Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC631488.
Premo, J.
Defendant William Harris was charged by information with three counts of lewd and lascivious acts on a child under 14 (Pen. Code, § 288, subd. (a); counts 1-3), one count of sexual penetration of a child under the age of 14 and more than 10 years younger than the defendant (Pen. Code, § 289, subd. (j); count 4) and one count of aggravated sexual assault of a child under the age of 14 and more than seven years younger than the defendant (id., § 269; count 5). A jury found Harris guilty on all counts. The trial court sentenced Harris to a total term of 27 years to life, consisting of a term of 15 years to life on count 5, consecutive to an aggregate determinate term of 12 years on the remaining counts.
Harris received the middle term of six years on count 1, consecutive to two years (one-third the middle term of six years) each on counts 2, 3 and 4.
Harris filed a timely notice of appeal. On appeal, Harris contends that the trial court erred by allowing certain evidence to be introduced, specifically evidence regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) and evidence of certain uncharged offenses. Harris also argues that the trial court erred in instructing the jury. We disagree and shall affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution case
The victim, P., is Harris’s maternal granddaughter. Harris would visit his daughter, Cynthia, and P. once or twice a year, staying with them at their home in San Jose. Harris’s visits would usually last about one week.
In 1999, when P. was in the second grade and about seven years old, Harris began to touch her inappropriately. P. would be sitting on the couch along with her older half-sister, K., watching television. P. would be covered by a blanket she brought with her from her bedroom. Harris would sit next to P. on the couch, and touch her breasts underneath the blanket. Harris would touch P.’s breasts both under and over her clothing, and he touched her every time he came to visit.
Several years later, when P. was in the fifth grade, she moved to Idaho to live with her aunt and uncle and her two cousins, J. and T. J. is about two years younger than P. While P. was living in Idaho, Harris frequently came to visit. During his visits, Harris continued to touch P.’s breasts and tried to touch her vagina both under and over her clothing. P. was able to evade him, though, so he never actually touched her vagina. On one occasion, though, Harris tried to force P. to kiss him on the mouth, and she thought he might have succeeded in getting “his mouth on [her] mouth.” While she was living in Idaho, P. told J. that Harris had been touching her, but told her not to tell anyone.
The entire time that P. was living in Idaho, Harris did not visit his daughter, Cynthia, in San Jose.
P. moved back to San Jose in 2004 and again lived with her mother and K. Harris came to visit in July. On the night of either July 10 or July 11, Harris followed P. into her bedroom. P.’s mother and K. were already asleep. As they entered the bedroom, Harris told P. “not to tell,” and P., confused as to what Harris was talking about, responded, “All right.” P. lay on her bed, and Harris began touching her on her breasts and vagina. Harris put his fingers inside her vagina, then took her hand and put it on his erect penis. She tried to remove her hand, but he kept “putting it back on.” Harris then tried to put his penis in P.’s mouth. P. resisted his efforts to force her mouth open with his hand, but felt Harris’s penis on her teeth, lips and cheek.
On cross-examination, defense counsel confronted P. with her testimony from the preliminary examination where she stated she initially asked Harris if he wanted to sleep “on the couch or in [her] bed.”
Harris left the house on July 13, 2004. The following day, P. told K. what had happened with Harris a few nights earlier and asked her not to tell anyone. K. called their grandmother, Rebecca P., to get the telephone number for their aunt, R.S., because R.S. had previously told P. and K. that Harris had “touched” her. When K. told Rebecca P. that she needed that telephone number because Harris had molested P., Rebecca P. called San Jose police.
Rebecca P. and Harris divorced in 1993, after 21 years of marriage.
R.S., Rebecca P.’s adult daughter, testified that when she was a child, Harris, her stepfather, molested her. The molestation began when she was five years old and continued until she was about 12 years old. The first incident she recalled involved Harris touching her vagina with his hand under her clothing while they were sitting in a truck. When R.S. was about eight years old, Harris showed her his erect penis and asked her if she wanted to touch it. R.S. testified that, more than once, she awoke to find Harris with his head between her legs, his mouth on her vagina. On one occasion, before she developed breasts, Harris put R.S. on the couch when no one else was in the house, lifted her shirt and put his mouth on her nipples. R.S. did not tell her mother about the molestation until 1993.
