidence that A. previously accused her
cousin of touching her inappropriately. The circumstances of the prior complaint were as
follows: A. and her cousin were alone in the bathroom for about five minutes before
Taylor knocked on the locked door and the children came out. The cousin was 10 years
old at the time of the incident. A. told Taylor that the cousin touched her with his private.
The cousin denied the accusation. Taylor reported the incident to Child Protective
Services in 2015. According to defendant’s trial counsel, following an investigation,
Child Protective Services concluded that the accusation was unsubstantiated or
unfounded. A copy of the Child Protective Services’ report is not in the record. The
People objected to the prior-accusation evidence as irrelevant and as hearsay unless the
cousin was called as a witness.
Defendant’s trial counsel said she did not intend to offer the prior-accusation
evidence “unless the door was opened.” She said the prior accusation would be relevant
if A. claimed she never made an allegation of sexual abuse before she disclosed the
sexual abuse by defendant. The trial court concluded it did not need to rule on the
People’s motion because defendant did not seek to admit the prior-accusation evidence.
10
It also determined, based on counsel’s representations, that the prior-accusation evidence
was not relevant.
The issue of A.’s prior accusation was later raised in the context of defendant’s
motion to admit evidence of A.’s sexual conduct. Defendant’s trial counsel said Nelta
would testify that A. accused the cousin of touching A. Defendant’s trial counsel
conceded that only A. and the cousin knew what happened and there were two versions
of what happened. The trial court ruled, based on the offer of proof, that the prior-
accusation evidence was irrelevant and inadmissible under Evidence Code section 352.
Luarra subsequently testified on cross-examination that she wrote a letter stating
defendant was falsely accused. She admitted, however, that she had concluded defendant
was innocent without knowing any of the facts in the case. Defendant’s trial counsel
moved to admit the prior-accusation evidence, arguing that the prosecutor’s questions
eliciting Luarra’s admission were misleading. Defendant’s trial counsel argued Luarra
believed A.’s accusation against defendant was false in part because A. had previously
accused someone of sexual abuse, and the prosecutor’s question about Luarra’s letter
opened the door to admit the prior-accusation evidence. The prosecutor countered that
the prior-accusation evidence would require recalling Taylor and calling percipient
witnesses, and the evidence was irrelevant to whether a 67-year-old man would put his
penis inside a little girl’s mouth.
The trial court denied defendant’s motion, concluding that the prior-accusation
evidence was irrelevant. The trial court also excluded the evidence under Evidence Code
section 352 because it was potentially confusing and admission of the evidence would be
unduly time-consuming.
B
Defendant sought to admit the prior-accusation evidence to rehabilitate Luarra.
“Where the attempt has been made to discredit a witness . . . , the party who called the
witness is allowed, subject to certain limitations, to ‘rehabilitate’ the witness, i.e., to
11
restore his or her credibility, by rebutting the discrediting evidence, or by introducing
evidence favorable to credibility.” (3 Witkin, Cal. Evid. (5th ed. 2012) Presentation at
Trial, § 371.) However, as defendant concedes, the value of the prior-accusation
evidence to rehabilitate Luarra or to impeach A. depended on proof that A.’s charge
against the cousin was false. (See People v. Winbush (2017) 2 Cal.5th 402, 469
(Winbush); People v. Miranda (2011) 199 Cal.App.4th 1403, 1424.) A trial court has
discretion under Evidence Code section 352 to exclude evidence of prior reports of
molestation “if proof of the falsity of the prior complaint ‘would consume considerable
time, and divert the attention of the jury from the case at hand.’ ” (Miranda, supra,
199 Cal.App.4th at p. 1424.) We review a trial court’s ruling regarding relevancy and
admissibility under Evidence Code section 352 for abuse of discretion. (People v. Jones
(2017) 3 Cal.5th 583, 609.)
