Opinion
F075982
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVIE ANTHONY BARRAZA, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901428)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Davie Anthony Barraza of five counts of a lewd act with a child younger than 14 years of age (Pen. Code, § 288, subd. (a)). The jury found true that he committed two or more such violations against more than one victim (§ 667.61, subd. (e)(4)). Appellant received an aggregate prison term of 50 years to life.
All future statutory references are to the Penal Code unless otherwise noted.
Appellant's arguments on appeal focus primarily on his uncharged acts of sexual misconduct. Two minors, H. and J. (who are sisters), were victims in the five charged acts of lewd conduct. Prior to trial, the trial court permitted the prosecution to introduce into evidence three specific alleged uncharged acts of sexual misconduct involving appellant and J., who is the younger sister. One such uncharged act raised an inference that J. had performed oral copulation on appellant under a blanket. According to the prosecutor, H. saw J. under the blanket near appellant's "private parts." J. "appeared sick and like she was going to vomit."
At trial, H. and J. testified about the five charged acts of sexual misconduct that they individually endured with appellant (three charged acts involved H. and the other two involved J.). H. and J. also testified about uncharged incidents involving appellant. The trial testimony about appellant's uncharged acts differed from what the prosecution initially presented to the trial court in its motion in limine. H.'s and J.'s trial testimony in this regard included details, and additional incidents with appellant, that were not contemplated in the court's evidentiary ruling. Altogether, H. and J. testified about seven uncharged incidents of sexual misconduct. These seven uncharged acts included H.'s trial testimony where she (apparently for the first time) claimed that J. was "sucking [appellant's] dick" when J. was under the blanket with appellant. H. testified that she knew this because J. had told her. H.'s claim was never corroborated by J., either before or during trial.
With CALCRIM No. 1191A, the court informed the jury it could consider three of the seven uncharged acts when determining whether appellant had a propensity to commit sexual offenses. These three uncharged acts were different from what the prosecution initially presented in its motion in limine. These three uncharged acts included H.'s uncorroborated claim that J. had been "sucking [appellant's] dick" when J. was under the blanket. The other uncharged acts included J.'s testimony that appellant made her masturbate him on one occasion, and H.'s testimony that appellant penetrated her vagina with his fingers on one occasion. The defense did not object when the court instructed the jury with CALCRIM No. 1191A.
Appellant asserts that the trial court abused its discretion in permitting admission of his uncharged acts of sexual misconduct. We conclude that, at the time the court made its evidentiary ruling, no abuse occurred. Moreover, the defense did not object when H. and J. testified at trial and discussed the uncharged acts of sexual misconduct which appellant allegedly performed with them. In failing to object, appellant has forfeited any claim that the court abused its discretion regarding how the trial testimony evolved beyond the court's initial ruling.
Appellant further contends the court erred when it instructed the jury with CALCRIM No. 1191A and permitted the jury to consider three of his seven uncharged acts of sexual misconduct. We determine that appellant has forfeited this claim due to a failure to object. In any event, we also conclude that the court did not err when it instructed the jury with CALCRIM No. 1191A, which properly informed the jury how to consider the three uncharged acts of sexual misconduct. Finally, we determine that, even if the court erred, any presumed error was harmless. Although H. and J. provided inconsistent statements at times, points which the defense emphasized during closing argument, the evidence against appellant was significant and compelling. H. and J. were consistent regarding how appellant touched them, and the prosecutor emphasized their credibility to the jury. This record presents compelling evidence that appellant committed the five charged acts of lewd conduct.
Finally, appellant contends that the court abused its discretion in prohibiting the defense from admitting certain third party culpability evidence. He also raises a claim of cumulative error. We reject these contentions and affirm.
BACKGROUND
We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.
I. The Victims' Family Learns About Appellant's Inappropriate Touching.
Appellant was born in 1985 and was between 21 and 28 years of age when the offenses occurred. Two victims, H. and J., were involved in these charges. Appellant was an uncle to H. and J., having married their maternal aunt. H. and J. visited their aunt and uncle often, sometimes spending the night. H. was born in 2000. She was 16 years old when she testified in this trial. Her sister, J., was born in 2003. J. was 13 years old when she testified in this trial. Both H. and J. were younger than 14 years old when the charged acts occurred.
The victims' family first learned about the inappropriate touching in August 2013. At that time, J. was about 10 years old and living in Arizona with another uncle and his girlfriend. She was living there because she was having trouble in school. One day, J. and a female playmate were caught playing "boyfriend and girlfriend" together while naked. J.'s uncle was not home at the time, but he was informed that J. was "showing the other little girl things," so he asked J. "where she learned them from." J. disclosed to her uncle that appellant had touched her. J.'s uncle informed his sister, B.W., about J.'s statement. B.W. is the mother of H. and J.
In Fresno, B.W. confronted H., asking if anyone had touched J. inappropriately. H. began to cry. She appeared scared. She admitted that appellant had touched both her and J. inappropriately. Shortly thereafter, the family notified law enforcement. After speaking with B.W., J.'s uncle escorted J. back to Fresno. J. was upset and scared. She told her uncle that "she didn't want to be around the person that would be able to get to her."
II. The Police Investigation.
In October 2013, H. and J. underwent separate forensic (MDIC) interviews with law enforcement. Those interviews were visually recorded with audio. The recordings were moved into evidence and played for the jury.
For H.'s interview, the jury heard the audio recording, which was played in court. However, a DVD was moved into evidence that contained both the visual and audio recording of H.'s MDIC interview. The video and audio recording of H.'s interview was available for the jury during its deliberations.
During the respective interviews, H. and J. stated that appellant had touched their vaginas on multiple occasions. According to H.'s statements, appellant usually touched her vagina with his hand under her underwear. On one occasion, appellant licked her vagina. Although she was vague at times, J. generally reported that appellant rubbed her vagina over her clothing. J. told the interviewer that appellant first touched her inappropriately when she was about four years old, and he last touched her inappropriately when she was 10 years old.
In November 2013, law enforcement seized two cellular phones from appellant's residence. A forensic search was done, which produced nothing of evidentiary value. That same month, appellant underwent a voluntary interview with law enforcement, which was visually recorded with audio. The recording was moved into evidence and played for the jury. During the interview, appellant repeatedly denied touching either of the girls inappropriately. He claimed on at least three occasions that he did not like children. When asked why H. and J. might lie about these allegations, appellant said he had "no clue" but he was "the evil uncle that always tells 'em no." Appellant was released after the interview concluded.
