Opinion
D073429
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT GEORGE WILLIAMS, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1207153) APPEAL from an order of the Superior Court of Riverside County, Stephen J. Gallon, Judge. Affirmed in part; and remanded with instructions. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
In June 2014, the Riverside County District Attorney filed a third amended information charging defendant Albert George Williams with sexual penetration of a minor 10 years or younger (Pen. Code, § 288.7, subd. (b), count 1); oral copulation of a minor 10 years or younger (ibid., count 2); nine counts of committing a lewd act with a child under the age of 14 years (former § 288, subd. (a) (hereinafter, section 288a), counts 3 & 5-12); and dissuading a witness from reporting a crime to law enforcement by force and threats (§ 136.1, subd. (c)(1), count 4). As to counts 3 and 5-12, it was further alleged that defendant committed a qualifying one-strike sex offense against more than one victim. (Former § 667.61, subds. (b) & (c).) A jury convicted defendant on all counts and found the enhancements true, except with respect to count 3. The court sentenced defendant to 161 years to life.
All further statutory references are to the Penal Code unless otherwise noted.
Section 288 was amended effective January 1, 2019. (Stats. 2018, ch. 70 (Assem. Bill No. 1934), § 2, eff. Jan. 1, 2019.) The amendment has no substantive bearing on the issues in this case.
Section 667.61 was amended effective January 1, 2019. (Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 68, eff. Jan. 1, 2019.) This amendment also has no substantive bearing on this issues in this case.
Defendant appealed, and this court reversed the judgment in People v. Williams (Dec. 13, 2016, D069667) [nonpub. opn.]; (hereinafter, Williams I). We concluded in Williams I that the court committed prejudicial error when it admitted evidence of two other sex crimes charged against defendant, but refused defendant's request to take judicial notice of the dispositions of those crimes, which were favorable to defendant. (Williams I, at pp. *8-10.) We further concluded in Williams I that the prosecutor compounded the error by arguing the jury in one of those cases was "unable to come to a verdict," and thus "took advantage of the trial court's . . . error and gave the jury [in Williams I] a false impression of the prior offense evidence." (Id. at p. *19.)
We granted defendant's request to take judicial notice of the record in Williams I.
Defendant was retried in 2017 on the same counts and enhancements as in Williams I. The jury in the instant case found defendant guilty of counts 1, 3, and 5-12; found true the enhancements as to counts 3 and 5-12; and hung on counts 2 and 4, which were subsequently dismissed. After finding sentencing error in Williams I, the court in the instant case resentenced defendant to prison for the indeterminate term of 200 years to life.
On appeal, defendant contends—as he did in Williams I—that the court abused its discretion by admitting the prior crimes evidence. He also contends that the prosecutor committed error by arguing facts not in evidence and misstating the law; that other evidentiary and instructional errors contributed to deny him due process of law; and that the court erred in sentencing him on count 3, and in imposing certain fines, fees, and assessments without a finding of ability to pay such.
As we explain, we agree the court erred in imposing sentence on count 3. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL OVERVIEW
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Counts 1-4 (A.G.)
Defendant taught martial arts classes out of his garage to neighborhood children in Lake Elsinore. On November 3, 2012, victim A.G. and her two younger siblings went to defendant's afternoon class. A.G.'s family lived a few houses away from defendant. Because defendant was an instructor and had studied a great deal in martial arts, his students and their parents tended to show him a great deal of trust and respect, even sometimes referring to him as "master."
At the conclusion of the November 3 class, defendant asked to speak with A.G.'s father, Jose G., who was there to pick up his children. Jose described the conversation as "odd" because it was "totally off the subject" and "indirectly . . . threatening." When asked to explain, Jose testified: "Well, [defendant] was telling me that . . . his daughter loved him and what his daughter would do for him. Or his granddaughter. And also he told me of his past, that he was a member of the Hoover Crips Mafia and that he knew people. And, you know . . . I just said okay. I mean, we all have . . . a past. But, you know . . . I don't know why I need to know this."
During this same conversation, defendant also talked about "snitches," which Jose understood to mean there was a "creed" in defendant's martial arts school. Jose testified that he also had heard defendant at other times talk to the students—including A.G. and her siblings—about "snitching," and how defendant did not tolerate it. Jose further testified he had no idea why defendant specifically approached him on November 3 to make these points.
As defendant and Jose continued to talk, one of A.G.'s siblings returned to defendant's home with a note from A.G.'s mother, Kathleen G., stating Jose "need[ed] to come home right away." Once home, Jose found A.G. crying to her mother. Kathleen then disclosed what defendant had allegedly done to their daughter (discussed post), leading Jose to call the police immediately. Jose testified he then understood the context of the conversation he had just had with defendant, which Jose interpreted as a threat to him and his family.
Kathleen testified she was making dinner on November 3 when A.G. and her siblings returned from defendant's class. According to Kathleen, A.G. appeared "upset" and "withdrawn," and immediately went into the bathroom, while A.G.'s siblings seemed "fine." Once out of the bathroom, Kathleen asked A.G. what was wrong. A.G. then disclosed that defendant had "touched [her] inappropriately."
A.G. testified she had just turned 10 years old when she began attending defendant's martial arts classes. A.G. and her siblings took his classes for about six weeks. Because defendant lived nearby, A.G. and her siblings walked to the classes, which were usually attended by about six students.
A.G. was 15 years old when she testified at defendant's retrial in November 2017.
Although they typically wore "uniforms" to the classes, on the day of the incident A.G. wore "comfortable clothing" because she was preparing for a tournament the following day. A.G. testified while stretching, defendant "came to [her] [and] ... pull[ed] aside [her] shorts and [her] underwear, and he . . . st[u]ck his finger in [her] private area."
According to A.G., during this same class defendant also orally copulated her. A.G. described this additional incident to the jury as follows: "He took me into the bedroom, and he told me to sit on the bed and put my legs into the splits. And then after I was sitting on the bed, he got on his knees and started licking my private area." When asked whether that touching was over clothing or skin-to-skin, A.G. testified: "It was—he pulled aside my underwear and my shorts and he was licking my private area."
A.G. was interviewed the day after the incident. That interview was recorded, transcribed, and portions of it were played for the jury. The transcript of the interview was included in the record.
