People v. Cover

Full title: THE PEOPLE, Plaintiff and Respondent, v. ERIC ALAN COVER, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

Date published: Jul 11, 2017

No. C078503 (Cal. Ct. App. Jul. 11, 2017)

Opinion

C078503

07-11-2017

THE PEOPLE, Plaintiff and Respondent, v. ERIC ALAN COVER, Defendant and Appellant.

HOCH, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF125942A)

Defendant Eric Alan Cover's first trial ended when the jury was unable to reach a unanimous verdict on charges he had digitally penetrated and orally copulated 17-year-old A.B. Defendant's second jury trial resulted in his conviction of oral copulation of a person under the age of 18 (Pen. Code, § 288a, subd. (b)(1))¹ and oral copulation of an unconscious person (§ 288a, subd. (f)), and his acquittal of sexual penetration by foreign object of a person under the age of 18 (§ 289, subd. (h)) and sexual penetration by a foreign object of an unconscious person (§ 288a, subd. (f)). The trial court sentenced defendant to serve three years in prison for oral copulation of an unconscious person and a stayed 16-month term for oral copulation of a person under the age of 18. The trial court imposed various fines and fees and ordered defendant to pay victim restitution totaling $13,151.11.

1 Undesignated statutory references are to the Penal Code.

On appeal, defendant contends (1) the trial court erred in admitting testimony regarding how A.B. felt about the incident in which defendant molested her, (2) the jury was prejudicially instructed with CALCRIM No. 361 regarding defendant's possible failure to explain or deny adverse evidence, (3) inconclusive evidence from the sexual assault examination vulva swabs should have been excluded, (4) the trial court erred in disallowing defense counsel to tell jurors a prior trial had occurred on the same charges, (5) the prosecutor engaged in more than a dozen instances of misconduct by mentioning defendant's disbarment from the practice of law, vouching for A.B., appealing to the sympathy of the jurors, lessening the People's burden of proof, and denigrating defense counsel, (6) the trial court erred in imposing restitution for the district attorney's office reimbursement of A.B.'s airfare to attend the second trial, for attorney fees involving a marital dissolution action with defendant's ex-wife, C.M.,² and for C.M.'s lost wages in caring for A.B. after the molestation, and (7) the abstract of judgment should be corrected to reflect the trial court's stayed sentence for oral copulation of a person under the age of 18, and the probation officer's report should be corrected to reflect he was convicted by jury trial rather than by plea.

2 To preserve the confidentiality of the victim's identity, we do not disclose family members' names.

We conclude the trial court did not abuse its discretion in admitting evidence relevant to A.B.'s credibility and state of mind. The trial court properly instructed the jury with CALCRIM No. 361 based on defendant's non-sequitur testimony in response to questions about A.B.'s accusations during a pretext telephone call. The vulva swab evidence was relevant and probative in providing additional context for the conclusive DNA test results connecting defendant's saliva with A.B.'s underwear worn immediately after the molestation. The trial court properly disallowed mention to the jury that a prior trial had occurred on the same charges. As to the prosecutor's comments, we conclude nearly all of the challenged comments were not misconduct. However, the prosecutor erred in arguing acquittal required the jury's conclusion A.B.'s testimony "was all fake." On this record, we conclude the prosecutor's brief misstatement of law was harmless beyond a reasonable doubt. The trial court properly ordered defendant to pay the portion of C.M.'s legal expenses incurred to secure a protective order for A.B. and for C.M.'s missed work when she cared for A.B. before the victim became an adult. However, the trial court erred in ordering defendant to pay direct victim restitution to the district attorney's office and to pay attorney fees related to removal of the lien on C.M.'s residence. Finally, we determine the abstract of judgment must be amended to reflect the sentence actually imposed.

Accordingly, we affirm defendant's convictions and sentence. With regard to the restitution order, we strike the direct victim restitution to the district attorney's office. We remand the matter with instructions that the trial court determine the amount of attorney fees claimed by C.M. for removal of the lien on her residence and to strike this portion of the fees from the restitution order. The trial court shall also strike $472 from the fees the trial court ordered defendant to pay to the district attorney's office for A.B.'s airfare. We order that the abstract of judgment be corrected to reflect (1) defendant's sentence for oral copulation of a person under the age of 18 was stayed under section 654, and (2) the modified restitution amount.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Evidence

A.B.'s biological father died when she was five years old. A.B. has had no contact with her biological mother since A.B. "was really little." Instead, A.B. refers to her paternal grandmother, C.M., as "mom." C.M.'s second husband was defendant. A.B. lived in a household with defendant from a time when she was young, and she used to refer to him as "dad." In October 2013, defendant was separated from C.M. and living with his girlfriend, S.G. At the time, A.B. spent two days a week at defendant's house and the remainder of her time at C.M.'s residence. A.B. had her own room in defendant's house.

A.B. essentially set her own schedule and lived either with C.M. or defendant in accordance with her own wishes. Defendant was more permissive—allowing her to stay out late and consuming Fireball whiskey with her "to see how [she] handled [her] liquor."

Defendant was placed on administrative leave from his job at an elementary school at the beginning of October 2013. As a consequence, defendant told A.B. they were going to move into S.G.'s house. Although A.B. considered S.G. to be "nice," A.B. was not excited about plans for defendant and her to move into S.G.'s house. Defendant and S.G. would do things together that made A.B. "uncomfortable at times," such as having "really loud, obnoxious sex."

On October 31, 2013, A.B. was 17 years old and a senior in high school. Even though it was a school night, she and her friends went to a Halloween costume party in Lodi. At the party, A.B. consumed two alcoholic beverages. At the time she had been experimenting with alcohol. A.B. knew defendant would be upset if she came home later than her curfew or having consumed alcohol. When she realized she was going to be late, A.B. called defendant and apologized. She was afraid defendant was going to be mad. She arrived to find defendant waiting outside and appearing to be "really mad." A.B. apologized, went to her bathroom, and made herself throw up twice. She changed out of her cat costume and into pajama bottoms and a T-shirt. A.B. could not recall whether she changed her underwear as well. A.B. got into her bed. At some point, defendant came into her room and sat on the edge of the bed. A.B. had difficulty falling asleep - taking about an hour before she dozed off.

When A.B. awoke, her pants and underwear had been pulled completely off. Defendant was in her bed even though he had never slept in the same bed with her. She was lying on her back and defendant's head was between her legs. Defendant had his mouth on her vaginal area, a finger on his right hand inside her vagina, and his left hand on her breast. As soon as she realized what was going on, she "climbed back towards the wall" and asked, "what the hell are you doing?" Defendant "laughed and said what do you think I'm doing?" A.B. replied, "I don't know." A.B. told defendant to get out. He started to apologize, saying: "I thought you wanted this." A.B. repeatedly told him to get out of her room.

Defendant left, and A.B. locked the door. She tried calling C.M., but C.M. did not answer. A.B. panicked, explaining that "the man who I thought was my dad molested me." She packed up her clothes. A.B. testified, "He kept apologizing. And I walked into the bathroom to get some of my bathroom stuff. And he kept apologizing. And I told him I just didn't want to talk about it ever. And then he asked me right before I left if I still planned to com[e] over the next day to help him move into S.G.'s" house. A.B. drove 20 minutes to C.M.'s house. A.B. told C.M. what happened without going into the details, and C.M. called the police. A.B. and C.M. then drove to the Stockton Police station where they had to wait for several hours for it to open.

At the police station, A.B. gave a statement to Stockton Police officers. A.B. then went to the county hospital where a nurse took vulva swabs in a process that was "weird," and "invasive and scary." The nurse also took A.B.'s underwear.

Afterward, A.B. spoke with Stockton Police Detective Clarence Yates. Detective Yates suggested A.B. place a pretext phone call to defendant. A.B. "wasn't really comfortable with it" but decided it was necessary because she did not want defendant "to get away with what he had done to [her]." Detective Yates told A.B. to be specific during the call. A.B. placed the call that was recorded and played for the jury. During the pretext call, defendant indicated he knew someone was listening in on the conversation. Defendant urged her to talk with him in person instead. When A.B. threatened to tell S.G., defendant stated: "If you want to destroy me, okay, my, my life has always been in your hands. OK?" Defendant expressly denied sexually assaulting her. When A.B. said she had been crying, defendant responded that he had not slept either. He also stated, "I did not hurt you. You were not injured." When A.B. accused him of digitally penetrating her, he responded: "I'd . . . I, I need to . . . , I need to sit down and talk to you about it. Without people recording it and with you know, you[r] mom sitting there and everybody else. Whoever is listening to this."

In May 2014, A.B. graduated from high school with high honors. At the time of the second trial, A.B. was attending college in Southern California.

Kimberly Kean, senior criminalist at the California Department of Justice, conducted the biological screening of sexual assault kit collected in this case. Kean tested the vulva swabs, but found no presence of semen. However, in both the vulva swabs and underwear, Kean found elevated amylase. Amylase is a component of saliva, urine, vaginal secretions, blood, breast milk, feces, sweat, and tears. Saliva has the highest concentrations of amylase.

Steven Cavanaugh, a senior criminalist also at the California Department of Justice, testified as an expert on DNA analysis. Cavanaugh tested DNA samples from defendant, A.B., A.B.'s vulva swab, and a cutting from the crotch area of her panties. For the vulva swabs, Cavanaugh determined there were at least two contributors. A.B. was the major contributor, but there "was no interpretation made on the minor contributor." As to the DNA found on the panties, A.B. was determined to be the major contributor and for the minor contributor defendant was "included as a possible contributor to the minor alleles detected." Alleles represent the number of repeats of a sequence on the DNA at each location. A statistical analysis yielded an estimate for "the minor profile of the crotch of the panties" the "combination of genetic types is estimated to occur at random among unrelated individuals in approximately one in 53 billion African-Americans, one in 1.7 billion Caucasians, and one in 3.7 billion Hispanics." Cavanaugh agreed this analysis "provides strong evidence that [defendant] is the minor contributor of the DNA detected in the crotch of the panties."

Defense Evidence

Defendant testified on his own behalf. He denied ever sexually assaulting A.B.

