People v. Ornelas

Full title: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY ORNELAS…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jul 9, 2018

F074019 (Cal. Ct. App. Jul. 9, 2018)

Opinion

F074019

07-09-2018

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY ORNELAS, Defendant and Appellant.

J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

LEVY, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF311812)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

At trial, appellant Michael Anthony Ornelas, through his defense counsel, conceded that he had acted "extremely inappropriately on many occasions" with the juvenile victim in this matter, M.C. He claimed, however, he was not guilty of sexual intercourse with her. A jury disagreed. He was convicted of three counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a);¹ counts 1-3); one count of a lewd act on a child under the age of 14 by force (§ 288, subd. (b)(1); count 4); seven counts of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); counts 5-11); and three counts of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b); counts 12-14). He received an aggregate prison sentence of 22 years plus 220 years to life.

1 All future statutory references are to the Penal Code unless otherwise noted.

On appeal, appellant raises numerous claims directed at the trial court's various rulings, including pretrial and posttrial motions, the handling of certain trial evidence, and certain jury instructions. He also raises claims of ineffective assistance of counsel. For each claim, we find either no error and/or no prejudice. We affirm.

BACKGROUND

I. A Relevant Summary Of The Prosecution's Case-In-Chief.

M.C. was born in 2004 and she was 12 years old at the time of trial. Her mother, Christina C.,² had been in a romantic relationship with appellant "off and on" for more than four years.³ M.C. had been about six years old when Christina began dating appellant. Christina testified at trial that it was around January 2015 when she discovered that appellant had acted inappropriately with M.C. Prior to that time, it was normal for appellant to be around Christina's children. Christina often worked long hours at a packing house and appellant was often alone with her children. Christina told the jury that she had loved appellant, she trusted him, and her children, including M.C., viewed him as a stepdad.

2 To protect Christina's privacy, we use her first name and last initial, and, thereafter, only her first name. (Cal. Rules of Court, rule 8.90(b)(10).) Our use of her first name is not intended as a sign of disrespect.

3 In addition to M.C., Christina has four sons.

A. Christina discovers appellant's inappropriate behavior.

The jury learned that it was not uncommon for M.C. and appellant to text each other, and M.C. would use Christina's cell phone to do so. On January 3, 2015, Christina sent text messages to appellant while posing as M.C. She had a "feeling" that she needed to do this.

Christina's concerns started after an incident at her sister's house (M.C.'s "Tia") several years before. Christina had discovered appellant and M.C. asleep together in a bed. They were both naked from the waist down and wrapped together in a blanket. Appellant's penis was "a little hard." Christina had asked appellant if he had touched M.C. In response, appellant said he had thought M.C. had been her (Christina). Christina had also asked M.C. why she was naked, and M.C. said she did not know. M.C. had been less than 10 years old at that time.

Christina became very angry. She later asked appellant why he would "do that?" He said he did not know, he was stupid, and he had thought M.C. had been Christina. At trial, Christina told the jury she had not noticed anything wrong between appellant and M.C. other than the one incident at her sister's house. Otherwise, appellant had acted like a stepdad.

At trial, Christina told the jury that she had been "scared" when she discovered appellant with M.C. and she did not know what to do. She was afraid her children would be taken from her. She initially testified that her romantic relationship with appellant ended after this incident. She admitted, however, that appellant continued to come to her house and he continued to have contact with Christina and her children. She later indicated that she got back together with appellant at some point after this incident. Christina told the jury that, after this incident, she never left M.C. alone with appellant. If Christina left the house, one of M.C.'s brothers would remain home with M.C. and appellant.

In January 2015, during Christina's ruse with the text messages, appellant responded to her as if he were texting with M.C. In the messages, appellant called her "babe" and "Bunny." These were his nicknames for M.C.

During Christina's text messages with appellant that night, he asked "M.C." if she wanted to see a picture of his penis, the "one [I] sent mom." He asked if she would "take a sexy picture" and send it to him. He said, "Remember [when I would] take pictures [of you] naked [and of your] pussy. I like [that] stuff."

Appellant sent her a photo of his penis. He told "M.C." that she had liked it when he had touched her at her aunt's (Tia's) house. He also texted something like, "I still touch you because you like it[.]" He texted something like, "[Y]ou like it when I lick your pussy, babe." At trial, a photograph of these text messages showing both appellant's cell phone number and Christina's number was admitted into evidence.

According to Christina's trial testimony, attached to the penis photograph were words like, "To my little girl who loves me like her dad." Christina, posing as M.C., sent that photograph back to appellant so he would know she had seen it. At some point during their messages, appellant texted, "[You have] to erase all [of your text] messages bunny. So [your] mom [doesn't] read [them]. Ok babe. [And you] promised [that you wouldn't] tell on me babe."

Towards the end of their messaging, Christina confronted appellant and disclosed she had been the one sending the texts. She also called him. He claimed he had known the entire time it was her and not M.C.

B. Appellant's admissions to Christina.

The following day, Christina confronted appellant in person at his mother's residence. He did not make any admissions to Christina in front of his mom. Privately, however, he admitted that he had touched M.C. about six months before. According to Christina, appellant said he was tickling M.C. at Christina's new apartment "and he just happened to pull her pants down." M.C. did not tell him to stop and appellant "started licking her pussy." He knew it was wrong but he kept doing it.

He also admitted to Christina that, on a different occasion, he was lying with M.C. in the morning watching television. He reached over, grabbed her hand, and started having her "jack him off." Appellant was "stroking it up and down."

C. Christina contacts police.

On January 5, 2015, Christina took M.C. to the emergency room "to get checked out." That same day, Christina called police. M.C. was 10 years old when Christina alerted authorities. Christina told the jury that, since that time, M.C. had not been around appellant.

At trial, Christina told the jury that, at some point, she had asked M.C. if appellant had ever touched her in any way or in any way that made her feel uncomfortable. M.C. had said "no." Eventually, Christina told M.C. she had an idea appellant had done something. M.C. said, "Mom, he's done it more than once," and she started crying.

At the emergency room, Christina met with detective Juan Saenz. She explained the situation. She gave police her cell phone. Law enforcement later extracted data from her phone, which was placed on a disk and moved into evidence at trial. The disk had the text messages and the penis photo which appellant sent to Christina on the night of January 3, 2015.

Saenz spoke with M.C. at the hospital. She referred to her vagina as a "cookie." She referred to appellant's penis as his "private part." She was initially shy and reluctant to provide information. Eventually she began crying and she was more forthcoming. She did not talk about events in chronological order but jumped "all over the place."

M.C. told Saenz about several incidents involving appellant. She spoke about the incident at her aunt's house. She told Saenz that appellant had admitted to her that he had touched her when she was asleep (apparently at her aunt's house). She described a time at her previous residence when appellant held her hand and forced her to masturbate him. She tried to get away. Appellant asked her if she had wanted to rub his penis, and she said no. She was eventually able to release his grip. She described a time when appellant removed her clothing, held her down by her shoulders, and inserted his penis into her vagina. She told Saenz it had hurt. She also said there were several other similar incidents, including a time when appellant put his penis on her belly and slid it down until it was in her vagina. On one occasion she bled following appellant's actions. She told Saenz that appellant licked her vagina every time he penetrated her with his penis.

D. The CART interview.

Saenz arranged for a child abuse response team (CART) interview, which occurred on January 7, 2015. The interview was recorded and played for the jury.

During the CART interview, M.C. referred to appellant as her stepdad. She said he had touched her. The first time occurred at her aunt's house several years before when she was seven years old. She provided no details but remembered waking up naked. Her mom and appellant got into a big argument afterwards.

M.C. recalled that, about a month or two before the CART interview, appellant had "put his hand in my private." This occurred in her bedroom. She had been asleep. She felt a hand rubbing her private over her pajamas. She woke up and appellant was standing in her room.