Appellant subsequently moved from Fresno to New Mexico. Prior to moving, appellant alerted law enforcement about his plans. At trial, appellant told the jury that he relocated for "work purposes." He started working at a company which employed his father-in-law. In 2015, and while in New Mexico, appellant was arrested and extradited back to Fresno.
During closing argument, the prosecutor noted that no evidence existed regarding why a delay occurred in arresting appellant after his interview.
III. The Evidence Regarding The Charged Acts.
At trial, H. and J. informed the jury that appellant had touched their respective vaginas on multiple occasions. H. said that he first touched her when she was 10 years old. She testified that she saw appellant touch J., and she testified that, at times, appellant would simultaneously touch her and J. inappropriately. J. testified that she saw appellant touch H. one time.
At times, H. and J. provided testimony that was inconsistent with their pretrial statements. During closing argument, defense counsel emphasized these inconsistencies in questioning their veracity. The jury heard about the following specific incidents.
A. The first incident with H. (count 2)
During H.'s MDIC interview, she said the first incident with appellant occurred when J. and a brother were in the bedroom with her. H. reported that she (and everyone else) had been asleep. She woke up and appellant reached inside her pants and he manipulated her vagina with his fingers. During her interview, she reported that, when this first incident occurred, the room was "kinda light" because of the sun. Appellant stopped when H. rolled over. Appellant left the room. H. reported that she stayed in the room, and she watched television with J. and their brother.
At trial, H. testified that she was 10 years old when appellant first touched her inappropriately. She said she was alone with appellant, and she had been watching television. This incident happened around dinnertime. She said the room was dark, but the curtains were open, and light was coming from a window and the television. Appellant put his hand inside her pants and touched her vagina, both over and under her underwear. She saw him separate the lips of her vagina. She saw and felt his fingers go inside her vagina. She told him to stop. Appellant answered, "You like it, just keep on going with it." She moved his hand away and she left the room. She helped her grandmother prepare dinner. Other adults were present in the house, but she did not tell anyone because she did not think they would believe her.
The prosecutor informed the jury that count 2 applied to the first time appellant touched H. inappropriately. During closing argument, defense counsel questioned why H. would make such inconsistent statements about the first incident.
B. The "worst incident" for H. (count 1)
During her MDIC interview, H. was asked to describe the worst incident that had occurred to her with appellant. She reported that appellant had licked her vagina. She believed she had been eight or nine years old. She said this incident occurred at a house next to a school called "Pyle." She reported that she had been lying on a bed dozing with J. when this had happened. Appellant stopped when they heard the front door open, and he pulled up her pants.
At trial, however, the prosecutor asked H., "What is the worst thing you remember happening with [appellant]?" She responded that he was always trying to touch her vagina. The prosecutor asked whether appellant ever touched her vagina with anything other than his hands. She said, "No." The prosecutor asked if H. recalled telling the interviewer about a time appellant touched her vagina with something other than his hand. She said she could not remember. The prosecutor asked if H. remembered telling the interviewer about a time appellant's mouth touched her vagina, and she said, "Yes." She explained that appellant began to play with her vagina, which started hurting. He went under a blanket and began to lick her. She testified that appellant put his tongue in her vagina. She was able to "back out" and she left the room.
During cross-examination, H. confirmed that her worst incident was when appellant put his mouth on her vagina. She said this happened either at the Lemoore house or the zoo house, but she could not remember. She said she was 11 years old when this occurred. She could not remember if anybody else was in the room when this happened.
The prosecutor informed the jury that count 1 involved the time appellant licked H.'s vagina. During closing argument, defense counsel noted that the prosecutor had to "prompt" H. during her trial testimony about this incident. Unlike the MDIC interview, H. did not readily testify that this was her worst experience. Defense counsel also noted to the jury that H. was inconsistent regarding where this incident took place and whether other people were present.
C. H.'s final incident with appellant (count 3)
During her MDIC interview, H. reported an incident wherein appellant touched her while she was on her menstrual cycle. She said this occurred at a house near a zoo and other people were present in the house. She told him that he could not touch her because she was on her period, and appellant told her, "Just let me get in it. Let me get it in it."
During her trial testimony, however, H. said this incident occurred at a house in Lemoore. She explained that appellant was touching her outside her underwear. She told appellant that he could not play with her vagina because she was on her period. He touched her vagina under her underwear and he went inside her vagina. H. started having cramps. She took his hand out and went to the bathroom. She felt disgusted. During cross-examination, she denied that this occurred in Lemoore, but "at the zoo house." She initially testified that J. was probably in the room when this happened, but she did not recall. She then said she could not recall if anybody, including J., had been in the house when this occurred.
The prosecutor informed the jury that count 3 applied to this incident, which was the last time appellant touched H. inappropriately. During closing argument, defense counsel asserted that H. was inconsistent regarding where this incident had occurred, and whether other people were in the residence at the time.
D. J.'s first incident with appellant (count 4)
During her MDIC interview, J. reported that her first incident with appellant occurred when she was watching Care Bears on Netflix. According to J., H. was asleep on the floor beside her. They were lying on the floor in their aunt and appellant's bedroom. Her aunt was also in the room asleep on the bed. Appellant began to rub her vagina over her clothes. J. told appellant to stop or she would tell her aunt. Appellant eventually stopped touching her.
At trial, however, J. testified that the first incident occurred when she was alone in a bedroom with appellant. Other people were in the house, but they were elsewhere. She reported that this incident happened on her aunt's bed. She said she could not remember how old she was when appellant first touched her inappropriately. She told the jury that appellant put his hand on her vagina over her clothing. He rubbed her vagina, which she called her "private part" where nobody should touch her and which she used to urinate. She tried to push his hand away, but he continued rubbing her. She testified that, when this happened, they looked at each other without saying anything. H. entered the room and appellant stopped touching her.
The prosecutor informed the jury that count 4 applied to the first time appellant touched J. inappropriately. During closing argument, defense counsel noted that J.'s two versions about the first incident were contradictory.
E. J.'s final incident with appellant (count 5)
During her MDIC interview, J. reported that her last incident with appellant occurred when she was in bed with H. and appellant. She thought that appellant rubbed her vagina over her clothes, but she was not certain if he touched her bare skin. She stated that this incident ended when she rolled over in bed.
At trial, however, J. testified that appellant last touched her when she was alone in her aunt's bedroom because she "got in trouble" and she had to sit facing a wall. Everybody else was in the living room. She testified that appellant entered the bedroom and he placed one hand on her vagina under her underwear. She said that he put his hand "inside" her private part. Appellant used his other hand to hold her arm to keep her from moving. Other family members were present in the living room. She testified that this incident stopped when her aunt entered the room.
The prosecutor informed the jury that count 5 applied to this incident, which was the last time appellant touched J. inappropriately. During closing argument, defense counsel called J.'s version of events "very contradictory."
