Opinion
C082995
09-14-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES HERMAN HILL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05137)
Defendant James Herman Hill was sentenced to 320 years in prison after a jury found him guilty of four counts of lewd and lascivious acts on a child under the age of 14 and also found he had previously been convicted of the same offense three times. On appeal, defendant urges us to review records of his victim's therapy sessions to determine whether the trial court failed to disclose impeachment evidence contained within them. He further contends his trial counsel was ineffective for a variety of reasons and that the trial court erred in admitting evidence about his prior convictions for sexual assault and denying his mistrial motion based on juror misconduct. Upon a review of the victim's therapy records, we conclude the trial court did not prejudicially error in failing to disclose impeachment evidence. We also conclude defendant's remaining claims lack merit and thus affirm.
PROCEDURAL AND FACTUAL BACKGROUND
I
The Current Offenses
In December 2013, eight-year-old G. H. lived in Sacramento with her mother, brother, sister-in-law, infant nephew, and defendant, who was her uncle. That month, G. H.'s brother died and G. H.'s sister-in-law and nephew soon moved out of the house. G. H.'s mother, was consumed by grief and could no longer care for G. H. on a day-to-day basis, so G. H. moved in with her mother's friend, Cecilia B. G. H. would then come back to live with her mother on the weekends.
In the middle of January, G. H. started acting differently. She became quiet and stopped playing, instead preferring to sit on the couch. When Cecilia B. asked if anything was wrong, G. H. said that she was fine. Cecilia B. told mother that G. H. was acting depressed and that mother needed to talk to G. H.
On March 16, 2014, mother asked G. H. whether defendant touched her inappropriately. Mother suspected defendant molested G. H. because he stared at her more than usual and would act strange when mother told G. H. to cover herself in front of him. Also, G. H. would cling to mother when the two were around defendant. Mother noticed these changes in February 2014. When first asked, G. H. denied defendant touched her; however, she soon admitted defendant in fact touched her once, a week before. G. H. told mother defendant "took her in the back and he did what he did," but she never actually described what defendant did to her. Around the same time G. H. told her mother about the abuse, she told others that defendant had abused her only once. Before trial, however, mother told G. H. that she knew defendant had abused her more than once, and G. H. admitted that it had occurred five times.
G. H. testified that defendant "put his thing in my thing" five separate times. The abuse started after her brother died and when she would visit her mother on weekends. Each time, G. H.'s mother was in a different area of the house or outside and could not hear G. H. when she screamed for help. Defendant abused G. H. the same way each of the five times. The abuse occurred when G. H. went to her toy room to retrieve a toy. Defendant would push her against the wall outside the room, pull down her pants, and unzip his own pants. He would then "put his thing in [her] thing," which G. H. thought was uncomfortable and hurt. Defendant kept his "thing" inside of her for a "few seconds," which G. H. described as being hard. He did not say anything to her during the abuse but did cover her mouth during two of the encounters.
After defendant first abused G. H., she did not tell anybody about what had happened because she was scared. She also did not tell anybody after the second, third, fourth, or fifth time because she was scared. G. H. admitted that she denied anything happened when her mother first asked her whether defendant had touched her. It was only after her mother started to cry that G. H. told her defendant had touched her. She told mother it happened only once because her mother told her not to say anything more and because she was sad and crying. G. H. also told the police and "a lady who interviewed her" that defendant abused her only once. It was not until November 2015 that she admitted defendant had actually abused her five separate times.
G. H. had no evidence of tears or recently healed injuries to her genitalia. Because of her age, it was not uncommon for injuries to that area of the body to heal quickly or withstand penetration without injury.
Blake Carmichael, Ph.D., testified about child sexual assault victims' common behaviors and circumstances of disclosure following their abuse. He had never met or talked with G. H. and was unfamiliar with her case. As part of his testimony, he articulated the percentage of children who fail to disclose their abuse within the first year or who fail to disclose when directly asked about known abuse. He also testified about concepts of incremental disclosure and child suggestibility. On the topic of child suggestibility, Dr. Carmichael testified that children older than five years old tend to be less suggestible. For children under five, a person usually has to repeatedly tell a child misinformation for them to integrate that information into a narrative. It is very rare for a child to make a false allegation of sexual abuse. False allegations do occur in 30 to 40 percent of cases when the allegation is made in the context of a custody dispute and an adult initiates the complaint. On the other hand, only 0 to 2 percent of allegations initiated by children have later been proven false. These statistics were based on studies where the abuse was confirmed through medical records, a perpetrator's confession, or a social service finding.
Following G. H.'s disclosure to mother, mother gave police officers some of defendant's property he left at her house. Included among his belongings were a bottle and box of pills labeled CYVITA, which the packaging described as male enhancement supplements. Among the packaging were also solicitations for both male enhancement drugs and adult pornographic magazines. There were no pornographic magazines among defendant's property but there were two adult pornographic DVD's. Also among defendant's property was a black binder with condoms in it. None of the items recovered involved child pornography.