On another occasion, appellant had touched her private with his hand while her mother slept. Following this incident, M.C. told one of her brothers about appellant's actions.⁴ Her brother said, "Let's not tell mom." M.C. told the CART interviewer her brother had said that because her mom "would probably hit us."

4 At the time of M.C.'s CART interview, this brother was 11 years old.

M.C. told the interviewer that appellant had "put his private in mine." That had happened "about five or eight times." The first time was about a year after the incident at her aunt's house. She said appellant would hold her down and "put his private in my private." This happened in their previous house when Christina was at work. Appellant would remove her clothes. He told her not to tell her mom or "your mom will beat you really hard." He would hold down her shoulders. He would be on top of her and move "up and down." She felt weird and "grossed out." His private "felt hard." She tried to kick him off, but he would not get off. She felt "it" go inside her and it "just felt hard." On this occasion, appellant stopped when her grandfather opened a house door. Appellant put on his clothes and ran to Christina's room. M.C. did not tell anyone because appellant had threatened that Christina would beat her. M.C. confirmed that this was the first time appellant touched his private to her private. However, she changed her earlier statement and denied that this happened five or eight times. Instead, it was "actually five or three" times.

The last incident with appellant was "about two months ago." Christina went to work. Appellant went into her room "and he did the same thing." After that "third time," she ran to the restroom and saw "blood coming out of my private." However, unlike her statements to Saenz, she denied that it ever hurt when appellant touched his private to hers.

M.C. also stated that appellant "put his tongue in my private." She was nine years old and it happened one or two times.⁵

5 This conflicted with her statements to Saenz. With the detective, she had stated that appellant licked her vagina every time he penetrated her with his penis.

One night, Christina was working late. M.C. recalled that appellant grabbed her hand and made her touch his private. She kept trying to release her hand. "He was moving it up and down." She told him to stop, but he said he was not going to stop. She said he did not really say anything else to her.⁶

6 This conflicted with her statements to Saenz. With the detective, she had stated that appellant asked her if she wanted to rub his penis, and she had said no.

The CART interviewer showed M.C. anatomically correct pictures. M.C. agreed that appellant touched his private on top of her private, and "[w]here the skin comes apart, too." He put his tongue on her private "inside the skin." When appellant put his tongue to her private, she would be lying down on her back. He used his hands to hold down her chest. She agreed he would hold her legs open, too.

E. The pretextual phone call.

Saenz arranged for Christina to conduct a pretextual phone call with appellant. Saenz explained to the jury that this type of call is an "investigative technique" wherein a witness calls a suspect and the call is recorded. Police listen to the conversation as it occurs. The witness speaks "normally" to the suspect about the incident in the hopes the suspect will make admissions.

Just prior to Christina's pretextual phone call, Saenz told Christina to talk to appellant "as a mother," and ask the questions she wanted answered. Saenz wanted her to get her natural emotions out, which would hopefully spark a conversation and enable police to obtain evidence. At trial, Saenz denied telling Christina to lie to appellant during the pretextual phone call. Saenz denied telling her to make things up. He denied telling her to try and trap appellant.

Christina's pretextual phone call with appellant was recorded and it was moved into evidence at trial. At the start of the recording, and just prior to Christina calling and speaking with appellant, Saenz stated in the recording that appellant had a date of birth of November 24, 1973.

During this call, appellant admitted touching M.C.'s vagina. He admitted kissing and licking her vagina. He admitted rubbing his penis "between her knees." He admitted he had been "hard." When asked about making M.C. touch him, appellant claimed that M.C. never said "no" or "stop" or "anything like that." When asked how many times he did something with M.C. when Christina was at work, he said, "only three times." Despite these admissions, however, he repeatedly denied ever engaging in sexual intercourse with her. He also denied ever threatening her.

During the phone call, appellant expressed concern that he was being recorded. Christina lied and said she was not recording him. When asked why he did everything with M.C., appellant said he was ashamed and he did not know why it had happened. He later said he hated what he did, and he wished he could take it back.

F. Police attempt to contact appellant at his place of work.

On January 9, 2015, officers with the Visalia Police Department traveled to Fresno in an effort to contact appellant at his place of employment, a ServiceMaster. That morning, the police contacted an employee at the ServiceMaster, who said appellant was employed there but was not present at the time. Police drove to appellant's work anyway. Once there, police spoke with a manager in the manager's office. The officers were wearing plain clothes, consisting of jeans and polo shirts with "Visalia Police Department" badges on them.

A detective told the manager that police needed to speak with appellant, but the manager was asked not to tell appellant that police officers were there. Police feared that appellant would attempt to flee. The manager left the office and police waited. The manager came back. He looked "kind of nervous," and he told officers that appellant "had fled out of the business."⁷

7 Defense counsel objected to this testimony based on hearsay. The trial court overruled the objection and permitted the jury to hear the manager's statements to police based on its effect on the listener. The court admonished the jurors that they could not consider whether the manager's statements were true or not.

The officers ran out of the business and "several employees" pointed. The employees said they saw appellant get into a black colored SUV and he fled the area "at a high rate of speed."⁸ Police attempted to contact appellant through his cell phone, but he did not answer calls and text messages were not returned.

8 Defense counsel also objected to this testimony based on hearsay. The trial court overruled the objection and permitted the jury to hear the employees' statements "not for the truth that [appellant] fled" but to show why police acted.

Officers looked at video surveillance maintained by the ServiceMaster. At trial, detective Celestina Sanchez recounted what she saw in that video. Appellant ran out of the business towards a black SUV. She identified appellant in the video from a photograph of him. Appellant "was hiding" behind that SUV, "looking out" and "[s]canning in all directions." He got into the SUV and he "fled at a high rate of speed" first eastbound and then northbound.⁹ On cross-examination, Sanchez said she saw appellant's "entire body" on the video, and even his "side profile" because he had turned. She said she saw a profile or "a portion of the face" when he was behind the SUV.

9 Defense counsel objected to Sanchez's testimony based on "foundation and hearsay" regarding what she saw in the surveillance video. After confirming with Sanchez that she had observed the video and had recognized appellant from his picture, the trial court overruled those objections.

That same day, officers attempted to contact appellant at both his sister's residence and his mother's residence. Officers did not contact him at either location and they returned to Visalia.

G. Appellant's additional admissions to Christina.

At trial, Christina testified that appellant made more admissions to her when police were trying to "catch him" but could not locate him. When she learned that police were unable to locate appellant, she called him and then "met up with him." She confronted him again in person, and "he still admitted to it, that he had done it." She told appellant that he "was a sick motherfucker and that I hoped that they would get him." He just stood there and started laughing. He told Christina, "You're a stupid bitch."

At trial, Christina admitted that, during her four-year relationship with appellant, there had been some issues or problems. She denied, however, telling M.C. to lie about him touching her.

H. The SART exam.

M.C. underwent a sexual abuse response team (SART) exam. A forensic nurse examined her on January 14, 2015. The exam was considered "non-acute" because the last known sexual contact had been about a year prior. M.C.'s vaginal exam was normal and without findings.

At trial, the forensic nurse explained that her "normal" findings were consistent with M.C.'s history. She said that children often do not understand the difference between something being fully penetrated into their vaginas versus just being rubbed against their genital areas on the outside. She stated that genital trauma is rare in children 11 years old and younger, but that did not necessarily mean a crime did not occur. The nurse agreed that a 10 year old could show no signs of genital trauma but still have been penetrated by an adult penis.

On cross-examination, the nurse confirmed that M.C.'s hymen was "normal" and still intact. On redirect, the nurse agreed it was possible for a penis to penetrate a child's vagina without causing injury. A normal appearing hymen does not necessarily mean something had not penetrated the vaginal area.