IV. The Evidence Regarding The Uncharged Acts.
In addition to the charged acts, H. and J. informed the jury about seven uncharged incidents that occurred with appellant.
1. During H.'s MDIC interview, she described a time when she saw appellant whisper something to J. and J. went underneath a blanket. Appellant's hands were underneath the same blanket. H. reported that J.'s head went near appellant's "private part" under the blanket, but she was not sure how close J. went to it. J.'s head reappeared, and J. looked "kinda" sick, like she might throw up. During the MDIC interview, H. denied knowing what happened when J. went underneath the blanket, and she denied talking to J. about this incident.
During her trial testimony, H. recalled a time when J. was under a blanket. She said she had asked appellant "what they were doing[,]" but she could not remember appellant's response. She told the jury that J. was "sucking his dick" when J. went under the blanket. When asked how she knew that, H. said that, after this incident, she had asked J. "what happened and she told me."
J. never told the MDIC interviewer about the blanket incident or possibly orally copulating appellant. In fact, during her MDIC interview, J. denied that appellant had ever asked her to do anything to his body. At trial, J. never testified about this incident.
2. At trial, J. testified that she was once in a vehicle with appellant, who was in the driver's seat. She was about six years old and in the front passenger seat. They were parked at appellant's apartment complex after running an errand to bring back pizza. According to J., appellant unzipped his pants, grabbed her hand, and made her touch his penis. He moved her hand up and down on his penis. He stopped when H. came out of the apartment and asked if they were going to come inside.
3. During her MDIC interview, J. described an incident where appellant asked her to remove her clothing. She refused. This occurred when she was in her aunt's bedroom. J.'s brothers, her aunt and H. were all present in the room but asleep. At trial, however, J. testified that this incident occurred when she was alone with appellant in the living room. She said that her brothers and sister were home at the time, but in a bedroom. She told the jury that she removed her pajamas, and appellant took pictures of her naked using his cell phone. She said she did not remember being asked about this incident during her police interview.
4. During her MDIC interview, J. recounted an incident where appellant tried to teach her how to kiss. He threatened that he would hurt her if she did not do it. She said appellant kissed her with his lips, and he opened and closed his mouth as if he was talking. She said that, while he kissed her, he rubbed her vagina over her pants. At trial, however, she testified that, while appellant started to teach her how to kiss, her aunt entered the room and he stopped before actually kissing her.
5. At trial, H. described an incident in Lemoore. According to H., appellant touched her vagina under her underwear, and he penetrated her vagina with his fingers. Nobody else was home when this occurred.
During closing argument, defense counsel noted that H. did not report this alleged incident during her MDIC interview.
6. At trial, H. testified about a time when appellant rubbed her breasts with his hand and he touched the "inside" of her vagina with his fingers. This occurred in a residence in Fresno near the zoo. She was about 13 years old when this occurred. She was alone with appellant in the residence when this occurred. She told him that she was uncomfortable, and she did not want him to touch her. He said, "You like it, so just keep on playing with it."
During closing argument, defense counsel noted that H. did not report this alleged incident during her MDIC interview.
7. At trial, J. testified that she saw appellant touch H.'s vagina on one occasion. Appellant had his hand under a blanket while he touched H. J. asked what he was doing, and he told her to "mind [your] own business and to get out and go play with [your] brothers."
V. The Defense Evidence.
Appellant testified on his own behalf. He denied ever touching H. or J. inappropriately. He denied photographing J. naked. He said he did not know why H. or J. would make these accusations against him. Appellant told the jury that he offered to take a lie detector test, but police officials rejected it.
The defense called a number of witnesses who testified that they trusted appellant around their children or that he had a good character. Some defense witnesses testified that they had never seen anything unusual regarding appellant's interactions with H. and J.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion Regarding The Admission Of Evidence About Appellant's Uncharged Sexual Misconduct And Appellant Has Forfeited This Claim To The Extent It Is Based On The Testimony Received At Trial.
Appellant contends that the trial court abused its discretion by permitting the jury to hear testimony about his uncharged sexual misconduct with J. He seeks reversal of his judgment.
A. Background.
1. The prosecution's motion in limine.
Prior to trial, the prosecution filed a motion in limine to admit evidence of uncharged acts for the purpose of proving appellant's propensity to commit the charged sexual offenses. The motion mentioned three specific uncharged acts involving J.:
1. H.'s observation that J. was under a blanket with appellant, and he placed his hands under the blanket and J.'s head was near appellant's "private parts." J. "appeared sick and like she was going to vomit."
2. Appellant asked J. to remove her clothing, but she refused. When she refused, appellant grabbed her and pulled her closer.
3. Appellant taught J. how to kiss. Appellant told her that he would hurt her if she did not let him teach her. While appellant kissed her, he rubbed her vagina over her clothing.
At the hearing regarding the prosecution's motion, the prosecutor conceded that J. had never personally stated that she had been under a blanket and possibly near appellant's penis. The court confirmed with the prosecutor that H. would present the evidence about that specific issue at trial. The court noted that this evidence inferred that J. had performed oral copulation on appellant. The court determined that this uncharged act was similar to the other allegations in this case, noting that count 1 (involving H.) involved an allegation of oral copulation or sexual penetration. The court likewise determined that the other two uncharged allegations were also not as egregious as the pending allegations against appellant. According to the court, nothing suggested that the jurors would "shut down" or make an emotional decision when hearing this evidence. The court did not believe this evidence would involve an undue consumption of time. The court did not see how the jury might be misled or become confused. The court ruled that the prosecution could introduce evidence of these uncharged acts to show appellant's propensity under Evidence Code section 1108. The court noted that it would give the jury a limiting instruction.
2. The relevant trial evidence.
As noted earlier, H. and J. provided trial testimony that encompassed seven uncharged acts involving appellant. The trial testimony about appellant's uncharged acts differed from what the prosecution initially presented to the trial court in its motion in limine. H.'s and J.'s trial testimony in this regard included details, and additional incidents with appellant, that were not contemplated in the court's evidentiary ruling. The trial testimony regarding appellant's uncharged acts included the following three incidents which we previously discussed and which we briefly summarize here again:
1. H.'s testimony regarding an incident in Lemoore wherein appellant touched her vagina under her underwear, and he penetrated her vagina with his fingers. Nobody was home when this occurred.
2. J.'s testimony that appellant forced her to rub his penis while they were parked in his vehicle.
3. H.'s testimony that J. had been "sucking [appellant's] dick" while J. was under a blanket. H. testified that J. told her this information.
