Opinion
C082435
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH CHAVEZ, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06F05086)
Defendant Michael Joseph Chavez, Jr., was convicted of twelve counts of lewd and lascivious conduct with a child who is under the age of 14 years for molesting his daughter and his stepdaughter. (Pen. Code, § 288, subd. (b)(1).) He was sentenced to an aggregate term of 96 years in prison.
Defendant was sometimes known as Michael Joseph Chavez and Mike Joseph Chavez, Jr.
On appeal, defendant contends the court erred in admitting evidence of consensual sexual acts with his former wife, evidence of uncharged sexual acts with his daughter, and testimony that he did not respond when his stepdaughter asked him if he could take a lie detector test about the abuse allegations. He claims the errors were cumulatively prejudicial, violating his federal and state constitutional rights to due process and a fair trial. Conceding he did not object to the evidence of the uncharged acts with his daughter, defendant contends his counsel was ineffective for failing to object. He also contends the court erred in calculating his presentence custody credits. We agree defendant is owed one additional day of presentence custody credit, but otherwise affirm the judgment.
FACTS AND PROCEEDINGS
Defendant married Marisa M. in 2004. Marisa had a daughter from a previous relationship, An. M. Defendant also had a daughter, Al. M., from a previous relationship.
The blended family lived together in several residences before settling in a house in Citrus Heights. Marisa's brother, Anthony, also lived with them. At the time, both girls were around the age of eight or nine years old.
Defendant and Marisa had a tumultuous relationship and fought often. Both An. M. and Al. M. were scared of defendant. An. M. described defendant as being very abusive towards her mother, both emotionally and physically.
Al. M. testified that while living at the house in Citrus Heights, defendant molested her on numerous occasions. Defendant pulled down her pants and kissed her vagina. He also used his fingers to digitally penetrate her vagina, and he rubbed his erect penis against her buttocks. Defendant would often wrap his arms and legs around her so she could not move. Defendant also spit in his hand, rubbed it on his penis, and tried to penetrate her vagina and anus.
One day, Al. M. walked into the bedroom she shared with An. M. and saw An. M. sitting on top of defendant. An. M. silently mouthed to Al. M. to go get her uncle Anthony for help, but Al. M. could not find him. The girls did not discuss what had happened.
According to An. M., defendant began molesting her soon after the family moved to the home in Citrus Heights. Like with Al. M., defendant would rub his erect penis against An. M.'s buttocks. When she was home sick from school one day, defendant placed her on top of him, wrapped his legs around her, and began moving her up and down. She could feel his erect penis against her vagina. After one incident in which An. M. told defendant to stop rubbing his penis against her, defendant told her to hand him his boxer shorts and he masturbated into the shorts in front of her. While An. M. was sitting on a couch, defendant groped her breasts underneath her bathing suit.
At first, An. M. did not tell anyone what defendant was doing to her because he threatened he would kill her mother. Eventually, however, An. M. told her mother in late May 2006 that defendant had tried to have sex with her. Marisa was very upset and called defendant hysterically on the phone to confront him about the accusations. Defendant kept repeating that he did not want to go to jail. After Marisa hung up the phone, Al. M. came into the room and told her that defendant had also been abusing her. Marisa called defendant back and confronted him about Al. M., and defendant did not deny anything; he simply said, "don't call the cops." Defendant arrived home while he and Marisa were still on the phone. According to Marisa, although defendant began denying the conduct, An. M. told him he knew what he had done and that she could take a lie detector test. When she questioned whether he could do the same, defendant hung his head in his hands and did not say anything. An. M., on the other hand, testified that she did not confront defendant when he returned home because Marisa had already sent her upstairs to her bedroom. She said the next day Marisa and defendant picked her and Al. M. up from school and took them to a restaurant where defendant apologized to the girls.
Marisa did not immediately report the accusations to law enforcement because defendant threatened to kill her and the girls and then kill himself. Nearly a week later, Marisa called the police. Later, defendant called Marisa and asked why she had called the police. He apologized and said he was leaving. Defendant ultimately fled to Mexico where he lived under a fake name for the next six years.
An. M. and Al. M. underwent sexual assault examinations nearly two weeks after reporting the abuse. The results of Al. M.'s exam were normal with any injuries having healed between the time of the abuse and the time of the examination. An. M. had normal genital findings as well, but some areas of concern were found around her anus. The medical practitioner who reviewed the exam results explained that the findings could indicate sexual abuse, but were not definitive. She also explained that many children with sexual abuse histories have normal exams.