The record shows counsel stipulated that the transcript was "substantially accurate as far as what [was] contained on . . . the video recording."
In the interview, A.G. first discussed the bedroom incident, stating: "We were just—doing martial arts . . . and then master told me, okay who wants to help. He asked everybody who wants to help . . . 'cause he was going to show some videos . . . . [S]o I raised my hand. He called and then . . . took me to his bedroom and he told me okay um, stretch and he pulled my pants and I was just wearing like soccer shorts he tried poking my private area. And I just wanted to stop um, it doesn't feel right and then he just came closer and said, 'Oh this doesn't feel right?' And then, um, he—and then he started saying like, okay only one time and I heard him like unbutton his pants—unzip his pants so I um, just closed my eyes. And then he said—he started saying like, 'Oh don't cry, don't cry.' And then he . . . zippered back his pants and he just told like then he told me, 'Oh so I thought you were mine. Good thing you don't have any bumps.' " (Italics added.)
On follow-up questioning, A.G. told the interviewer that the first time defendant touched her "private area" skin-to-skin was November 3, or the day before the interview; that after she volunteered to help him set up the "computer room" to show the class a video, defendant told her to lie on his bed and stretch; that although "scared," she complied, saw defendant kneel down on the floor, felt defendant pull her soccer shorts and underwear to the side, and then he used his "tongue" to "lick[] [her] private area" in the "middle"; that defendant started "moaning" as he licked her vagina for about 20 or 30 seconds, before she demanded he stop, as it did not "feel correct" and she felt "violat[ed]"; that defendant in response said, "okay I'll do this one time," while she heard what sounded like a zipping noise; and that, when she began to cry, defendant finally stopped. A.G. told the interviewer she got up from the bed and ran downstairs.
A.G. also described for the interviewer the touching during stretching. Defendant told A.G. to close her eyes and look away, and "then he kept sticking his finger in [her] private area and touching." More specifically, as A.G. sat on the mat with her legs spread, she felt "like a finger go inside and kept pushing the middle," skin-on-skin. A.G. stated defendant touched her vagina about four times during stretching, and it "hurt." A.G. knew it was defendant who was touching her vagina because "it was like a big finger not like a kid's finger," and all the other students were stretching on the mats.
A.G. also told the interviewer that defendant talked about "snitches" both during and at the end of the November 3 class. A.G. believed defendant did so as "cover" for what he had done to her, as defendant stared at her and, per A.G., "his eyes would be like don't you tell, don't you do this." A.G. noted that defendant often talked to the students about snitches.
A.G.'s younger brother, J.H., confirmed the testimony of his sister that defendant often spoke to the class about "snitching," and how a snitch would get "beat up and like shot and stuff." Other students of defendant corroborated this testimony, stating defendant often would say, "snitches get stitches."
During the November 3 class, defendant also talked about his son, who lived a few houses down from defendant's home, and his other relatives. Defendant told the class his son and other family members were in a gang, cared for him "a lot," and "they hate[d] snitches." Defendant also told the class about a boy who had snitched, and how the "whole family[,] the dad, the sisters, the brother and mother" had been "killed." Although defendant made these comments to the class, A.G. believed they were directed at her because he wanted to "scare [her] so [she] wouldn't tell."
A.G. told the interviewer she believed her family was in "danger" and should not be staying in the house because of defendant's threats about how "snitches['] families get killed." A.G. wanted to leave the class immediately after returning from defendant's bedroom, and even considered sneaking out the front door while the class was watching a video.
After returning home, A.G. told her mother what defendant had done. A.G. stated: " 'I knew that he did it and it just didn't—he didn't deserve to be like . . . a secret. I had to tell because . . . he did that and it wasn't correct and . . . it had to have a consequence.' " Later that night after police were called, A.G. went to the hospital for "some tests." A.G. disclosed that prior to the November 3 incident, defendant once or twice had rubbed her "private area" over clothes, but had "caught himself" and stopped.
Fingernail scrapings taken from defendant after his arrest were subjected to DNA analysis. The results showed two contributors, with defendant the major contributor and A.G. the minor contributor. The "minor evidence profile [was] . . . estimated to occur at random among unrelated individuals in approximately one in 43 trillion African-Americans, one in 1.8 trillion Caucasians, and one in 7.2 trillion Hispanics.
Counts 5-8 (C.H.)
C.H. and her family lived about five houses away from defendant. C.H. began taking defendant's martial arts classes when she was about 10 years old, and continued taking his classes for about two years. C.H. and her younger brother J. took the classes together, which defendant held in his garage. C.H. estimated they went to the classes about three times a week. Although C.H.'s parents watched the children walk to and from defendant's home, they did not attend the classes. Typically, there were about six or eight students in the class, and C.H. knew most of them because they all lived in the neighborhood.
C.H. was 17 years old when she testified at defendant's retrial.
C.H. testified that during stretching, defendant "touched" her "down below and [her] chest area." According to C.H., defendant helped other students stretch by "push[ing their] legs"; but when he came to her, "he wouldn't push [her] legs; he would touch [her] private part." C.H. disclosed that defendant used his foot and hands to touch her "private area"; that by "private area," she meant her vagina; that the touching by defendant was over clothes; and that defendant would continue to touch her vagina until she pulled away from him.
C.H. also disclosed that during stretching, defendant came behind her and touched her breasts. C.H. estimated defendant touched her breasts "[e]very time" they stretched, as long as no parents were in attendance. C.H. noted other students may not have seen the touching because defendant always told them to keep their eyes closed when stretching, and "punished" them if they did not follow his instructions.
C.H. explained that, although defendant's touching made her feel uncomfortable and scared, she did not speak up because defendant "at least once a week" talked about "snitches and stuff," saying "snitches get stitches." Defendant also gave the class examples of what would happen if they snitched, one time telling students that a "girl got X's carved in her face and stuff" because she had snitched. C.H. thus decided not to disclose the inappropriate touching by defendant because she did not want "X's all over [her] face."
C.H. described another incident when defendant pulled her and another female student aside and said, "he would teach [them about] sex or something, like, to little kids just so they know what it is or something." C.H. recalled this conversation made her "[u]ncomfortable."