As we discuss in greater detail in section II below, the court instructed the jury that it could consider these three uncharged acts when determining whether appellant had a propensity to commit sexual offenses.
B. The standard of review.
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) A trial court abuses its discretion when its ruling is outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th 690, 714.)
C. Analysis.
Appellant concedes that the allegations involving his charged acts with H. and J. were abhorrent. He argues, however, that his charged acts were "relatively mild examples along the continuum of sexually abusive behavior." He claims that his charged acts "pale in comparison" to the uncharged allegations that J. was forced to masturbate him on one occasion and orally copulate him on another occasion. He asserts that his uncharged acts with J. were far more repulsive and egregious than his charged conduct with her. He notes that only H. provided the evidence about J.'s alleged oral copulation, which J. never corroborated. He maintains that the trial court abused its discretion in failing to exclude the evidence of his uncharged conduct under Evidence Code section 352. We disagree.
1. The relevant law.
A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, § 352.) Prejudice is not associated with evidence probative of a defendant's guilt; instead, it involves evidence tending to evoke an emotional bias against the defendant with very little effect on the issues. (People v. Nguyen (2015) 61 Cal.4th 1015, 1035.) Broadly stated, evidence is substantially more prejudicial than probative if it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (People v. Waidla, supra, 22 Cal.4th at p. 724.)
Pursuant to Evidence Code section 1108, evidence of additional incidents of sexual misconduct is admissible to demonstrate a defendant's propensity for such acts, unless this evidence is unduly prejudicial or otherwise objectionable under Evidence Code section 352. Our Supreme Court has explained that Evidence Code section 1108 requires a trial court to examine the evidence of other incidents of sexual misconduct. The court must "consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
2. People v. Ennis (2010) 190 Cal.App.4th 721.
To resolve this issue, the parties rely primarily on People v. Ennis (2010) 190 Cal.App.4th 721 (Ennis). In Ennis, the defendant was convicted of sexually abusing his eight-year-old daughter and 14-year-old stepdaughter. (Ennis, supra, 190 Cal.App.4th at p. 724.) The defendant's alleged acts included, among other things, vaginal and anal intercourse with his daughter, requiring her to orally copulate him in front of others, and requiring her to orally copulate a friend of his. (Id. at p. 726.) The prosecution also presented evidence that the defendant had sexually abused his daughter while they lived in Arizona. While there, he had also abused his daughter's younger sister, who was disabled with muscular dystrophy. (Id. at pp. 726, 732.) On appeal, the defendant argued that evidence of his uncharged acts from Arizona should have been excluded under Evidence Code section 352. (Ennis, supra, at p. 733.) The appellate court commented that the uncharged acts from Arizona had only "slight" probative value. (Ibid.) Ennis noted that, while evidence of similar crimes is "always probative" because it suggests a defendant's criminal propensity, when a victim in a child molestation case testifies about both the charged and uncharged acts, the evidence of the uncharged molestation does not "seem to advance the ball in any meaningful way." (Ibid.) The appellate court determined that the uncharged acts from Arizona did not fill in any missing evidentiary gaps about what had happened in California. Moreover, because the evidence came from the same witness, it did not corroborate the California evidence "in any significant way." (Ibid.)
The Ennis court, however, rejected the argument that the prejudicial impact of the uncharged acts substantially outweighed its probative value. (Ennis, supra, 190 Cal.App.4th at p. 733.) The uncharged acts in Arizona were substantially identical to the charged crimes in California. (Id. at p. 734.) Nothing about the uncharged Arizona crimes made the defendant look significantly worse or made his alleged conduct in California appear significantly more egregious. (Ibid.) The appellate court disagreed that emotional bias resulted because the jury learned that the defendant had also molested the disabled girl in Arizona. "We simply reject the implication that jurors would be sanguine about a man molesting his young daughter, and would become disturbed by such conduct only if she were disabled." (Ibid.) Ennis held that the trial court did not err in admitting the uncharged acts of molestation from Arizona. (Id. at pp. 734-735.)
Appellant contends that Ennis is factually distinguishable, and he concedes "that the result in Ennis does not directly govern the instant situation." However, he argues that Ennis supports his position that propensity evidence has little, if any, probative value when it comes from a victim-witness. In contrast to Ennis, he asserts that his uncharged conduct in this matter was "substantially different" from his charged acts. He further suggests that Ennis was wrongly decided because it failed to draw "gradations" in repulsiveness when analyzing the various types of sexual misdeeds a defendant may commit with children. For example, appellant contends Ennis failed to appreciate the repulsiveness a jury may feel about a defendant molesting a disabled child. We reject appellant's arguments.
It is not "irrational" for a sexual abuse victim to testify about both the charged and uncharged offenses that occurred to him or her. (People v. Gonzales (2017) 16 Cal.App.5th 494, 502 (Gonzales).) Although testimony about uncharged sexual acts from the same victim-witness is not as probative as similar testimony from a third party, "it is still probative." (Ibid.)
Appellant's uncharged acts with J. were not remote in time. This evidence permitted the jury to better understand and appreciate the scope of the alleged abuse which J. had endured. Moreover, given the number of incidents that J. described, the uncharged behavior also shed light on why J. may have not recalled all details or why she may have confused some incidents with others. This evidence allowed the jury to better evaluate appellant's and J.'s credibility. Contrary to appellant's assertions, his uncharged acts with J. had probative value, and the prosecution's offer of proof in its motion in limine was clearly relevant to the pending charges. (Evid. Code, § 210 ["Relevant evidence" relates to a witness's credibility or has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].)
We reject appellant's assertion that an abuse of discretion occurred because J.'s alleged oral copulation of him was uncorroborated and based on hearsay. To the contrary, H. was a percipient witness to this incident and the trial court properly permitted her to recount her observations. Moreover, at the time the court made its evidentiary ruling, nothing about the prosecution's offer of proof involved hearsay. Instead, it was during H.'s trial testimony when she (apparently for the first time) claimed that J. was "sucking [appellant's] dick" when J. went under the blanket. When asked how she knew that, H. testified that, after this incident, she had asked J. "what happened and she told me." The defense did not object at trial when H. testified about J.'s alleged statement involving oral copulation. As such, because appellant failed to preserve this argument for appellate review, it is forfeited. (People v. Dykes (2009) 46 Cal.4th 731, 756; see also People v. Redd (2010) 48 Cal.4th 691, 730.)