II
Defendant's Prior Acts Of Sexual Misconduct
Defendant's daughter V. H. testified about defendant's prior acts of sexual misconduct. When V. H. was young, defendant took care of the house and the children while her mother worked. When V. H. was eight or nine years old, her father repeatedly made her give him oral sex before he would get on top of her while she was naked from the waist down and he was in his boxer shorts. Defendant would put his naked penis near V. H.'s vagina but would not put it inside of her vagina. The abuse occurred at multiple homes V. H. lived in with her family, including the house where defendant abused G. H. V. H. did not remember where in that house defendant molested her.
Defendant would never sexually abuse V. H. when other adults were around; however, she believed her siblings were nearby but never in the same room when the abuse occurred. Defendant would come up with an excuse to make V. H. stay with him so he could molest her while her siblings went off to do something else. For example, defendant would make V. H. stay with him to do chores or so he could fix her hair.
Every time defendant molested V. H., it happened the same way. First he would have her give him oral sex, then he would get on top of her, and then he would ejaculate. Every time defendant molested her, he would tell her that it was the last time. He would also tell her not to tell anyone. They never talked about the abuse except while he molested her. The sexual abuse continued until V. H. was 11 or 12 years old, when she told her mother.
Based on this conduct, defendant pled no contest to three counts of lewd and lascivious acts on a child under the age of 14. He sought to have his convictions and prior misconduct excluded from evidence because they were remote, in that he was convicted in 1996, and because the conduct was not similar to the conduct he allegedly committed against G. H.
The court ruled that the evidence of defendant's prior acts of sexual misconduct was admissible under Evidence Code section 1108. Although defendant's prior offenses occurred in 1996, the offenses were sufficiently similar to the present case to warrant admission. Both V. H. and G. H. were between the ages of eight and ten when defendant assaulted them, defendant was related to both of them and had access to them because of that relationship, both assaults occurred in the same residence, and the assaults contained similar types of sexual offenses, including the removal of clothes followed by defendant rubbing his penis on or in the minor's body.
All further section references are to the Evidence Code unless otherwise indicated.
The court further found that the evidence was not inadmissible under section 352. Defendant pled to the early charges, thus there was indisputable certainty of the commission of the prior offenses, serving to increase their probative value. Further, the fact that the prior acts resulted in convictions removed the likelihood that the jury would punish defendant in the current case because of his conduct toward V. H. Finally, the prior acts were no more serious than the current ones, so the jury would not be overwhelmed by the emotional impact of those acts.
During her closing argument, the prosecutor used defendant's prior misconduct to argue he committed the crimes charged. She ended her closing argument by stating V. H. was a credible witness whose pain, even 20 years after her molestation at the hands of defendant, was what was ahead for G. H. The prosecutor then summarized defendant's sexual abuse toward G. H. and stated, "you cannot protect a society without enforcing the laws of the land. [¶] The laws in this country are designed to protect children like [G. H.] and [V. H.] from these types of abuse. It's my job and yours to uphold the laws of this state. Protect [G. H.] and those who come after her by holding the defendant accountable for his actions. Hold him accountable by finding him guilty as charged."
III
Juror Misconduct
On the ninth day of trial, the prosecutor informed the court of a social networking contact between Juror No. 8 and the prosecutor's brother, who had observed defendant's trial the week before. When questioned about this contact, Juror No. 8 told the court that Facebook and Instagram suggested to her that she send a friend request to a person with whom she had a mutual friend. Juror No. 8 sent the request on both Facebook and Instagram and then realized that the person she sent the request to was a person she did not know and only recognized because she had seen him observing defendant's trial. Upon realizing she did not know the person she sent the request to, Juror No. 8 canceled the request on both Facebook and Instagram. Juror No. 8 had never met the person she sent the request to and had never had a conversation with him either in person or via social networking. Juror No. 8, however, surmised the person she sent the request to was somehow related to the prosecutor given that they had the same last name. Beyond that fact, Juror No. 8 knew nothing about the person she sent the request to. She further testified that she had not lost her ability to be fair and impartial.
Once Juror No. 8 left the courtroom, the prosecutor confirmed that Juror No. 8's version of events was consistent with the version her brother told her and that Juror No. 8 in fact took steps to disconnect from him after contact had been made. Neither defendant nor the prosecutor sought to have Juror No. 8 excused from the jury. The court agreed and noted that Juror No. 8 was very forthright in her response that she could remain fair and impartial. Further, the juror did not exchange any information with the prosecutor's brother and there was no basis for her removal from the jury.
Following the close of evidence, Juror No. 8 contacted the court on a day the jury was not to convene to inform it of another social networking contact. This time, she was contacted by the bailiff on Facebook through an anonymous message. In the message, the bailiff said, "[w]e should hang out after this trial" and signed it as "[g]uy who keeps smiling at you." Besides responding to the initial anonymous message to find out who sent it, Juror No. 8 had no contact with the bailiff. Juror No. 8 testified that the contact did not affect her ability to be fair and impartial. She also testified she would be able to remain in the same courtroom as the bailiff and his presence would not affect her ability to listen and perform her duty as a juror. During the entirety of her testimony, the bailiff was present in the courtroom.