In April of 2003, P. and K. were visiting R.S. at her home in Nevada. One evening, R.S. sat down with the girls and told them that Harris had done “some mean things to me when I was a child.” She did not tell them that he molested her, but urged them to call her, her husband or their grandmother if Harris “does anything to them that they don’t feel comfortable with[,] that hurts them or if he touches them [in a way] that is inappropriate.” In June 2003, at the behest of her mother, R.S. made an official report to the sheriff’s department in Nye County, Nevada about Harris’s childhood molestation of her.
Prosecution expert Carl Lewis testified regarding CSAAS, describing it as a concept based on observations that children who disclose sexual abuse “often do so in a way that seems sometimes illogical or inconsistent with our preconceived notions of someone who has been sexually abused.” Lewis described five categories of behavior exhibited by sexually abused children, all five of which are not always present in any particular case. These categories are: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosure; and retraction. Lewis testified that CSAAS should not be used to determine whether or not a child’s claim of abuse is true, and that it is not intended to be scientific. Lewis also testified that he had not conducted any investigation nor was he aware of any of the facts or evidence involved in the case against Harris.
B. The defense case
John Austin Lang, and his adult son, John Allen Lang, testified that they had known Harris for 30 to 40 years. Harris’s family lived near the Langs for a number of years, and the children of the two families, some of whom were young girls, would play together. Neither of the defense witnesses ever saw Harris act inappropriately with any young girls or observed any unusual behavior by him towards young girls.
The defense also introduced a stipulation that a forensic technician examined the clothing that P. was wearing on July 10 or July 11, 2004, as well as her blanket, but found no traces of semen on any of those items.
II. DISCUSSION
A. The trial court did not err in admitting CSAAS evidence
Before trial, the defense filed a motion in limine seeking exclusion of Lewis’s testimony regarding CSAAS. Defense counsel contended that CSAAS evidence should be excluded on Evidence Code section 352 grounds and because it does not meet the requirements of the Kelly-Frye/Daubert test. (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013; Daubert, supra, 509 U.S. 579.) The trial court denied the motion, but ruled that Lewis could not testify “to the validity of the charges.” The court also noted that the CALCRIM “prophylactic instructions . . . cover any issues of concern of the defense.”
All further statutory references are to the Evidence Code, unless otherwise specified.
The test laid out in Fry v. United States, supra, 293 F. 1013, was superseded by rule 702 of the Federal Rules of Evidence. (See Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 589 [“That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials”] (Daubert).) The Kelly standard, however, is still the law of this state. (People v. Leahy (1994) 8 Cal.4th 587, 604.)
On appeal, Harris argues that CSAAS evidence should have been excluded, for all purposes, since it does not meet the standards set forth in Kelly-Frye/Daubert for “scientific” evidence. We do not agree with Harris’ assertion that this contention is an “open question.”
While it is true that CSAAS evidence is not admissible to establish that the victim in a particular case was in fact molested, it is well established that CSAAS “evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).) Our Supreme Court has acknowledged that this type of evidence, if offered for this purpose, is admissible. (People v. Humphrey (1996) 13 Cal.4th 1073, 1088 [evidence of battered women’s syndrome]; People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 [evidence regarding parental reluctance to report child molestation].)
The necessity for such evidence arises when the victim’s credibility is attacked by a defendant’s suggestion that the victim’s conduct after the incident, e.g., a delay in reporting, is inconsistent with his or her testimony claiming molestation. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383.) “[A]t a minimum the [CSAAS] evidence must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence. [Citation.] For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past research that such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings. In the typical criminal case, however, it is the People’s burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Bowker, supra, 203 Cal.App.3d at pp. 393-394.)