We disagree that the admission of appellant's uncharged behavior was more prejudicial than probative. We reject appellant's argument that this evidence would have triggered an emotional response in the jurors that was significantly different than what the charged conduct would have evoked. Instead, at the time the trial court made its evidentiary ruling, nothing about the uncharged allegations made appellant look significantly worse or made his charged conduct appear significantly more egregious. (See Ennis, supra, 190 Cal.App.4th at p. 734.) Indeed, the charged offenses in this matter involved appellant licking H.'s vagina, and his repeated touching of H.'s and J.'s vaginas. Similar to Ennis, the charged and uncharged acts in this matter were substantially similar. The prejudice stemming from appellant's uncharged conduct did not substantially outweigh its probative value, and this evidence did not have any significant prejudicial effect as that word is used in Evidence Code section 352. (Ennis, supra, 190 Cal.App.4th at p. 733.) Thus, we disagree that Ennis is distinguishable, and we decline appellant's request to find that Ennis was wrongly decided.
Based on this record, the trial court understood the scope of its discretion, and it weighed the competing interests. Appellant's uncharged conduct had probative value, and it did not pose any significant prejudicial effect as that word is used in Evidence Code section 352. (See Ennis, supra, 190 Cal.App.4th at p. 733.) The admission of appellant's uncharged acts did not pose an intolerable risk to the fairness of the proceedings or the reliability of the outcome. (See People v. Waidla, supra, 22 Cal.4th at p. 724.) As such, the court's evidentiary ruling was not outside the bounds of reason. (See People v. Waidla, supra, 22 Cal.4th at p. 714.) Accordingly, an abuse of discretion is not present, and this claim fails.
Because the court did not abuse its discretion, we will not address appellant's arguments regarding prejudice or the appropriate standard of review.
II. Appellant Has Forfeited His Claim That The Trial Court Erred In Instructing The Jury With CALCRIM No. 1191A; In Any Event The Trial Court Did Not Err And Any Presumed Error Was Harmless.
Appellant asserts that the trial court erred by instructing the jury with CALCRIM No. 1191A. He seeks reversal of his judgment.
A. The standard of review.
With CALCRIM No. 1191A, the trial court informed the jury that the prosecution had presented evidence that appellant had committed additional lewd or lascivious acts that were not charged in this case. Three uncharged acts were the subject of this instruction: (1) appellant penetrated H.'s vagina in Lemoore; (2) appellant making J. touch his penis in a parked vehicle; and (3) J.'s act of oral copulation.
The jury was instructed that it could consider these acts only if the prosecution had proven by a preponderance of the evidence that appellant had in fact committed these uncharged offenses. The court defined the preponderance standard and said it was a different standard than proof beyond a reasonable doubt. The jury was told that, if the prosecution had not met this burden, it must "disregard this evidence entirely."
The court informed the jurors that, if they decided appellant committed the uncharged offenses, they could, but were not required to, conclude from that evidence that appellant was disposed or inclined to commit sexual offenses. The jury could also conclude that appellant was likely to commit lewd or lascivious acts on a child under the age of 14 years. The court finished this instruction as follows: "If you conclude that [appellant] committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of lewd or lascivious acts on a child under the age of 14 years. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
B. The standard of review.
We review de novo a claim involving instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Waidla, supra, 22 Cal.4th at p. 733.)
C. Analysis.
Appellant concedes that at least one appellate court, Gonzales, supra, 16 Cal.App.5th 494, has approved giving former CALCRIM No. 1191, the predecessor to CALCRIM No. 1191A, where the victim of the charged crimes is also the sole source of evidence regarding uncharged misconduct. (Gonzales, supra, at pp. 501-502.) Appellant, however, notes that our Supreme Court has yet to address whether CALCRIM No. 1191A is a proper instruction where the evidence about uncharged misconduct derives solely from the victim of the charged crimes. He also notes that no appellate court has analyzed this instruction where the uncharged conduct is based on uncorroborated hearsay. He focuses on the hearsay testimony which H. provided in this matter regarding J.'s alleged oral copulation. Appellant argues that the trial court erred in instructing the jury with CALCRIM No. 1191A.
"In March 2017, CALCRIM No. 1191 was modified to distinguish uncharged offenses offered as propensity evidence from charged offenses offered for that purpose. CALCRIM No. 1191A now applies to the former, while CALCRIM No. 1191B applies to the latter." (Gonzales, supra, 16 Cal.App.5th at p. 496, fn. 1.)
We find appellant's arguments unpersuasive. The court did not err, and any presumed error was harmless.
1. The trial court did not err.
The parties dispute whether or not we should follow Gonzales, supra, 16 Cal.App.5th 494. Appellant argues that we should reject Gonzales and, instead, adopt its concurring opinion authored by Justice Perren. To understand the parties' arguments, we summarize Gonzales and Justice Perren's concurrence. In addition, we summarize People v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz), which originated from this court. Justice Perren cited Cruz in his concurring opinion (Gonzales, supra, 16 Cal.App.5th at p. 506 (conc. opn. of Perren, J.)), and appellant relies on Cruz for some of his arguments.
a. Gonzales , supra , 16 Cal.App.5th 494.
In Gonzales, the defendant was convicted of multiple sexual offenses involving a minor. (Gonzales, supra, 16 Cal.App.5th at p. 497.) On appeal, he argued that former CALCRIM No. 1191 improperly allowed the victim to corroborate her own testimony when she testified about uncharged sexual acts that the defendant had performed with her. (Gonzales, supra, at p. 500.) The gravamen of the defendant's argument was that former CALCRIM No. 1191 was appropriate only when a third party provides evidence of uncharged sexual misconduct, and not just the victim-witness herself. (Gonzales, at p. 501.) The Gonzales court, however, noted that testimony from a victim about uncharged sex offenses, although not common, "is in accord with established precedent." (Id. at p. 496.) Gonzales also noted that the defendant had not challenged the admissibility of his uncharged misconduct. Gonzales held that, because the uncharged evidence was admissible, former CALCRIM No. 1191 correctly instructed the jury. (Gonzales, supra, at p. 501.) Evidence Code section 1108 is not limited solely to the testimony of third parties. (Gonzales, supra, at p. 502.) Instead, the statute allows the admission of evidence of uncharged sexual offenses from any witness subject to Evidence Code section 352. (Gonzales, at p. 502.) The Gonzales court stated that, although a third party could offer more probative evidence regarding uncharged acts, it is not "irrational" to allow a victim to support her testimony with her own evidence of uncharged sexual offenses. (Ibid.)