After consulting with defendant, defense counsel stated that she did not wish for Juror No. 8 to be excused. The court found Juror No. 8's testimony that she could be fair credible. The court also found that the social networking contacts did not pertain to the evidence or the integrity of the judicial process, and thus there was no reason to excuse the juror. Before the jury returned the next week for deliberations, the court had the bailiff removed from defendant's trial so that Juror No. 8 would not feel uncomfortable by his presence.
The following week, defendant moved for a mistrial based on juror misconduct. Defendant argued he could not receive a fair trial because there was a substantial likelihood of bias against him on the part of Juror No. 8. Defendant reasoned that Juror No. 8 had been singled out twice by the court and inappropriately contacted by the bailiff. He further argued that her responses to questions regarding the bailiff's conduct could not be trusted because she was questioned in front of the bailiff. Speaking with Juror No. 8 a third time to admonish her not to speak with the other jurors about the bailiff's conduct would further lead to an unfair trial because the other jurors would speculate about the reasons she continued to be singled out by the court.
The court denied defendant's motion for a mistrial because there was "no evidence of misconduct or prejudice by Juror No. 8 sufficient to grant defendant's request . . . ." The court did not presume Juror No. 8 was prejudice because, to the extent she had conversations with people connected with the trial, those conversations were not related to matters pending before the jury. The juror also affirmed that she could remain impartial, and she did not appear "emotionally incapacitated or otherwise compromised in her ability to perform the necessary functions as a trial juror." Finally, there was no evidence that she communicated any of the social networking contacts to other members of the jury. Given these circumstances, defendant "failed to demonstrate that any harm, let alone irreparable harm, occurred by either/or both Facebook contacts involving the juror."
The court then called Juror No. 8 into the courtroom for follow-up questions and admonitions. The court assured Juror No. 8 that the bailiff had been removed from the trial for the remainder of the proceedings and then inquired whether she could still be fair and impartial given the "few days" she had to think about it. Juror No. 8 responded that she "[m]ost definitely" could be fair. The court then asked whether Juror No. 8 had shared her experience with the other jurors, to which she said she had not. The court then admonished Juror No. 8 not to disclose the Facebook contacts with the other jurors, which Juror No. 8 agreed not to do.
DISCUSSION
I
The Trial Court Did Not Prejudicially Error In Failing To
Disclose A Portion Of G. H.'s Therapist's Notes
After G. H.'s disclosure of abuse, she was referred for counseling. Defendant issued a subpoena for the records of those counseling sessions under section 1035.4. The trial court reviewed the records in camera for: "(1) accounts of the charged offenses, (2) any age inappropriate sexual activity or knowledge exhibited by the minor, (3) any accounts of the alleged victim's contact with the defendant relevant to the charged offenses, and (4) any other impeachment or exculpatory material." The court denied disclosure because it found no documents responsive to defendant's request. Defendant asks us to examine the records to review the trial court's determination, and the People do not oppose this request.
Section 1035.4 provides, in pertinent part, as follows: "The court may compel disclosure of information received by [a] sexual assault counselor which constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled. . . ."
The trial court found no documents responsive to defendant's request. While it is true that no details of G. H.'s abuse or sexual knowledge were contained in the records provided, we cannot completely agree with the trial court's characterization of the therapist's records. One treatment note dated March 30, 2015, indicated G. H. shared "her feelings about the abuse and told writer about what had happened that day." This note implies G. H. disclosed to her therapist that defendant abused her a single time, and not the five times she claimed in November 2015 had occurred. This inconsistent statement constituted impeachment material requested by defendant.
While we conclude one document was responsive to defendant's request, we still conclude that no prejudicial error occurred because the probative value of disclosure did not outweigh "the effect on the victim, the treatment relationship, and the treatment services . . . ." (§ 1035.4.) In applying the statute, case law has recognized a need to balance society's interest in protecting the privacy of "those who believe they have been victimized by sexual assault" against the accused's right to a full and fair trial. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1391) Here, G. H. was documented multiple times after the abuse claiming defendant had abused her only once. It was not until November 2015 that she claimed the abuse actually occurred five times. Thus, the impeachment material contained in the therapist's note was already known to defendant, who questioned G. H. and other witnesses extensively on the subject. Accordingly, no prejudicial error occurred.
II
Defense Counsel Was Not Ineffective
Defendant contends his trial counsel was ineffective for failing to object to inadmissible and prejudicial evidence and to statements the prosecutor made in her closing argument. Specifically, defendant argues his counsel should have objected to testimony that condoms, male enhancement supplements, and adult pornography were found among his possessions, and that only 0 to 2 percent of child initiated complaints of sexual abuse were false. He further argues his counsel should have objected to the prosecutor's statement in closing argument that the jury had to find him guilty to protect G. H. and " 'those who come after her.' " We reject each of defendant's claims of error.