C.H. was in seventh grade when defendant was arrested for the offenses against A.G. After his arrest, C.H. told her mother about the touching, which she estimated took place about 400 or 500 times, as it happened every week she was enrolled in defendant's classes over about a two-year period. C.H. also spoke to another female student of defendant's, L.H., who told C.H. that defendant also had been inappropriately touching her in the same way as he touched C.H.
Counts 9-12 (L.H.)
L.H. began taking martial arts classes from defendant when she was about 11 years old. Like A.G. and C.H., L.H.'s family lived in the same neighborhood as defendant. L.H. attended the classes in defendant's garage a "couple times a week," working on "[s]tretching" and "techniques." L.H. recalled there were usually about six or seven students in the classes, both boys and girls, and they were all about the same age.
L.H. was 17 years old when she testified at defendant's retrial.
When stretching, defendant would have the students stand against the wall and would help students lift one leg and try and do the splits, or have the students sit down and would push their legs down on the floor. L.H. testified when defendant helped her stretch, he put his hands on her "butt" and in her "private area," which she explained was her vagina. L.H. stated the touching was over clothes, would typically last for about five seconds, and defendant would move his hand back and forth on her vagina. L.H. further stated the touching occurred when her eyes were closed, which defendant encouraged, and that none of the boys saw this happening because defendant purposely "put the boys in the front and the girls in the back." L.H. estimated defendant touched her in this manner in almost "[e]very practice," in "way more than 30 different classes," which made her feel "[h]elpless."
L.H. also reiterated that during class, defendant would talk about snitches and explain that he knew "gang members and that if somebody snitched they would get killed." As a result, L.H. was "scared" of defendant and felt "stuck."
L.H. testified she witnessed defendant during stretching inappropriately touching C.H., whom L.H. also knew from school. L.H. further testified defendant did the same things to C.H. that he was doing to her, including using his hands to touch C.H.'s vagina over her clothes.
L.H. testified she finally confronted defendant about the touching in the presence of another male student, telling defendant it made her uncomfortable and it had to stop. Defendant in response "proceeded to touch [her] butt in front of the boy," while (rhetorically) asking, "Oh, this makes you uncomfortable?"
Regarding the sex discussion testified to by C.H., L.H. recalled defendant made the male students go into his house and then talked to her and C.H. about sex. L.H. estimated the talk lasted about five minutes, after which defendant brought the boys back into the garage to continue the class.
The record shows before any witnesses testified to the prior crimes allegedly committed by defendant, the court read the jury a portion of former CALCRIM No. 1191 (now, CALCRIM No. 1191A, discussed post). The instruction provided that the jury could consider such evidence only if the People have proved by a preponderance of the evidence that defendant in fact committed the acts; that if the People did not make this showing, the jury had to disregard such evidence; that if the People made this showing, jurors "may, but [were] not required to conclude from that evidence that the defendant was exposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit and did commit the charged sexual offenses in this case"; and that, if jurors concluded defendant committed such acts, that conclusion was "only one factor to consider along with all the other evidence," and was not "sufficient by itself to prove that the defendant is guilty of the current charged offenses in this case," which charges must be "proved . . . beyond a reasonable doubt."
R.M. testified she was 47 years old. When growing up, she lived with her mother in Seattle, Washington, after her parents separated. R.M.'s mother ended up marrying defendant, who became her stepfather and who was in her life from about the time she was five until she was 12 years old. During the time defendant was married to R.M.'s mother, R.M. would stay in their house, except during summers when she would go and live with her father in Monrovia, California.
R.M. told the jury defendant began "molest[ing]" her when she was five years old, did so "multiple times a week," and continued to do so until she was about 11 or 12. R.M. testified: "he would try to put his penis in my vagina. He would put his penis in my mouth." Defendant also ejaculated on her. Most of the incidents took place in Washington, although others took place in Texas. R.M. said the inappropriate touching by defendant would take place when her mother was at work, or sometimes in the car when they were waiting for her mother. Defendant's touching made R.M. feel terrible and horrified, and was "very painful."
R.M. stated that defendant also tried to molest her after she and her mother moved back to California, when R.M. was 12 years old. R.M. testified defendant also returned to California and, because her "breasts were coming in," he "pulled [her] [in]to a room, and he tried to—he tried to touch [her] and [told her] to take [her] clothes off." It was then R.M. said "no" to defendant, and disclosed the touching to her mother. R.M. did not disclose the molestations sooner because defendant "scared" and threatened her, and because he told her she would be in "trouble" if she disclosed. Once R.M. disclosed, defendant was arrested and charged in a California court.
Defendant was neither charged in Washington nor Texas for allegedly molesting R.M. As discussed post, defendant was convicted in California for the nonsexual offense of child endangerment of R.M.
K.P. testified she was 36 years old at the time of trial. K.P. knew defendant through her mother, who was friends with defendant's wife. K.P. first met defendant when she was about four years old, and was around him until she was about 10. During this time period, defendant sometimes took care of K.P.
K.P. testified defendant began touching her vagina under her clothes when she was about four years old. At some point while defendant was molesting her, K.P. contracted genital herpes, leading "children's services" to come to her preschool, remove her from home, and place her in foster care, creating what K.P. described as a "big mess" for her mother. Eventually, K.P. was placed with her grandmother, while authorities attempted to determine how K.P. had contracted herpes at such a young age. According to K.P., she then did not disclose defendant had molested her.
K.P.'s family moved away for about three years, then returned and ended up moving right next door to defendant. K.P. then started taking karate classes from defendant. On those days, he would pick her up from school because K.P.'s mother was a single parent. K.P. estimated she took his classes about three-times a week. On many of these occasions, defendant touched K.P.'s vagina, including with his fingers, and attempted to have sexual intercourse with her.
Although defendant's touching made K.P. feel "[h]orrible," she testified she did not disclose because she was a "child," defendant warned her against disclosing, and she "watched [her] mom struggle to take care of [her], work two jobs and try to put [her] through private school." Years later, K.P finally disclosed defendant's inappropriate touching to her mother and to a friend of her mother's, who was like a "big sister" to K.P.