Defendant was born in 1969 and grew up in Fresno. After graduating from high school, he joined the Army and served as Honor Guard in Arlington, Virginia, as well official escort to the President of the United States. After defendant was honorably discharged, he attended college and law school. Defendant earned a law degree and practiced law in Fresno. At his law office, defendant met C.M. and they married when defendant was 29 years old. C.M. is 18 years older than defendant. Defendant and C.M. became legal guardians of A.B. before her biological father died. When A.B.'s biological mother stopped having contact with A.B., C.M. and defendant moved to terminate the biological mother's parental rights. Both C.M. and defendant then worked to adopt A.B., but only C.M. was successful. Defendant's adoption petition was rejected because his marriage certificate had not been properly filed with the county clerk.

In early 2012, C.M. and defendant separated. A.B. lived "equally" with C.M. and defendant. C.M. and defendant briefly reconciled, but separated permanently in August 2012. C.M. announced she was going to move out and "said she was gonna sign [A.B.] over to [defendant], that she was done raising children." In September 2012, it was defendant and A.B. who moved out and into their own house. Within a week, C.M. apologized and began to see A.B. again. A couple of months later, defendant began to date S.G.

In December 2012, A.B. became upset when she walked in on defendant and S.G. while they were engaged in sex. A.B. announced she did not want to see defendant any more. Defendant attended one of A.B.'s softball games in April 2013, after which he received a text from A.B. saying he had no right to see her. However, in May 2013, he received a message from A.B. asking to see him again. In July 2013, defendant received a call from A.B. She was upset because C.M. had kicked her out of the house. She asked defendant to come and pick her up. Defendant picked her up, and A.B. lived only at defendant's house until the third week of September 2013. At the time, A.B. was struggling with alcohol and drug dependency.

In late September 2013, defendant and S.G. decided to buy a house together. However, defendant's permanent teaching credential was delayed because the county lost his file. As a result, he lost his teaching job. Having lost his job, defendant planned to move into S.G.'s house with A.B.

Defendant explained he set an 11:00 p.m. curfew for A.B. as well as rules she needed to follow. However, those rules relaxed during October 2013 because defendant acted on the advice of A.B.'s counselor to encourage her to go out with friends and engage in more positive behaviors.

On Halloween 2013, A.B. told defendant she wanted to go to a party. They discussed it and agreed she would be home by 11:00 p.m. Defendant went trick-or-treating with S.G. and her daughter before he returned to his house shortly after 10:00 p.m. Defendant found the front door open and texted A.B. to make sure she was okay. He waited for her to get home by 11:00 p.m. A.B. arrived in a black SUV "and she casually got out of the passenger's side." A.B. was stumbling and slurring her speech. Defendant had to help her through the front door. A.B. said she was not "that drunk." Inside, A.B. "began to cry and explain how [defendant] didn't love her and [he] wasn't that happy that she got a job on that day and wasn't even excited about it." They talked for about 45 minutes. Defendant could see A.B. was going to throw up and her cat costume makeup was running down her face. Defendant helped her clean up in the bathroom where she took off the makeup. He held her hair while she threw up into the toilet several times. It was the third time that summer defendant helped her while she threw up after drinking too much alcohol. A.B. sat up and said she needed new clothes. Defendant found sweatpants and a hoodie sweatshirt for her. A.B. changed and got into bed. Defendant propped her up with pillows and gave her a water bottle and towel. He also got her a trash can into which she previously threw up. They continued to talk, and A.B. said she had drunk "Four Lokos" and smoked. At some point, A.B. fell asleep.

Defendant also fell asleep in the full-size bed. He stated all of the other beds in the house had been sold in anticipation of the move. Defendant had slept in that bed in the past while studying for the bar exam because it was in the quietest and darkest room in the house. This was a rare occurrence because he had previously slept in the same bed with A.B. only when they had traveled to one of her softball tournaments and the hotel room only had one bed. A.B. woke him up and defendant stood up. He was shocked to see she was lying in bed without any pants on. A.B. asked him to leave the room so she could change. Defendant reiterated that he did not orally copulate her or digitally penetrate her vagina. Defendant went to stand in the hallway and found the situation bizarre. He then went to the bathroom where he brushed his teeth before going to make himself coffee. Defendant went to knock on A.B.'s door see if she was okay, and "she said yes, I'm fine." Shortly thereafter, A.B. came out and announced: "I'm packing. I don't feel comfortable here. I'm going to mom's."

Shortly before 1:00 p.m. that day, November 1, 2013, A.B. called him while he was driving to S.G.'s house. Regarding this telephone call, defendant testified he "was in disbelief" because A.B.'s statements were outrageous. Defendant noted he denied the molestation during the call. Defendant told her they need to talk in person "[b]ecause the only other thing I can say to her is that you're making this up, and you are crazy, or you're lying, or you're delusional, or you were - whatever you were drinking, or whatever you did last night. Defendant explained, "I'm not going to tell her she's crazy. The night before and other times she has said I'm not crazy. I've gone to counseling with her at Kaiser. There were serious family-related issues. She does not want to be perceived as being crazy. [¶] And I am not going to escalate this thing on the phone with her while I'm trying to drive, telling her that she's lost her mind, she's making things up and she's crazy, especially if she's alone."

Several of defendant's teaching colleagues testified he had consistently positive and appropriate interactions with teenagers, always maintained a patient and professional demeanor, and was always honest. At the school, he was "well loved" by the students. A softball coach with whom defendant volunteered noted defendant had been around 14- to 16-year-old girls on the team. The softball coach never saw defendant engage in any activity that gave him concern - even though the coach was "very particular" about appropriate behavior around the players. Holding A.B. in high regard, the coach would have immediately reported any behavior by defendant that would have seemed inappropriate.

S.G. testified she started dating defendant around September 2012. A.B. did walk in on them when S.G. and defendant were having "very normal" sex. In January 2013, A.B. suddenly disappeared from defendant's life in a manner that struck S.G. as "extremely odd." A.B. started staying at defendant's house again in June 2013. She stated defendant is the "most honest and credible person [she's] ever met."

S.G. remembers the events on Halloween 2013 well. That evening, she, her daughter, and defendant went trick-or-treating. They had plans to move defendant into S.G.'s house the next day. Defendant went home that night. The next day, defendant and S.G. dropped off her mother at the airport. Defendant went home. That afternoon, defendant showed up at S.G.'s house but did not say anything about A.B. Having arrived with a truck full of his personal items, defendant said he was tired and went to lie down. S.G. worked to get the house ready for A.B. to stay there.

S.G. acknowledged defendant never mentioned to her any of the events occurring on Halloween evening involving A.B. After defendant was arrested, S.G. called A.B. and they had a short conversation. A.B. stated defendant had performed sex acts on her and that "the DNA will prove it."

Defendant's trial attorney elicited testimony from Detective Yates that he did not swab defendant's hands for DNA or collect DNA material from underneath his fingernails. Detective Yates also did not collect any evidence inside defendant's house.

The jury viewed a video tape recording of Detective Yates providing suggestions to A.B. before the pretext call and discussing the matter afterward.

DISCUSSION

I

Victim Impact Testimony

Defendant argues the trial court should have excluded part of A.B.'s testimony as inadmissible victim impact testimony. We conclude the issue has not been preserved for appeal.

A.

A.B.'s Testimony

During the prosecution's case-in-chief, the prosecutor elicited the following testimony from A.B. about how she felt about the molestation:

"Q. [Prosecutor:] As you sit here today, how do you feel about what happened to you on Halloween night?

"[Defense counsel]: Objection. Relevance.

"[Prosecutor]: Goes to her credibility, Judge, her state of mind.

"THE COURT: Overruled.

"[Prosecutor]: Q. How do you feel about what happened to you?

"A. [A.B.]: I feel betrayed. Lost. Scared. Hurt. Every bad emotion that you could feel. Being betrayed by the person you trusted your whole life with, it's like the worst thing that could possibly happen to a person, to have everything ripped from them that they thought they knew, that they thought they could trust a person and love them and call them dad, after I had already lost a dad. And then now, the only one that I had chose[n], to betray me and not be my dad anymore."

Based in part on this testimony by A.B., the prosecutor argued to the jury during closing arguments:

"This is what it cost her. This is what she has to endure.

"Victims sometimes have an uphill battle convincing people that it really happened to them.

"But she loses her privacy. She has to go to a SART exam. It was invasive. It was scary. It was weird. She gets to come in here and talk about the private details of her life. That she was - went to counseling. Was taking Prozac. She's depressed.

"Talking about her family history. That's a lot of fun. She gets to testify under cross-examination in front of strangers.

"She loses family. She testified that his family was her family. His mom was [N.] And [K.] was an aunt. She loved them. They are gone.

"And she loses her dad. She never said that there was any problem with her dad. And this is what she says. I feel betrayed. Lost. Scared. Hurt. Every bad emotion you could feel. Being betrayed by the person you trusted your whole life with. It's like the wors[t] thing that could possibly happen to a person to have everything ripped from them that they thought they knew, that they thought they could trust, love them and call them dad, after I had already lost a dad. And then now, the one that I had chose[n], to betray me and not be my dad anymore.

"That's what she said. That was her testimony when she sat right here. But she never - never heard her say she was hurt by her dad and wanted to get back at him. She said she loved him. So why would she do this?" (Italics added.)

Defendant's trial attorney did not object to this part of the prosecutor's closing argument.

B.

Preservation of Issue Regarding Victim Impact Testimony

Evidence Code section 353 provides in pertinent part that "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Italics added.) " 'Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.' " (People v. Boyette (2002) 29 Cal.4th 381, 424.) " ' "[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citation.]" ' [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 620 (Williams).)

Here, defense counsel objected to A.B.'s testimony about how she felt regarding the molestation only on the basis of relevance. And although the prosecutor later argued this portion of A.B.'s testimony addressed her credibility and lack of motive to fabricate the allegations, there was no objection by defense counsel. On appeal, defendant does not challenge the trial court's conclusion A.B.'s testimony was relevant. Instead, defendant argues only that the challenged portion of A.B.'s testimony constituted "victim-impact testimony in the guilt-phase of a non-capital trial."