However, “[i]dentifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
Even when it appears that CSAAS evidence may be admissible, use of the evidence is subject to certain procedural safeguards. To guard against the danger that a jury might improperly evaluate CSAAS evidence and view it as proof of a defendant’s guilt, the jury must be instructed that “the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true.” (Bowker, supra, 203 Cal.App.3d at p. 394.) Jurors “must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.” (Ibid.) If a trial court adheres to these procedural safeguards, testimony regarding CSAAS is admissible for the limited purpose described. (Id. at pp. 393-394.)
Contrary to Harris’s assertion, CSAAS evidence was not offered in this case to establish that he molested P., but in order to assist the jury in understanding how her actions were not “inconsistent with having been molested.” (Bowker, supra, 203 Cal.App.3d at p. 394.) According to P.’s trial testimony, she did not immediately report the acts of molest when they began when she was seven years old, even though they occurred in the presence of K. When P. was living in Idaho and told her cousin, J., about the molestations, she also asked J. not to tell anyone. Even when P. told K. about the molestations in July 2004, she again asked that K. not tell anyone.
In addition, on cross-examination, defense counsel challenged P.’s credibility by eliciting testimony that P. testified at the preliminary examination that she was the one who suggested that Harris sleep in her bed on the night of July 10 or July 11, 2004. Defense counsel also elicited testimony that P. initially told police that Harris had only molested her once. In closing argument, defense counsel noted that P. had not initially disclosed the earliest incidents of molestation, and also did not immediately disclose that Harris’ penis touched her lips. Defense counsel argued that P. told police she was the one who initially suggested that Harris sleep with her in her bed and that was also her testimony at the preliminary examination.
Consequently, the predicate for Lewis’ testimony regarding CSAAS was the evidence of P.’s secrecy, helplessness, and delayed and conflicted reporting, which evidence defense counsel not only elicited on cross-examination, but highlighted during closing argument.
For example, the third sentence of defense counsel’s closing argument was, as follows: “There were too many major discrepancies in [P.]’s testimony . . . for you to convict Mr. Harris on this state of the evidence.” Later, he states: “Is [P.]’s testimony credible enough to base a conviction on? There are some major discrepancies, not small inconsistencies here, major discrepancies and you will be the judge of that.”
The trial court also properly instructed the jury on the reason for admitting the CSAAS testimony, stating that the testimony was “not evidence that [Harris] committed any of the charged crimes against him.” The jurors were further instructed that that they could “consider this evidence only in deciding whether or not [P.]’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” These instructions satisfy the stricture set forth in Bowker, supra, 203 Cal.App.3d at page 394.
Though Harris contends that the court’s instruction was improper to the extent it directed the jury to use the CSAAS evidence “in evaluating the believability of [P.’s] testimony,” the instruction as given is entirely consistent with the limited purpose for which CSAAS is admissible. Inconsistencies in a witness’s account directly influence that witness’s credibility or “believability” with the jurors; otherwise why would attorneys for both the prosecution and the defense devote so much effort seeking to point out such inconsistencies at trial? CSAAS evidence is admitted in order to show that the victim’s reactions as demonstrated by the evidence are not necessarily inconsistent with having been molested. Therefore, the jurors therefore should not automatically view any such “inconsistencies” as a reason to find the victim’s testimony lacking in credibility or “believability.” The court’s instruction merely reinforced the limited purpose for which the CSAAS evidence was introduced.
Accordingly, we find no abuse of discretion in admitting the CSAAS evidence and further find that the jury was properly instructed on how to evaluate that evidence.
B. Even if erroneous, the admission of the CSAAS evidence did not result in a miscarriage of justice
Assuming arguendo that the CSAAS evidence should have been excluded in this case, it is not reasonably probable that the jury would have reached a different result. We will not set aside a judgment because of the erroneous admission of evidence unless the error resulted in a miscarriage of justice. (§ 353.) The erroneous admission of evidence is tested under the standard set forth in People v. Watson (1956) 46 Cal.2d 818. Under the Watson standard, the erroneous admission of evidence warrants reversal of a conviction only if we conclude that it is reasonably probable the jury would have reached a different result had the evidence been excluded. (People v. Scheid (1997) 16 Cal.4th 1, 21.)