At the end of K.P.'s testimony, the court read the jury the following stipulation: "The defendant was previously charged with two violations of Penal Code Section 288(a), lewd act on a child under 14 years of age. The named victim was Jane Doe R.M. [¶] In January of 1982, the defendant plead no contest to a violation of Penal Code Section 273(a)(2), child endangerment, a non-sex offense. In return, the Penal Code Section 288(a) charges were dismissed.
"The defendant was also previously charged with a violation of Penal Code Section 288.5, continuous sexual abuse of a child under 14 years of age. The named victim was Jane Doe K.P. At trial, the defendant was acquitted of Penal Code section 288.5 and a violation of Penal Code Section 272, contributing to the delinquency of a minor. But the jury hung nine to three in favor of acquittal as to the lesser related offenses of Penal Code Section 288(a) and Penal Code Section 647.6, annoy or molest a child. After the trial, the court dismissed the counts on which the jury was unable to reach a unanimous verdict in October of 1994."
The record shows the defense called several witnesses, including defendant's former martial arts students and family members, to testify that defendant never touched them inappropriately. To the extent such evidence is relevant to the issues raised on appeal, it will be discussed post.
DISCUSSION
I
Prior Crimes Evidence
As was the case in Williams I, defendant argues the court erred in admitting under Evidence Code sections 1101 (hereinafter, 1101) and 1108, subdivision (a) (1108(a)) evidence that defendant engaged in prior sexual misconduct with R.M. and/or K.P.
A. Additional Background
The People moved in limine to admit the prior crimes evidence involving R.M. and K.P. Specifically, the People alleged that, after defendant's arrest on the instant offenses, the mother of K.P. reported defendant about 20 years earlier had allegedly molested her daughter over a period of years when her daughter was young. K.P.'s mother further reported that K.P. disclosed the molestations in 1993; that criminal charges were brought against defendant; and that during the investigation of those charges, defendant's former step-daughter, R.M., also disclosed and ultimately, testified in K.P.'s case, that she too had allegedly been molested by defendant when she was young. The People noted in Williams I this court "found that the trial court's decision to admit the prior victims' testimony was proper under . . . section 1108."
The defense argued that the court should exclude this testimony as remote, inasmuch as R.M.'s case originated in about 1979, and K.P.'s in about 1993; that with respect to R.M., defendant pleaded to a nonsexual misdemeanor offense, child cruelty, received two years of summary probation, and "just 30 days"; and that with respect to K.P., a Los Angeles jury had (allegedly) acquitted defendant of the section "288 offense" and another misdemeanor offense, and was split 9 to 3 in favor of acquittal on a misdemeanor child annoyance charge, which was later dismissed by the court in the interest of justice.
The defense also argued the two prior cases were dissimilar to the current offenses, which involved three victims who were all students of defendant's martial arts classes, and who were all around 10 to 12 years old. The defense further argued the two prior cases involved misconduct that was "much greater" than the conduct alleged in the instant case, which involved "some touching, mostly over the clothes, and briefly during stretches."
The People in response argued the prior cases were similar to the sexual misconduct charged in the instant case, as it was alleged defendant in those prior cases continued to engage in sexual misconduct with the victims as they became older, up to when they were about eight to 10 years old; that in the case of K.P., he allegedly molested her during his martial arts classes, which was consistent with the sexual misconduct alleged in the instant case; and that defendant in the instant case was charged with oral copulation and digital penetration of a child 10 years of age or younger (i.e., A.G.), and sexually touching two other victims, which were serious offenses and not unlike the sexual misconduct allegations involving the prior victims.
Finally, with regard to the alleged remoteness of the prior cases, the People argued that this court in Williams I recognized that even substantially remote crimes are admissible under section 1108(a) because the Legislature, in enacting this section, as opposed to Evidence Code section 1109 applicable to domestic violence, did not put a limit on the remoteness of acts occurring more than 10 years before the charged offenses. (See Evid. Code, § 1109, subd. (e) [providing evidence of acts occurring more than 10 years before the charged offense is inadmissible unless admission is warranted "in the interest of justice"].)
The trial court recognized this court's decision in Williams I with respect to the prior crimes evidence, but (correctly) noted it needed to make its "own independent discretionary evidentiary finding as to the admissibility of these two prior incidents." After hearing argument, considering the papers, the previous jury trial, and this court's opinion in Williams I, the trial court ruled to admit the prior crimes evidence.
In a detailed and lengthy analysis of the various factors addressed in the guiding case of People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the trial court found in both of the prior cases that defendant had threatened the victims if they disclosed the alleged molestations, which was not unlike the threats defendant made in the instant case. In further considering the probative value of the evidence from the prior cases, the court focused on the "issue of intent," noting: "[T]he probativeness on the intent is that there is some question to be raised by the defense of incidental contact between the defendant and the alleged victims. I believe even the Court of Appeal [in Williams I] indicating the defendant['s] testimony at the previous trial is that the victim going upstairs and help—admitting to that and helping the victim stretch. Intent becomes highly probative out of a relationship that puts the defendant and the alleged victim in such physical proximity. And the nature of this—the offenses—obviously again reciting the three current alleged victims and the two prior alleged victims involve a position of trust and alleged sexual molestation of little girls under the age of 11 or 10."
The court noted it was aware of the "jury verdicts and the hung charges" in the prior cases, and the "lesser plea on the additional alleged victim of the prior." The court nonetheless found the prior crimes evidence probative because the prior offenses and the current offenses were "similar," as "they all involve[d] girls under the age of 11"; at least "four out of the five [victims] were alleged to have been molested while being a karate student" of defendant; defendant was in a "position of trust" with "[a]ll" of the alleged victims; and with respect to each alleged victim, defendant had made "some type of threat to keep quiet or discussion of potential consequences of tattling or snitching."
The court next turned to the prejudicial impact of the prior crimes evidence. It noted it was "very aware" of the seriousness of this evidence, as it involved "prior [section] 288 conduct." It also noted juries are presumed to follow the law, including with instructions on how to deal with such evidence.