As the California Supreme Court has explained, "victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of [a death-penalty eligible] crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case. [Citations.]' (People v. Pollock (2004) 32 Cal.4th 1153, 1180; People v. Edwards (1991) 54 Cal.3d 787, 834-836; see also Payne v. Tennessee (1991) 501 U.S. 808, 827, 115 L.Ed.2d 720 ['if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar'].)" (People v. Wilson (2005) 36 Cal.4th 309, 356 (Wilson).)

A relevance objection arises under Evidence Code section 210, which provides that " '[r]elevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Because evidence might be both relevant and constitute victim impact evidence, a relevancy objection does not encompass an objection that the testimony constitutes inadmissible victim impact evidence under Evidence Code section 190.3. Evidentiary objections must be made at trial on the ground to be asserted on appeal. (See Wilson, supra, 36 Cal.4th at p. 357 [deeming forfeited an evidentiary claim testimony constituted unduly prejudicial victim impact testimony for lack of objection on the specific ground that the testimony exceeded the scope of section 190.3, subd. (a)].) And a relevance objection does not encompass the argument that the evidence, even if relevant, would be unduly prejudicial. (People v. Mills (2010) 48 Cal.4th 158, 194.) Consequently, defendant has not preserved a claim A.B.'s testimony constituted inadmissible victim impact testimony.³ (Williams, supra, 43 Cal.4th at p. 620.)

3 Defendant does not contend he received ineffective assistance of counsel for failure to object at trial to A.B.'s testimony on grounds it constituted inadmissible victim impact evidence.

II

CALCRIM No. 361

Defendant argues the trial court erred in instructing the jury with CALCRIM No. 361 because the instruction was inapplicable and prejudicial. We are not persuaded.

A.

Jury Instruction Given

The trial court instructed the jury with CALCRIM No. 361 as follows:

"If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based upon what he knew, you may consider his failure to explain or deny in evaluating the evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."

B.

Analysis

As the Bench Notes for CALCRIM No. 361 explain, this instruction "should only be given when the defendant testifies and the privilege against self-incrimination has not been successfully invoked." (Judicial Council of Cal. Crim. Jury Instns. (2015), Bench Notes to CALCRIM No. 361, p. 130.) "CALCRIM No. 361 rests on the logical inference that if a person charged with a crime is given the opportunity to explain or deny evidence against him [or her] but fails to do so (or gives an implausible explanation), then that evidence may be entitled to added weight." (People v. Vega (2015) 236 Cal.App.4th 484, 496 (Vega).)

Even so, "CALCRIM No. 361 is not to be given every time a defendant testifies. Rather, the courts long ago imposed limits on the circumstances under which CALJIC No. 2.62 may be given,⁴ and the Bench Notes to CALCRIM No. 361 indicate the same restrictions apply in using CALCRIM No. 361. (Judicial Council of Cal. Crim. Jury Instns. (2015) Bench Notes to CALCRIM No. 361, [p. 130].) 'If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law.' (People v. Roehler (1985) 167 Cal.App.3d 353, 392 [CALJIC No. 2.62]; accord, People v. Mask (1986) 188 Cal.App.3d 450, 455 [CALJIC No. 2.62].) [¶] When a defendant testifies, however, and 'fails to deny or explain inculpatory evidence or gives a 'bizarre or implausible' explanation, the instruction is proper.' (People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1031 [CALJIC No. 2.62]; accord, People v. Mask, supra, 188 Cal.App.3d at p. 455 [CALJIC No. 2.62 is warranted 'if the defendant tenders an explanation which, while superficially accounting for his [or her] activities, nevertheless seems bizarre or implausible']; People v. Belmontes (1988) 45 Cal.3d 744, 784, 248, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Roehler, supra, 167 Cal.App.3d at p. 393.)" (Vega, supra, 236 Cal.App.4th at p. 498.)

4 Several courts have noted the similarly between CALCRIM No. 361 and CALJIC No. 2.62. (E.g., Vega, supra, 236 Cal.App.4th at p. 495; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.) CALJIC No. 2.62 states: "In this case defendant has testified to certain matters. [¶] If you find that [a] [the] defendant failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence." (Vega, at p. 495, fn. 5.)

Consequently, a trial court should not give CALCRIM No. 361, unless (1) the defendant testified on his or her own behalf and was asked a question calling for an explanation or denial of incriminating evidence, (2) the circumstances indicated the defendant knew the facts necessary to answer the question; and (3) the defendant failed to deny or explain the incriminating evidence when answering the question. (See People v. Saddler (1979) 24 Cal.3d 671, 682-683 [holding CALJIC No. 2.62 was erroneously given when defendant claimed he was elsewhere when the robbery occurred and therefore would not have observed the circumstances of the charged offense].)

In reviewing claims of instructional error, we apply the de novo standard of review. (People v. Rodriguez, supra, 170 Cal.App.4th at p. 1066.)

C.

Defendant's Testimony Warranted the Giving of CALCRIM No. 361

The trial court did not err in instructing the jury with CALCRIM No. 361. Defendant testified on his own behalf and was asked whether he molested A.B. He was also called upon to explain his responses during the pretext telephone call placed by A.B. Defendant denied molesting A.B. However, some of his explanations for his conduct were bizarre or non sequitur.

When A.B. accused defendant of orally copulating and digitally penetrating her, he responded by sighing and shaking his head in disbelief. He testified he was "trying to formulate something to tell her." Although defendant testified he did not want to accuse her of fabricating the allegation, he did just that by telling her: "You're wrong." When A.B. asked, "How am I wrong?" defendant responded only that he and A.B. "need to get together and talk. That's all I can say." And when A.B. told him he was "not supposed to be sexually doing things with your daughter," defendant responded by saying her name. When pressed, defendant stated: "You, you woke up and said, you never wanted to talk about it again." However, defendant testified his goal during the call was to get her to talk about it in person. On the witness stand, he stated: "I have to tell her at this point that we need to get together and talk." Defendant's explanations were evasive and self-contradictory as to his responses to A.B.'s accusations.

The jury was played the part of the pretext call in which A.B. said, "Do you want me to tell S.G.?" Defendant responded, "If you want to destroy me, okay, my, my life has always been in your hands. Ok?" Asked to explain his failure to answer A.B.'s question, defendant testified: "Okay. Since [A.B.]'s been in my life, it's been difficult. Because her father died in a single car auto accident, and I was married obviously to [his] mother. He called at 2:30 in the morning on the side of the road, and he couldn't talk, he was dying. That had a profound, just almost unexplainable impact on our family. [¶] So [A.B.'s] know[n] that for years, that we - [C.M.] and I and most of the rest of the family can't get another call like that. We can't have somebody call at 2:30 in the morning even when it's a wrong number, which has happened over the years."

The jury could have found these answers by defendant to be bizarre. Indeed, defendant's trial attorney argued to the jury that defendant's response about his life being in A.B.'s hands was "a weird statement." On the pretext call, defendant's response to A.B.'s question about telling S.G. is a non sequitur. Telling her his life was in her hands did not answer A.B.'s question and avoided admitting or denying A.B.'s accusations. Defendant's trial testimony involved additional non sequiturs. A.B.'s pretext call was placed shortly before 1:00 p.m. and therefore was not like the middle-of-the-night call referenced by defendant. Moreover, the fact A.B.'s father had died years earlier had nothing to do with A.B.'s accusation that defendant had just sexually molested her.

During the pretext call, defendant responded to the allegations of sexual molestation by telling A.B.: "I did not hurt you. You were not injured . . . ." At trial, defendant testified he did not "want her crying, ever." However, defendant's next response to A.B. was to accuse her of being "on the way to being an alcoholic." Based on defendant's testimony, the jury could have determined defendant's explanations for his pretext call responses were bizarre and sometimes failed to answer A.B.'s accusations. Consequently, the trial court did not err in giving CALCRIM No. 361. (Sanchez, supra, 24 Cal.App.4th at p. 1030.)

Defendant argues his testimony contradicted the People's theory of the case in a manner that did not constitute a failure to deny or explain. Defendant did testify he did not molest A.B. and the pretext call also contains a few weak denials of the molestation. Nonetheless, both defendant's testimony and his pretext call responses evaded A.B.'s accusations. The tragic circumstances of A.B.'s father's death, her struggle with alcoholism, and assertion of defendant's life being in A.B.'s hands, were non-sequitur responses that failed to deny or logically explain the accusations. Thus, we reject defendant's assertion the "record contains no factual basis for using the challenged instruction." CALCRIM No. 361 properly informed the jury it could "decide the meaning and importance of that failure." For the same reason, we also reject defendant's assertion CALCRIM No. 361 violated his federal constitutional rights because it was an irrelevant instruction.

Defendant appears to argue any denial of the accusations disallows a trial court from instructing the jury with CALCRIM No. 361. Crediting this argument would mean CALCRIM No. 361 can never be given. CALCRIM No. 361 addresses how a jury may view a defendant's testimony. Defendants who testify on their behalf do so with the purpose of denying the accusations and convincing the trier of fact they are not guilty. (Cf. People v. Saddler (1979) 24 Cal.3d 671, 678-679 (Saddler).) However, when defendants testify on their own behalf and give bizarre explanations in response to the accusations, CALCRIM No. 361 properly instructs the jury they may, but are not required, to consider the nature of the bizarre response in evaluating defendant's guilt. To ensure bizarre responses or failures to deny the accusations do not themselves establish guilt, CALCRIM No. 361 cautions jurors such testimony, by itself, is not sufficient to convict.

We also dismiss defendant's reliance on Saddler, supra, 24 Cal.3d 671. In Saddler, the California Supreme Court concluded CALJIC No. 2.62 did not violate a criminal defendant's privilege against self-incrimination, undermine the presumption of innocence, violate due process, or unfairly single out a defendant's testimony. (Id. at p. 678.) The Saddler court based its holding that language in the jury instruction admonishing a defendant's failure to explain or deny inculpatory evidence does not create a presumption of guilt, by itself constitute proof of guilt, or reduce the prosecution's burden of proof. (Id. at pp. 680-681.) Nonetheless, the Saddler court concluded the instruction should not have been given because defendant claimed an alibi defense that would have placed him at a different location than where the charged robbery was committed. (Id. at pp. 682-683.) Thus, the prosecution's questions about the commission of the robbery asked for denial or explanation of facts that would not have been within the defendant's knowledge to the extent his alibi defense was credible. (Ibid.)