"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. . . . On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
A
Defense Counsel Had A Tactical Reason To Not Object To Testimony
About The Items Found Among Defendant's Possessions
Sacramento Police Officer Kevin Patton testified that mother gave him items belonging to defendant that he left at her house. These items included a bottle and box of male enhancement supplements, solicitations for male enhancement drugs and adult pornographic magazines, two adult pornographic DVD's, and a binder with condoms in it. Defendant argues that his counsel was ineffective for failing to object to the admission of this testimony, and her failure to do so resulted in prejudice against him. The problem with defendant's argument is that the record discloses that defense counsel had a tactical reason to not object to the admission of this evidence.
On cross-examination, defense counsel questioned Officer Patton about the specifics of the items he found. She clarified that the "leaflets" for male enhancement supplements and pornographic magazines the prosecutor referred to were actually solicitations that were included with the packaging for the male enhancement supplements and not leaflets he independently sought out. Defense counsel also clarified that defendant was not in fact found in possession of pornographic magazines, only solicitations. Finally, defense counsel stressed that no sexually explicit material involving children was found, and that all items recovered pertained to adults. Defense counsel then took this testimony and argued during closing argument that the evidence showed defendant had an active sex life with adult women and, despite V. H.'s testimony, no evidence showed defendant was currently attracted to children. This testimony and argument show defense counsel's tactic of painting her client as a man sexually attracted to adults at the time G. H. accused him of abuse, despite having three prior convictions for lewd and lascivious conduct upon his daughter.
Defendant relies on Ward v. Dretke (5th Cir. 2005) 420 F.3d 479 to argue that his counsel had no tactical reason to allow the evidence to come before the jury because the evidence "was not exculpatory in any way." In Ward, the court found trial counsel ineffective for failing to object to images of adult bestiality at the defendant's sentencing hearing after he pled guilty to indecency with a child, sexual assault, aggravated sexual assault, and possession of child pornography. (Ward, at pp. 483, 494-495.) The court reasoned that the images "had no relevance to the jury's sentencing determination apart from demonstrating the depths of depravity to which [the defendant] had sunk. Even if the evidence were relevant in some tangential way to the determination of [the defendant's] sentence, we believe it highly probable that considerations of unfair prejudice would have sufficed to keep this evidence from the jury." (Id. at p. 495.)
The reasoning in Ward is not applicable here. As defense counsel argued, evidence of adult pornography, male enhancement supplements, and condoms tended to show that defendant currently had sexual fantasies toward adults despite his prior convictions for lewd and lascivious conduct on a minor. Adult pornography, unlike bestiality, did not demonstrate "the depths of depravity to which [defendant] had sunk," but showed that he exhibited legal sexual attractions to adults at the time he was accused of abusing a minor. (Ward v. Dretke, supra, 420 F.3d at p. 495.) It was a reasonable tactical decision to use this evidence, and defendant's lack of sexually explicit material involving children, to rebut the argument he had a propensity to commit sexual assaults on minors.
Defendant further argues that his counsel was ineffective for failing to object to the prosecutor's rebuttal argument that defendant's possession of male enhancement supplements and pornographic leaflets showed he " 'had sexual urges that he couldn't control. He took advantage of a child in the past, and he did it again.' " Defendant's argument fails once again because defense counsel had a tactical reason to not object. Defense counsel had already argued to the jury that the evidence of adult pornography and male enhancement supplements did not show defendant had a propensity to commit a sexual assault upon a minor and instead showed his attraction to adults. Objecting to the prosecutor's argument would have drawn undue attention to an argument defense counsel had already addressed during cross-examination and during her closing argument. Thus, defense counsel's failure to object to the prosecutor's rebuttal argument was not ineffective.
B
Defense Counsel Had A Tactical Reason To Not Object To Testimony
About The Percentage Of Child Initiated False Complaints
Defendant also contends his counsel was ineffective for "failing to object to Dr. Carmichael's testimony regarding the statistical data showing the frequency of false accusations" made by children. Specifically, defendant takes issue with Dr. Carmichael's testimony "that 'a number of studies' and the 'general bodies of literature' showed that false allegations of child sexual abuse are 'rare' and that the rate of false allegations is 0 to 2 percent[.]" Defendant argues that while his counsel sought to discredit this testimony, she should have objected to it and excluded it all together. We conclude defendant's argument lacks merit because the record discloses a tactical reason for defense counsel's failure to object to Dr. Carmichael's testimony.
" 'Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred.' " (People v. Perez (2010) 182 Cal.App.4th 231, 245.) In other words, it is impermissible to say "that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused." (People v. Bowker (1988) 203 Cal.App.3d 385, 393.) Accordingly, courts require that jurors "be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Id. at p. 394.) " 'However, [the expert's] testimony "is admissible to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident -- e.g., a delay in reporting -- is inconsistent with his or her testimony claiming molestation." ' " (Perez, at p. 245.) In that circumstance, the evidence is admissible to "disabus[e] a jury of misconceptions it might hold about how a child reacts to a molestation" (People v. Patino (1994) 26 Cal.App.4th 1737, 1744) and to show "that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested" (Patino, at p. 1745). To the extent the expert described the findings of different studies, experts are permitted to provide general information acquired through their training and experience, as long as it does not elicit case-specific facts. (People v. Sanchez (2016) 63 Cal.4th 665, 676.)