The court also "considered very seriously the age of the priors, as far as the burden on defending these priors." However, the court noted there was a "complete jury trial of cross-examination" of such witnesses (from Williams I). The court also agreed with the People that there was a fundamental difference between section 1108(a), where there is no 10-year restriction, and Evidence Code section 1109(e), where such a "restriction" exists (as noted ante), finding this was "because the nature of the [sexual] crimes themselves involved potentially small children, and there is a recognition that some of these allegations can linger even for decades. And so the Court has to be aware of the dynamics that are involved in this type of case as to whether or not these crimes are remote as they pertain to this defendant and understanding that dealing with potential propensity evidence under [section] 1108, drawing it out over a 40-year period, that there are points on this tangent line every 20 years indicating potentially similar contact—or similar conduct 40, 20, and currently.
"And so the Court find[s] that it is not in and of itself disqualified by remoteness. And so therefore based on this analysis as stated to these factors under [Evidence Code section] 352 [(section 352)], under [section] 1101[, subd] (b) for intent, and [section] 1108, the Court does believe that there is probativeness to this information, if believed by the jury, and would survive under [section] 352 that the probativeness is not substantially outweighed by any potential prejudice." The record shows the parties agreed to work on a stipulation, which, as noted ante, was read to the jury immediately after the testimony of R.M. and K.P.
B. Guiding Principles
"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 (Cottone); accord, Falsetta, supra, 21 Cal.4th at p. 911; § 1101, subd. (a) ["Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion"].) Section 1108 is a statutory exception to this rule for sex offense cases like the instant one. (See People v. Erskine (2019) 7 Cal.5th 279, 295.)
Section 1108(a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Both charged and uncharged prior sexual offenses may be admitted under this statute. (See Falsetta, supra, 21 Cal.4th at pp. 917-918.)
Section 1108 evinces our Legislature's recognition that sex offense cases have unique attributes. (Falsetta, supra, 21 Cal.4th at p. 918.) " 'Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of . . . sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.' " (Id. at p. 911.) Evidence of this type is uniquely probative of a defendant's propensity to commit sex offenses and policy considerations outweigh the general prohibition against propensity evidence. (Cottone, supra, 57 Cal.4th at pp. 285-286; Falsetta, at pp. 911-912.)
"By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352." (Falsetta, supra, 21 Cal.4th at pp. 916-917.) As recognized by the trial court in this case, a court "weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses. . . .' " (People v. Merriman (2014) 60 Cal.4th 1, 41, quoting Falsetta, at p. 917.)
Evidence that a defendant committed a "sexual offense" under section 1108(a) "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132, italics added.)
"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 determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is 'entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.' " (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.)
C. Analysis
Defendant acknowledges that propensity evidence is admissible under section 1108, but contends the trial court abused its broad discretion in weighing the evidence, and failing to exclude it under section 352, because the burden on him to defend against such charges was substantial; the prior offenses, when compared to the current offenses, were inflammatory; and the prior offenses were too remote. We find these contentions unavailing.
We note the burden on defendant to defend against the prior crimes evidence was minimal, as the record shows the parties' stipulation regarding the disposition of the two prior cases was read to the jury immediately after the conclusion of the testimony of R.M. and K.P. Moreover, as also summarized ante, the dispositions in those other cases were favorable to defendant, as he pled no contest to a non-sexual offense in the case involving R.M.; and was acquitted of the sections 288.5 and 272 offenses in the case involving K.P., with the remaining charges in the latter case being dismissed in the interest of justice.
In addition, and as also noted by the trial court, R.M. and K.P. were already subject to cross-examination in connection with Williams I. Thus, the defense in the instant case knew in advance the testimony these two witnesses were likely to give on retrial.
Moreover, the prior crimes evidence was no more inflammatory than the offenses involving the three victims in the instant case, as all the cases involved allegations of sexual misconduct involving girls under the age of 11 or 12; and the instant offenses included allegations of oral copulation and digital penetration of a minor 10 years or younger; allegations that defendant "unzipped" and then "zipped up" his "pants," at the same time saying (to A.G.) "okay, only one time" and "don't cry"; and myriad allegations of inappropriate touching of C.H. and L.H., which were not unlike the allegations made against defendant by R.M. and/or K.P.
With respect to remoteness, the record shows the trial court "very seriously" considered the age of the two prior cases. In so doing, however, the court noted that the victims in the prior cases were both young; that both were threatened by defendant if they disclosed the alleged molestations; and that, given the nature of such crimes and how they could "linger even for decades," the court nonetheless ruled to admit such evidence.
We note age alone is not determinative in deciding whether to admit prior crimes evidence under section 1108. The focus, instead, is whether "significant similarities between the prior and the charged offenses . . . 'balance[ ] out the remoteness.' " (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch).) Thus, the more substantial the similarities between the charged and uncharged conduct, the more remote uncharged conduct can be and remain probative and admissible. (Ibid.)
"Numerous cases have upheld admission pursuant to . . . section 1108 of prior sexual crimes that occurred decades before the current offenses." (People v. Robertson (2012) 208 Cal.App.4th 965 (Robertson).) In Robertson, the admission of a 34-year-old prior sexual assault conviction was upheld because the "striking similarities" between the prior and charged offenses "balance[d] out the temporal remoteness." (Id. at p. 992.) Similarly in Branch, the court concluded "substantial similarities" between the charged and uncharged offenses balanced out a 30-year gap between them. (Branch, supra, 91 Cal.App.4th at pp. 284-285; see People v. Pierce (2002) 104 Cal.App.4th 893, 900 [evidence of a sex offense committed 23 years prior to the charged crime was properly admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [a 20-year gap between the prior and current sex offenses was not too remote to admit the prior crimes evidence]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [upholding admission of uncharged sex offenses occurring 21 to 30 years prior to the charged offenses].)
As the trial court noted, all five victims were 12 or younger when the acts of alleged inappropriate touching occurred; all were female; all three of the victims in the instant case were allegedly molested during defendant's martial arts classes, which was similar to some of the allegations involving K.P., who also claimed to have been molested by defendant during his martial arts classes; all of the victims were afraid to disclose the alleged sexual misconduct by defendant as a result of his threats of harm to them or their families if they "snitched" or "tattled"; all were touched in a sexual manner; and all the offenses in the instant case could be proven by evidence independent from that implicating defendant in the prior crimes cases.