The circumstance of Saddler, supra, 24 Cal.3d 671 is inapposite in this case where defendant was not relying on an alibi defense. Here, defendant testified he was there when A.B. woke up without pants. Thus, defendant admitted he was present at the very time and place during which A.B. claimed the molestation occurred. The facts or circumstances surrounding the charged offenses were within the knowledge of defendant as required for the giving of CALCRIM No. 361. Thus, we are not persuaded by defendant's reliance on Saddler.

We conclude the trial court did not err in instructing the jury with CALCRIM No. 361.

III

Admission of Forensic Evidence from Vulva Swabs

Defendant argues the trial court erred in admitting evidence the DNA testing of the vulva swabs was inconclusive in establishing a connection to defendant. We conclude the trial court did not abuse its discretion in admitting the evidence.

A.

Admission of Testimony Regarding DNA Testing of the Vulva Swabs

Before trial, defense counsel moved to exclude testimony regarding the DNA testing of the vulva swabs obtained from A.B. by the nurse who conducted the sexual assault examination. Defense counsel argued A.B.'s "vulva swabs were described by [senior criminalist] Cavanaugh as inconclusive, and . . . if somebody says it's inconclusive there's nothing probative. There's no relevance." Defense counsel expressed concern that testimony to the effect three alleles matched defendant's would be persuasive to the jury. The prosecution asserted the evidence should be admitted "[b]ecause it compares and contrasts to evidence that was conclusive." The prosecutor further argued, "So I think it helps illustrate to the jury what a profile is, what's the difference between finding DNA that couldn't match and DNA you can." The trial court ruled the evidence was admissible, "[b]ecause I think it's relevant to show how you make something conclusive versus inconclusive."

B.

Evidence Regarding Inconclusive Results of Scientific Testing

Relevant evidence is admissible unless it is unduly prejudicial. (Evid. Code, §§ 210, 352.) As the California Supreme Court has explained, "The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value." (People v. Horning (2004) 34 Cal.4th 871, 900 (Horning).) Horning involved testimony by Michael Giusto, a criminalist with the Department of Justice, who testified he compared a bullet found in the victim's brain with a bullet and gun barrel found on defendant's property. (Id. at p. 883.) Due to the condition of the bullets, the criminalist could not determine the probability both bullets had been fired by the same gun. (Ibid.) Even though the criminalist's investigation was inconclusive, the California Supreme Court rejected the defendant's argument the evidence should have been excluded as irrelevant.

The Horning court explained, "Obviously, if Giusto had been able to state positively that the fatal bullet either did or did not come from the gun barrel on the [defendant's] property, the evidence would have had greater probative value. But sometimes scientific examination of evidence is inconclusive. (E.g., People v. Burgener (1986) 41 Cal.3d 505, 515.) That circumstance does not make it irrelevant. It was relevant for the jury to learn that the evidence was tested, and that similarities among the items showed that both bullets might have been fired from the barrel, but that it was impossible to say for sure. (People v. Cooper (1991) 53 Cal.3d 771, 813 [relevant for the jury to learn that two cigarette butts found in the victims' car were tested scientifically even though the results were inconclusive].)" (Horning, at p. 900.) For this reason, the Horning court rejected the argument "Giusto's testimony was merely speculation. It was not. It was based on a scientific examination of evidence and the results of that examination." (Ibid.)

The Horning court also concluded the evidence was not unduly prejudicial. "The jury could easily understand that similarities among the objects indicated the bullets might have been fired from that particular gun, but that, due to their condition, Giusto could not be certain. Defendant was permitted to cross-examine Giusto extensively on the point. Indeed, excluding the evidence might have been unfairly prejudicial to the prosecution. The jury would naturally wonder if anyone had tested the bullets and barrel. If told nothing on the question, some jurors might have assumed no one had bothered to test the evidence, to the prosecution's substantial—and unfair—detriment. It would have been truly odd, and would only have puzzled the jury, to tell it that testing had been done, but withhold the results." (Horning, supra, 34 Cal.4th at p. 901.)

C.

Relevance of the Evidence Regarding the Vulva Swabs

We conclude the trial court in this case did not err in admitting evidence regarding the inconclusive test results obtained by the DNA testing of the vulva swabs obtained from A.B. As in Horning, the testing in this case followed a scientific method that yielded a result from which the criminalist could not draw any conclusive findings. (Horning, supra, 34 Cal.4th at pp. 833, 901.) However, inconclusive is not synonymous with irrelevant. As the trial court correctly reasoned, evidence regarding inconclusive test results provided helpful additional information that provided context for the conclusive results of amylase analysis of the sample taken from A.B.'s underwear. Thus, the inconclusive test result constituted relevant evidence.

We are not persuaded by defendant's assertion the inconclusive test evidence violated Evidence Code section 352 because it was "evidence that uniquely tends to evoke an emotional bias against an individual." The inconclusive test result was not unduly prejudicial. The vulva swab evidence did not demonize defendant or portray him as reprehensible. Being inconclusive, it did not show anything about defendant. However, as in Horning, exclusion of the vulva swab evidence could have been prejudicial to the prosecution. The jury heard A.B. testify vulva swabs were collected from her at the same time her underwear was collected for the sexual assault kit. Kean, the criminalist who conducted the initial biological screening of the samples in the sexual assault kit, testified about the contents of the kit. The kit included the vulva swabs and A.B.'s underwear. Had the testimony regarding DNA testing only referenced the underwear, the jury would have been left to wonder about testing of the vulva swabs. Similar to firearms evidence in Horning, it would have been "truly odd" to inform A.B.'s jury vulva swabs had been collected and tested, but not reveal the outcome of the testing. (34 Cal.4th at p. 901.) Consequently, the trial court properly admitted the evidence regarding the DNA testing of the vulva swabs even though the testing yielded inconclusive results.

IV

Refusal to Instruct the Jury a Prior Trial Had Occurred

Defendant argues the trial court erred in granting the prosecution's in limine motion to preclude mentioning to the jury that a prior trial had occurred. He further argues the trial court erred in denying his motion for a new trial on the same ground. We are not persuaded.

A.

Trial Court Ruling

Before trial, the prosecution moved to exclude mention to the jury that a prior trial had occurred. During an in limine hearing, the following colloquy occurred:

"THE COURT: [¶] . . . [¶] . . . I assume you'll have no problem calling it a prior hearing?

"[Defense counsel]: No. Prior trial is absolutely what happened. This is the first time she faces a trier of fact. Here's what she does. She tells the officer four or five beers. She tells

"THE COURT: You can impeach her with the testimony. Just call it a prior hearing.

"[Defense counsel]: Except it's the first time she faces a trier of fact. It's one thing to tell the officer that, but you're trying to mislead a trier of fact. She sits

"THE COURT: We're trying to not let the jury know there was a hung jury.

"[Defense counsel]: I won't tell them.

"THE COURT: What do you think they're going to think[?]

"[Defense counsel]: They won't know. Jurors aren't that smart to know what happened at a prior trial.

"THE COURT: No, I'm not going to allow mention of a prior trial. You can call it prior hearing or prior proceeding.

"[Defense counsel]: At a prior hearing where you testified in front of a trier of fact, the person that decides the facts. The problem is, that's what she did. She testified. She looked at the jury and told them a lie, and it's the first time she had done that. She never lied to the officers. She never lied to the first officer.

"THE COURT: You can refer to a prior proceeding or a prior hearing.

"[Defense counsel]: Judge, is there any basis for that?

"THE COURT: Yeah. Under [Evidence Code section] 352 I find it highly prejudicial to say there's been a prior trial because what's going to happen is, the only inference is that it was a hung jury, or a mistrial based on someone's misconduct."

After the jury returned its verdict, defense counsel made a motion for new trial based on the trial court's admission of evidence that the testing of the vulva swabs was inconclusive. However, the new trial motion did not articulate any argument as to the exclusion of evidence a prior trial had occurred.

B.

Evidence Code section 352

Evidence Code section 352 provides, "The 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." Thus, Evidence Code section 352 required the trial court to determine whether evidence that was otherwise admissible had to be excluded nonetheless on grounds its admission created a substantial risk of undue prejudice, confusing the issues, or misleading the jury. "The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. (People v. Stewart (1985) 171 Cal.App.3d 59, 65; People v. Yu (1983) 143 Cal.App.3d 358, 377.) We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)

C.

Prohibition on Mentioning the Fact of a Prior Trial

The trial court did not abuse its discretion in excluding, under Evidence Code section 352, any mention of a prior trial on the same charges. Although the trial court disallowed mention of a prior trial, the court's ruling allowed defendant's trial attorney to: (1) cross-examine A.B. about her testimony, (2) mention she had previously testified, (3) elicit that A.B. was more upset than when she had previously testified, (4) and question her about her prior inconsistent testimony. Essentially the only effect of the trial court's evidentiary ruling was defense counsel could not inform the jury A.B.'s testimony was given during a prior trial.

The trial court correctly determined the fact of a prior trial was more prejudicial than probative. The only information it would have imparted was the prior trial had either gone wrong, the case had been reversed on appeal, or the prior jury had not been able to reach a verdict. None of these circumstances would have had been a valid basis for the jury to acquit or convict in the second trial. Defendant's argument fails to explain how the fact of a prior trial alone had any probative value as to the charges he faced. Whatever the probative value attached to the fact of a prior trial was outweighed by the risk the jury would speculate about the reasons for the retrial and use the speculation as evidence regarding the issue of guilt. Consequently the trial court did not err in excluding the fact of a prior trial from the second jury's consideration. For the same reason, we reject defendant's argument the new trial motion should have been granted on the basis of exclusion of mention a prior trial had occurred.

V

Prosecutorial Misconduct

Defendant argues the prosecutor engaged in more than a dozen instances of misconduct during closing arguments to the jury. Defendant's trial attorney did not object to most of the claimed instances of misconduct and did not request that the jury be admonished as to any. Despite the lack of objections and requests that the jury be admonished, defendant contends his convictions must be reversed because the failures to object or request admonishment constituted ineffective assistance of counsel. Accordingly, we review the asserted errors through the lens of defendant's constitutional right to the effective assistance of counsel. We determine there was no reversible error.

A.