Both girls also participated in separate taped SAFE interviews with a forensic interview specialist trained in interviewing potential child abuse victims. The recorded interviews were played for the jury.
During her interview, Al. M., who was nine years old at the time, stated that defendant had penetrated her vagina and anus with his fingers, and that he had kissed her private area. She mentioned that defendant had abused her when they lived in an apartment and at the Citrus Heights home, but did not identify any other places where the abuse occurred.
An. M., who was 10 years old, told the interviewer that defendant had molested her several times. While lying behind her, defendant wrapped his legs around her and pushed against her bottom. One time when she was home sick, she was awakened to defendant pulling her pants down and rubbing his penis on her buttocks; he inserted it into her rectum. She said he tried to get to her three times, and "actually got to [her]" four times, meaning penetration.
Defendant was eventually located in Mexico in 2012. He was returned to the United States and charged with multiple counts of lewd and lascivious conduct with a child under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).) Five counts related to An. M. (counts one to five) and seven counts related to Al. M. (counts six to twelve). He pleaded not guilty to all charges.
At trial, An. M., Al. M., and Marisa testified to the above described events. Over defendant's objection, and pursuant to Evidence Code section 1101, subdivision (b), the prosecution also introduced evidence of defendant's consensual sexual practices with Marisa when they were married. Marisa testified that defendant liked her to dress up like a little girl with pigtails in a little skirt, and that he wanted her to call him "daddy." He also liked to engage in anal sex.
Undesignated statutory references are to the Evidence Code.
The prosecution also presented evidence of uncharged sexual misconduct with Al. M., which she testified started when she first moved in with defendant. At the time, they lived in a room in his grandmother's garage. She estimated that she was about four years old, but she was unsure of her exact age. Almost immediately defendant began touching her in a sexually inappropriate manner. On several occasions, defendant used his fingers to digitally penetrate her vagina, and rubbed his erect penis against her buttocks. He inserted his penis into her vagina and tried, unsuccessfully, to penetrate her anus as well. Al. M. did not tell anyone because she was scared. Defendant did not object to this evidence.
The jury convicted defendant of all charges. The court sentenced him to an aggregate term of 96 years in prison, consisting of consecutive terms of eight years each for the 12 counts of lewd and lascivious conduct. He was awarded 1,434 days of total presentence custody credit. Defendant timely appealed.
DISCUSSION
I
Evidence of Spousal Sexual Acts
Defendant contends the court erred in admitting evidence of his sexual proclivities with his former wife under section 1101, subdivision (b). She was permitted to testify that he liked having anal sex while she was dressed up like a little girl. He requested that she call him "daddy," and he would spank her. In his view, Marisa's testimony about their sexual activities was not relevant to any issue under section 1101 because it was not misconduct, was between two consenting adults, and was not sufficiently similar to the alleged sexual misconduct with An. M. and Al. M.. We disagree.
" 'Character evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion.' " (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon); § 1101, subd. (a).) Evidence that a person committed a crime, civil wrong, or other act may be admitted, however, to prove some other material fact, such as that person's intent or identity or motive. (Leon, at p. 597; § 1101, subd. (b).) We review the trial court's decision whether to admit evidence, including evidence of other crimes, civil wrongs, or other acts for abuse of discretion. (Leon, at p. 597.)
In this case, the trial court ruled that evidence of defendant's sexual activities with his former wife was admissible under section 1101, subdivision (b) to show intent and motive. According to the court, the evidence showed his attraction to young girls and his particular interest in anal sex as well as the buttocks area of a female. The evidence thus tended to corroborate the victims' allegations. In so ruling, the court considered the relevancy of the evidence under section 210 and found it highly relevant and that its probative value outweighed any prejudicial impact under section 352. The court did not abuse its discretion in admitting the evidence.
Contrary to defendant's position, the fact that his sexual activities with his wife were not misconduct or that Marisa consented to the acts does not render the evidence irrelevant under section 1101, subdivision (b). Although "[c]ases sometimes describe Evidence Code section 1101 [subdivision] (b) evidence as 'prior offenses' or 'prior bad acts' . . . [t]he conduct admitted under Evidence Code section 1101 [subdivision] (b) need not have been prosecuted as a crime, nor is a conviction required." (Leon, supra, 61 Cal.4th at p. 597.) The statute instead "authorizes the admission of 'a crime, civil wrong, or other act' to prove something other than the defendant's character." (Ibid.) The only limitations are that the act must be relevant to prove a fact at issue (§ 210), and its admission must not be unduly prejudicial, confusing, or time consuming (§ 352). (Leon, at p. 597.)