Given the substantial similarity between the other crimes and the current offenses, we conclude the court did not abuse its discretion in weighing the various Falsetta factors and ruling the other crimes evidence was not so inflammatory, when compared to the instant offenses, or so remote, to render such evidence inadmissible under section 352.
D. Harmless Error
We further conclude that, even if the court erred in admitting under section 1108 evidence of either prior crime, that error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [error is reversable if there is a reasonable probability that a result more favorable to defendant would have been reached absent such error]; People v. Jandres (2014) 226 Cal.App.4th 340, 357 [applying Watson harmless error test to consideration of evidence pursuant to §§ 352 and 1108].)
Here, the evidence of guilt against defendant was strong. All three victims in the instant case testified defendant molested them during his martial arts classes, which he held in his garage. All three victims also testified that defendant threatened them or their families with physical harm if they disclosed the molestations; that defendant molested them when they were stretching, after making them close their eyes; that C.H. saw defendant molest L.H., and vice versa; that within an hour after returning home on November 3, A.G. disclosed to her mother that defendant had molested her; that immediately after the class when the molestation of A.G. occurred, defendant sought out Jose, A.G.'s father, who was merely there to pick up his children, and informed Jose he was a former gang member, mentioned his moniker had been "Butterfly," and described how he despised "snitches" and how his granddaughter would do anything for him; and that A.G.'s DNA was found under a scraping taken from defendant's fingernails after his arrest.
Moreover, as noted ante, the court gave preliminary instructions to the jury regarding the section 1108 evidence before it heard the testimony of R.M. and K.P. The court also instructed the jury with former CALCRIM No. 1191 as follows: "The People presented evidence that the defendant committed the crimes of Lewd Act on Child under 14 years of age that were not charged in this case. The alleged incidents involved Jane Doe R.M. and Jane Doe K.P. These crimes are defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the . . . offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the . . . offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit Engaging in Sexual Penetration of a Child 10 years of age or younger charged in Count 1, Engaging in Oral Copulation of a Child 10 years of age or younger charged in Count 2, and Lewd Act upon a child under 14 years of age charged in Count 3, and Counts 5-12. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Engaging in Sexual Penetration of a Child 10 years of age or younger charged in Count 1, Engaging in Oral Copulation of a Child 10 years of age or younger charged in Count 2, and Lewd Act upon a child under 14 years of age charged in Count 3, and Counts 5-12. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."
Based on the overwhelming evidence of guilt, when viewed in light of the court's instructions, which the jury is presumed to have followed (see People v. Edwards (2013) 57 Cal.4th 658, 746 [jury presumed to understand and follow instructions]), we conclude it is not reasonably probable that the jury would have reached a result more favorable to defendant absent such alleged error in admitting the 1108 evidence.
E. No Due Process Violation
Finally, defendant contends that his federal due process rights were violated by the introduction of the 1108 evidence. Our high court has rejected a similar due process challenge to a trial court's admission of evidence under section 1108. (See Falsetta, supra, 21 Cal.4th at p. 922.) We are bound to and abide by this ruling. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). We thus also reject this claim of error.
II
Prosecutorial Error
A. Additional Background
During closing, the prosecutor addressed the prior crimes evidence. The prosecutor noted the conduct defendant was charged with in California regarding R.M. was "very, very limited"; that most of the inappropriate touching of this victim was alleged to have occurred outside California, for which defendant could not be prosecuted in this state; and that the only incident that allegedly occurred in California, as described by R.M. and summarized ante, was when she was about 12 years old and defendant allegedly pulled her into a room, told her to take off her clothes, and tried to touch her. The prosecutor thus noted allegations of defendant's misconduct in California did not involve "major sex acts" with R.M.
After the defense's objection was overruled, the prosecutor further argued that R.M.'s case was "really tough" "because of all the things that happened in Texas or Washington, [and] because the prosecutor couldn't use those things. He couldn't say those things happened here, therefore you can find him guilty here. It has to be what occurred in the jurisdiction." The record shows the defense again objected to this argument, and was again overruled.
With respect to K.P., in closing the prosecutor argued that the jury in that prior case had acquitted defendant of the section 288.5 charge, but hung on the section 288(a) charge, which charge defendant was facing in the instant case; that the section 288.5 offense "require[d] that the defendant ha[ve] recurring access—or that they live[d] in the same home so that he ha[d] recurring access to her"; and that the jury "was not able to reach a verdict" on the section 288(a) charge involving K.P., as it "hung nine to three for not guilty" on that count.
The prosecutor also argued that defendant gave K.P. "genital herpes when she was six years old. That is really powerful evidence that she was molested. And she says, yeah, I had genital herpes. I had herpes sores in my genitalia.
"And she's willing to tell us who the person was who was molesting her. She says it was [defendant]. She said—not when it had happened at six years old. Remember she wouldn't tell anybody. She just wanted to get back to her mom. She didn't want to be in the foster care system. But eventually—and it wasn't when there was a time when she had a reason to get him. It was over a year after she had lived with the defendant. The defendant was out of the picture, and she felt healthy enough to tell. That's what we know about what happened to her."
The defense in closing argued neither R.M. nor K.P. was credible. With respect to R.M., the defense argued she had her "day in court" and "was able to talk about all of these alleged incidents; not just the California incident. She told us—and it's allowed under the law. She can talk about whatever she thinks occurred in Washington, whatever she thinks occurred in Texas, and in California. She's not just limited to just one incident that she claims happened in California.
"And in that same trial, (K.P.) testified to all her allegations. And they -- they had their day in court. And the jury found [defendant] not guilty on the [section] 288.7 charge. And on those lesser offenses, hung nine to three for not guilty. And those charges were dismissed by the judge who heard the case.
"So I would . . . submit to you that those allegations were not credible back then, and they shouldn't be found credible now. . . . [¶] . . . [¶] So I would ask you not to consider that evidence at all. It is not credible. It has already been determined by the state of California in another court that it's not credible."
In rebuttal, the prosecutor argued the defense incorrectly stated during closing that defendant had been charged under section 288.7, when in fact he actually had been charged under section 288.5, which charge involved K.P. The prosecutor added, "And that's what the jury said no to. But did they think there was molestation going on? They hung as to whether or not there was molestation going on." The record shows the prosecutor, over objection, continued as follows: "They hung as to whether or not [section] 288(a) had been committed, which is the charge you're familiar with, and that's the charge that involves sexual touching of a person under 14 years of age."