The Gonzales court disagreed that former CALCRIM No. 1191 violated due process or likely resulted in the jury misapplying the burden of proof for the charged offenses. (Gonzales, supra, 16 Cal.App.5th at p. 502.) To the contrary, that instruction made it clear that the uncharged offenses were only one factor to consider, and they were not sufficient to prove by themselves that the defendant was guilty of the charged offenses. The People were still required to prove the charged offenses beyond a reasonable doubt. (Ibid.) Gonzales held that the trial court had complied with Evidence Code section 1108, and former CALCRIM No. 1191 was an appropriate instruction. (Gonzales, at p. 502.) The appellate court also determined that any presumed error was harmless. The victim's testimony "was direct, unflinching and remarkably articulate. In addition, [the victim's] testimony was corroborated by her mother and [another witness]." (Ibid.) A sexual assault exam showed acute injury to the victim's hymen. (Id. at p. 503.) The defendant's judgment was affirmed. (Id. at p. 505.)
b. Justice Perren's concurring opinion.
In a concurring opinion in Gonzales, Justice Perren noted that propensity evidence is admitted under Evidence Code section 1108 so jurors may better evaluate the victim's and defendant's credibility. With former CALCRIM No. 1191, however, jurors could corroborate a victim's testimony about the charged crimes based on the uncharged offenses, which only required proof by a preponderance standard. Justice Perren reasoned that a victim's credibility is the core proof establishing a defendant's guilt, but a jury may bolster a victim's credibility, and determine guilt, based on a standard which is less than proof beyond a reasonable doubt. (Gonzales, supra, 16 Cal.App.5th at p. 506 (conc. opn. of Perren, J.).) According to Justice Perren, former CALCRIM No. 1191 required an exercise in " 'mental gymnastics[,]' " which may be too confusing for the average lay juror. (Gonzales, at pp. 506-507 (conc. opn. of Perren, J.).) He believed an instruction such as CALCRIM No. 1191B should be given "where, as here, the proffered evidence of the uncharged offenses consists solely of the victim's testimony." (Gonzales, supra, 16 Cal.App.5th at p. 507 (conc. opn. of Perren, J.).) Justice Perren concluded that the victim "is either credible, or she is not. Inviting the jury to apply a lesser standard of proof as to her credibility regarding uncharged offenses, and then consider that evidence as proof of her credibility beyond a reasonable doubt as to the charged offenses, confuses the issue and threatens to undermine confidence in the result." (Ibid.)
Although Justice Perren believed that former CALCRIM No. 1191 had been improperly given, he noted that this instruction had not lowered the standard of proof for the determination of guilt. He also determined that "substantial" evidence supported the charged offenses. He agreed that any error was harmless. (Gonzales, supra, 16 Cal.App.5th at pp. 505, 507 (conc. opn. of Perren, J.).)
CALCRIM No. 1191B instructs the jury that it may conclude that a defendant was disposed or inclined to commit sexual offenses based on the commission of charged acts if those acts are proven beyond a reasonable doubt.
In his concurrence, Justice Perren cited Cruz, supra, 2 Cal.App.5th 1178, which originated from this court. We summarize Cruz, which appellant also cites.
c. Cruz , supra , 2 Cal.App.5th 1178.
In Cruz, the defendant was convicted of three sex-related offenses involving a minor under the age of 14 years. (Cruz, supra, 2 Cal.App.5th at p. 1180.) This court agreed that the jury had been improperly instructed regarding propensity evidence. (Ibid.) The instruction at issue originated from CALJIC No. 2.50.01, which instructs how a jury should evaluate uncharged sexual offenses. The Cruz court found error because CALJIC No. 2.50.01 permits a jury to consider both uncharged and charged crimes when considering a defendant's guilt. (Cruz, supra, 2 Cal.App.5th at pp. 1183-1184; CALJIC No. 2.50.01.) With CALJIC No. 2.50.01, a jury may find that a defendant committed other sexual offenses (including any charged crimes) by a preponderance of the evidence. The jury may then use those findings to infer that the defendant has a disposition to commit sexual offenses. (Cruz, at p. 1184.)
The Cruz court determined that CALJIC No. 2.50.01 improperly lowered the standard of proof for the determination of guilt. (Cruz, supra, 2 Cal.App.5th at p. 1186.) According to Cruz, the average lay juror would not understand and appreciate how to find the charged offenses true by a preponderance of the evidence, then find that this meant the defendant had a propensity to commit such offenses, but save for later a decision about whether, in light of all the evidence, the charged offenses had been proven beyond a reasonable doubt. (Ibid.) The error was reversible per se. (Id. at p. 1187.)
The Cruz court rejected the respondent's argument that CALJIC No. 2.50.01 had been previously upheld in People v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford). (Cruz, supra, 2 Cal.App.5th at p. 1186.) The respondent's argument overlooked the fact that Reliford involved the use of uncharged offenses to show propensity. (Cruz, supra, at p. 1186.)
d. We agree with Gonzales and we will apply it here.
We agree with Gonzales that a jury may infer a defendant's propensity to commit sexual offenses based on evidence of uncharged conduct even when the victim of the charged conduct provides that testimony. (Gonzales, supra, 16 Cal.App.5th at p. 502.) Although the victim's own testimony in that regard is not as probative as evidence stemming from a third party, the victim's testimony does have probative value. (Ibid.) The trial court is tasked with first determining whether such evidence is admissible. (Evid. Code, §§ 352, 1108.) If it is admissible, it is appropriate for the court to instruct the jury with CALCRIM No. 1191A. (Gonzales, supra, 16 Cal.App.5th at p. 502.)
Our Supreme Court has held that, under CALJIC No. 2.50.01, it is not reasonably likely a jury could interpret the instructions to authorize conviction of charged offenses based on a lower standard of proof. Instead, the instructions authorize a jury to use the preponderance standard for the preliminary determination of whether a defendant committed uncharged prior sexual offenses. (Reliford, supra, 29 Cal.4th at p. 1016.)
In this matter, the trial court conducted an evidentiary hearing and determined that Evidence Code section 352 did not preclude admission of appellant's three uncharged acts involving J. We have already determined that the court's evidentiary ruling was not an abuse of discretion. In light of Gonzales, we reject appellant's claim that it was then error for the court to instruct the jury with CALCRIM No. 1191A. To the contrary, because this evidence was properly admitted, the court was obligated to instruct the jury regarding how to evaluate the uncharged propensity evidence. (See Gonzales, supra, 16 Cal.App.5th at p. 502.)
Appellant contends that, even if we agree with Gonzales, the trial court should not have included the oral copulation evidence involving J. as part of the CALCRIM No. 1191A instruction because this incident was based on hearsay (from H.'s testimony) and it was uncorroborated. According to appellant, this incident was not supported by sufficient evidence. He claims that permitting this propensity inference diminished his rights to due process. We reject this argument.