Nor are we persuaded by defendant's contention that his sexual acts with Marisa, in which he directed her to dress like a young girl, wear her hair in pigtails, and call him "daddy" during anal sex, were not sufficiently similar to his misconduct with Al. M. and An. M. to show his intent to sexually molest the girls. To be admissible to prove intent, " 'the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' [Citation.]" (Leon, supra, 61 Cal.4th at p. 598.) That standard was met here.
Here, the evidence of defendant's routine sexual activities with Marisa showed he liked fantasizing that Marisa was not an adult, but a young girl when they had anal sex. Both Al. M. and An. M. testified that they were underage girls when defendant repeatedly rubbed his penis against their buttocks or otherwise tried to penetrate their rectums for anal sex. The evidence concerning Marisa dressed as an underage girl during sex with defendant was thus relevant to his intent to arouse himself when he did similar acts to Al. M. and An. M..
The absence of any evidence showing that defendant had the girls call him "daddy" during the molestations or that he spanked them while accosting them does not render the evidence sufficiently dissimilar for purposes of section 1101, subdivision (b). " 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.' " (Leon, supra, 61 Cal.4th at p. 598.)
Defendant cites several out-of-state cases for the proposition that "[e]vidence of consensual sex with an adult is not relevant to whether a defendant molested a young minor child," but those decisions are not binding authority. (Episcopal Church Cases (2009) 45 Cal.4th 467, 490 [out-of-state decisions are not binding but may be persuasive]; Ammerman v. Callender (2016) 245 Cal.App.4th 1058, 1086 [out-of-state cases not binding on appellate court]; Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 511, fn. 4 [same].) Further, none of the cases defendant cites involved a defendant accused of molesting minor victims who required his adult companion to dress up and act like a minor child while engaging in similar sexual activities.
In Cooper v. State (Tex.Ct.App. 1995) 901 S.W.2d 757, 760-761, for example, the mother of the two victims merely testified that she engaged in anal sex with the defendant but she did not testify that he wanted her to dress like a child while doing so. And State v. Pullman (Utah Ct.App. 2013) 306 P.3d 827, also cited by defendant, supports rather than undermines the trial court's rationale in admitting the disputed evidence here. In Pullman, the defendant was accused of trying to engage in anal sex with a minor victim. (Id. at p. 831.) The defendant's wife was permitted to testify that he asked her for anal sex, but she refused. (Id. at p. 836.) The court found the evidence relevant to show that he had a motive for seeking anal sex from the victim. (Id. at p. 838.) The evidence was not introduced merely to show the defendant desired anal sex with a consenting adult, something the prosecution conceded was not relevant "by itself" in the child abuse case, but rather to demonstrate that he had a motive for seeking out the minor victim once his wife turned him down. (Ibid.)
The same reasoning applies here. The fact that defendant liked to have anal sex with his wife by itself may not have been relevant to the child molestation allegations, but the evidence showed more than defendant's desire for anal sex with a consenting adult. Instead, it showed defendant's intent to sexually gratify himself while having sex with real or imagined underage partners.
The trial court did not abuse its discretion in determining that Marisa's prior act testimony was relevant to a noncharacter purpose under section 1101, subdivision (b). The trial court, then, properly admitted the evidence.
II
Evidence of Uncharged Sexual Misconduct with Victim
Defendant contends the court erred in admitting evidence that he molested Al. M. when she was about four years old when they lived at his grandmother's house. She testified that he used his fingers to digitally penetrate her vagina, rubbed his erect penis against her buttocks, penetrated her vagina with his penis, and tried, unsuccessfully, to penetrate her anus as well. While he acknowledges he did not object to the evidence and that the evidence was relevant under section 1108, he nonetheless argues his counsel was ineffective for failing to object because the evidence was more prejudicial than probative under section 352.