B. Guiding Principles
Under California law, to establish reversible prosecutorial misconduct a defendant must show that the prosecutor used " 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted." (People v. Riggs (2008) 44 Cal.4th 248, 298 (Riggs).) Moreover, a prosecutor's misconduct violates the federal Constitution if the behavior is " ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' (Darden v. Wainwright (1986) 477 168, 181)" (Parks, at p. 298.)
"A claim of prosecutorial misconduct may have merit even absent proof that a prosecutor had 'a culpable state of mind.' (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) For this reason, '[a] more apt description of the transgression is prosecutorial error.' (Ibid.) Such error occurs when a prosecutor misstates the law by, for example, making remarks that would 'absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' [Citations.] For such remarks to constitute error, however, it is not enough that the remarks could be construed as improper. (People v. Winbush (2017) 2 Cal.5th 402, 480.) Instead, '[a] defendant asserting prosecutorial misconduct must . . . establish a reasonable likelihood the jury construed the remarks in an objectionable fashion.' [Citations.]" (People v. Potts (2019) 6 Cal.5th 1012, 1036 (Potts).)
In conducting this inquiry, we " ' "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Brown (2003) 31 Cal.4th 518, 553-554.) Moreover, we do not look to isolated words or phrases, but instead "view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.)
C. Analysis
We conclude it is not reasonably likely the jury in the instant case understood the remarks of the prosecutor regarding the prior crimes evidence involving R.M. and/or K.P. "in an objectionable fashion." (See Potts, supra, 6 Cal.5th at p. 1036.)
First and perhaps most importantly, as noted ante the record shows the parties entered into a stipulation that was read to the jury regarding the charges defendant faced in the prior two cases and the dispositions of those cases. As such, any alleged misstatements during closing with respect to this issue, either by the prosecutor or defense counsel, were allayed.
Second, the record shows the court instructed the jury with CALCRIM No. 104. Included in this instruction was the following: "Nothing that the attorneys say is evidence. In their opening and closing arguments, the attorneys will discuss the case, but their remarks are not evidence." (Italics added.) As noted ante, the court also twice instructed the jury with former CALCRIM No. 1191 regarding the other crimes evidence, including before the testimony of R.M. and K.P. This instruction set forth the burden of proof required to establish other charged or uncharged acts of alleged sexual misconduct, how such evidence of misconduct could be used—if at all—by the jury, and how the prosecution, even if such misconduct was proven, still was required to prove beyond a reasonable doubt that defendant committed the instant offenses.
Third, the prosecutor's arguments that defendant could not be charged with any alleged acts of molestation occurring outside California, and that the allegations of sexual misconduct involving R.M. in California, were very limited, and were neither misleading nor untrue. That the prosecutor went on to argue that, because most of the acts of alleged molestation of R.M. occurred in Washington and/or Texas, the case against defendant in California must have been "tough," was merely one of many inferences to be drawn from defendant's guilty plea in that case; a point reinforced by defense counsel when she urged the jury to draw a different inference from the plea and find R.M. not credible, as R.M. could talk about "whatever she thinks" occurred in Washington and/or Texas. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1403 (Spector) [noting the " ' " 'prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom' " ' "].)
Fourth, it is not reasonably likely the jury misapplied the rebuttal remarks of the prosecutor that the jury in K.P.'s case did not acquit defendant of the section 288(a) charges, but merely hung with respect to that charge. As noted in the parties' stipulation, this statement was neither misleading nor untrue, as the prosecutor also correctly disclosed the jury hung 9 to 3 in favor of acquittal. That the prosecutor suggested defendant nonetheless might have been guilty of molesting K.P. was merely a reasonable inference that could be drawn from the hung jury in the prior prosecution of defendant. (See Spector, supra, 194 Cal.App.4th at p. 1403.)
Finally, because defendant was not facing criminal prosecution under 288.5, as the prosecutor noted, it is not reasonably likely the jury misapplied the statements by him regarding the elements to be proved to establish this charge.
Based on the foregoing, we conclude it is not reasonably likely the jury understood the remarks of the prosecutor regarding the other crimes evidence "in an objectionable fashion." (See Potts, supra, 6 Cal.5th at p. 1036.) As such, we reject this claim of error.
III
Evidentiary/Instructional Error
Defendant separately contends the court committed prejudicial error when it allowed K.P. to testify that defendant gave her genital herpes when he allegedly molested her when she was young. As summarized ante, the prosecutor in closing argued this was "powerful evidence."
We need not decide whether the court erred in admitting this evidence because we conclude any such error was harmless, as it was not reasonably probable that, absent such error, a result more favorable to defendant would have been reached. (See People v. McNeal (2009) 46 Cal.4th 1183, 1203 (McNeal) [noting a trial court's error under state law in the admission or exclusion of evidence following an exercise of discretion is properly reviewed for prejudice under Watson]; People v. Hovarter (2008) 44 Cal.4th 983, 1010 [concluding the " 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights' "].)
Indeed, the record shows this testimony was fleeting; was related to the prior crimes evidence that, as we have repeatedly noted, was the subject of a stipulation by the parties; and was, in any event, not unduly inflammatory, as defendant in the instant case was accused of molesting three victims, which included allegations of oral copulation and digital penetration of a minor 10 years or younger.
Moreover, as we have noted, there was strong evidence supporting defendant's guilt. (See People v. Eubanks (2011) 53 Cal.4th 110, 152 [any error in admission of (hearsay) evidence was harmless "in light of the overwhelming evidence" of the defendant's guilt]; People v. Houston (2005) 130 Cal.App.4th 279, 296 [erroneous admission of (hearsay) evidence is harmless where the evidence of guilt is overwhelming].)
Defendant also claims the court committed prejudicial error when, over objection, it allowed the prosecutor to ask a defense character witness (i.e., defendant's nephew) the following question: "Do you know about whether or not [defendant] has a reputation for molesting children?" To which the witness responded, "[no]."