I. M.C.'s trial testimony.

At trial, M.C. believed appellant began touching her when she was seven years old. He last touched her when she was 10 years old. She recalled that the last incident happened about a week before police were contacted, and he touched her "private" with his "private area."

M.C. identified appellant in court as her "mom's ex-boyfriend." She told the jury that appellant had used his hand to touch her "private area." He had touched her "front private" more than 10 times. She said he used his "private in the front" to touch her "private" multiple times. She thought it was more than five times and maybe more than 10 times. She said his front private "would go in and out." She said she felt it go inside her private. She agreed that appellant would take his private all the way out and then put it back in. She agreed that this happened on 10 different days.

M.C. recalled an incident at her aunt's house, but her memory was poor. She agreed she told the police about that incident and she told police the truth. She recalled falling asleep with her clothes on but she woke up naked. She denied removing her own clothes. She told the jury that her mom had asked appellant "if he did it, and he had lied to her and said no. And then he had whispered to me, 'Don't tell her that I did it.'" At trial, M.C. explained that she did not tell her mom that appellant had touched her that night because he had said her family would hurt her.

M.C. said appellant touched her more than one time at her aunt's house. On cross-examination she said it was "seven" times and then "[l]ike five."

At trial, M.C. agreed that appellant put his penis "inside her front private part" more than once while her mother was not home. She agreed that appellant would sometimes hold her down when putting his private part inside her private part. He would hold her down on her mother's bed "and then he would start doing it." He did it when she was asleep and she would "feel the pressure" on her chest and wake up. She would try to kick his stomach but that would not get him off of her. He did not say anything when she tried to kick him.

She confirmed at trial that appellant forced her to touch his penis and masturbate him. On at least one occasion, she was able to break free and get away.

She said appellant's private was hard when he put it inside her private part. "It felt creepy." She could not recall how long it would last when he put his penis inside her, but she agreed that some instances were longer than others. She agreed that it hurt when he put his private part inside of her private part. She would cry in the shower. Sometimes her brother was home in a different room when appellant put his private inside her private. She never called for help. She felt like nobody could help her. She initially said she never told appellant to stop when he put his penis inside her. She then said she told him "like three times" to stop, but he did not. On cross-examination, however, she reviewed her statements to police and agreed that she had said it never hurt when appellant put his private inside her private. She changed her trial testimony and said it never hurt. On redirect, she said it did not hurt "all the time." She agreed it would sometimes hurt and sometimes it would not hurt.

At trial, M.C. recalled telling police about a time her mom went to the store and appellant watched her. She agreed that appellant grabbed her and put her on the bed. He took off their clothes. He put his private part inside her private part "three to four times" during that incident. Appellant stopped when Christina came home.

She recalled telling police about a time her mom was working late at night. Appellant was watching her. She told police that he had grabbed her, put her in the bedroom and locked the door. He started touching her and he removed their clothes. She agreed that he put his private inside of her private. She tried to kick him in the stomach to get him off of her. She told the police that on this occasion he put his private inside her private five times, and he might have done it more but she could not remember.

When touching her with his hand or private part, appellant would kiss M.C.'s chest. He did this "like seven times." On one occasion, M.C. recalled "a little bit" of blood came from her private part.

At trial, M.C. did not recall telling police that appellant would put his tongue inside her private part. She could not remember him doing that. After the prosecutor continued asking about this topic, she then remembered him doing that "[a] little bit now." She said it felt "really weird."

M.C. testified that she never disclosed what was happening to her brothers. She thought her older brother would have hurt appellant.¹⁰ According to M.C., appellant had told her that her family would hurt her if she disclosed what was happening. On cross-examination, she admitted that she did tell one brother at some point about what was happening, but he had told her not to tell mom. She recalled making this statement during her CART interview.

10 At the time of her trial testimony, M.C.'s oldest brother was 23 years old.

II. A Relevant Summary Of The Defense Evidence.

Appellant's sister, Crystal Ornelas,¹¹ testified at trial on his behalf. Crystal had known Christina for many years. Appellant had lived with Crystal from 2011 through the beginning of 2015. Crystal told the jury that she loved appellant, but believed he should be held accountable for anything he did. Crystal knew of the charges pending against him, and she had talked to him about the charges. He had never told her that he had molested M.C. or touched her vagina.

11 Because she shares appellant's last name, we refer to Crystal by her first name. No disrespect is intended.

On occasion, Christina and her children, including M.C., had stayed at Crystal's residence. Crystal had observed appellant with M.C. and Christina. Crystal described appellant's relationship with M.C. as "a typical stepparent type role." Christina would "always refer" to appellant for discipline.

Crystal never observed anything inappropriate, wrong or unusual regarding appellant's relationship with M.C. To the contrary, appellant and M.C. had a very good relationship and he acted like a stepfather to her. Crystal never saw anything, such as a fight between them, which would cause M.C. to make up allegations against appellant.

In Crystal's backyard, the children would sometimes play with water guns. Christina would have M.C. change her clothes in front of everyone. Appellant would tell M.C. to change her clothes inside the residence.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Pretrial Motion For A Hearing Concerning M.C.'s Alleged Prior Sexual Abuse.

Appellant asserts that the trial court committed prejudicial error and violated his right to present a defense when it denied his pretrial motion for a hearing in accordance with Evidence Code section 782. Appellant sought the hearing to inquire into alleged prior abuse allegations involving M.C.

A. Background.

Prior to trial, the defense filed a motion pursuant to Evidence Code section 782. The accompanying declaration from defense counsel asserted that M.C. had made prior allegations of molestation against her uncle, and Christina was aware of those allegations. It was alleged that, following M.C.'s allegations against her uncle, she was still "exposed" to him at family functions. The defense asserted this evidence was relevant to attack both M.C.'s and Christina's credibility. It was believed this evidence would show M.C.'s prior knowledge of sexual conduct, which may have formed the basis for her claims against appellant. This evidence would also show that Christina failed to prevent the uncle from having contact with M.C.

Prior to trial, the trial court heard oral argument regarding this motion. The court noted that Evidence Code section 782 was inapplicable regarding Christina's credibility. The court rejected that claim and focused only on M.C.'s credibility. The court asked defense counsel what information the defense possessed that M.C. "actually was molested by her uncle?" The defense responded that appellant "and at least three other relatives in the family" had made such representations. When asked if M.C. ever admitted she was molested by her uncle prior to the events alleged in this case, defense counsel acknowledged that "they are rumors." Defense counsel was unaware of any criminal charges ever filed against M.C.'s uncle.

Defense counsel admitted he did not have any information that M.C.'s alleged allegations against her uncle were false. Defense counsel contended that he did not want to embarrass M.C. or make her look bad, but wanted "at least" an in camera hearing. Defense counsel stated, "It's not hearsay if [M.C.] says that it happened."

The trial court denied the motion and prohibited a hearing into M.C.'s alleged prior sexual abuse. The court noted that this evidence "may have some minor relevance" regarding M.C.'s prior knowledge of sexual conduct but nothing showed that these allegations were true. "And, as a result, I think it's extremely prejudicial, and it flies right in the face of what [Evidence Code section] 782 is designed to do in terms of protecting the alleged victim in this case." The court stated it would revisit this issue if something came up during the trial.

B. Standard of review.

When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)

C. Analysis.

Appellant contends that the trial court should have ordered a hearing so that M.C. could have been questioned about any prior sexual misconduct she suffered from her uncle. He asserts that the court's ruling was based on insufficient information because no hearing occurred and, as such, the court abused its discretion. He relies primarily on People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett) and People v. Fontana (2010) 49 Cal.4th 351 (Fontana) to establish error. We find appellant's contentions and his cited authorities unpersuasive.