By failing to object to the evidence below, defendant has forfeited his appellate challenge. (People v. Doolin (2009) 45 Cal.4th 390, 434 [the defendant forfeited challenges based on §§ 1101, 1102, and 352 by failing to object on those grounds at trial].) Anticipating this result, defendant contends his counsel was constitutionally ineffective for failing to preserve the issue for appellate review.
To prevail on an ineffective assistance of counsel claim, defendant must establish trial counsel's representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Id. at p. 697.) Following that course here, we conclude defendant cannot show the requisite prejudice because any objection would have been meritless.
Defendant concedes the evidence of uncharged sexual acts with Al. M. was relevant and therefore admissible under section 1108. That statute provides an exception to the general rule in section 1101 that character evidence is not admissible to prove propensity. (People v. Falsetta (1999) 21 Cal.4th 903, 911 ["the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases"].) "Subdivision (a) of that section provides in pertinent part that '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 [permitting court to exclude evidence on weighing probative value and prejudicial impact].' " (Ibid.; People v. Escudero (2010) 183 Cal.App.4th 302, 306 (Escudero) [such evidence is presumed to be admissible to assist the trier of fact in evaluating the credibility of the victim and the defendant]; § 1108, subd. (a).)
Section 352, in turn, provides a "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) The prejudice referred to in section 352 is not the prejudice to a defendant that naturally flows from probative evidence tending to demonstrate guilt of a charged offense, but rather the prejudice resulting from " 'evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638; see also Escudero, supra, 183 Cal.App.4th at p. 310 [evidence should be excluded under § 352 when it is of such nature as to inflame the emotions of the jury].)
Trial courts exercise discretion in determining the admissibility of evidence under section 352. (People v. Ochoa (2001) 26 Cal.4th 398, 437, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Reversal is warranted only when " ' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Ochoa, at pp. 437-438.)
Here, defendant argues Al. M.'s testimony that he put his fingers in her vagina, rubbed against her with his erect penis, and touched her buttocks when she was approximately four years old was inherently prejudicial because it involved acts against a young child, and the testimony, in his view, was false. Such evidence, he contends, " 'uniquely tend[ed] to evoke an emotional bias against . . . defendant as an individual . . . .' " We disagree.
The uncharged-acts evidence was no more inflammatory than the evidence concerning the charged offenses. (People v. Falsetta, supra, 21 Cal.4th at pp. 908, 924 [evidence of two prior rapes was not more inflammatory when compared with charged offenses, including forcible oral copulation and assault with intent to rape].) Indeed, the conduct was similar to what Al. M. testified defendant had done to her when she was eight or nine years old, which was the basis of the charges. (Escudero, supra, 183 Cal.App.4th at p. 311 [uncharged acts against two adult victims shared significant similarities with molestations of minor victim].) We seriously doubt that the jury was somehow more inflamed upon learning defendant had molested his own daughter when she was four as opposed to when she was nine.
We also reject defendant's contention that Al. M.'s testimony about the uncharged prior acts was patently false. Because Al. M. was his biological daughter, and not his stepdaughter, the jury could reasonably infer that he would have had access to her before he ever met or married Marisa. Al. M., moreover, candidly testified that she was not sure of her exact age when she began living with defendant. Although she estimated that she might have been four years old, she did not definitively testify to being that age when the uncharged molestations occurred. His contention that other evidence in the record shows he was incarcerated when she was four years old thus does not contradict her testimony or otherwise prove that it was false.
Given the totality of the evidence presented, we cannot say the court's exercise of discretion to admit the evidence was either arbitrary or capricious. The evidence of uncharged sexual molestations of Al. M. before she was nine years old shared significant similarities with the charged molestations, and was thus highly probative as to defendant's guilt. The evidence was not remote in time, nor more inflammatory than the charged offenses. The trial court properly exercised its discretion in allowing Al. M. to testify to the uncharged prior acts under sections 1108 and 352.
III
Lie Detector Test Evidence
Defendant contends the trial court erred in admitting evidence implying that he was unwilling to take a lie detector test after Marisa confronted him with the sexual abuse allegations. Admitting the evidence, he argues, violated his rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments and their California constitutional counterparts. We agree this evidence should have been excluded, but find no reversible prejudice.
Defendant's objection that lie detector test evidence was not admissible at trial sufficiently preserved his appellate challenge even though he did not expressly reference Evidence Code section 351.1 when objecting to the prosecutor's motion in limine, which sought to introduce evidence of defendant's nonresponse to An. M.'s purported lie detector test statement as an adoptive admission. (People v. Scott (1978) 21 Cal.3d 284, 291 ["[a]n objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide"].)