P.’s testimony itself was substantial evidence of the various acts of molestation with which Harris was charged. Specifically, P. testified about the acts that Harris committed by describing several incidents where Harris touched her in a sexual manner, including Harris’s attempt to have P. orally copulate him. The possibility that the jurors might have viewed Lewis’s testimony as corroboration of P.’s testimony, rather than explanation, was not that great given that the jury was instructed to consider the CSAAS evidence for the limited purpose of showing that P.’s reactions were not inconsistent with her having been molested. After reviewing the entire record, we are convinced that the jury was not confused by, or improperly convinced of, P.’s credibility based upon Lewis’s testimony.
Accordingly, we conclude that it is not reasonably probable that the jury would have reached a different result if the CSAAS evidence had been excluded.
C. The trial court did not err in admitting evidence of uncharged offenses
During in limine proceedings, the People sought to admit, and Harris sought to exclude, evidence of prior sex offenses pursuant to section 1108. The evidence consisted of the testimony of Harris’s adult stepdaughter, R.S., that Harris had molested her when she was a child. Defense counsel objected to this evidence, arguing that it should be excluded because its admission violates Harris’s due process and equal protection rights and the evidence was substantially more prejudicial than probative.
In his in limine motion, Harris acknowledged that, in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court held that section 1108 does not violate due process on its face. However, Harris noted that the United States Supreme Court had not yet ruled on the constitutionality of section 1108.
The trial court denied the motion and, after noting that it had first considered “the inflammatory nature of the evidence, the probability of confusion, the similarity of the past crimes to the current crimes, the remoteness, potentiality of undue consumption of time, [and] the probative value [of the evidence],” allowed the testimony.
Harris renews his due process and “more prejudicial than probative” objections to this evidence on appeal.
1. Section 1108 does not violate a defendant’s due process rights
Section 1108 governs the admissibility of evidence of uncharged sexual offenses. In pertinent part, subdivision (a) of section 1108 provides, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Thus, under section 1108, evidence of uncharged sexual offenses may be admitted to show that the defendant had a propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
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.”
The California Supreme Court addressed the constitutionality of this statute in Falsetta, supra, 21 Cal.4th 903. The court noted in its analysis that “ ‘[o]ur elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.’ ” (Id. at p. 911.) Moreover, evidence of other sex crimes is relevant to the issue of the defendant’s “disposition or propensity to commit these offenses.” (Id. at p. 915; People v. Reliford, supra, 29 Cal.4th at p. 1012.)
The Falsetta court concluded that section 1108 did not offend due process, for several reasons. One reason is that the admission of propensity evidence under the statute is limited to cases involving current sex offenses and to evidence of prior sex offenses and thus serves to prevent “far-ranging attacks on the defendant’s character.” (Falsetta, supra, 21 Cal.4th at p. 916.) Another reason is that judicial efficiency is not negatively impacted because the statute expressly authorizes the trial court to exclude evidence, pursuant to section 352, where its probative value is outweighed by the probability that admission of the evidence will, among other things, necessitate undue consumption of time. (Falsetta, supra, at p. 916.)
Finally, the Falsetta court explained that section 1108 did not offend due process because, “[b]y reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
While the United States Supreme Court has not yet weighed in on section 1108’s constitutionality, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by the ruling of our Supreme Court in Falsetta. We therefore find that the statute does not violate due process.