To establish that the prior-accusation evidence was relevant, defendant would
have had to establish that A.’s claim that the cousin touched her inappropriately was
false. (See Winbush, supra, 2 Cal.5th at p. 469.) The People disputed that the prior
accusation was false. Defendant’s offer of proof was that Child Protective Services
found A.’s charge against the cousin was unsubstantiated or unfounded. “Unfounded”
means it was determined by an investigator that a complaint was (i) false; (ii) inherently
improbable; (iii) involved an accidental injury; or (iv) did not constitute child abuse or
neglect under section 11165.6. (§ 11165.12, subd. (a).) “Substantiated” means it was
determined by an investigator that the complaint constituted child abuse or neglect under
section 11165.6 based on evidence that made it more likely than not that child abuse or
neglect occurred. (§ 11165.12, subd. (b).) Defendant did not proffer evidence
establishing that A.’s report against the cousin was false. On appeal, defendant asserts
that it appears from the record that the cousin did not molest A., but defendant fails to
provide a record citation for the factual assertion.
12
The record indicates the inquiry into whether A.’s prior accusation was false could
have involved calling the Child Protective Services investigator, Taylor, A., and the
cousin. The cousin was about 11 years old at the time of the trial and was described as
having developmental delays or emotional issues. The defense had not interviewed the
boy and there was no proffer of testimony by A. and her cousin. The trial court
reasonably concluded, under the circumstances before it, that any probative value of the
prior-accusation evidence was substantially outweighed by the probability that its
admission would necessitate undue consumption of time or create a substantial danger of
confusing the issues. Defendant fails to demonstrate an abuse of discretion by the trial
court.
We also reject defendant’s contention that the trial court’s ruling deprived him of
his constitutional rights to present a defense and cross-examine adverse witnesses. “As a
general matter, the ordinary rules of evidence do not impermissibly infringe on the
accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834; accord
People v. Gurule (2002) 28 Cal.4th 557, 620.) And “notwithstanding the confrontation
clause, a trial court may restrict cross-examination of an adverse witness on the grounds
stated in Evidence Code section 352.” (People v. Quartermain (1997) 16 Cal.4th 600,
623.) As we have explained, the trial court did not err in excluding the prior-accusation
evidence under Evidence Code section 352. Further, defendant had ample opportunity to
present evidence attacking A.’s credibility.
III
Defendant also argues the trial court should not have allowed Dr. Washington’s
testimony that false allegations of child sexual abuse were infrequent, and if the issue is
forfeited by his trial counsel’s failure to object, his trial counsel rendered ineffective
assistance.
13
A
Psychologist Dr. Anna Washington testified about Child Sexual Abuse
Accommodation Syndrome (CSAAS). In responding to a question about suggestibility,
she said it would be difficult to make a child agree that someone sexually abused the
child if that did not actually happen. But she agreed that children can lie. When asked
about literature on false reports of sexual abuse by children, Dr. Washington said children
very infrequently lie about sexual abuse, and research showed that false allegations
tended to be made by someone other than the child and tended to be more common when
there was a lot of conflict, such as during a custody battle. There was no objection from
defendant’s trial counsel to the questions and answers regarding false allegations, and no
motion to strike.
Defendant’s trial counsel asked during cross-examination whether Dr. Washington
could know whether a child reporting abuse was coached. The doctor responded that
research on false allegations suggested it was very infrequent for children to make things
up. Defendant’s trial counsel did not object to, or move to strike, Dr. Washington’s
response.
B
Defendant failed to preserve his challenge to Dr. Washington’s testimony because
he did not object to, or move to strike, that evidence in the trial court on the grounds he
raises on appeal. (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 81.) We address
the claim on the merits, however, because defendant contends his trial counsel rendered
ineffective assistance by failing to object to, or move to strike, the testimony.
While expert testimony on CSAAS is admissible when relevant for the limited
purpose of evaluating the credibility of an alleged child sexual abuse victim, an expert
witness may not opine that it is rare or very infrequent for children to make false
allegations of sexual abuse. (People v. Lapenias (2021) 67 Cal.App.5th 162, 170-172,
174-180; Lopez v. State (2009) 288 S.W.3d 148, 156; Lane v. State (2008) 257 S.W.3d
14
22, 24-25, 27; State v. Lindsey (1986) 720 P.2d 73, 75-76.) This is because the
determination of a witness’s credibility is not a subject sufficiently beyond common
experience that an expert’s opinion would assist the trier of fact; therefore, an expert
witness may not give an opinion as to whether another witness is telling the truth.
(Lapenias, at pp. 176, 178-180.) We review the erroneous admission of expert testimony
for prejudice under the People v. Watson (1956) 46 Cal.2d 818 harmless error test, i.e.,
reversal is warranted only if it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error. (Lapenias, at
pp. 176-177; People v. Wilson (2019) 33 Cal.App.5th 559, 571-572 (Wilson).)