Defendant admits his defense at trial was that G. H. falsely accused him of sexually assaulting her. To prove this, he pointed to G. H.'s delay in reporting the abuse to her mother and her delay in reporting the number of times defendant abused her. Because defendant argued G. H. lacked credibility, the prosecution was entitled to call an expert to rehabilitate G. H.'s credibility. (People v. Perez, supra, 182 Cal.App.4th at p. 245.) In doing so, Dr. Carmichael limited his testimony to discussing studies and his experience with child sexual assault victims, including that only 0 to 2 percent of child initiated sexual assault reports were false according to literature on the issue. He did not vouch for G. H.'s credibility and in fact testified that he had never met G. H. and did not know the facts of her case.
On cross-examination, defense counsel challenged Dr. Carmichael's testimony regarding the percentage of false child initiated accusations of sexual abuse by questioning how the studies determined a child made a false report. Dr. Carmichael responded that the studies confirmed abuse had occurred in the other reports through medical findings, a perpetrator's confession, or a social service finding. Defense counsel then questioned whether a study would determine an allegation false if there was no medical finding, no confession, and no social service report. Dr. Carmichael stated that the question of falsehood was in the hands of the jury and outside of his expertise. Later during closing argument, defense counsel argued Dr. Carmichael's testimony supported an inference that G. H. made a false report. There was no medical evidence of sexual abuse, defendant did not confess, and there was not a social service report confirming abuse had occurred. Thus, while Dr. Carmichael testified it was rare for a child to falsely report sexual abuse, his testimony supported an inference that G. H.'s report was false. Given defense counsel's line of questioning and her subsequent argument, the record discloses her tactical decision to use Dr. Carmichael's testimony to show G. H. made false allegations of sexual assault against defendant. Thus, defendant's argument that counsel should have done more than discredit Dr. Carmichael's testimony is unavailing because counsel used Dr. Carmichael's testimony to try to affirmatively show G. H.'s allegations were false. Accordingly, defense counsel's failure to object to Dr. Carmichael's testimony was not ineffective.
C
Defense Counsel Was Not Ineffective For Failing To Object
During The Prosecutor's Closing Argument
Defendant finally contends that his counsel was ineffective for failing to object to the prosecutor's argument that the jury should protect G. H. and those who come after her by holding defendant accountable for his actions and finding him guilty. Defendant argues the prosecutor's statements were improper because "[s]he essentially made the jurors responsible for the problem of child sexual abuse when she referred to not just [G. H.] but [V. H.] and 'those who come after her' and then linking the jurors' verdict to that responsibility." We do not interpret the prosecutor's argument in the same way.
Prosecutors have wide latitude when arguing to a jury and may urge whatever conclusions they deem proper based upon the evidence, even if their reasoning is faulty or deductions illogical. The soundness of their arguments is for the jury to consider. (People v. Lewis (1990) 50 Cal.3d 262, 283.) "It is long settled that a prosecutor may use appropriate epithets warranted by the evidence." (People v. Adcox (1988) 47 Cal.3d 207, 237.) But when prosecutors appeal to the passions and prejudice of the jury in their argument, they depart from permissible, vigorous advocacy and may commit misconduct. (People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [jury improperly invited to imagine the charged kidnapping and murder " 'had happened to one of your children' "]; People v. Fields (1983) 35 Cal.3d 329, 361-362 [jury members improperly urged to envision themselves as the victims of a brutal murder]; People v. Simington (1993) 19 Cal.App.4th 1374, 1378-1379 [prosecutor improperly urged jurors to imagine themselves as innocent victims of an assault with a deadly weapon].)
A prosecutor's conduct rises to the level of misconduct under the federal Constitution only " 'when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Under state law, misconduct occurs only where it involves " ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (Id. at p. 1215.)
In People v. Adanandus (2007) 157 Cal.App.4th 496, the prosecutor urged the jury to " 'restore order' " to the community with their verdict, " 'restore justice to that street [where the murder took place],' " and restore the law. (Id. at pp. 511, 512.) The Court of Appeal concluded there was no misconduct. "The prosecution's references to the idea of restoring law and order to the community were an appeal for the jury to take its duty seriously, rather than efforts to incite the jury against defendant." (Id. at p. 513.)