Evidence about the sexual conduct of a sex crime victim is admissible only under very strict conditions. Such evidence is inadmissible to prove the victim's consent to the charged sex crime. (Evid. Code, § 1103, subd. (c)(1); Fontana, supra, 49 Cal.4th at p. 362.) Such evidence, however, may be admissible to attack the credibility of the complaining witness when presented in conformity with the procedures under Evidence Code section 782. (Fontana, supra, 49 Cal.4th at p. 362.)

To comply with required procedures, a defendant must submit a written motion accompanied by an affidavit under seal. The affidavit must contain an offer of proof showing the relevancy of the victim's other sexual conduct. (Fontana, supra, 49 Cal.4th at p. 362.) If the trial court finds that the offer of proof is sufficient, it shall order a hearing outside the jury's presence and allow the questioning of the complaining witness regarding the offer of proof. (Ibid.) Following the hearing, the court may make an order stating what evidence may be introduced by the defendant at trial and the nature of the questions to be permitted. (Ibid.)

To analyze appellant's present claim, we review three opinions: (1) People v. Mestas (2013) 217 Cal.App.4th 1509 (Mestas), and appellant's two cited authorities, (2) Daggett and (3) Fontana. These opinions provide guidance in this situation.

1. Mestas , supra , 217 Cal.App.4th 1509.

In Mestas, supra, 217 Cal.App.4th 1509, the defendant was convicted of molesting his girlfriend's young sisters. (Id. at p. 1512.) On appeal, he argued, in part, that the trial court had abused its discretion in denying an evidentiary hearing for at least some of the proffered evidence he had submitted regarding the victims' sexual histories. (Ibid.) The Court of Appeal disagreed. It found that the trial court had properly excluded the defendant's allegations that were either vague, unconfirmed, or had "insufficient specificity" to permit analysis. (Id. at pp. 1515-1516.) Mestas found no abuse of discretion. "The purpose of an Evidence Code section 782 hearing is to establish the truth and probative value of the offer of proof, not to allow a fishing expedition based on sketchy and unconfirmed allegations." (Mestas, supra, at p. 1518.)

2. Daggett , supra , 225 Cal.App.3d 751.

In Daggett, supra, 225 Cal.App.3d 751, a case which appellant cites, the defendant was convicted of molesting a child under the age of 14 years. (Id. at p. 754.) On appeal, he successfully challenged the trial court's refusal to hold a hearing pursuant to Evidence Code section 782. (Daggett, supra, at p. 757.) The defendant's offer of proof involved documented statements from the victim to both a mental health worker and a doctor. According to the victim, he had been molested by two older children when he was five years old. (Ibid.)

Daggett noted that "[a] child's testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted." (Daggett, supra, 225 Cal.App.3d at p. 757.)

Daggett found that the offer of proof was sufficient and the trial court erred when it failed to order a hearing to determine whether the acts of prior molestation were sufficiently similar to the charged acts. This error was also compounded because the prosecutor argued to the jurors that, if they believed the victim molested other children, he must have learned that behavior from being molested by the defendant. "This is the type of argument the excluded evidence was intended to refute." (Daggett, supra, 225 Cal.App.3d at p. 757.) The judgment was reversed. (Id. at p. 760.)

3. Fontana , supra , 49 Cal.4th 351.

Finally, in Fontana, supra, 49 Cal.4th 351, a case which appellant cites, the defendant was convicted of various sexual crimes involving a young adult victim. (Id. at p. 361.) The trial court had excluded evidence of the victim's consensual sexual encounter earlier on the day of the charged crimes. (Ibid.) Our Supreme Court determined that the defendant's offer of proof had been sufficient to warrant a hearing. The victim had reportedly told a nurse at a rape treatment center about her earlier consensual sex that day. The victim had also apparently told the prosecutor that this had occurred with her boyfriend sometime that morning. (Id. at p. 366.) This evidence offered a possibility that the victim's injuries to her cervix and mouth could have occurred from the earlier consensual sex, which could have created reasonable doubt favorable to the defendant. The trial court should have conducted a hearing. (Ibid.)

Fontana noted that the defendant's offer of proof "was not a fishing expedition." (Fontana, supra, 49 Cal.4th at p. 367.) Rather, the defendant identified a specific basis, consisting of hearsay recorded in hospital records and statements relayed by the prosecutor, for believing that the victim had engaged in other sexual activity. (Ibid.) The trial court erred in failing to conduct a hearing under Evidence Code section 782. Such a hearing could have shown whether the victim's prior sexual activity may have provided an alternative explanation for her injuries. (Fontana, at pp. 367-368.)

Here, these three opinions establish that the trial court did not abuse its discretion in denying a hearing pursuant to Evidence Code section 782. A defendant's offer of proof must amount to more than "a fishing expedition" for a trial court to order a hearing. The defendant must identify a specific basis for believing the victim had engaged in other sexual activity. (See Fontana, supra, 49 Cal.4th at p. 367; Mestas, supra, 217 Cal.App.4th at p. 1518.) If the alleged prior acts are similar to the charged crimes, evidence of the prior molestation is relevant to the victim's credibility. (Daggett, supra, 225 Cal.App.3d at p. 757.)

Similar to Mestas, appellant's offer of proof was vague and it lacked specificity. (Mestas, supra, 217 Cal.App.4th at p. 1516.) Defense counsel admitted that these allegations were based on "rumors." M.C.'s uncle was not charged with any criminal acts against her, and M.C. never admitted this alleged abuse. Similar to Mestas, these allegations were "'sketchy and unconfirmed.'" (Id. at p. 1518.) As the Mestas court explained, Evidence Code section 782 does not permit a hearing based on vague allegations. (Mestas, supra, at p. 1518.) Instead, the purpose of such a hearing is to establish the truth and probative value of a sufficient offer of proof. (Ibid.) Mestas supports a finding that the trial court did not abuse its discretion in this matter.

Further, appellant's cited authorities, Fontana and Daggett, are distinguishable and do not assist him. In both of these cases, the victims admitted the other sexual activity and the offers of proof were more than mere rumors. (Fontana, supra, 49 Cal.4th at p. 366; Daggett, supra, 225 Cal.App.3d at p. 757.) Further, unlike in Daggett, appellant did not allege prior molestation that was similar to the charges pending against him. (Daggett, supra, 225 Cal.App.3d at p. 757.) Unlike in Fontana, appellant did not make allegations which could have created reasonable doubt favorable to him. (Fontana, supra, 49 Cal.4th at p. 366.) Unlike in both Fontana and Daggett, appellant's offer of proof did not involve documented statements from M.C. Instead, his allegations were vague and appeared to be a fishing expedition. As such, neither Fontana nor Daggett establish an abuse of discretion under these circumstances.

Finally, the Legislature crafted limitations on evidence of prior sexual conduct because "victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. [Citations.]" (Fontana, supra, 49 Cal.4th at p. 362.) "By affording victims protection in most instances, these provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders. [Citations.]" (Ibid.) Our Supreme Court has noted that the discretion afforded by Evidence Code section 782 is "'narrowly'" exercised and great care must be taken to insure that this exception to the general rule does not become a "'"back door" for admitting otherwise inadmissible evidence' [citation]." (Fontana, at pp. 362-363.)

Here, we agree with the trial court that a hearing was not appropriate in this matter based on appellant's offer of proof. Appellant's inquiry into unfounded allegations of M.C.'s prior sexual abuse would have violated her privacy interests. This would have also violated the state's interest in encouraging the reporting of sex crimes. Under these circumstances, a hearing would have violated the purpose of Evidence Code section 782. (Fontana, supra, 49 Cal.4th at p. 362.)

Based on this record, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The trial court's ruling did not fall outside the bounds of reason under applicable law and relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Accordingly, the trial court did not abuse its discretion and this claim fails.¹²

12 Because the trial court did not abuse its discretion, we likewise reject appellant's claim that the trial court's ruling deprived him of his right to confront witnesses or his right to present a defense. (See People v. Fontana, supra, 49 Cal.4th at p. 370 [rejecting constitutional claims because trial court did not abuse its discretion in excluding evidence of victim's other sexual conduct].)