Review of Claims of Prosecutorial Misconduct During Closing Arguments

As the California Supreme Court has explained, " 'a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.' (People v. Fuiava (2012) 53 Cal.4th 622, 679, quoting People v. Riggs (2008) 44 Cal.4th 248, 298.) Under the federal constitution, prosecutorial misconduct results if "the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' (Darden v. Wainwright (1986) 477 U.S. 168, 181, 91 L.Ed.2d 144.) (People v. Riggs, at p. 298.) However, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" ' " (Id. at p. 298, quoting People v. Stanley (2006) 39 Cal.4th 913, 952, italics added.)

We agree with the Attorney General that defendant's trial attorney failed to preserve the issues of prosecutorial misconduct by not requesting the jury be admonished as to any claimed instance of misconduct. Anticipating forfeiture, defendant asserts he should be excused from the requirements of timely objection and request for admonishment because such objections and requests would have been futile. (People v. Arias (1996) 13 Cal.4th 92, 159-160.) We reject defendant's assertion of futility. The assertion is unaccompanied by record citations and is therefore forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [failure to cite to the record forfeits the claim of error].) Moreover, there is no indication in the record the trial court would not have sustained appropriate objections, refused to admonish the jury upon request or any appropriate admonishment would have been incapable of correcting any objectionable conduct.

Thus defendant resorts to asserting ineffective assistance of counsel for lack of objections and requests for admonition by his trial attorney. "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.) To establish ineffective assistance of counsel, defendant must show that "(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant." (People v. Johnson (2015) 60 Cal.4th 966, 980, quoting People v. Scott (1997) 15 Cal.4th 1188, 1211.)

As the California Supreme Court has held, " 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " no conceivable tactical purpose " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 674-675.) "The decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel." (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.) With these principles in mind, we turn to defendant's claims of prosecutorial misconduct.

B.

The Prosecutor's Closing Arguments

Defendant claims 13 separate instances of prosecutorial misconduct during closing arguments that fall into five categories.

1. Claim of vouching for A.B.

For the next six claims of error defendant argues the prosecutor improperly vouched for A.B.'s credibility.

"A 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her [or his] office behind a witness by offering the impression that she [or he] has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her [or his] comments cannot be characterized as improper vouching.' (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22); (People v. Boyette (2002) 29 Cal.4th 381, 433.) Misconduct arises only if, in arguing the veracity of a witness, the prosecutor implies she [or he] has evidence about which the jury is unaware. (People v. Padilla (1995) 11 Cal.4th 891, 945-946, 47 Cal.Rptr.2d 426, 906 P.2d 388, overruled on another point in [People v.] Hill [(1998)] 17 Cal.4th [800,] 823, fn. 1.)" (People v. Fernandez (2013) 216 Cal.App.4th 540, 561.)

As we explain, none of the prosecutor's closing arguments referred to evidence about which defendant's jury was unaware. Instead, the prosecutor's comments related to testimony regarding A.B. and reasonable inferences that could be drawn from her testimony.

The first instance of vouching claimed by defendant consisted of the prosecutor's argument A.B. "was an excellent academic student. Social life, she's got her parties that she was going to. That's undisputed. She's working. But she's going to take time out of her life to come in here and falsely accuse him of these sexual assault crimes? What does she gain from that? Nothing. Absolutely nothing. [¶] This is what it cost her. This is what she has to endure. [¶] Victims sometimes have an uphill battle convincing people that it really happened to them."

Testimony at trial showed A.B. graduated with high honors from high school, went to a party on the night of the molestation, had just gotten a job before she was molested, and suffered a loss of family due to her accusations against defendant. A.B.'s statements shortly after the molestation indicated she understood the need for DNA evidence to convince people to believe her version of the events. Rather than improper vouching, the prosecutor's argument was fair commentary on the evidence.

Defendant next claims improper vouching in the italicized portions of the prosecutor's statements to the jury that: "You don't have to make these huge mental leaps and find him not guilty. It's very straightforward. [A.B.] came in here, and she told you the truth. And the corroboration is what happens on the pretext call and the DNA. No reason to lie. [¶] If she didn't want to be around the defendant, she didn't want to be around S.G., she would have left. [¶] How do we know that? Cuz she had done it before. No reason to fabricate the story at all. She gains nothing. She loved her dad. She lost two dads now. That was not what she wanted. She gained nothing. He did this to her. Find him guilty." (Italics added.)

The prosecutor thus referred to testimony A.B.'s biological father died during an automobile accident and she "lost" defendant as her father because she no longer trusted him after the molestation. Testimony at trial also established A.B. lost contact with family related to defendant once she came forward with her accusations against him. The prosecutor's comments regarding her lack of motive to lie were both fair comments about the evidence and A.B.'s credibility.

So too, the next claimed instance of improper vouching involved the prosecutor's comments on A.B.'s credibility based on evidence presented to the jury. The prosecutor argued: "Why would [A.B.] make this up? Why would [A.B.] lie to you? Lie to all of us? There's no reason for her. What does she gain by that? [¶] If she wanted to leave, she didn't want to spend time with her dad, she didn't like [S.G.],⁵ she could leave. She's already done that in the past. No motivation for her to lie whatsoever."

5 Although the reporter's transcript refers to A.B. with a "sic" notation, the tenor of the prosecutor's remark clearly refers to S.G.

With this argument, the prosecutor sought to address the insinuation A.B. accused defendant of molestation so she would not have to move into the same house as defendant and his girlfriend, S.G. A.B. testified she essentially chose where she stayed because she had sometimes decided to stay exclusively with C.M. and sometimes stayed exclusively with defendant. Thus, the prosecutor did not vouch for A.B. based on evidence unavailable to the jury but instead argued her credibility based on testimony presented at trial.

The next instance of vouching claimed by defendant involved the prosecutor's statement to the jury: "Look at what verifies their credibility. [A.B.], no motivation to lie. We verified her statement to the best of our ability, which is the DNA evidence. Amylase."

Again, the prosecutor's remarks grounded A.B.'s credibility on evidence presented to the jury. The jury heard testimony from two criminalists, who explained the scientific testing process for the presence of amylase. One of the criminalists testified the DNA testing of A.B.'s underwear provided "strong evidence" defendant was a contributor of DNA material detected in the crotch of A.B.'s panties. The issue of A.B.'s credibility at trial was inextricably linked with the results of the DNA testing. Although the prosecutor's statement might have been inartful in stating that "we verified her statement to the best of our ability," it did not constitute vouching because it related directly to amylase evidence presented to the jury.

Similarly, the next claimed instance of misconduct involved the prosecutor's direct reference to evidence presented to the jury. Conceding the prosecution did not have a video of defendant engaging in the molestation, the prosecutor pointed out the video that was in evidence: namely, the video of A.B. placing the pretext call to defendant. In pertinent part, the transcript shows:

"[Prosecutor:] We don't have the Ray Rice video. Remember, [defense counsel] said that. The Ray Rice video in this case would be a video of him sneaking into her room in the middle of the night at four a.m. It's not the video of the pretext call. [¶] I hope you watch that again. I think that corroborates what she has to say. That shows her in a good light. The Ray Rice video.

"[Defense counsel]: I object to personally vouching as to his personal opinion of the evidence.

"THE COURT: Sustained."

Any error in the prosecutor's statement he thought the video corroborated A.B.'s testimony, was attenuated by the fact jurors had been able to watch the video for themselves. Moreover, the court sustained the objection and the prosecutor moved on.

The final instance of claimed improper vouching concerns the prosecutor's argument there was "[n]o reason for [A.B.] to lie. There's been no reason presented. None whatsoever. Nothing. [¶] He did this. Four a.m., Halloween morning. That's what happened. That's what happened."

This conclusion to the prosecutor's argument does not contain any vouching for A.B.'s credibility or even a reference to A.B. Instead, it represents the end of the prosecutor's argument and draws upon evidence presented to the jury about the date and time of the charged offenses. And the statements hearken back to the prosecutor's arguments A.B. lacked motive to fabricate the accusations against defendant.

In sum, we are not persuaded the prosecutor engaged in improper vouching. To the contrary, the record reflects the prosecutor's comments were based on the evidence and reasonable inferences that could be drawn from the testimony.

2. Claim of appeals to sympathy for A.B.

As the California Supreme Court has explained, "A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.' (People v. Pensinger (1991) 52 Cal.3d 1210, 1251; People v. Fields (1983) 35 Cal.3d 329, 362-363.) '[A]n appeal for sympathy for the victim [, however] is out of place during an objective determination of guilt.' (People v. Stansbury [(1993)] 4 Cal.4th [1017,] 1057.)" (People v. Pearson (2013) 56 Cal.4th 393, 441.) And as we have noted, "A criminal prosecutor has much latitude when making a closing argument. Her [or his] argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence." (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.)

Defendant contends the prosecutor engaged in an improper and prejudicial appeal to jurors' sympathy when arguing as follows:

"This is what it cost her. This is what she has to endure. [¶] Victims sometimes have an uphill battle convincing people that it really happened to them. [¶] But she loses her privacy. She gets to go to a [sexual assault] exam. It was invasive. It was scary. It was weird. She gets to come in here and talk about the private details of her life. That she was -- went to counseling. Was taking Prozac. She's depressed.

"Talking about her family history. That's a lot of fun. She gets to testify under cross-examination in front of strangers.

"She loses family. She testified that his family was her family. His mom was [N.] And [K.] was an aunt. She loved them. They are gone.

"And she loses her dad. She never said that there was any problem with her dad. And this is what she says. I feel betrayed. Lost. Scared. Hurt. Every bad emotion you could feel. Being betrayed by the person you trusted your whole life with. It's like the wors[t] thing that could possibly happen to a person to have everything ripped from them that they thought they knew, that they thought they could trust, love them and call them dad, after I had already lost a dad. And then now, the one that I had chose[n], to betray me and not be my dad anymore.

"That's what she said. That was her testimony when she sat right here."

The prosecutor's arguments did not constitute an impermissible appeal to sympathy but instead represented an argument regarding A.B.'s credibility that was grounded in evidence presented to the jury. The jury heard testimony A.B. knew she would face skepticism about her accusations against defendant, she underwent a sexual assault examination she found to be invasive, scary, and weird, she suffered depression, and she lost contact with family members as a result of her accusations. These factors tended to disprove A.B. had a motivation to fabricate the allegations against the defendant and were fairly commented upon by the prosecutor.