The same is true of the prosecutor's comments here. The prosecutor's comments followed her discussion of V. H.'s credibility and pertained to the evidence presented at trial. The prosecutor did not appeal to the sympathies of the jurors or incite them against defendant. She did not urge the jurors to imagine themselves or someone they knew as defendant's victim or urge the jurors to follow community sentiment rather than their own judgment. Instead, the prosecutor's comments urged the jury to take its job seriously by enforcing the laws of the land and seek justice for defendant's victims. (See People v. Lang (1989) 49 Cal.3d 991, 1041 [prosecutor's remarks that "if you want to have a voice in your community and an effect upon the law in the community, this is your opportunity" (italics omitted) were not improper because "[n]o reasonable juror would have construed the remarks as urging the jurors to follow community sentiment rather than their own judgment"]; People v. Wash (1993) 6 Cal.4th 215, 261-262 [not misconduct to urge jury to make a statement, do the right thing, and restore confidence in criminal justice system].) A reasonable juror would not take the prosecutor's statement to protect "those who come after [G. H.]" as direction to render a verdict based on public opinion or find defendant guilty out of fear instead of the evidence.
Defendant cites two federal cases in support of his contention that the prosecutor committed misconduct during her closing argument. Both of these cases -- U. S. v. Johnson (8th Cir. 1992) 968 F.2d 768 and U. S. v. Solivan (6th Cir. 1991) 937 F.2d 1146 -- involve drug trials during the era of the national war on drugs campaign. (Johnson, at pp. 769, 771; Solivan, at pp. 1148, 1153.) In both cases, the prosecution linked the defendant's conduct to the larger societal problem of drug dealing by explicitly arguing that the jury was responsible for ending the defendants' conduct and sending a message to those like them. (Johnson, at p. 770; Solivan, at pp. 1152-1154.) In contrast, the prosecutor here talked about protecting defendant's victims and holding defendant accountable. The prosecutor did not link defendant's conduct or guilt to other perpetrators of sexual violence and impose a duty on this jury to send a message to other child sexual abusers. Further, the prosecutor's comments were brief and did not constitute a pattern of behavior meant to deceive the jury into finding defendant guilty. Because the prosecutor did not commit misconduct, defense counsel was not ineffective for failing to object to the prosecutor's closing argument. (See People v. Price (1991) 1 Cal.4th 324, 386-387 [defense counsel is not required to make frivolous objections].)
III
The Trial Court Did Not Abuse Its Discretion In Admitting Evidence
Of Defendant's Prior Acts Of Sexual Misconduct
Defendant contends the trial court abused its discretion in admitting V. H.'s testimony about the details of defendant's sexual assaults against her because the probative value of the evidence was outweighed by its prejudicial effect. We disagree.
In general, evidence of a defendant's uncharged conduct is not admissible to prove a defendant's criminal disposition or propensity. (§ 1101, subd. (a); People v. Kipp (1998) 18 Cal.4th 349, 369.) Notwithstanding subdivision (a) of section 1101, "[u]nder . . . section 1108, in the trial of sexual offense charges, evidence the defendant committed another sexual offense may be admissible to prove the defendant has a propensity to engage in such conduct." (People v. Cottone (2013) 57 Cal.4th 269, 276, fn. omitted.) Uncharged sexual offense propensity evidence is permitted "so long as the evidence is admissible under section 352." (People v. Jandres (2014) 226 Cal.App.4th 340, 353.)
"[B]ecause . . . section 1108 conditions the introduction of uncharged sexual misconduct or offense evidence on whether it is admissible under . . . section 352, any objection to such evidence, as well as any derivative due process assertion, necessarily depends on whether the trial court sufficiently and properly evaluated the proffered evidence under that section. 'A careful weighing of prejudice against probative value under [section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]' [Citation.] As our Supreme Court stated in [People v. ]Falsetta [(1999) 21 Cal.4th 903], in balancing such . . . section 1108 evidence under . . . section 352, '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, it's 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 . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]' [Citation.] In evaluating such evidence, the court must determine 'whether "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses." ' [Citation.]
"On appeal, we review the admission of other acts or crimes evidence under . . . section 1108 for an abuse of the trial court's discretion. [Citation.] . . . ' "The 'prejudice' referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' [Citation.] We will not find that a court abuses its discretion in admitting such other sexual acts evidence unless its ruling ' "falls outside the bounds of reason." [Citation.]' [Citation.] In other words, we will only disturb a trial court's ruling under . . . section 352 where the court has exercised its discretion in a manner that resulted in a miscarriage of justice." (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104-1105, fn. omitted; see also People v. Doolin (2009) 45 Cal.4th 390, 439.)
Defendant argues the probative value of V. H.'s testimony was outweighed by its prejudicial effect. First, he argues that while there were "general similarities" between his assaults on V. H. and G. H., there were much stronger differences. Second, defendant argues his prior sexual misconduct would provoke emotional bias on behalf of the jury, which would want to punish him for his prior acts because he escaped with a light sentence of probation and only three years of prison following a probation violation. And third, defendant argues admission of his prior sexual misconduct was unduly prejudicial because the conduct occurred 20 years before the current charges and he did not commit other sexual misconduct since despite being free from incarceration for a majority of that time period.