II. Appellant Has Not Established Ineffective Assistance Of Counsel In Relationship To His Motion Pursuant To Evidence Code Section 782.

Appellant claims his defense counsel provided ineffective assistance during the hearing regarding his motion pursuant to Evidence Code section 782. During that hearing, defense counsel stated he had no information that the allegations against M.C.'s uncle were false. Appellant, however, points to M.C.'s CART interview. In that interview, M.C. was asked if anyone else had ever touched her like appellant had done. M.C. said, "No, just him." Appellant asserts that his counsel should have alerted the trial court about M.C.'s statement when seeking the hearing regarding her alleged prior sexual abuse.

A. Standard of review.

Under the federal and state constitutions, a criminal defendant is entitled to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The constitutional right is a guarantee to effective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

B. Analysis.

Appellant argues that M.C. either lied about the allegations involving her uncle or she lied during the CART interview. He contends there is a reasonable probability the result of his trial would have been different had his defense counsel informed the trial court about M.C.'s CART interview. We disagree. Appellant has not established either deficient performance or prejudice.

1. Defense counsel's performance was not deficient.

An appellate court is to defer to counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) An appellate court will reverse the conviction "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) In conducting this review, the appellate court considers whether the record contains any explanation for counsel's actions; if the record sheds no light on counsel's actions, the claim is not cognizable unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation for the actions taken. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Kelly (1992) 1 Cal.4th 495, 520.)

Here, appellant's trial counsel was not asked for an explanation regarding his failure to discuss M.C.'s CART interview. Because the record does not reveal why defense counsel elected not to discuss this evidence, appellant's claim on direct appeal must fail. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [rejecting ineffective assistance claim because record did not reveal why defense counsel failed to present a defense].)

Further, we cannot say there is no satisfactory explanation for defense counsel's failure to discuss the CART interview. This record does not reasonably suggest that M.C. lied about prior abuse. To the contrary, the CART interview strongly suggested that M.C. had never suffered abuse from anyone other than appellant. The CART interview tended to suggest a hearing regarding her alleged prior abuse was neither warranted nor proper. A reasonable defense attorney would not have highlighted this contrary evidence when seeking a hearing pursuant to Evidence Code section 782. A reversal of the conviction is not warranted because a rational tactical purpose exists for defense counsel's omission. (See People v. Fosselman, supra, 33 Cal.3d at p. 581.)

We presume defense counsel's conduct fell within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) Based on this record, we cannot say there is no satisfactory explanation for defense counsel's action. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) As such, we will not reverse the conviction because the record does not affirmatively disclose that defense counsel had no rational tactical purpose for his alleged omission. (People v. Fosselman, supra, 33 Cal.3d at p. 581.) Thus, appellant has not met his burden of showing deficient performance. (Strickland, supra, 466 U.S. at p. 687; People v. Lucas, supra, 12 Cal.4th at p. 436.) Accordingly, this claim fails. In any event, we also determine that appellant has failed to establish prejudice.

2. Appellant cannot establish prejudice.

"Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.)

Here, even if defense counsel had brought the CART interview to the trial court's attention, there is no reasonable probability the court would have ordered a hearing pursuant to Evidence Code section 782. Appellant's offer of proof lacked specificity. M.C.'s statements during the CART interview appeared truthful that she had never suffered abuse from anyone other than appellant. Nothing in this record reasonably suggests that M.C. may have lied about prior sexual abuse.

Moreover, the trial evidence overwhelmingly established appellant's guilt. We reject appellant's arguments that M.C.'s testimony lacked credibility because of her inconsistent statements or her animosity towards him. It was the jury's exclusive domain to determine the facts submitted to them and judge witness credibility. (§ 1127.) Based on the verdicts rendered, it is clear the jury believed her.

Based on this record, there is no reasonable probability the result of appellant's trial would have been different but for defense counsel's alleged error. Confidence in the outcome of this trial is not undermined. (People v. Williams, supra, 16 Cal.4th at p. 215.) As such, appellant has failed to establish the required prejudice. (Strickland, supra, 466 U.S. at p. 687; People v. Lucas, supra, 12 Cal.4th at p. 436.) Accordingly, ineffective assistance of counsel is not present and this claim fails.

III. Any Presumed Error From The Flight Instruction Was Harmless.

Appellant claims the trial court committed prejudicial error when it instructed the jury on flight. Pursuant to CALCRIM No. 372, the trial court instructed the jury as follows:

"If you find that [appellant] fled after he was accused of committing the crime, that conduct may show that he was aware of his guilt. [¶] If you conclude that [appellant] fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that [appellant] fled cannot prove guilt by itself."

This instruction was prompted by the officers' attempt to contact appellant at his place of employment, and appellant's subsequent departure from that area.

The parties dispute whether the trial court properly gave this instruction. The parties also dispute the appropriate standard of review to analyze any presumed error. We need not, however, resolve the parties' various disputes. Instead, even if we presume that the trial court should not have given a flight instruction, we can declare beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

As noted before, the trial evidence overwhelmingly established appellant's guilt for the charged offenses. Moreover, the prosecutor did not rely on the flight instruction to establish appellant's guilt. Instead, during closing arguments, the prosecutor repeatedly focused on appellant's admissions and M.C.'s testimony. At no time, either in closing arguments or rebuttal, did the prosecutor mention the flight instruction or this evidence. This evidence and instruction were unimportant in relation to everything else the jury considered regarding appellant's guilt. (See People v. Edwards (2013) 57 Cal.4th 658, 773.)

Further, the flight instruction cautioned the jurors that, if they concluded that appellant fled, evidence of his flight could not prove guilt by itself. The instruction limited the jury's use of this evidence. Thus, appellant was given some protection against the jury misusing this evidence to find him guilty. (See People v. Henderson (2003) 110 Cal.App.4th 737, 742 [noting that the predecessor CALJIC instruction "serves the dual purpose of permitting an inference of guilt, but at the same time provides the defendant with some protection against misuse of such evidence"].) We presume the jury followed the court's limiting instruction, and there is nothing in this record to rebut that presumption. (People v. Waidla (2000) 22 Cal.4th 690, 725.)

Based on this record, the evidence of appellant's flight and the instruction under CALCRIM No. 372 were unimportant in relation to everything else the jury considered regarding appellant's guilt. (See People v. Edwards, supra, 57 Cal.4th at p. 773.) The verdict actually rendered in this trial was surely unattributable to this presumed error. (Ibid.) As such, we can declare that the trial court's presumed instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present and this claim fails.

IV. Any Presumed Error In Permitting Sanchez's Trial Testimony Regarding The Surveillance Video Was Harmless.

At trial, detective Sanchez recounted what she saw in the employer's surveillance video after appellant was seen running away.¹³ Appellant claims that the trial court committed prejudicial error when it permitted Sanchez to testify regarding the contents of this video. He contends her testimony lacked foundation, was based on hearsay, and it violated the secondary evidence rule. He asserts this testimony was prejudicial.

13 Defense counsel objected to Sanchez's testimony based on "foundation and hearsay" regarding what she saw in the surveillance video. After confirming with Sanchez that she had observed the video and had recognized appellant from his picture, the trial court overruled those objections.

In contrast, respondent argues the trial court did not err in permitting Sanchez's testimony because she recounted her personal observations, the video was not hearsay, and the secondary evidence rule was not implicated because the video was not introduced into evidence. Respondent further contends any presumed error was harmless.