It is axiomatic that when a defendant presents good character evidence, the prosecutor may then present opinion or reputation evidence of the defendant's bad character to rebut the defendant's evidence and show a likelihood of guilt. (See People v. Siripongs (1988) 45 Cal.3d 548, 578 [noting a "defendant has no right to mislead the jury through one-sided character testimony"]; Evid. Code, § 1102 ["In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: . . . [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)"].)
Furthermore, a prosecutor may test the reliability of good character testimony by inquiring on cross-examination whether a witness has heard of specific instances of a defendant's misconduct that are inconsistent with the claimed good character trait. (See People v. Lopez (2005) 129 Cal.App.4th 1508, 1528; People v. Hempstead (1983) 148 Cal.App.3d 949, 954; see also People v. Kramer (1968) 259 Cal.App.2d 452, 466 [noting a defendant's decision to "call character witnesses to testify to his reputation respecting the relevant character trait involved in the offense charged [citations] . . . exposes himself to the calculated risk of having the witnesses subjected on cross-examination to questions respecting reports . . . of his conduct inconsistent with his reputation as testified to by the witnesses"].)
Based on this law, we conclude the prosecutor's question to defendant's nephew regarding his knowledge of the accusations of sexual misconduct against defendant was not improper.
Moreover, defendant was on trial for molesting three victims. Assuming error, we conclude it is not reasonably probable that a result more favorable to defendant would have been reached had this question not been asked by the prosecutor, and answered by this witness. (See McNeal, supra, 46 Cal.4th at p. 1203.)
Defendant also claims the court committed instructional error when it failed sua sponte to instruct the jury with the elements of section 288.5, continuous sexual abuse of a minor under 14 years of age, as applied to K.P. and the admission of prior crimes evidence. The record, however, shows that defense counsel agreed that the uncharged crime allegations, for purposes of section 1108, were child molestation under "section 288(a)."
We thus conclude any instructional error on this issue was invited and/or forfeited. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1234 [recognizing the " 'doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his [or her] behest," and further recognizing that "[i]f defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal' "], overruled on another ground as stated in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
Reaching the merits, we nonetheless conclude there was no instructional error. We note defendant in the instant case was not charged with a crime under section 288.5. In addition, because there was agreement that the enumerated prior crimes for purposes of section 1108, subdivision (a) was lewd acts pursuant to section 288(a), there was no reason to instruct the jury on the elements of the crime of continuous sexual abuse of a minor under the age of 14, as provided under section 288.5, which instruction, in our view, may well have been confusing to the jury.
Defendant also claims the cumulative effect of his claims of error deprived him of due process. Because we find no error or no prejudice as to each of his asserted claims, it follows that any cumulative effect of the claimed errors " ' "does not warrant reversal of the judgment." ' " (See People v. Jablonski (2006) 37 Cal.4th 774, 825.)
IV
Sentencing Error
During closing, the prosecutor explained to the jury how it could convict defendant on count 3: "Count 3 is the molest of [A.G.] So it's a different way of articulating the sexual touching that she experienced on November 3[], 2012. [¶] So if you as jurors all agree one of those two acts, either the sexual penetration [i.e., count 1] or oral copulation [count 2] or both—which in this case it was—then the defendant would be guilty of count 3." (Italics added.)
Defendant contends the court erred in sentencing him on count 3 because the jury hung on count 2, oral copulation of a minor 10 years or younger, and convicted him on count 1, sexual penetration of a minor 10 years or younger. He therefore contends counts 1 and 3 involved the same act. We agree.
Section 954, as relevant here, provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts. . . . The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court. . . ." (Italics added.)
Our high court in People v. Vidana (2016) 1 Cal.5th 632 (Vidana) interpreted section 954 and, in particular, the above-italicized language, as follows: "Section 954 defines three categories of charges that can be joined in one action: 'different offenses connected together in their commission,' 'different statements of the same offense,' and 'different offenses of the same class of crimes or offenses.' (Italics added.) In the next sentence, however, section 954 sets forth the charges of which the defendant may be convicted, providing, 'The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged. . . .' (Italics added.) The language 'offenses charged' is reasonably read to refer back to the use of the word 'offenses' in the phrases 'different offenses connected together in their commission' and 'different offenses of the same class of crimes or offenses.' It is not reasonably read as referring back to the word 'offense' in the singular as in the phrase 'different statements of the same offense.'
"As defendant notes, 'It is significant that section 954 uses the term "different offenses" in conjunction with only two of the three categories of charges that may be properly joined in a proceeding—"different offenses connected together in their commission," and "different offenses of the same class of crimes or offenses, under separate counts." The remaining category of charges—"different statements of the same offense"—differs from the other two categories as it concerns an alternative means of pleading the same offense rather than a different one. And most importantly, this category is not referenced in the language that addresses the charges of which a defendant may be convicted. The most reasonable construction of the language in section 954 is that the statute authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.' (See People v. Coyle (2009) 178 Cal.App.4th 209, 211, 217-218 [defendant improperly convicted of three counts of murder for killing one person].)
"Our conclusion is consistent with the 'judicially created exception to the general rule permitting multiple conviction [that] "prohibits multiple convictions based on necessarily included offenses." ' [Citation.] As defendant asserts, '[i]t logically follows that if a defendant cannot be convicted of a greater and a lesser included offense based on the same act or course of conduct, dual convictions for the same offense based on alternate legal theories would necessarily be prohibited.' " (Vidana, supra, 1 Cal.5th at p. 650.)
Because the "same act or course of conduct" was the basis for defendant's conviction on counts 1 and 3, in light of the jury hanging on count 2 (see Vidana, supra, 1 Cal.5th at p. 650), we conclude defendant could only be properly convicted of one such count.
DISPOSITION
The matter is remanded to the trial court with directions to vacate defendant's conviction on either count 1, sexual penetration of a minor 10 years or younger, or count 3, lewd act with a child under the age of 14, and resentence defendant accordingly. In all other respects the judgment is affirmed.
In light of our decision to remand for resentencing, we deem it unnecessary to reach defendant's contention under People v. Dueñas (2019) 30 Cal.App.5th 1157 that the court improperly imposed various fines, fees, and assessments on him without making a finding of ability to pay, as defendant can raise that issue, if he so chooses, on remand.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.