When making its ruling, the trial court did not merely rule that evidence of defendant's prior sexual misconduct was admissible, but engaged in a lengthy analysis as required and considered the arguments defendant now presents. Its ruling can hardly be described as arbitrary or made without due consideration.
First, the trial court determined that defendant's conduct toward V. H. and G. H. was sufficiently similar to dispel the prejudicial effect of the remoteness of his conduct. As the trial court found, V. H. and G. H. were the same age when defendant targeted them for sexual abuse. He was able to abuse them because they were both relations of his and lived in the same house as him; in fact, defendant committed acts of sexual abuse against both V. H. and G. H. in the same residence, only 20 years apart.
Further, the sexual acts themselves were similar. Defendant removed articles of V. H.'s and G. H.'s clothing before rubbing his penis on or in their bodies. Although the sexual acts committed on V. H. and G. H. were not identical to each other, defendant's acts against each victim were always carried out in the same way. V. H. testified that each time defendant abused her, he did so in the same way by making her orally copulate him before he would get on her, place his penis on her vagina, and then ejaculate. G. H. also testified that each time defendant abused her, he did so in the same way by pushing her against a wall outside of her toy room, pulling down her pants and underwear, and putting his penis inside of her vagina. In both V. H.'s and G. H.'s cases, defendant committed his abuse while other family members were inside of the house, but his victims were isolated or removed from supervision of others. He also never talked about the abuse with V. H. or G. H. and continued to live with them like nothing improper had ever occurred.
"No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible." (People v. Branch (2001) 91 Cal.App.4th 274, 284.) Because "uncharged prior offenses that are very similar in nature to the charged crime logically will have more probative value in proving propensity to commit the charged offense," it has been recognized that " 'significant similarities between the prior and the charged offenses may "balance[] out the remoteness." ' " (People v. Hernandez (2011) 200 Cal.App.4th 953, 966, 968, quoting Branch, at p. 285.) Further, "the passage of time generally goes to the weight of the evidence, not its admissibility." (Hernandez, at p. 968.) Thus, evidence of prior sexual misconduct has been ruled not too remote in cases of a gap of 18 to 25 years (People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1392-1395); 23 years (People v. Pierce (2002) 104 Cal.App.4th 893, 900); and 30 years (People v. Branch, supra, 91 Cal.App.4th at pp. 284-285). Given this authority and the trial court's lengthy analysis, the court's determination that the similarities of defendant's acts of sexual misconduct balanced out the remoteness of his conduct was not an abuse of discretion.
Further, the court considered whether admission of defendant's prior sexual misconduct would elicit emotional bias from the jury. The court determined the evidence would not because defendant's prior acts were no more serious than the charged crimes, and the jury would not seek to punish defendant for the prior acts since he had already been convicted and punished for them. This ensured the jury would focus on determining the truth of the allegations made by G. H.
Defendant's argument that the jury would view his punishment for his past misconduct as insufficient, and would likely find him guilty of the current crimes as a result, is not well founded. Section 1108 represents a legislative determination that, where the requisite admonitions and instructions are given, the trial court is entitled to find that any residual prejudice is outweighed by probative value. Here, the jury was instructed that it could not use defendant's prior misconduct alone to find him guilty of the charged crimes and that the prosecution must prove beyond a reasonable doubt that defendant committed the crimes against G. H. We presume the jury followed this charge and did not find defendant guilty to punish him for his prior misconduct. (See People v. Cook (2006) 39 Cal.4th 566, 610.)
In summary, the trial court engaged in a lengthy analysis of the potential prejudice presented by V. H.'s testimony and considered the arguments defendant now presents on appeal. The court's determination that defendant's past sexual misconduct was sufficiently similar to the alleged misconduct to dispel the limited prejudicial effect of the remoteness of defendant's crimes was not an abuse of discretion, and neither was the court's determination the evidence would not elicit an emotional response from the jury. Accordingly, we reject defendant's claim that defendant's uncharged sexual misconduct should have been excluded under section 352. For these same reasons, we reject defendant's due process claim.
IV
The Trial Court Properly Denied Defendant's Motion For A Mistrial
Defendant contends the trial court abused its discretion in denying his motion for a mistrial because there was a substantial likelihood Juror No. 8 was biased against him given her contacts with the prosecutor's brother and the bailiff. He further argues that these contacts would bias the other jurors, even though they did not know the contacts occurred, because the jurors likely speculated about why Juror No. 8 repeatedly was called before the court. Defendant's claim is without merit. The trial court properly found Juror No. 8 did not commit misconduct and no bias resulted from her contacts with the prosecutor's brother and the bailiff via social networking.