Based on this record, and similar to the issue that we resolved above, we need not address the parties' disputed contentions. Instead, Sanchez's descriptions of the surveillance video was unimportant in relation to everything else the jury considered regarding appellant's guilt. (See People v. Edwards, supra, 57 Cal.4th at p. 773.) The verdict actually rendered in this trial was surely unattributable to this presumed error. (Ibid.) As such, we can declare that any presumed error in permitting this testimony was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present and this claim fails.

V. Appellant Was Not Denied Ineffective Assistance Of Counsel When Christina Briefly Mentioned Appellant's Release From Jail And Any Presumed Error Is Harmless.

Appellant argues that he was denied effective assistance of counsel when Christina gave the following trial testimony.

On direct examination, Christina said that appellant was her ex-boyfriend and they had been in a four-year relationship together. M.C. had been around six years old when they started dating. On cross-examination, the following exchange occurred between defense counsel and Christina:

"Q. Okay. When exactly did you date [appellant]?

"A. I don't recall the year when I first started dating him.

"Q. You were dating him for—

"A. But I believe it was after—probably, like, a few months after he came out of jail.

"Q. When was this?

"A. I don't recall the year." (Emphasis added.)

Appellant argues his trial counsel did not object to Christina's "irrelevant" and "nonresponsive" testimony that he had spent time in jail. He further asserts his counsel failed to strike this testimony or seek a limiting instruction. He contends this establishes ineffective assistance of counsel. We disagree. Defense counsel's omissions were neither deficient nor prejudicial.

A. Appellant cannot establish deficient performance.

As noted earlier, an appellate court is to defer to counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) Our Supreme Court has repeatedly stated that if the appellate record sheds no light on why defense counsel acted or failed to act in the challenged manner, an ineffective assistance claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there can be no satisfactory explanation. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Kelly, supra, 1 Cal.4th at p. 520.)

Here, we presume that defense counsel's conduct fell within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) Appellant's trial counsel was not asked for an explanation regarding his failure to object to Christina's testimony and/or in seeking a limiting instruction. Because the record does not reveal why defense counsel elected not to challenge this testimony, appellant's claim on direct appeal must fail. (See People v. Mitcham, supra, 1 Cal.4th at p. 1059 [rejecting ineffective assistance claim because record did not reveal why defense counsel failed to present a defense].)

Moreover, a defense attorney's failure to impeach a witness or to object to evidence is usually a tactical decision and seldom establishes incompetence. (People v. Barnett (1998) 17 Cal.4th 1044, 1140.) Our Supreme Court has noted that, in the heat of a trial, defense counsel is in the best position to determine proper tactics in the light of the jury's apparent reaction to the proceedings. (Ibid.) Except in rare cases, an appellate court should not second-guess trial counsel. (Ibid.) A conviction should be reversed "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman, supra, 33 Cal.3d at p. 581.)

Here, this record does not affirmatively disclose that defense counsel had no rational tactical reason for failing to challenge this testimony. Defense counsel could have reasonably determined that calling the jury's attention to Christina's testimony would have done more harm than good. Indeed, highlighting this evidence would have emphasized that appellant had spent time in jail. Defense counsel was in the best position to determine the proper tactics and incompetence is seldom established from a failure to object to evidence. (People v. Barnett, supra, 17 Cal.4th at p. 1140.) As such, we reject the claim that defense counsel was incompetent for failing to challenge this testimony. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1053 [a reasonable attorney may tactically conclude that the risk of a limiting instruction outweighs the questionable benefits it would provide]; accord People v. Maury (2003) 30 Cal.4th 342, 394 [defense counsel may tactically decide not to request a limiting instruction].)

Based on this record, appellant has not met his burden of showing his counsel's performance fell below of an objective standard of reasonable competence. As such, ineffective assistance of counsel has not been established. Accordingly, appellant has failed to meet his burden of proof and this claim fails. (People v. Lucas, supra, 12 Cal.4th at p. 436.) In any event, appellant has also failed to establish the required prejudice.

B. Appellant cannot show the required prejudice.

"Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 215.)

Here, the trial evidence overwhelmingly established appellant's guilt for the charged offenses. It is not reasonably probable the jury convicted appellant of sexual intercourse with M.C. because Christina briefly mentioned in passing that he was once in jail. It is also not reasonably probable the result of appellant's trial would have been different had defense counsel objected to Christina's testimony, struck her testimony, and/or sought a limiting instruction.

Based on this record, confidence in the outcome of this trial is not undermined. (People v. Williams, supra, 16 Cal.4th at p. 215.) As such, appellant has failed to establish the required prejudice. (Strickland, supra, 466 U.S. at p. 687; People v. Lucas, supra, 12 Cal.4th at p. 436.) Accordingly, ineffective assistance of counsel is not present and this claim fails.

VI. The Trial Court Did Not Commit Instructional Error Regarding Lesser Included Offenses.

Appellant claims the trial court committed instructional error regarding lesser included offenses. He maintains the court informed the jury it could not consider lesser included offenses unless it had first acquitted him of the greater charges.

A. Background.

Using CALCRIM No. 3517, the trial court provided the following instruction to the jury on "how to approach the subject of lesser included offenses." The court's instruction substantially mirrored the standard language appearing in CALCRIM No. 3517. The court, however, added additional language, which we italicize:

"If all of you find [appellant] not guilty of the greater crime, then you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that [appellant] is guilty of a lesser crime. A defendant cannot be convicted of both the greater crime and lesser crimes.

"That make sense? So the way you approach this is that -- well, I'll get to that in a second."

The court explained and went through the crimes affected by this instruction. The court then provided the following additional instruction in substantial conformity with CALCRIM No. 3517, with superfluous comments again in italics:

"It is up to you to decide the order in which you consider each crime and relevant evidence, but I can accept a verdict of guilty only on the lesser if you have found [appellant] not guilty of the greater. So you don't even get to the lessers unless you find [appellant] not guilty of the greaters. That make sense? Okay.

"For the counts in which greater and lesser offenses are charged, you will see verdict forms for guilty and not guilty for the greater crime and also guilty and not guilty for the lesser crimes.

"Follow these instructions before you give me completed signed final verdict forms.

"One, if all of you agree that the People have proved [appellant] is guilty of the greater crime, complete and sign the verdict form guilty for that crime, and then don't complete or sign any other verdict forms for the lesser offenses for that offense.

"If all of you cannot agree whether the People have proved [appellant] guilty of the greater crime, basically a hung jury, then don't sign any verdict forms on that count.

"If all of you agree that the People have not proved [appellant] is guilty of the greater crime and you all agree, though, that the People have proved that he is guilty of a lesser crime, then you fill in the verdict form not guilty for the greater crime and the verdict form guilty for the lesser crime.

"If all of you agree that the People have not proved [appellant] is guilty of the greater crime or the lesser crime, complete and sign the verdict forms not guilty for the greater crime, not guilty for the lesser crime.

"If all of you agree that the People have not proved [appellant] is guilty of the greater crime but cannot agree on a verdict for the lesser crime, complete and sign the verdict form guilty -- not guilty for the greater crime. Then don't sign any other verdict forms."

B. Standard of review.

Instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570; People v. Jandres (2014) 226 Cal.App.4th 340, 358.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly, supra, 1 Cal.4th at pp. 525-526.)

C. Analysis.

Appellant claims that the trial court's superfluous language "effectively" informed the jurors that they should not consider the lesser offenses unless they first acquitted him of the greater charges. Relying on People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman), appellant correctly notes a trial court may not control the sequence in which the jury considers the greater and lesser charged offenses. Appellant argues that the trial court violated Kurtzman and directed the jurors on how it should consider the offenses. We disagree.¹⁴

14 The parties dispute whether appellant forfeited this claim in failing to object below. We need not, however, resolve this dispute. Even if we find no forfeiture, appellant's claim fails on its merits.

"When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We must determine whether it is reasonably likely the jurors understood the court's instruction as appellant argues. (People v. Nem (2003) 114 Cal.App.4th 160, 165.)