Evidence Code section 351.1, subdivision (a), states in part, that "the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results." Such evidence is ordinarily excluded because of the "unreliable nature of polygraph results, by the concern that jurors will attach unjustified significance to the fact of or the outcome of such examination and because the introduction of polygraph evidence can negatively affect the jury's appreciation of its exclusive power to judge credibility." (People v. Basuta (2001) 94 Cal.App.4th 370, 390 (Basuta); see also People v. Carter (1957) 48 Cal.2d 737,752 (Carter) ["[l]ie detector tests do not as yet have enough reliability to justify the admission of expert testimony based on their results[;] . . . [i]t therefore follows that a suspect's willingness or unwillingness to take such a test is likewise without enough probative value to justify its admission"].)
In this case, on direct examination Marisa testified that on the night they confronted defendant about the molestation accusations, An. M. told him she could take a lie detector test and she questioned whether he could do the same. Defendant did not respond verbally, but instead hung his head in his hands. An. M., however, testified that she did not confront defendant when he returned home because Marisa had already made her go upstairs to her bedroom. She stayed there until the next day when she went to school.
During closing arguments, the prosecutor made a single reference to An. M.'s purported statement questioning whether defendant could take a lie detector test and his silence following the statement. Defense counsel in closing pointed out the inconsistency between Marisa's and An. M.'s testimony concerning whether An. M. ever made the lie detector test statement to defendant.
While technically defendant did not refuse to take a polygraph test, and neither An. M. nor defendant actually underwent such an examination, the evidence implied that defendant, through his silence, would have been unwilling to do so. Evidence of the willingness of a party to take a lie detector test is generally inadmissible. (People v. Schiers (1971) 19 Cal.App.3d 102, 108 (Schiers).) It was thus error to allow Marisa to mention An. M.'s lie detector test statement and defendant's purported nonresponse. (See People v. McKinnon (2011) 52 Cal.4th 610, 663 ["The state's exclusion of polygraph evidence is adorned with no exceptions, and its stricture on admission of such evidence has been uniformly enforced by [the Supreme Court] and the Court of Appeal"].)
Although we agree error occurred, we are persuaded, under the circumstances of this case, that the error was not prejudicial. The instant case is readily distinguishable from Shiers, Basuta, and Carter, the cases upon which defendant primarily relies.
In Schiers, a police officer testified he repeatedly told the defendant that the lie detector test indicated he was lying about his wife's murder. The court struck the testimony and instructed the jury to disregard it. Applying the Watson prejudicial error standard, the Schiers court held that the error in allowing the polygraph testimony constituted prejudicial error, noting: " ' "[W]here the case is closely balanced and guilt has not been so clearly established as to render it improbable that the harmful effect of the misconduct may have turned the scales against the accused, such misconduct has consistently been deemed ground for reversal . . . ." ' " (Schiers, supra, 19 Cal.App.3d at p. 109, italics omitted.)
People v. Watson (1956) 46 Cal.2d 818, 836 [erroneous admission of evidence requires reversal only if, " 'after an examination of the entire cause, including the evidence,' [the court] is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"].) --------
In Basuta, the prosecution's key witness offered to take a polygraph test after accusing the defendant daycare provider of shaking a baby to death. (Basuta, supra, 94 Cal.App.4th at pp. 388-390.) The witness had originally told officers that the baby had fallen. (Id. at pp. 379-380.) The court concluded that the improper mention of the offer to take a polygraph test, in combination with the critical error in excluding evidence that the baby's mother had previously jerked or shaken the child, was prejudicial. (Id. at p. 391.)
In Carter, an important suspect in the murder case said that he would be willing to take a lie detector test; he also said that some other people would not take such a test. (Carter, supra, 48 Cal.2d at p. 752.) Although the court struck the statement regarding other people, the court allowed the suspect's statement that he would be willing to take a lie detector test to stand. (Ibid.) The appellate court concluded this was error because the implication survived that the defendant had refused to take a lie detector test and that his refusal furnished some evidence of guilty knowledge. (Ibid.) In light of the numerous other errors the court found occurred during trial (id. at pp. 748-749, 754-755, 757, 759), and the closeness of the proof, the court concluded that "absent these errors the jury might have reached a different verdict." (Id. at p. 759.)