Dr. Washington’s testimony that it was very infrequent for children to lie about
sexual abuse was inadmissible. (Lapenias, supra, 67 Cal.App.5th at pp. 178-180.)
However, the error in admitting the evidence was harmless. The improper testimony was
brief. Additionally, Dr. Washington made clear that CSAAS was not intended to
determine whether a particular child was sexually abused, she did not know the facts of
this case, and it was not her role to opine whether defendant was guilty or not guilty.
Further, defendant countered Dr. Washington’s testimony with the testimony of defense
expert Dr. William O’Donohue that a sizeable percentage of sexual abuse allegations by
children was false. Moreover, the prosecutor did not refer to Dr. Washington’s testimony
about the frequency of false sexual abuse allegations by children in her closing and
rebuttal statements. And defendant’s recorded statements and statements to Elezebeth
and Dr. Fisher corroborated A.’s reports of digital penetration and other acts of
inappropriate touching. In addition, the trial court instructed the jury, pursuant to
CALCRIM No. 226, on the factors the jury may consider in evaluating a witness’s
testimony. A. testified at the trial and the jurors could assess her credibility. The trial
court instructed that the jurors alone must judge the credibility of the witnesses; in
evaluating a child’s testimony, the jury should consider all of the factors surrounding the
child’s testimony, including the child’s age and level of cognitive development; and the
15
jury was not bound by an expert witness’s opinion. We presume the jurors understood
and followed the trial court’s instructions. (Lapenias, supra, 67 Cal.App.5th at p. 180.)
Based on the above, it is not reasonably probable that defendant would have received a
more favorable result in the absence of Dr. Washington’s testimony that children very
infrequently lie about sexual abuse. (Ibid.; Wilson, supra, 33 Cal.App.5th at p. 572.)
IV
Defendant further contends that A.’s trial testimony, and the admission of A.’s
out-of-court statements, violated his constitutional right to confrontation because he was
unable to effectively cross-examine her, and his trial counsel was ineffective in not
raising an objection. Defendant notes that it was difficult for A. to testify and that she
indicated, in response to some questions, that she did not remember, she did not know, or
that nothing had happened.
As defendant concedes, his trial counsel did not object to the admission of A.’s
out-of-court statements and trial testimony on Confrontation Clause grounds. The failure
to raise the objection in the trial court on the ground raised on appeal forfeits defendant’s
appellate claims. (People v. Redd (2010) 48 Cal.4th 691, 730 (Redd).) However, we will
consider defendant’s Confrontation Clause claim because he asserts his trial counsel was
ineffective in not raising an objection. We review defendant’s Confrontation Clause
claim de novo. (People v. Seijas (2005) 36 Cal.4th 291, 304; People v. Nelson (2010)
190 Cal.App.4th 1453, 1466.)
“The Sixth Amendment’s Confrontation Clause, which is binding on the States
through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.’ ” (Ohio v.
Clark (2015) 576 U.S. 237, 243 [192 L.Ed.2d 306].) The Confrontation Clause is
concerned only with testimonial statements. (Davis v. Washington (2006) 547 U.S. 813,
821 [165 L.Ed.2d 224] (Davis); People v. Cage (2007) 40 Cal.4th 965, 984 (Cage).)
Statements are testimonial “when the circumstances objectively indicate that there is no
16
. . . ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.” (Davis, at p. 822;
accord People v. Sanchez (2016) 63 Cal.4th 665, 689.) “Statements are nontestimonial
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency,” (Davis, at p. 822) or “some other purpose unrelated to
preserving facts for later use at trial.” (Sanchez, at p. 689.) In determining the primary
purpose of an interrogation or statement, we consider all of the relevant circumstances,
including whether an ongoing emergency existed, the identity of the interrogator, and the
formality of the situation and the interrogation. (Ohio, at pp. 244-245, 249.) “[T]he
question is whether, in light of all the circumstances, viewed objectively, the ‘primary
purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’ ” (Id. at p. 245.)