In appellant's cited opinion, Kurtzman, supra, 46 Cal.3d 322, our Supreme Court held that a jury must acquit in a greater offense before returning a verdict on any lesser included offense. (Kurtzman, supra, 46 Cal.3d at p. 330.) However, jurors may commence deliberations in any order they wish, including considering the lesser offenses first or beginning with the greater offenses. (Ibid.) Kurtzman found error when the trial court had instructed the jury "not to 'deliberate on' or 'consider'" a lesser charge of voluntary manslaughter "unless and until it had unanimously agreed on" the greater charge of second degree murder. (Id. at p. 335.)

Here, in contrast to Kurtzman, the trial court's verbal instructions made it clear that the jury was free to control the sequence in which it considered the greater and lesser charged offenses. Indeed, the court stated it was "up to you to decide the order in which you consider each crime and relevant evidence[.]" Further, the court's verbal instruction correctly informed the jury that it could not return a guilty verdict on a lesser included offense unless it had found appellant not guilty of the greater offense. (People v. Fields (1996) 13 Cal.4th 289, 310 ["when the jury returns a verdict on the lesser included offense, it must also render a corresponding verdict of acquittal on the greater offense"].) After correctly explaining that the jury could not submit a verdict of guilty on a lesser charge without finding him not guilty of the greater, the trial court stated, "So you don't even get to the lessers unless you find [appellant] not guilty of the greaters. That make sense? Okay."

The court's additional comments did not tell the jurors how to conduct their deliberations. Instead, these comments were reasonably directed at how the jurors were to complete the verdict forms. We presume the jurors were able to understand and apply the court's instructions. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) In light of the trial court's complete instructions, we do not find it reasonably likely the jurors did not understand that they were free to control the sequence in which they deliberated.

Moreover, the court provided the jurors with written copies of the instructions. Pursuant to CALCRIM No. 200, the jury was told to consider "the final version of the instructions in your deliberations." The written form of CALCRIM No. 3517, which was provided to the jurors, informed them they could decide the order they wanted to consider the charges.

"It is generally presumed that the jury was guided by the written instructions. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 542.) The written version of jury instructions governs any conflict with oral instructions. (People v. Osband (1996) 13 Cal.4th 622, 717.) "Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. [Citations.]" (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113; see also People v. Osband, supra, 13 Cal.4th at p. 717 [a federal constitutional violation is not present when the jury is given the written instructions].)

Finally, during closing arguments, the prosecutor referenced CALCRIM No. 3517 without conflicting with the trial court's instructions. The prosecutor told the jurors they would get a packet of verdict forms for all 14 counts. The prosecutor asked the jury to find appellant guilty in each of the greater charges. The prosecutor showed the jury the guilty verdict in count 1. "And when you write guilty on this line and you write true, you don't even have to flip to the next page. You don't even have to consider the lesser included offenses, because the evidence that you have been shown during this trial is proving beyond a reasonable doubt that he's guilty of these crimes and so much more that he's not charged with."

Based on this record, the jury was properly instructed that it could determine how to analyze the charges and evidence. The jury was properly instructed it could not return a guilty verdict on a lesser included offense unless it had found appellant not guilty of the greater offense. (See People v. Fields, supra, 13 Cal.4th at p. 310.) As such, we reject appellant's claim that the trial court's comments violated Kurtzman, supra, 46 Cal.3d 322.

When the challenged instruction is reviewed based on the entire record, it is not reasonably likely the jury applied the instruction in an impermissible manner. (People v. Houston, supra, 54 Cal.4th at p. 1229.) It is not reasonably likely the jurors understood that they could not control the order of their deliberations. Accordingly, instructional error is not present and this claim fails.

VII. The Trial Court Did Not Err In Modifying Appellant's Requested Pinpoint Instruction And Any Presumed Error Was Harmless.

Appellant argues the trial court committed prejudicial error when it failed to give a pinpoint instruction in its entirety as requested by the defense.

A. Background.

In his motions in limine, appellant requested a limiting instruction regarding Christina's pretextual call. Defense counsel believed that some of Christina's statements were fabricated to elicit appellant's admissions. The defense asked for an instruction informing the jurors they should not consider Christina's hearsay statements for their truth. During the hearing on this motion, the trial court said it was "happy to give a jury instruction" drafted by defense counsel.

The defense provided the following proposed instruction.

"The statement that you are about to hear is a pretext call between Christina [] and [appellant], made under the direction of Officer Saenz of the Visalia Police Department. The nature of a pretext call is that a witness (in this case, Christina []) attempts to induce another person (in this case, [appellant]) to make incriminating statements during a call being recorded without the other person's knowledge by making various true and/or untrue statements. Nothing said by Christina [] is to be taken as evidence that her statements are true. They are only admitted so that you may understand any statements made by [appellant] and the context of the conversation between him and Christina []." (Italics added.)

The prosecution provided its own proposed jury instruction on this issue.¹⁵ The trial court stated that it had reviewed both proposed instructions and decided to use appellant's version. The court, however, stated it would strike one sentence, the italicized portion of the requested instruction, but indicated it would give the remaining portion. Defense counsel raised no objection.

15 The People's proposed jury instruction does not appear in this record.

When the trial resumed, the court read to the jury the following modified version of the requested pinpoint instruction:

"The statement you are about to hear is a pretext phone call between Christina [] and [appellant], made under the direction of Officer Saenz of the Visalia Police Department.

"Nothing said by Christina [] is to be taken as evidence that her statement is true. This is only admitted so that you may understand any statements made by [appellant] in the context of the conversation between [appellant] and Christina []."

In providing this modified pinpoint instruction, the trial court omitted the italicized sentence, i.e., "The nature of a pretext call is that a witness (in this case, Christina []) attempts to induce another person (in this case, [appellant]) to make incriminating statements during a call being recorded without the other person's knowledge by making various true and/or untrue statements." (Italics added.)

After the trial court provided the modified pinpoint instruction, the jury heard a playback of Christina's pretextual call with appellant.

B. Standard of review.

We apply an independent or de novo standard of review for a claim pertaining to a jury instruction. (People v. Posey (2004) 32 Cal.4th 193, 218.)

C. Analysis.

Appellant contends that the modified instruction failed to inform the jury about the "manipulative aspects" of Christina's pretextual phone call. He argues the deleted language affected how the jury viewed the credibility of M.C.'s allegations, Christina's testimony, and his admissions. We disagree. The trial court did not err and any presumed error was harmless.¹⁶

16 The parties dispute whether or not appellant forfeited this issue in failing to preserve it below. We need not, however, address that issue because this claim fails on its merits. --------

1. The trial court did not err.

A trial court is required to give a pinpoint instruction only upon request, and then only when the proposed instruction correctly states the law, is not argumentative, does not duplicate other instructions, and is supported by substantial evidence. (People v. Moon (2005) 37 Cal.4th 1, 30; People v. Pollock (2004) 32 Cal.4th 1153, 1176.) A trial court can refuse to give a pinpoint instruction that highlights specific evidence as a defense theory. (People v. Hughes (2002) 27 Cal.4th 287, 361; accord People v. Earp (1999) 20 Cal.4th 826, 886.)

"In a proper instruction, '[what] is pinpointed is not specific evidence as such, but the theory of the defendant's case.' [Citation.]" (People v. Wright (1988) 45 Cal.3d 1126, 1137, original italics.) A pinpoint instruction may be properly refused if it invites the jury to draw inferences favorable to one party from specified items of evidence. (People v. Hughes, supra, 27 Cal.4th at p. 361; accord People v. Earp, supra, 20 Cal.4th at p. 886.) When a pinpoint instruction invites the jury to draw inferences favorable to one party from specified items of evidence, it is considered argumentative and should not be given. (People v. Hughes, supra, 27 Cal.4th at p. 361; People v. Earp, supra, 20 Cal.4th at p. 886.)