2. The trial court did not abuse its discretion in admitting R.S.’s testimony under section 1108
As noted above, the trial court has broad discretion to exclude evidence of prior sex offenses under section 1108 where the probative value of the evidence is outweighed by its prejudicial effect. (Falsetta, supra, 21 Cal.4th at p. 919.) Accordingly, the standard of review for an order admitting such evidence is abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
“By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.” (Falsetta, supra, 21 Cal.4th at p. 915.) Consequently, section 1108 permits the trier of fact to consider prior, uncharged sexual offenses “ ‘ “as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.” ’ ” (Falsetta, supra, at p. 912.) “With the enactment of section 1108, the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, “the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ‘ “it has too much.” ’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
As explained above, when considering the admission of evidence of uncharged sexual offenses pursuant to section 1108, the trial court must engage in a careful weighing process under section 352, taking into account a variety of factors, all of which fall within one of two categories of effects factors. (Falsetta, supra, 21 Cal.4th at p. 917.)
One category consists of the evidence’s probative value, i.e., the tendency of the evidence to show that the defendant possessed a proclivity to engage in conduct of the same type as that involved in the charged offense, thus supporting an inference that he did in fact engage in the conduct alleged in the information. The other category consists of its prejudicial value, i.e., the tendency of evidence of wrongdoing to generate a sense of antagonism toward the defendant, ranging from distaste to indignation to outrage to shock, which in and of itself inclines the jury to convict the defendant regardless of whether the actual charges are borne out by the evidence.
The California Supreme Court has “recognized that, when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.) Additionally, “[n]othing in Falsetta indicates the Supreme Court intended either to reverse this well-established precedent on the proper standards for section 352 analysis, or to require a trial court to articulate its consideration of each of a list of particular factors of probability and prejudice in making a decision under section 352.” (People v. Jennings, supra, 81 Cal.App.4th at p. 1315.)
We find that under these rules, the trial court fulfilled its responsibilities under section 352 to weigh the probative value of the uncharged sex offense evidence against its prejudicial effect. It is apparent from the record that the trial court considered the reliability and probative value of the proffered uncharged sex offense evidence against its obviously prejudicial effect before determining that the evidence was admissible. Harris has not shown that the trial court exercised its discretion in “an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez, supra, 20 Cal.4th 9-10.)
For these reasons, we conclude that the trial court did not abuse its discretion in admitting the evidence of the uncharged sex offenses involving R.S. under section 1108.
D. The trial court did not err in giving CALCRIM Nos. 220 and 222
The trial court gave the following modified version of CALCRIM No. 220: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves [Harris] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
The trial court then immediately gave CALCRIM No. 222 to the jury: “You must decide what the facts are in this case. You must use only the evidence that was presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits submitted into evidence and anything else I told you to consider as evidence.”
Harris objects that these instructions incorrectly state the burden of proof and tell the jury it “must” compare the evidence “that was received throughout the entire trial.” The instructions thus not only suggested that Harris had a duty to produce evidence to be “received” and compared by the jury in deliberations, but precluded the jury from considering the lack of evidence presented by the People.
A number of recent cases have rejected claims that CALCRIM No. 220 is an unconstitutional instruction. (See, e.g., People v. Hernández Ríos (2007) 151 Cal.App.4th 1154; People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); People v. Flores (2007) 153 Cal.App.4th 1088 (Flores).)
In Westbrooks, the court rejected the contention that CALCRIM No. 220 prohibited the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt. The court held the sentence in question “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.” (Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The court determined it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused’s guilt. (Id. at p. 1510.)
Similarly, in Flores, analyzing the language at issue in CALCRIM No. 220, read together with CALCRIM No. 222, the court said that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (Flores, supra, 153 Cal.App.4th at p. 1093.)
We agree with the analyses set forth in these cases and hold that because there is no reasonable likelihood that the jury understood CALCRIM Nos. 220 and 222 in the manner suggested by Harris, the trial court did not err in giving those instructions to the jury.