We are also not persuaded the next instance of claimed appeal to juror sympathy constituted prosecutorial misconduct. Defendant focuses on the following statements by the prosecutor:

"I'll let you decide that. I don't know. It's up to you to decide.

"Maybe she's crying because she knows what this means when you're in here. You're portrayed as being a liar when you're the victim of one of these crimes, and he's sitting on that end of the table saying I didn't do anything wrong. You lied. She knows what that means. And it's emotional."

Again, the prosecutor's comments referred directly to evidence presented to the jury. The jury was able to observe A.B.'s demeanor, and the record clearly indicates she became emotional testifying during the second trial. The record also shows defendant's statements during the pretext call and in his testimony asserted A.B. was lying when she accused him of molestation. Although the prosecutor's comments also had the effect of showing the adverse consequences to A.B. arising out of the molestation and investigative process, the prosecutor had a right to comment on the meaning of the relevant evidence presented at trial.

3. Claim of burden shifting

A prosecutor engages in misconduct when misstating the law during closing argument. (People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall).) Misstatement of the law is particularly problematic when the misstatement has the effect of "absolve[ing] the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." (Ibid. ) Marshall involved a prosecutor's argument that the defense sought the introduction of a witness's testimony, "despite the falsity of his story, because '[the defense] had to come up with another possible suspect to create in your minds that reasonable doubt that they want you to have when you enter that jury deliberation room.' " (Id. at p. 831.)

Despite the error in suggesting the defense had any burden of proof, the Marshall court had no difficulty in rejecting the claim of prejudice. The California Supreme Court explained: "In the context of the whole argument and the instructions, we see no reasonable likelihood [citation] the jury construed the prosecutor's remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt. When the prosecutor made the challenged comment, he had just finished reviewing the evidence presented in the prosecution's case-in-chief, with the evident aim of demonstrating he had succeeded in proving defendant guilty beyond a reasonable doubt. As in People v. Gonzalez [(1990)] 51 Cal.3d [1179,] 1215, the prosecutor then could legitimately argue that in order persuasively to cast doubt on the prosecution's case, the defense of third party culpability would need to identify a possible perpetrator. Accordingly, defendant fails to establish either misconduct or, it follows, ineffective assistance of counsel. (See Strickland v. Washington [(1984)] 466 U.S. [668,] 691-692.)" (Marshall, supra, 13 Cal.4th at pp. 831-832.)

In this case, defendant contends the prosecutor misstated the burden of proof when arguing to the jury as follows: "And the other thing you have to believe in order to acquit him is that was all fake. The 100 percent fake is what you saw there. That's what you have to say in addition in order to acquit the defendant."

The prosecutor misstated the law by suggesting acquittal required the jury's belief the evidence presented against him was "100 percent fake." Even so, we conclude defendant was not prejudiced by this isolated misstatement of the law because the trial court instructed the jury with CALCRIM No. 226 that provided in pertinent part: "You may believe all, part, or none of any witness's testimony. [¶] . . . [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. [¶] . . . [¶] If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (Italics added.) The trial court also instructed the jury with CALCRIM No. 200 that provided in pertinent part: "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."

We presume the jury followed the court's instructions. (People v. Johnson (2015) 61 Cal.4th 734, 770. Indeed, this case provides a compelling example of this presumption because the jury convicted defendant of oral copulation but acquitted him on the digital penetration charges. The jury's verdict demonstrates it accepted in part and rejected in part the evidence presented. Consequently, no prejudice accrued from the prosecutor's brief misstatement.

We reject defendant's next claimed instances of burden shifting in the prosecutor's closing remarks. Defendant points to the prosecutor's statements: "What's the easiest version of the events? What's the most reasonable version of events? She gets orally copulated. She tells him to stop. He immediately realizes he's wrong. He's apologizing to her." Defendant also points to the prosecutor's statements: "No reason for [A.B.] to lie. There's been no reason presented. None whatsoever. Nothing." These statements did not implicate the burden of proof. They did not concern the quantum or persuasiveness of evidence necessary for conviction. Although the prosecutor pointed out the prosecution's evidence constituted the "most reasonable version of the events," there was no suggestion this conclusion sufficed to convict.

Accordingly, we are not persuaded the prosecutor engaged in prejudicial burden shifting during closing arguments.

4. Claim of denigrating defendant's trial attorney

As the California Supreme Court has explained, " ' "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.] "In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks" [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].' (People v. Edwards (2013) 57 Cal.4th 658, 738.) 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' (People v. Frye (1998) 18 Cal.4th 894, 970, 77 Cal.Rptr.2d 25, 959 P.2d 183, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)" (Seumanu, supra, 61 Cal.4th at pp. 1336-1337.)

Defendant contends the prosecutor prejudicially impugned the integrity of defense counsel by arguing to the jury:

"[The DNA] was from him. From the defendant. His DNA is in [A.B.'s underwear.] [¶] There should be none. And you're going to hear three hours of argument about -- from the defense - about how that's a small amount. Well, whatever sells. It should be zero. It should be zero. Make no mistake about that. Don't fall for the Jedi mind trick of this isn't the DNA you are looking for. [¶] This is the DNA you are looking for. It's there. It's there in a small amount. It's from a tiny cutting, six centimeters, I think, is what he said. Large sample from the victim. It's her underwear."

Only by reading these comments in the worst possible light might it be possible to say the prosecutor cast aspersions on defense counsel. Consistent with the Supreme Court's guidance in Seumanu, we do not lightly infer such malice by the prosecutor or that the jury would have understood the argument in such a manner. (Seumanu, supra, 61 Cal.4th at pp. 1336-1337.) Instead, the prosecutor's comments represent brief and mild hyperbole in making the legitimate point defendant's DNA was present in A.B.'s underwear as she claimed -- regardless of the quantity of defendant's saliva. As the transcripts show, both attorneys engaged in lengthy closing arguments and both focused extensively on the DNA evidence. This context shows the jury would have understood the prosecutor's remarks simply as a rebuttal to any suggestion defendant was not guilty simply because there was not enough of his saliva to establish his guilt.

We are also not persuaded by defendant's assertion of prejudicial error arising out of the prosecutor's argument:

"[Prosecutor:] He needs a reason why he doesn't answer the way every human being would answer in that situation. And he tells you because of my training and experience at the school? Dealing with kids? Really? You are smarter than that.

"[Defense counsel]: Object as to that comment. Improper. Appeal to their intelligence.

"[Prosecutor]: Withdraw it, Judge. [¶] I think you can start

"THE COURT: This is argument, remember that. The facts are for you to determine. The attorneys are arguing."

On appeal, defendant fails to develop the argument as to what he believes to be objectionable regarding this remark other than to suggest it somehow impugned the integrity of defense counsel. Not every sustained objection by the trial court provides an automatic issue on appeal. In this instance, the prosecutor urged the jurors to reject defendant's illogical responses to A.B.'s accusations during the pretext call. Thus, the prosecutor's remarks were not directed at defense counsel. In any event, the context of the argument dispels any assertion of prejudice in the prosecutor's argument that defendant provided an unconvincing explanation for his responses during the pretext call.

The prosecutor's remarks during closing arguments did not constitute prejudicial misconduct regardless of whether considered individually or for their cumulative impact. Consequently, defendant did not receive constitutionally deficient representation of counsel for failure of his attorney to object and request an admonishment for each of his current claims of prosecutorial misconduct.

5. Mention of defendant's disbarment

Defendant argues the prosecutor violated the trial court's in limine order disallowing mention of defendant's disbarment. Defense counsel represented that the defendant was disbarred for inexcusable neglect rather than moral turpitude. The trial court granted the defense motion to exclude references to defendant's disbarment. However, defendant testified his marriage to C.M. ended because she wanted the lifestyle that came with being married to an attorney rather than a school teacher. The prosecutor responded by asking why defendant was no longer an attorney. A bench conference ensued during which the trial court noted defendant had already testified he had retaken the bar exam. Defense counsel then proposed: "Why don't we do that? He lost his law license." The trial court stated it made "most sense" to have defendant state he "lost his license" and he subsequently "got his license back." Defendant does not challenge this evidentiary ruling.

Instead, defendant argues the prosecutor committed misconduct during closing arguments when the prosecutor mentioned defendant's disbarment as follows:

"[Prosecutor:] They've had their own problems since 2005 when [C.M.] filed for divorce. And he says the problems were because I wanted to be a teacher, and she wanted to be married to an attorney. Which he was back then. [¶] And the reason that didn't happen is because he got disbarred. But he wants you to think that he's the - he's the good guy.

"[Defense counsel]: Object. Improper arguing facts that are not in evidence.

"[Prosecutor]: I'll move on, Judge.

"THE COURT: All right."

We conclude the prosecutor violated the trial court's in limine order by referring to defendant's disbarment. However, we further conclude the error was harmless for several reasons. First, the prosecutor's question and subsequent mention during argument referred to evidence the jury had already heard, namely defendant lost his license to practice law. Second, it was defendant who brought up the subject of the status of his license to practice law by stating he had retaken the bar examination and C.M. wanted the lifestyle that came with being married to an attorney. The prosecutor followed up on this testimony only after the defendant raised the status of his license on his own. Third, the prosecutor did not mention any reason for the disbarment. Thus, the prosecutor did not imply it was due to moral turpitude. Fourth, defendant's loss of his license to practice law did not appreciably affect the strength of A.B.'s testimony, DNA evidence, or defendant's evidence on the ultimate issue in the case, namely whether he molested A.B. Accordingly, the prosecutor's error in referring to defendant's disbarment was harmless. Thus, it follows defendant did not receive ineffective assistance of counsel for lack of objection to the prosecutor's question and subsequent mention of defendant's disbarment.

VI

Restitution Order

Defendant contends the trial court's restitution order impermissibly requires him to reimburse (1) the district attorney's office for the cost of A.B.'s airline ticket that allowed her to attend the second trial, (2) C.M. for litigation expenses arising out of a family law matter, and (3) C.M. for lost wages due to care provided to A.B. after she became an adult. We determine the trial court did not err in ordering restitution for C.M.'s litigation expenses or her lost wages. However, we reverse the order insofar as it requires direct victim restitution to be paid to the district attorney's office.