Here, the omitted sentence did more than merely attempt to highlight a defense theory. It was argumentative. The deleted sentence attempted to highlight the pretextual call as manipulative. This instruction invited the jury to draw inferences favorable to appellant. As such, the trial court properly modified appellant's proposed pinpoint instruction. (See People v. Hughes, supra, 27 Cal.4th at p. 361; People v. Earp, supra, 20 Cal.4th at p. 886.) Thus, the trial court did not err and this claim fails. In any event, we also find that any presumed error was harmless.

2. Any presumed error was harmless.

Appellant contends the appropriate standard of review for prejudice should occur under Chapman, supra, 386 U.S. at p. 24. We disagree. Our Supreme Court has used the standard enunciated in Watson, supra, 46 Cal.2d 818, when examining the trial court's failure to give a requested pinpoint instruction. In such a situation, the error is prejudicial only if it is reasonably probable such an instruction would have resulted in a more favorable defense verdict. (People v. Hughes, supra, 27 Cal.4th at p. 363.) Nevertheless, even though Watson provides the appropriate standard of review, we can declare that any presumed error here was harmless beyond a reasonable doubt.

The trial court instructed the jurors that nothing Christina said was to be taken as evidence that her statements were true. Her statements during this phone call were admitted "so that you may understand any statements made by [appellant] and the context of the conversation between him and Christina []." As such, the jury was instructed not to give any weight to Christina's statements during the pretextual phone call with appellant. We presume the jurors followed the court's instruction and only used her statements to understand the context of the conversation. (See People v. Gonzales, supra, 51 Cal.4th at p. 940 [jurors are presumed intelligent and capable of understanding and applying the court's instructions].)

Moreover, detective Saenz informed the jury that a pretextual phone call was an "investigative technique" wherein a witness calls a suspect and the call is recorded. Police listen to the conversation as it occurs. The witness speaks "normally" to the suspect about the incident in the hopes the suspect will make admissions. From this testimony, the jury learned about pretextual calls, their purpose, and how they worked. The jury was certainly aware that Christina lied to appellant about why she had called him, and she lied that the call was not being recorded. The jury was certainly aware that police were using this phone call in an effort to obtain evidence against appellant.

Based on this record, any presumed error in striking this proposed sentence was harmless. It is beyond a reasonable doubt that the outcome of this trial was not affected by the trial court's modification of this pinpoint jury instruction. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present under either standard of review and this claim fails.

VIII. The Trial Court Had Sufficient Evidence To Deny Appellant's Posttrial Motion For Acquittal And Any Presumed Error Was Harmless.

At the conclusion of the prosecution's case-in-chief, the defense filed a motion pursuant to section 1118.1 for judgment of acquittal in counts 6, 8, 13 and 14. Counts 6 and 8 alleged sexual intercourse with a child 10 years of age or younger by a person 18 years of age or older (§ 288.7, subd. (a)). Counts 13 and 14 alleged oral copulation with a child 10 years of age or younger by a person 18 years of age or older (§ 288.7, subd. (b)). At the hearing, defense counsel generally argued that the trial evidence did not establish appellant's repeated behavior sufficient to find him guilty of these counts.

After a discussion with counsel, the trial court summarily ruled that sufficient evidence existed to let the jury decide all 14 counts. The court moved on to address proposed jury instructions, which the parties discussed. The prosecutor then asked to reopen the People's case to allow a detective to testify about appellant's date of birth. The trial court indicated it would allow the prosecution to reopen its case, which prompted a defense objection. The defense eventually stipulated to appellant's date of birth because the court indicated it would allow this evidence. It was stipulated that appellant's birthday was November 24, 1973.

In the present appeal, appellant asserts the trial court erred in denying his motion for acquittal pursuant to section 1118.1. He argues no evidence was presented regarding his age before the trial court denied this motion. As such, he seeks reversal of his convictions in counts 5 through 14. These counts involve his seven convictions of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); counts 5-11) and his three convictions of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b); counts 12-14).

A. Standard of review.

On appeal, we independently review the trial court's ruling under section 1118.1. (People v. Whalen (2013) 56 Cal.4th 1, 55.) The issue is whether the evidence was sufficient to support a conviction. (Ibid.) The sufficiency of the evidence in support of the motion for acquittal is tested as it stood at that point following the close of the prosecution's case-in-chief. (Ibid.) A trial court applies the same standard in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 as when an appellate court reviews the sufficiency of the evidence to support a conviction. (People v. Whalen, supra, at p. 55.) There must be substantial evidence showing the existence of the elements of the charged offense. (Ibid.)

B. Analysis.

We disagree with appellant's contention that substantial evidence, at the time of the court's ruling, did not establish he was at least 18 years old when he committed these crimes. The trial court did not err and any presumed error was harmless.

1. The trial court had substantial evidence to deny the motion.

Substantial evidence includes all reasonable inferences to be drawn from the evidence. (People v. Whalen, supra, 56 Cal.4th at p. 55.) "Substantial evidence is defined as 'evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citations.]" (Ibid.)

Here, the trial court could have found beyond a reasonable doubt that appellant was at least 18 years old when he committed these crimes. At the start of Christina's pretextual phone call with appellant, detective Saenz stated in the recording that appellant was born in 1973. Further, M.C. referred to appellant as her stepdad during her CART interview. She was born in 2004 and she was 12 years old at the time of trial. At trial, she believed appellant began touching her when she was seven years old. He last touched her when she was 10 years old.

Christina, who was 39 years old at the time of trial, had been in a romantic relationship with appellant "off and on" for more than four years. M.C. had been about six years old when Christina began dating appellant. She stopped dating him around January 2015 when she suspected that appellant had abused M.C.

Based on this record, and the reasonable inferences to be drawn from the evidence, appellant was at least 18 years old when these crimes occurred. (See People v. Whalen, supra, 56 Cal.4th at p. 55 [substantial evidence includes all reasonable inferences to be drawn from the evidence].) This evidence was reasonable, credible, and of solid value. As such, a reasonable trier of fact could have found appellant guilty beyond a reasonable doubt. (Ibid.) Accordingly, we find no error in the trial court's ruling and we reject this claim. In any event, we find any presumed error harmless.

2. Any presumed error was harmless.

A trial court may permit either party to reopen its case for good cause when required by justice. (People v. Riley (2010) 185 Cal.App.4th 754, 766.) A motion for judgment of acquittal pursuant to section 1118.1 does not take away the trial court's discretion in this regard. "The purpose of section 1118.1 is to provide a procedure by which a defendant may promptly terminate a fatally deficient prosecution, not to provide the defendant with a tactical trap when the prosecution inadvertently fails to present evidence in its possession." (People v. Riley, supra, 185 Cal.App.4th at p. 766.) When a prosecutor inadvertently fails to present evidence in the prosecution's possession, a motion for judgment of acquittal pursuant to section 1118.1 does not prohibit a trial court from permitting either party to reopen the case. (People v. Riley, supra, at p. 766.)

Here, if the issue of appellant's age had been in doubt when ruling on the motion for acquittal, it is beyond a reasonable doubt that the trial court would have permitted the prosecutor to correct that oversight. Appellant could not use his motion as a "tactical trap" to force the trial court to rule if the prosecutor had inadvertently omitted known evidence. (People v. Riley, supra, 185 Cal.App.4th at p. 766.) Indeed, after denying the motion for acquittal, the prosecutor was granted leave to reopen the case to admit the date of appellant's birth.

Based on this record, we can declare beyond a reasonable doubt that any presumed error in the trial court's ruling was harmless. It is beyond a reasonable doubt that the outcome of appellant's verdicts would not have been affected. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present and we reject this claim.

DISPOSITION

The judgment is affirmed.

/s/_________

LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.