In each of the above cases, the proof was close or the polygraph error occurred in combination with other significant trial errors. That is not what occurred here. This was not a close case and defendant's other claims of error are without merit.
At the outset, we note that An. M. essentially denied that she ever confronted defendant about his willingness to take a lie detector test. According to her, Marisa sent her to her room before defendant returned home, and she stayed in her room until the next day when she left for school. Her testimony, then, directly contradicted Marisa's claim that An. M. mentioned a lie detector test to defendant thus weakening the impact of the disputed statement.
Both Al. M. and An. M., moreover, testified to the sexual abuse they suffered from defendant. The testimony of each tended to corroborate the testimony from the other. Both girls were close in age and both girls revealed that defendant had rubbed his erect penis against their buttocks.
Their SAFE interviews, taken shortly after they disclosed the abuse, were also played for the jury. Their trial testimony and the disclosures made during the SAFE interview six years earlier were generally consistent. The testimony from these key witnesses was compelling.
Although the prosecutor made a single reference to the lie detector statement in her closing argument to the jury, as defense counsel repeatedly noted, the prosecutor's primary focus during closing was on the credibility of the SAFE interviews. Defense counsel told the jury, "During her entire argument she focused on--and the evidence that was presented in the SAFE interviews. Those interviews by forensic experts that know how to conduct these, to not ask leading questions, to not suggest things. They are trained to do so. And that was her focus during her whole argument."
The evidence also showed that when first confronted with the sexual abuse accusations, defendant did not deny the conduct but rather told Marisa not to call the cops because he did not want to go back to jail. While Marisa said defendant did eventually deny the allegations, the evidence also showed that the following day defendant and Marisa took the girls to a restaurant after school where defendant apologized to the girls. The jury reasonably could have found that defendant's failure to immediately deny the allegations constituted an adoptive admission of their truth. (§ 1221 ["Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth"; People v. Riel (2000) 22 Cal.4th 1153, 1189 [" 'When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party's reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.' "].) His subsequent apology also tended to show a consciousness of guilt over his actions.
Most telling, however, is defendant's flight from the country after he learned that Marisa had called the police to report the abuse. Defendant absconded to Mexico for nearly six years, working under an alias so as to conceal his true identity. Before he left, defendant apologized to Marisa. Where, like here, a defendant has departed a crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt, a jury may properly consider such flight in deciding whether the defendant is guilty of the crimes charged. (People v. Bradford (1997) 14 Cal.4th 1005, 1054.)
Given the dispute over whether An. M. even made the lie detector statement, and the overwhelming evidence of defendant's guilt, we conclude it is not reasonably probable defendant would have received a more favorable outcome at trial had the lie detector testimony been excluded. (Watson, supra, 46 Cal.2d at p. 836.) We also reject defendant's contention that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 .)
IV
Cumulative Error
Having concluded that the court properly admitted evidence of consensual sexual acts with his wife and of uncharged sexual molestations of his daughter before the age of nine, we reject defendant's cumulative error argument. While it is true that " '[a] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009), that circumstance did not occur here. At most, a single, nonprejudicial error occurred when the court admitted the reference to the lie detector test allegedly made by An. M. to defendant.
V
Presentence Custody Credits
Defendant contends the court erred in calculating his presentence custody credits because it did not account for the fact that February 2016 had 29 days rather than the usual 28 days. The People concede, and we agree, defendant is entitled to one additional day of presentence custody credit.
A defendant is entitled to presentence custody credits for all days served including the day of arrest and the day of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735; People v. Smith (1989) 211 Cal.App.3d 523, 526-527.)
Here, defendant was arrested on December 13, 2012, and was sentenced on May 13, 2016. He spent 19 days in jail in 2012. He served all of 2013, 2014, and 2015 in custody, which totals 1095 days. For 2016, he served 31 days in January, 29 days in February, 31 days in March, 30 days in April, and 13 days in May for an additional 134 days. The total number of actual days in presentence custody was thus 1,248, and not 1,247 as calculated by the trial court. Defendant was therefore entitled to 1,248 actual days, plus 187 days of additional conduct credit (Pen. Code, §§ 667.5, subd. (c)(6) & 2933.1, subd. (a)), for a total of 1,435 days.
DISPOSITION
The judgment is modified to give defendant one additional day of actual custody credit. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Duarte, J.