A.

Restitution Orders

Article I, section 28, subdivision (b)(13)(A), of the California Constitution states in pertinent part, "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." As this court has previously explained, "Restitution is constitutionally and statutorily mandated in California. (People v. Mearns (2002) 97 Cal.App.4th 493, 498; Cal. Const., art. I, § 28, subd. (b).) The constitutional mandate for restitution is carried out through . . . section 1202.4, which provides, in part: '(f) In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.' Restitution under this provision 'shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of defendant's criminal conduct, including, but not limited to' a list of enumerated items, including medical care, losses to property, and even security measures. (§ 1202.4, subd. (f)(3).)

" ' "The standard of review of a restitution order is abuse of discretion. 'A victim's restitution right is to be broadly and liberally construed.' [Citation.] ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' [Citations.]" [Citation.]' (People v. Baker (2005) 126 Cal.App.4th 463, 467.) 'In reviewing the sufficiency of the evidence, " '[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' (Id. at pp. 468-469.) The trial court ' "must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious." ' (People v. Mearns, supra, 97 Cal.App.4th at p. 498.)" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)

" 'While restitution serves the obvious function of compensating crime victims, its primary goal is the rehabilitation of the criminal.' ([People v.] Goulart [(1990)] 224 Cal.App.3d [71,] 78.) 'Implicit in the concept of rehabilitation is the need to first deter criminal activity. Courts have generally found an order requiring the defendant to compensate the victim to be a deterrent to future criminal activity.' (Id. at p. 78, fn. 4.) 'Restitution "is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his [or her] actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine." [Citations.]' (People v. Moser (1996) 50 Cal.App.4th 130, 135-136 (Moser).)" (People v. Rugamas (2001) 93 Cal.App.4th 518, 522.)

B.

A.B.'s Airfare

The trial court ordered defendant to pay restitution that included $472 for A.B.'s airfare from Southern California, where she attended college, to Northern California, where trial occurred. This expense was addressed during a colloquy at sentencing as follows:

"THE COURT: [Addressing the prosecutor.] You forgot the airfare.

"[Prosecutor]: Airfare, Judge, was handled by the DA's Office.

"THE COURT: Okay.

"THE WITNESS [C.M.]: Yes, I was reimbursed for that."

Shortly thereafter, the court confirmed with C.M. that the district attorney's office had reimbursed her $472 for A.B.'s airfare.

Defendant contends the airfare component must be stricken because it was ordered paid to the district attorney's office. He points out a district attorney's office does not qualify as a direct victim for purposes of restitution orders under section 1202.4.

Subdivision (k) of section 1202.4 provides: "For purposes of this section, 'victim' shall include . . . : [¶] (1) The immediate surviving family of the actual victim. [¶] (2) A corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime." (Italics added.) As the Attorney General acknowledges, the district attorney's office is not a statutorily designated direct victim of a crime within the meaning of section 1202.4. Thus, courts have stricken restitution fines for the normal costs of criminal prosecution. (E.g., People v. Torres (1997) 59 Cal.App.4th 1, 2-5.)

The Attorney General argues the district attorney's office should be reimbursed nonetheless because subdivision (f)(2) of section 1202.4 provides that "[d]etermination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of a third party." We are not persuaded. Indemnification and subrogation rights arise primarily in the insurance context where they relate to an insurer succeeding to a claim or right. "Subrogation is defined as the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim. By undertaking to indemnify or pay the principal debtor's obligation to the creditor or claimant, the 'subrogee' is equitably subrogated to the claimant (or 'subrogor'), and succeeds to the subrogor's rights against the obligor. (Black's Law Dict. (6th ed.1990) p. 1427, col. a.) In the case of insurance, subrogation takes the form of an insurer's right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid." (Fireman's Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1291-1292.)

Here, the district attorney's office does not succeed to any claim held by A.B. or C.M. on grounds of indemnification or subrogation. For this reason, subdivision (f)(2) of section 1202.4 does not apply. Neither does subdivision (k) of section 1202.4 apply because the district attorney's office is not included among those who may receive direct victim restitution. Consequently, the trial court erred in ordering defendant to pay direct victim restitution in the amount of $472 to the district attorney's office.

C.

C.M.'s Litigation Expenses to Remove a Lien on her House

Defendant next contends the restitution order erroneously requires him to reimburse C.M. for family law litigation expenses. Specifically, he argues reimbursement for C.M.'s legal costs in removing a lien on her house involved division of marital property rather than an expense caused by his criminal conduct. We shall remand the matter with instructions that the trial court determine the amount of attorney fees claimed by C.M. for removal of the lien on her residence and to strike this portion of the fees from the restitution order.

"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' (Ibid.) Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property. (People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. (Ibid.)" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).)

In this case, as defendant acknowledges, C.M.'s testimony was the only evidence presented on the issue of restitution. Regarding C.M.'s legal expenses to remove a lien on her house, she testified she was represented by attorney Ellis at the time of defendant's offense and she did not claim restitution for C.M.'s family law attorney's filing of a civil complaint:

"A. [By C.M.:] I prepared -- [A.B.] was issued an [emergency protective order] the day of the incident, and I only had until November 8 to file a domestic violence restraining order, so I had a daughter that was emotionally traumatized, so I filed a domestic violence restraining order and it was being disputed so I needed to hire an attorney, so - or should I say [A.B.] needed to hire an attorney, so that was [my family law attorney].

"Q. Did you hire [your family law attorney] for anything else?

"A. He filed the civil complaint, but those attorney fees are not listed in the restitution order.

"[¶] . . . [¶]

"Q. What -- where does that $6,562 amount come from?

"A. Well [my family law attorney] charges $300 an hour, so for the domestic violence restraining order, I believe he made three or four court appearances because it was being disputed by [the defendant], and the restraining order was granted for five years."

Thus, C.M.'s testimony established she incurred expenses in securing protective orders for A.B. that were a direct consequence of defendant's criminal conduct. Her testimony further established she excluded claims for litigation not related to the criminal conduct.

C.M. also explained defendant violated the restraining order by placing a lien on her house, testifying: "While [defendant] was incarcerated he violated the family law restraining order by encumbering the family residence. I have an order here from [the superior court commissioner], an order that the lien be removed, but in order to get the order for the lien to be removed I had to join [defendant]'s sister . . . to the family law action."

As already noted, defendant's trial attorney did not introduce any evidence in rebuttal to C.M.'s testimony. However, defendant's trial attorney did cross-examine C.M. regarding the fees incurred in having the lien removed as follows:

"Q. [Defense counsel]: Things that you owned with [defendant] w[ere] filed in this action when you were separating, correct?

"A. No. The only thing filed with the court was a joinder. [The superior court c]ommissioner heard other matters, but no documents were filed regarding those issues. This is only an order after hearing regarding the joinder, but she took other issues into consideration but no documents were filed on those issues.

"Q. [Defense counsel]: But there were other things in dispute in this whole process involving [defendant's family law attorney] and [C.M.'s family law attorney] and the other counsel or other attorneys?

"A. No." (Italics added.)

Consistent with C.M.'s testimony, the trial court issued a restitution order that states in pertinent part: "A portion of the attorney fees were objected to as unrelated to the charges. The restraining order directly relates to the sexual assault. The court finds the fees generated relating to a complaint to ensure the family home was not encumbered by the defendant as falling within the provisions of [section] 1202.4 based upon the testimony of [C.M.] that [A.B.] was extremely upset and worried that the home could be taken from them by the actions of [defendant] to cover legal expenses."

Defendant argues the trial court erred because "[t]he lien litigation was related to litigation of a property division dispute that included other property in addition to the house." We reject defendant's argument to the extent it refers to C.M.'s expenses in securing a domestic violence restraining order to protect A.B. after defendant molested her. The attorney fees incurred shortly after the molestation were a direct consequence of defendant's criminal conduct.

However, to the extent the issue concerns the attorney fees expended by C.M. to remove a lien on her residence, the fees incurred to remove the lien must be stricken from the restitution order.⁶ The attorney fees for removing the lien were not caused by defendant's molestation of A.B. Accordingly, we remand the matter for further proceedings during which the trial court is directed to determine the portion of the attorney fees in the restitution order attributable to removal of the lien and to exclude those fees from the restitution order.

6 Attorney fees expended to establish a violation of the domestic violence restraining order may be recoverable under Family Code section 6344. Nonetheless, the attorney fees expended in this case to establish a violation of the domestic violence restraining order pertained to defendant's conduct in placing a lien on CM.'s house rather than his criminal conduct against A.B. Accordingly, the attorney fees related to the litigation of the propriety of the lien are not properly encompassed within the restitution order.

D.

C.M.'s Lost Wages

Defendant argues C.M.'s lost wages were incurred for her care of A.B. after she became an adult even though such restitution can be ordered only for care of minors. We are not persuaded.

Section 1202.4, subdivision (f)(3)(d), provides in pertinent part that restitution be imposed for "[w]ages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, parents, guardian, or guardians, while caring for the injured minor." (Italics added.)

During the restitution hearing, C.M. testified A.B. turned 18 years old within a month of the molestation. She further testified about incurring lost wages as follows:

"Q. What other expenses did you incur in this case?

"A. I had to take [A.B.] to counseling. I would have to go to school and pick her up because she would be found in the bathroom crying.

"Q. Let me ask you, how much money are you out because of that?

"A. Well, I only put down that I missed 115 hours of work, which was far less than what I actually missed because if you

"Q. Let me cut you off for a moment. One hundred fifteen [hours] at $22 an hour came out to $2,541?

"A. Yes, 115 hours."⁷

7 The handwritten victim restitution form filled out by A.B. and submitted to the trial court lists 115.5 hours of lost work by C.M. Based on this statement, the trial court correctly calculated the lost wages based on 115.5 hours of lost work -- C.M.'s abbreviated response during the hearing notwithstanding. We note defendant does not challenge this half-hour differential.

C.M. also stated she took the time off for "counseling, going and picking her up at school, taking her to school, taking off work the first two and a half weeks that she didn't go back to school, which was before her 18th birthday." (Italics added.)