Defendant contends that A.’s statements to Deputy Mullin and the SAFE
interviewer, and the recorded statement to Taylor, were testimonial. We agree. (Davis,
supra, 547 U.S. at p. 822; People v. Sisavath (2004) 118 Cal.App.4th 1396, 1402-1403;
U.S. v. Bordeaux (8th Cir. 2005) 400 F.3d 548, 555-556; State v. Blue (N.D. 2006)
717 N.W.2d 558, 561-565; State v. Snowden (2005) 867 A.2d 314, 325-330 [385 Md.
64]; State v. Mack (Or. 2004) 101 P.3d 349, 352-353.)
There was no ongoing emergency at the time A. spoke with Deputy Mullins, the
SAFE interviewer and Taylor. Unlike the 911 caller in Davis, A. described past events
and not events as they were happening. (Davis, supra, 547 U.S. at p. 827.) There was no
indication of an ongoing threat to A. or someone else inasmuch as the identities of the
victim and the perpetrator were known and A. and Taylor had left defendant’s apartment
for the hospital.
In addition, A.’s statements to Deputy Mullin and the SAFE interviewer were
provided in a formal setting. Deputy Mullin interviewed A. at the hospital in response to
17
a report of child sexual abuse. The purpose of his interview was to determine whether a
crime had been committed. He took notes at the time of the interview and prepared a
police report. The SAFE interview was conducted in a room monitored by Sergeant
Heidi Hampton and was video-recorded. The social worker who conducted the interview
prepared for the interview with Sergeant Hampton and a deputy district attorney and they
formulated a plan for eliciting information from A. The purpose of the SAFE interview
was to memorialize A.’s statement. Although not formal, A.’s recorded statement to
Taylor was taken after Taylor reported A.’s disclosure of inappropriate touching to
Deputy Mullins, received instructions from Sergeants Hampton and Mojica on what to do
during a pretext call, and conducted a supervised pretext call to defendant. Taylor told A.
she was recording their conversation so that Taylor could remember everything, and
Taylor repeatedly urged A. to tell her “absolutely everything that happened.” Recordings
of the SAFE interview and Taylor’s conversation with A. were played at the trial. The
circumstances under which A. made her statements to Deputy Mullin, the SAFE
interviewer, and Taylor would lead an objective witness reasonably to believe that A.’s
statements were obtained to preserve facts for later use at trial. Those statements are,
thus, subject to Confrontation Clause strictures.
The Confrontation Clause secures a right to “ ‘an adequate opportunity to cross-
examine adverse witnesses’ [citation], which requires that the defendant ‘ “ ‘[have] an
opportunity, not only of testing the recollection and sifting the conscience of the witness,
but of compelling [the witness] to stand face to face with the jury in order that they may
look at [the witness], and judge by [the witness’s] demeanor upon the stand and the
manner in which [the witness] gives his [or her] testimony whether [the witness] is
worthy of belief.’ ” ’ ” (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 963
(Giron-Chamul).) Courts examining whether a defendant was denied his or her right to
confrontation distinguish between an adverse witness’s failure to remember and refusal to
answer important questions. (Id. at pp. 965-966.) A witness’s failure to remember,
18
whether real or feigned, does not deny the defendant an opportunity to effectively cross-
examine the witness. (People v. Foalima (2015) 239 Cal.App.4th 1376, 1388, 1392-1394
(Foalima); People v. Perez (2000) 82 Cal.App.4th 760, 766-767 (Perez).) A witness’s
refusal to answer questions, on the other hand, may violate the defendant’s right to
confrontation. (Giron-Chamul, at pp. 965-969; People v. Murillo (2014) 231
Cal.App.4th 448, 449-450, 454-456.)
Unlike the child witness in Giron-Chamul, A. did not refuse to answer cross-
examination questions. (Giron-Chamul, supra, 245 Cal.App.4th at p. 966.) In response
to a number of cross-examination questions, A. testified that she did not remember. But
A.’s claimed lack of memory on cross-examination did not violate defendant’s right to
confrontation. (Foalima, supra, 239 Cal.App.4th at pp. 1388, 1392-1394; Perez, supra,
82 Cal.App.4th at pp. 766-767.) The Confrontation Clause does not guarantee testimony
that is not “marred by forgetfulness, confusion, or evasion. To the contrary, the
Confrontation Clause is generally satisfied when the defense is given a full and fair
opportunity to probe and expose these infirmities through cross-examination, thereby
calling to the attention of the factfinder the reasons for giving scant weight to the witness’
testimony.’ ” (U.S. v. Owens (1988) 484 U.S. 554, 558 [98 L.Ed.2d 951].)