As an initial matter, appellant admits that he did not object at trial when H. testified that J. was "sucking [appellant's] dick" when J. was under the blanket. Moreover, appellant did not object when, following the presentation of the trial evidence, the court indicated its intent to instruct the jury with CALCRIM No. 1191A. Based on a failure to object, appellant has forfeited the argument that the trial court erred in modifying CALCRIM No. 1191A to include reference to J.'s alleged oral copulation of him. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to trial court's modification of a jury instruction resulted in forfeiture of that claim of error on appeal]; People v. Bolin (1998) 18 Cal.4th 297, 326 [failure to object to wording of jury instruction forfeits appellate claim of error].)
Under section 1259, an objection at trial is unnecessary if instructional error impacts a defendant's substantial rights. "It has been held that a defendant's substantial rights are affected if the instruction was reversibly erroneous." (Cruz, supra, 2 Cal.App.5th at p. 1183.) We conclude that appellant has forfeited this claim because his substantial rights were not impacted by his failure to object.
Even if appellant had preserved this claim for appellate review, the trial court did not err. CALCRIM No. 1191A is the proper instruction to give a jury when it hears evidence of uncharged sexual offenses. (See Gonzales, supra, 16 Cal.App.5th at p. 502.) Our conclusion does not conflict with this court's earlier opinion in Cruz. Instead, the erroneous instruction in Cruz permitted the jury to infer a propensity to commit sexual offenses based on a mere preponderance standard for the charged offenses. (Cruz, supra, 2 Cal.App.5th at p. 1186.) In contrast to Cruz, the jurors in this matter were not instructed that they could consider appellant's charged acts under a reduced standard of proof. Instead, they could consider his uncharged behavior when deciding whether an inference of propensity could be drawn. Importantly, similar to Gonzales, CALCRIM No. 1191A instructed the jurors that the uncharged offenses were only one factor to consider, and the uncharged behavior was not sufficient, without more, to prove guilt of the charged crimes. The jury was told that the People still had to prove the charged offenses beyond a reasonable doubt. (Gonzales, supra, 16 Cal.App.5th at p. 502.) The concerns addressed in Cruz are not present here. As such, we decline to follow Justice Perren's concurrence from Gonzales.
Our Supreme Court has upheld giving former CALCRIM No. 1191 where charged offenses were used to establish propensity evidence because the jury was instructed "that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity." (People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1168.)
Based on this record, appellant has forfeited his claim that the trial court erred in modifying CALCRIM No. 1191A to include reference to J.'s alleged oral copulation of him. (See People v. Mora and Rangel, supra, 5 Cal.5th at p. 471; People v. Bolin, supra, 18 Cal.4th at p. 326.) In any event, no error occurred when the court instructed the jury with CALCRIM No. 1191A. (See Gonzales, supra, 16 Cal.App.5th at p. 502.) Accordingly, appellant's arguments are without merit, and this claim fails. Moreover, we agree with respondent that, even if error occurred, any presumed error was harmless.
2. Any presumed error was harmless.
In Reliford, our Supreme Court upheld the use of CALJIC No. 2.50.01, rejecting the assertion that it could mislead the jury regarding either its purpose or the prosecution's burden of proof. (Reliford, supra, 29 Cal.4th at p. 1012.) Similar to this matter, Reliford involved the use of uncharged acts to show the defendant's propensity to commit the charged offenses. (Id. at pp. 1011-1012.) Our high court concluded that it was permissible for a jury to use the preponderance standard for the "preliminary determination" regarding whether a defendant committed a prior sexual offense. (Id. at p. 1016.) The Reliford court rejected an assertion that such an instruction was too complicated for jurors to apply. (Ibid.) Jurors are presumed able to "grasp their duty" to apply the preponderance standard to the preliminary facts identified in the instruction and the reasonable doubt standard for all other determinations. (Ibid.)
Here, the jurors were properly instructed with CALCRIM No. 1191A that, if the People had not established that the uncharged acts occurred, then they must "disregard this evidence entirely." The court informed the jurors that, if they decided appellant committed the uncharged offenses, they could, but were not required to, conclude from that evidence that appellant was disposed or inclined to commit sexual offenses. The court made it clear that the uncharged offenses were only one factor to consider, and they were not sufficient to prove by themselves that appellant was guilty of the charged offenses. The jurors were instructed that the prosecution was still obligated to "prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
Other instructions informed the jurors that they had to decide the facts in the case. They were told to judge the credibility or believability of the witnesses. They had to use "common sense and experience" in deciding whether testimony was true and accurate. The jurors were told to presume that appellant was innocent, and the People had to prove his guilt beyond a reasonable doubt.
Similar to Reliford and Gonzales, we reject any assertion that the jurors might have reasonably believed they could convict appellant on the charged offenses based on a lower standard of proof than that beyond a reasonable doubt. (See Reliford, supra, 29 Cal.4th at p. 1016; Gonzales, supra, 16 Cal.App.5th at p. 502 [former CALCRIM No. 1191 did not likely result "in the jury misapplying the burden of proof for the charged offenses."].) Instead, the instruction under CALCRIM No. 1191A authorized the jury to use the preponderance standard for the preliminary determination of whether appellant had committed the uncharged acts. (See Reliford, supra, 29 Cal.4th at p. 1016.) We likewise reject any argument that CALCRIM No. 1191A was too complicated for the jurors to apply. (Reliford, at p. 1016.) To the contrary, jurors are presumed to be intelligent and capable of understanding and applying a court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
Moreover, the prosecution presented overwhelming evidence of appellant's guilt. H. and J.'s family learned of appellant's inappropriate touching after J. was found playing "boyfriend and girlfriend" with another young girl, and they were both naked. J. was living in Arizona at the time with another uncle, who was not home when J. was discovered playing in this manner. J.'s uncle was informed that J. was "showing the other little girl things," so he asked J. "where she learned them from." J. disclosed to her uncle that appellant had touched her.
In Fresno, B.W. confronted H., asking if anyone had touched J. inappropriately. H. began to cry. She appeared scared. She admitted that appellant had touched both her and J. inappropriately. Shortly thereafter, the family notified law enforcement. After speaking with B.W., J.'s uncle escorted J. back to Fresno. J. was upset and scared. She told her uncle that "she didn't want to be around the person that would be able to get to her."
At trial, H. and J. detailed how appellant repeatedly touched them inappropriately. Both before trial and while testifying, H. consistently stated that appellant put his mouth on her vagina on one occasion (count 1), and both victims discussed when and how he touched their vaginas (counts 2 through 5). Although details of H.'s and J.'s trial testimony conflicted at times with some of their pretrial statements, points which the defense emphasized during closing argument, the evidence against appellant was very significant and compelling. Even without independent corroboration, this record presents compelling evidence that appellant committed the five lewd acts charged in counts 1 through 5 (§ 288, subd. (a)).