Harris also contends that the prosecutor’s argument “reinforced” the improper nature of the instructions and “rendered the instructions prejudicial.” Defense counsel made no objection to the prosecution’s argument and the objection is therefore deemed waived. (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Even if it were not waived, however, we find no merit to the contention. The prosecution’s argument was made in connection with a discussion of certain exculpatory evidence that had been presented, specifically the fact that no semen was detected on P.’s blanket or on the articles of clothing she was wearing on the night of July 10 or July 11, 2004. During argument, the prosecution noted that P. testified Harris used his hand to wipe a “sticky substance” off her cheek, but there was no evidence that Harris’s hand then touched the blanket or P.’s clothing, which would explain why no semen was found on those items. The prosecution then told the jurors “your determination is not based on what isn’t here . . . . It’s what you heard here in this case, the evidence that you received not could of, would of, should of and there is an instruction to decide what happened based only on the evidence that’s been presented to you and that’s jury instruction 200.” The prosecution’s argument simply echoed CALCRIM No. 200, and could not reasonably have been construed by the jurors as directing that they could not consider the lack of evidence in determining Harris’ guilt.
Harris contends that the prosecutor here intended to reference CALCRIM No. 220 rather than CALCRIM No. 200, and even goes so far as to say that CALCRIM No. 200 “makes no reference to what the jury must consider in arriving at its verdict. . . . Nor does it refer to the evidence admitted at trial.” Harris may wish to reread CALCRIM No. 200. That instruction, which was given to the jury, states, in pertinent part: “It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.” (Italics added.)
E. The trial court did not err in giving CALCRIM No. 1110
Harris contends that the jury was improperly instructed, pursuant to CALCRIM No. 1110, that the People must prove that he touched “a child.” This instruction is erroneous, according to Harris, because the People’s burden was to prove, among other things, that Harris touched P., not just “a child.” Since the People introduced evidence that Harris had previously touched R.S., the jurors could reasonably have understood that he could be convicted based on that touching instead.
The trial court read CALCRIM No. 1110 to the jury, as follows: “[Harris] is charged in counts 1 through 3 with committing a lewd or lascivious act on a child under the age of 13 [sic] years. To prove [Harris] is guilty of this crime, the People must prove: [¶] (1-A) [Harris] willfully touched any part of the child’s body either on the bare skin or through the clothing or; [¶] (1-B) [Harris] willfully caused a child to touch his or her own body, [Harris’s] body, or the body of someone else, either on the bare skin or through the clothing; [¶] (2) [Harris] committed the act with intent of arousing, appealing to or gratifying the lust, passions, or sexual desires of himself or the child and; [¶] (3) the child was under the age of 14 years at the time of the act. [¶] The touching need not be done in a lewd or sexual manner. [¶] Someone commits an act when he or she does it willingly or on purpose. It is not required that he or she intends to break the law, hurt someone else or gain any advantage. [¶] Actually arousing, appealing to or gratifying the lust, passions or sexual desires of the perpetrator or the child is not required. [¶] It is not a defense that the child may have consented to the act.”
It is unlikely the lack of specificity in this instruction led either to juror confusion or to misapplication of the law. The jury was also specifically instructed that the “sexual molestation crimes against [R.S.] . . . were not charged in this case” and that even if they concluded that Harris had molested R.S., that conclusion “is not sufficient by itself to prove [Harris] is guilty of the charged sex offenses.” (Italics added.) Furthermore, during closing argument, both the prosecutor and the defense referenced P. as the victim in this case. (See People v. Kelly (1992) 1 Cal.4th 495, 526 [relying in part on counsel’s argument to conclude it was unlikely the jury misunderstood the law].) Defense counsel also specifically referred to R.S.’s testimony in his closing argument, reiterating the instruction that “even if you find by a preponderance of the evidence that he did something to [R.S.], that alone is not enough to convict Mr. Harris of the charge against him.” Finally, the information, a copy of which was provided to the jury during deliberations, unambiguously identified the victim of the charged conduct as P., not R.S. Harris’s assertion that the jury had no basis for distinguishing between the charged and uncharged offenses is without merit.
The trial court issued a modified version of CALCRIM No. 1191, “Evidence of Uncharged Sex Offense.”
F. There was no cumulative error
Finally, Harris claims that the errors in the instant case, taken cumulatively, prevented a fundamentally fair trial on all counts. The California Supreme Court has instructed that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) Since we have determined that the trial court did not err in the particulars that Harris has presented in this court, his final claim fails as well.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.