Moreover, the Confrontation Clause did not bar the admission of A.’s prior
testimonial statements when she appeared at trial, was subject to unrestricted cross-
examination, and the jury had an opportunity to observe her demeanor. (Crawford v.
Washington (2004) 541 U.S. 36, 59, fn. 9 [158 L.Ed.2d 177]; Redd, supra, 48 Cal.4th at
p. 730-731; Cage, supra, 40 Cal.4th at p. 978, fn. 7.)
Under the circumstances, defendant’s claim of ineffective assistance fails.
A defendant claiming ineffective assistance of counsel must affirmatively establish that
(1) his or her trial counsel’s representation was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) the deficient
representation prejudiced defendant. (People v. Maury (2003) 30 Cal.4th 342, 389;
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Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
The judgment must be upheld if the defendant fails to establish either prong. (Strickland,
at p. 687.) With regard to the second prong, defendant must affirmatively demonstrate
a reasonable probability that, but for counsel’s unprofessional errors, the defendant would
have obtained a more favorable result. (Maury, at p. 389; People v. Ledesma (1987)
43 Cal.3d 171, 217-218; Strickland, at pp. 693-694.) A reasonable probability is a
probability sufficient to undermine confidence in the conviction. (Maury, at p. 389.) It is
not enough for defendant to show that errors had some conceivable effect on the outcome
of the case. (Ledesma, at p. 217.)
Here, defendant has not established that his counsel was deficient in not objecting,
because an objection would have lacked merit. Nor has defendant established that the
lack of objection resulted in undue prejudice.
V
Defendant further claims his trial counsel was ineffective in failing to object to
prosecutorial arguments that played on the jury’s sympathies and disparaged defendant
and his trial counsel.
In her closing statement, defendant’s trial counsel urged that A.’s strange behavior
created reasonable doubt as to the charges against defendant. Defense counsel pointed to
testimony indicating that A. was preoccupied with the male anatomy, A. was exposed to
discussions about sex and saw her mother having sex, A. tried to kiss men and touched
them in a way that made them uncomfortable, A. called men her fiancé or boyfriend and
said she was going to have sex with them, and A. looked up pornography. Counsel said
the defense was not that A. was a promiscuous girl, but that A. was overly sexualized
because of what she had been exposed to and children who had been exposed to sexual
conduct and watched pornography were sexually curious and acted out. Defense counsel
argued that A. and Taylor had lied and Taylor had coached A.
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In rebuttal, the prosecutor argued that defendant lied during his interview with
Sergeant Mojica so that he could “get out of it.” The prosecutor said, “He thinks
[Sergeant Mojica will] let him go home because he can disparage a six and seven-year-
old child. . . . [¶] He disparaged this child by way of his defense. You’ve all probably
heard of times past when a woman who is claiming rape would have people come in and
testify about her unchaste ways. Come in and say she’s a flousy [sic], she’s out every
night at the clubs. She has a permiscuous [sic] lifestyle, and therefore she could not have
been raped because she dances provocatively, because she’s a hugger. That’s what the
defense is in this case, ladies and gentlemen. And I am not attacking [defense counsel]
for this. The defendant has placed her in this position. [¶] The defendant insists during
his interview that this little girl has sexually assaulted him, and she can only play the
cards she’s dealt. She’s tried admirably to convince you that this little girl is an absolute
flousy [sic]. But ask yourself, who did [A.] accuse of sexual molestation? Was it Zack?
Was it Max? Was it Jason the dead guy? It [sic] the only adult in her life that this little
flousy [sic] has accused is Thomas Leonard. [¶] And so what Thomas Leonard is trying
to get you to believe is that she is to blame. The only person to blame in this case, ladies
and gentlemen, is the liar that sits before you charged with 13 counts of child molestation
who had sexually provocative images and searches on his computer for child
pornography.” The prosecutor argued that the case was about what defendant did, not
what A. did. The prosecutor suggested that defense counsel brought up the fact that
defendant was a veteran and presented testimony disparaging A. to create bias and
sympathy for defendant. The prosecutor said, “She wants to disparage this mother. She
wants to disparage this victim, and she wants to build her client up to be something he is
not, because she wants you to use bias and sympathy in determining that maybe he was --
maybe he was the victim here, maybe all he was trying to do was to protect [A.] and
protect Taylor. Ask yourself if that’s reasonable.” The prosecutor encouraged the jury to
look at all of the evidence, assess A.’s credibility and use reason.