Finally, during closing argument, the prosecutor went through the evidence supporting each charge, and she explained how the incidents correlated to particular charges. Only after discussing the charged crimes did the prosecutor mention appellant's uncharged behavior. The prosecutor highlighted the same three uncharged acts that were part of the CALCRIM No. 1191A instruction: (1) H.'s testimony regarding J.'s alleged oral copulation of appellant; (2) J.'s testimony regarding the time appellant allegedly made her masturbate him while in the vehicle; and (3) H.'s testimony about an incident in Lemoore where appellant put his hand in her underwear and penetrated her vagina with his fingers. The prosecutor noted that, if the jurors decided that appellant committed an uncharged act, they could conclude from that evidence that appellant was disposed or inclined to commit sexual offenses. The prosecutor informed the jurors that, if they found one or more of those acts true by a preponderance of the evidence, then they could use that evidence as part of a basis to find appellant guilty for the charged counts.
The prosecutor did not emphasize appellant's uncharged acts when she presented her closing remarks to the jury. Moreover, the prosecutor carefully delineated the charged conduct from the uncharged allegations. During rebuttal, the jurors were told to consider the charged crimes and the uncharged allegations separately, and to keep in mind the appropriate standard of proof. In general, the prosecutor emphasized that H. and J. had been credible. She argued that appellant's testimony was not credible. In light of the prosecutor's arguments, we do not discern how the jury may have been confused or misled by the evidence of appellant's uncharged behavior presented in this matter.
Based on this record, we can declare that any alleged instructional error involving CALCRIM No. 1191A was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) The evidence against appellant was substantial and persuasive. The jury was properly instructed regarding the burden of proof. As such, the claimed instructional error was unimportant in relation to everything else the jury considered regarding appellant's guilt. (See Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) In other words, the guilty verdicts actually rendered in this trial were surely unattributable to this alleged instructional error. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Accordingly, prejudice is not present, and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion In Precluding The Defense From Introducing Evidence Regarding Potential Third Party Culpability.
Appellant asserts that the trial court abused its discretion when it granted the prosecution's motion in limine to exclude potential third party culpability evidence.
A. Background.
Prior to trial, the prosecution filed a supplemental motion in limine requesting the exclusion of certain potential third party culpability evidence. This request involved witness statements provided to a defense investigator. First, appellant's wife had stated her belief that her ex-stepfather, Robert, had molested H. and J. She believed this because Robert had molested her as a child, and because H. and J. had spent time with him. She did not believe that appellant had molested H. and J.
Second, H.'s and J.'s maternal grandmother also told the defense investigator that she did not believe appellant had molested H. and J. Instead, she believed appellant's stepfather, Dave, was responsible. She reported that J. had shown fear around Dave. In addition, H. and J.'s maternal grandmother told the investigator that her ex-husband, Robert, was a person of interest in the case because he had molested the girls' mother when she was a child.
A hearing occurred, and the trial court heard argument from counsel. The prosecutor contended that these witness statements were uncorroborated, and their admission would violate Evidence Code section 352. Defense counsel conceded that, regarding the statements about Dave, there was no corroborating evidence. Regarding Robert, however, defense counsel asserted that the girls' mother would testify that he had molested her when she was a child. Robert had access to H. and J. during the applicable periods charged in this matter. As such, the defense asked that the girls' mother and grandmother be allowed to testify about Robert.
After taking the matter under submission, the court ruled that this evidence amounted to "mere speculation" and it was not relevant. The court further determined that it should be excluded under Evidence Code section 352 because it would require a "mini trial" and it would tend to confuse the issues.
B. The standard of review.
"A trial court's ruling excluding third party culpability evidence is reviewed for abuse of discretion." (People v. Elliott (2012) 53 Cal.4th 535, 581.) As noted before, we review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver, supra, 26 Cal.4th at p. 933.) An abuse is present when the court's ruling is outside the bounds of reason. (People v. Waidla, supra, 22 Cal.4th at p. 714.)
C. Analysis.
Appellant contends that the excluded evidence was relevant, and the trial court abused its discretion. We disagree.
For an uncharged offense to be admitted to establish a third party's identity as the perpetrator of the charged crimes, the pattern and characteristics of the crimes must be so unusual and distinctive that it represents a signature. (People v. Elliott, supra, 53 Cal.4th at p. 581.) Evidence of a third party's culpability is admissible if it is capable of raising a reasonable doubt of the defendant's guilt. (People v. Prince (2007) 40 Cal.4th 1179, 1242.) However, a third party's mere motive or opportunity to commit the crime, without more, is not sufficient to raise reasonable doubt about a defendant's guilt. (Ibid.) Instead, direct or circumstantial evidence must link the third person to the actual perpetration of the crime. (Ibid.)
Here, we reject appellant's argument that Robert's prior molestation of H.'s and J.'s mother, coupled with his access to the girls, "circumstantially linked him to the charges." To the contrary, other than speculative statements from witnesses who had no actual knowledge, nothing linked Robert or Dave to the actual perpetration of the charged crimes involving H. and J. Nothing established or suggested that the molestation in this matter was so unusual or distinctive as to be like a signature. (People v. Elliott, supra, 53 Cal.4th at p. 581.) Instead, the witnesses' statements "demonstrated no more than motive." (People v. Prince, supra, 40 Cal.4th at p. 1242.) Although these third parties may have had the motive and opportunity to touch the girls inappropriately, that was not a sufficient basis to admit this evidence.
Further, we agree with the trial court that, even if this evidence was relevant, its exclusion was warranted under Evidence Code section 352. Admitting this evidence would have resulted in an undue consumption of time, and it very likely would have confused or misled the jury about the issues. (Evid. Code, § 352.)
Based on this record, the third party culpability evidence which the trial court excluded did not tend to raise a reasonable doubt regarding appellant's guilt. As such, this evidence was not sufficiently relevant for its admission. Further, exclusion of this evidence was warranted under Evidence Code section 352. The court's ruling was not so irrational or arbitrary that no reasonable person could agree with it. Thus, the trial court did not abuse its discretion and this claim fails.
Because the trial court did not abuse its discretion, we will not address appellant's arguments regarding prejudice.
IV. Appellant's Claim Of Cumulative Error Is Without Merit.
Appellant claims reversal is required based on alleged cumulative errors. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
In this matter, appellant's claim of cumulative error is without merit because we have rejected all individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) Appellant was entitled to a fair trial, but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Taking all of appellant's claims into account, we are satisfied that he received a fair adjudication.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
PEÑA, J.