In relevant part, the trial court's restitution order states: "In this matter, objection has been made to the wage reimbursement to victim [A.B.]'s guardian/mother, C.M. . . . , in the amount of $2,541 which is 115.5 hours of lost work. [C.M.] testified she took two weeks off immediately after the sexual assault. In addition, she attended the hearings on the Restraining Order which was eventually granted on April 30, 2014. The remaining dates related to the underlying offense for which [defendant] was convicted."

Defendant errs in asserting this component of the restitution related to lost wages incurred only after A.B. became an adult. C.M.'s testimony the lost wages were incurred before A.B.'s 18th birthday refutes the claim. We also reject defendant's suggestion that "the claimed lost wages were not an immediate result of the alleged crimes." C.M. testified about the necessity of counseling for A.B. immediately after the molestation. A.B.'s inability to cope with school and crying in the bathroom established the direct connection between defendant's acts and the need for C.M. to take time off to care for A.B. Thus, the trial court's restitution order was properly imposed.

VII

Clerical Errors in the Abstract of Judgment

Defendant contends the abstract of judgment must be corrected to reflect that the sentence for count 2 (oral copulation of person under 18 years of age, § 288a, subd. (b)(1)) was imposed as a stayed term under section 654, rather than imposed concurrently. Defendant also asserts that the probation officer's report be corrected to note defendant was convicted by jury trial rather than plea. The Attorney General agrees the abstract of judgment should be corrected but argues defendant has forfeited his challenge to inaccuracy of the probation officer's report. We order the abstract of judgment corrected and deem the issue regarding the probation officer's report forfeited for lack of timely objection.

At sentencing, the trial court stated: "Any punishment under Count 2 is stayed. I would give him the low term there, 16 months. That's stayed pursuant to [section] 654." Inexplicably, the abstract of judgment states the sentence on count 2 is both stayed under section 654 and concurrent with the base term. As the California Supreme Court has held, "The record of the oral pronouncement of the court controls over the clerk's minute order . . . ." (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Consequently, we order the abstract of judgment corrected to reflect the sentence imposed for count 2 was stayed under section 654 and not ordered as a concurrent term.

Defendant contends the probation report should be corrected to reflect he was convicted by a jury rather than by a plea. However, defendant did not preserve the issue by objecting to the probation officer's report in the trial court. For this reason, he has not preserved the issue for review. (People v. Welch (1993) 5 Cal.4th 228, 234.) In any event, we perceive no prejudice to defendant from the sealed probation officer's report when the abstract of judgment correctly shows he was convicted by a jury.

DISPOSITION

Defendant's convictions and sentence are affirmed. The restitution order is modified to remove the requirement that defendant pay $472 to the district attorney's office for A.B.'s airfare. The matter is remanded with directions that the superior court conduct further proceedings to determine the amount of attorney fees incurred by C.M. in removing the lien on her house placed by defendant after issuance of the domestic violence restraining order, and exclude those fees from the restitution order. The superior court is further directed to amend and correct the abstract of judgment to (1) delete reference to the sentence for count 2 being concurrent, (2) reflect the modified restitution amount striking the $472 to the district attorney's office, and (3) reflect the modified restitution amount excluding the amount of the attorney fees incurred to remove the lien. The clerk is directed to forward a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/s/_________

HOCH, J. I concur: /s/_________
MAURO, Acting P. J. MURRAY, J., Concurring and Dissenting.

I concur in the majority opinion except for discussion part VII and the majority's refusal to order that a clerical error in the probation report be corrected. To that part of the opinion, I respectfully dissent because I disagree with applying the forfeiture rule when the requested correction involves a clerical error related to a procedural event.

Defendant contends that the probation report should be corrected to reflect that he was convicted by jury trial and not plea. The majority refuses to order correction of the probation report on the ground that defendant did not seek correction in the trial court and thereby failed to preserve this issue for review. In support of this conclusion, the majority relies on People v. Welch (1993) 5 Cal.4th 228 (Welch). (Maj. opn., ante, p. 54.) Welch is not on point, and in the instant case, we are presented with a simple clerical error related to a procedural event that everyone knows occurred.

In Welch, the defendant did not object to certain probation conditions at sentencing but on appeal, contended that the conditions were overbroad and unreasonable. (Welch, supra, 5 Cal.4th at p. 232.) The court concluded that defendant waived the claim on appeal by failing to raise it in the trial court, but it excused the waiver because the prior decisional law held that no objection was required to preserve the issue. (Id. at pp. 237-238.) In its analysis, the court recognized the general rule that "failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal." (Id. at p. 234.) It is this general rule upon which the majority apparently grounds its decision not to order correction of the clerical error here. The Welch court cited three cases supporting the general forfeiture rule: People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725 (Wong), People v. Jarvis (1982) 135 Cal.App.3d 154 (Jarvis), and People v. Medina (1978) 78 Cal.App.3d 1000 (Medina). (Welch, at pp. 234-235.) None of these cases involved a clerical error involving a procedural event. Rather, they all involved factual matters that should have been contested in the trial court.⁸

8 In Wong, the court held that the defendant forfeited the objection he made in the trial court that portions of the probation report were " 'without factual basis.' " (Wong, supra, 18 Cal.4th at p. 725.) The Wong court reasoned that because the "defendant did not exercise his right to present any materials or call any witnesses to contradict, explain or otherwise rebut materials in the probation report [citations], . . . he is now foreclosed from raising such issues." (Ibid.) In Jarvis, the trial court "misdescribed" entries on a rap sheet when orally imposing sentence. (Jarvis, supra, 135 Cal.App.3d at p. 157.) The Jarvis court held: "While it appears the entries were inaccurately characterized by the court, the absence of objection or request for correction constitutes a waiver of the issue on appeal." (Id. at pp. 157-158.) In Medina, the defendant complained on appeal that he was denied a fair probation and sentencing hearing because the probation report contained " 'improper material.' " (Medina, supra, 78 Cal.App.3d at p. 1006.) The Medina court held that the defendant forfeited the objection, noting that "a proper objection to the consideration of improper entries would have called for a ruling which would have clarified the matter. We therefore hold that unless the record shows an objection to allegedly improper entries and an erroneous ruling thereon, the issue is simply not available on appeal." (Id. at p. 1007, fn. omitted.)

The majority appears to be of the view that the California Department of Corrections and Rehabilitation (CDCR) needs only to have an accurate abstract of judgment. What is apparently overlooked is the fact that the probation report is also transmitted to CDCR. (Pen. Code, §§ 1203c, subd. (a)(1), 1203.01.)⁹ California Rules of Court, rule 4.411, notes that probation reports are used by CDCR for administrative and classification purposes and that section 1203c requires a probation report on every person sentenced to prison.¹⁰ In addition, probation reports serve other practical purposes post- conviction. For example, when a defendant is convicted of a subsequent crime, probation officers often consult old probation reports in drafting a report on the new conviction. Further, prosecutors often consult probation reports to determine the nature and circumstances of prior convictions when opposing Romero motions.¹¹ Regarding the error here, I have no doubt that the prosecution would not have objected to the correction.¹² Additionally, who knows what laws or regulations might be enacted in the future where the easily correctable error here is implicated and prejudice defendant or the People.¹³

9 Undesignated section references are to the Penal Code in effect at the time of the charged offenses.

10 When a full probation report has not been ordered by the trial court (which occurs where the parties waive such a report as part of a negotiated resolution), to comply with section 1203c, the probation department is required to transmit an abbreviated probation report to CDCR. (See generally § 1203c; Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2016) § 3:4, p. 3-3.)

11 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

12 For a reason that is not clear to me, the Attorney General is objecting, contending that defendant forfeited the issue and citing Welch. However, unlike in the forfeiture cases discussed in footnote 1, ante, there is no prejudice to the People to address this matter on appeal and order correction of the probation report to reflect that defendant was convicted by trial and not plea.

13 For example, although it is currently unclear, it is possible that defendant's convictions could qualify as "non-violent" felony offenses under newly enacted Proposition 57, making him eligible for early parole under the provisions of that initiative. "Violent felony" offenses are defined in section 667.5, subdivision (c), and while section 288a, subdivisions (c) and (d), are included (§ 667.5, subd. (c)(5)), section 288a, subdivisions (b) and (f), the crimes for which defendant was convicted, are not. Temporary emergency regulations went into effect on April 13, 2017. However, permanent regulations have yet to be adopted by CDCR. The temporary regulations indicate that information the Board of Prison Hearings (BPH) can consider include any information in the inmates central file (Cal. Code Regs., tit. 15, § 2449.4, subd. (b)(1)), and probation officer reports are customarily kept in the central file. (See Dept. of Corrections and Rehabilitation, Operations Manual (2017 rev.) ch. 7, art. 5, § 72030.4.1, p. 600, http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%202017/2017_DOM.PDF [as of July 12, 2017].) The temporary regulations also indicate that in making a determination for early parole under Proposition 57, the BPH hearing officer is to determine "whether the inmate poses an unreasonable risk of violence to the community" by considering among other things, "[t]he circumstances surrounding the current conviction" and "[a]ny input from the inmate." (Cal. Code Regs., tit. 15, § 2449.4, subd. (c)(1) & (4).) It is not inconceivable that a factor cutting in favor of Proposition 57 parole might be an acknowledgment of wrongdoing at an early stage in the criminal process (see Cal. Rules of Court, rule 4.423(b)(3)) or a determination of appropriate insight, in which case a disposition by plea may provide a mitigation argument to which defendant is not entitled and prejudice the People.

Courts have an inherent power to correct clerical error in records so as to make these records " 'reflect the true facts.' " (People v. Mitchell (2001) 26 Cal.4th 181, 185.) " 'The court may correct such errors on its own motion or upon the application of the parties.' " (Ibid.) And courts may correct clerical errors any time. (Ibid.) The majority notes that defendant suffers no prejudice by the error in the probation report. This may be true, but the error here could cause confusion given its inconsistency with the abstract of judgment, which correctly notes defendant was convicted by jury trial. In any event, courts have an obligation to correct inaccuracies in court records, especially those transmitted to CDCR. Instead of finding defendant forfeited the issue here, I would direct the trial court to correct the clerical error in the probation report. And there is nothing to prevent the trial court from doing so on its own motion.

/s/_________

MURRAY, J.