A juror commits misconduct when he or she considers information about a party or about the case that was not part of the evidence received at trial. (People v. Dykes (2009) 46 Cal.4th 731, 809; People v. San Nicolas (2004) 34 Cal.4th 614, 650.) "Juror 'misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.' " (People v. Sandoval (2015) 62 Cal.4th 394, 437; accord, Dykes, at p. 809.) In determining whether prejudice occurred, the trial court must consider whether there is any substantial likelihood a member of the jury panel was influenced by improper bias. (Dykes, at p. 809; People v. Lewis (2009) 46 Cal.4th 1255, 1309.) If, based on the entire record in the case, there is any substantial likelihood of juror bias, the verdict cannot stand. (In re Boyette (2013) 56 Cal.4th 866, 889-890; In re Carpenter (1995) 9 Cal.4th 634, 653.)
In reviewing the trial court's ruling, we accept the trial court's credibility determinations and findings of fact. Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination. (People v. Merriman (2014) 60 Cal.4th 1, 95-96; People v. Lewis, supra, 46 Cal.4th at p. 1309.)
Defendant argues the trial court erred in determining Juror No. 8 did not commit misconduct because the court's finding that Juror No. 8 was not at fault for the Facebook contacts was not a proper basis for a finding that misconduct did not occur. While defendant is correct that a juror does not need to exhibit fault or culpable behavior for a finding of misconduct, defendant's reading of the court's decision is mistaken. The court did not determine no misconduct occurred because Juror No. 8 did not exhibit culpable behavior; the court determined no misconduct occurred because Juror No. 8's interactions with the prosecutor's brother and the bailiff had nothing to do with the case she was to decide. This finding was correct.
As the trial court noted, Juror No. 8's contact with the prosecutor's brother and the bailiff were not related to any matter pending before the jury. Neither the prosecutor's brother nor the bailiff testified during the trial or were connected to the elicitation of evidence. Further, the record does not reflect that any substantive communication occurred between the juror and the prosecutor's brother or the bailiff, least of all a conversation concerning defendant's case. Juror No. 8 testified that she sent a friend request to the prosecutor's brother on Facebook and Instagram and immediately canceled the request once she realized she did not know the prosecutor's brother and only recognized him as a spectator at defendant's trial. She further testified that she responded to the bailiff's Facebook message to determine who sent her an initial anonymous message, but nothing in the record demonstrates what was said. Once the juror found out it was the bailiff who sent her the message, she ceased all contact with him.
Defendant argues that it is not necessary for a juror to actually discuss the case or receive information about the case from a nonjuror for his or her conduct to amount to misconduct. The cases defendant cites in support of this contention, however, are not applicable to his case. In People v. Ryner (1985) 164 Cal.App.3d 1075, 1080, the court found juror misconduct occurred when "a number of the jurors" engaged in a conversation with a prosecution witness even though the jurors did not discuss matters related to the case. The court found misconduct because "the jurors' friendly conversation with [the witness] might well have caused them to accord his testimony greater credibility." (Id. at p. 1082.) The same reasoning was true in People v. Jackson (2016) 1 Cal.5th 269, where "several of the jurors" asked a prosecution witness questions during a break. (Id. at pp. 294, 331, 333.)
The reasoning behind these findings of misconduct does not apply to defendant's case. Juror No. 8 was not likely to accord greater credibility to the prosecution because neither of her contacts were with prosecution witnesses. Further, neither of her contacts were conversations. There is nothing about Juror No. 8's limited contacts with either the prosecutor's brother or the bailiff that would lead her to view a prosecution witness or the prosecution's case in a more favorable light. Because the social networking contacts did not result in Juror No. 8 considering information about a witness or the evidence, the trial court properly found misconduct did not occur.
Further, the court properly determined Juror No. 8 was not biased by the social networking contacts. The trial court found Juror No. 8 was credible in her affirmation that she could remain impartial. The court further found that she did not appear "emotionally incapacitated or otherwise compromised in her ability to perform the necessary functions as a trail juror." There is nothing in the record, nor does defendant provide a reason, for us to doubt these findings. Juror No. 8 was candid with the court about the limited social networking contacts she had with the prosecutor's brother and the bailiff, she reported her contact with the bailiff immediately after it had occurred and on a day the jury was not to convene, and she repeatedly affirmed her impartiality. Given the trial court's credibility finding, the juror's limited social networking contacts with the prosecutor's brother and the bailiff, and the juror's affirmations of impartiality, there is no evidence demonstrating a substantial likelihood Juror No. 8 was biased.
Defendant's claim that the other jurors were affected by Juror No. 8's Facebook contacts because they likely speculated about the reason she was repeatedly called before the court is similarly unavailing. Juror No. 8 stated she did not and would not tell any other juror about her social networking contacts with the prosecutor's brother or the bailiff. Given her assertion, there is no basis for a finding that the other jurors knew why she had to talk to the court outside of their presence. To leap to an inference that other jurors would see Juror No. 8 called into the court twice and then use that fact against defendant is pure speculation and does not support a claim of juror misconduct. Accordingly, the trial court properly denied defendant's motion for a mistrial based on juror misconduct.
V
There Was No Cumulative Error
Defendant seeks reversal based on cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we have found defendant was not harmed by the trial court's failure to disclose a document contained in G. H.'s therapy notes and that no other error occurred. Accordingly, there was no cumulative error here.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.