21
The prosecutor’s rebuttal statements accurately described defendant’s case. In his
recorded statement to Sergeant Mojica, defendant blamed A. and said he was the victim.
He claimed A. was sexually attracted to him and was fantasizing, A. was very aggressive,
and A. fabricated the molestation allegations to get back at him. But even if the
prosecutor’s rebuttal statement remarks were misconduct, and even if defendant’s trial
counsel had rendered ineffective assistance by not objecting to the prosecutor’s
statements, defendant fails to establish prejudice. A.’s testimony and out-of-court
statements, defendant’s recorded statements, and his internet search history are
compelling evidence of his guilt. Moreover, the trial court instructed that the jury cannot
let bias, sympathy or prejudice influence its decision. It instructed that the jury must
decide the facts based only on the evidence presented in the trial, and closing argument
remarks by the attorneys did not constitute evidence. It instructed on how to judge the
credibility of witnesses. It specified the elements of the charged crimes and instructed on
defendant’s claim of accident. It admonished that in deciding whether the People had
proved their case beyond a reasonable doubt, the jury must impartially compare and
consider all the evidence received at the trial and unless the evidence proved that
defendant was guilty beyond a reasonable doubt, the jury must find defendant not guilty.
We presume the jury followed the trial court’s instructions. (People v. Daveggio &
Michaud (2018) 4 Cal.5th 790, 857; People v. Edwards (2013) 57 Cal.4th 658, 764.) On
this record, it is not reasonably probable that defendant suffered prejudice from defense
counsel’s failure to object to the prosecutor’s rebuttal argument statements. Accordingly,
we reject defendant’s ineffective assistance claim.
VI
Because we have rejected each of defendant’s appellate claims, we likewise reject
his claim that cumulative trial error requires reversal.
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VII
In addition, defendant argues the trial court erred in not staying punishment on
count one pursuant to section 654. He claims counts one and five were based on the
same act.
Section 654 precludes multiple punishments for a single act or omission. (People
v. Deloza (1998) 18 Cal.4th 585, 591-592.) Subdivision (a) of the statute provides, “An
act or omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and sentence under
any one bars a prosecution for the same act or omission under any other.” “[A] course of
conduct divisible in time, although directed to one objective, may give rise to multiple
violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.)
Moreover, in cases involving sexual offenses, section 654 does not apply even where the
defendant had the same objective -- sexual gratification -- unless the crimes were
incidental to or the means by which another offense was accomplished. (People v.
Alvarez (2009) 178 Cal.App.4th 999, 1006-1007.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination. [Citations.] Its
findings will not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in the light most favorable
to the respondent and presume the existence of every fact the trial court could reasonably
deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139,
1143.)
The jury convicted defendant of violating section 288, subdivision (a) in count one
in that defendant’s fingers touched A.’s genitalia on the couch around July 2016. It
convicted defendant of violating section 288.7, subdivision (b) in count five in that his
fingers were in A.’s genitalia on the couch sometime between January 1, 2016 and
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September 30, 2016. The trial court did not stay either of the sentences imposed on
counts one and five pursuant to section 654, implicitly finding that counts one and five
involved separate acts. Substantial evidence does not support that finding.
Count five was based on the statements during defendant’s interview with
Sergeant Mojica about an incident on the couch. Specifically, defendant described an
incident that occurred probably in the first or middle part of August when he and A. were
on the couch watching Ninja Turtles, A. had a towel or blanket over her and A. shoved
defendant’s fingers in her privates. Defendant described that incident to Taylor during a
pretext call. He also told Taylor about an incident on the bed and an incident when he
was playing with A. But defendant did not describe another incident of his hand or
fingers touching or inside A.’s vagina that occurred on the couch. Because the record
contains no evidence of two separate acts involving defendant’s fingers touching or
inside A.’s genitalia on the couch, the trial court should have stayed the sentence on
count one or count five under section 654.
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is reversed and
the matter is remanded to the trial court with directions to resentence defendant and stay
the sentence on count one or count five under section 654.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
HOCH, J.
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