People v. Mendoza CA6 ( 2014 )

Filed 5/1/14 P. v. Mendoza CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038547
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. SS110095A,
SS120395A)
v.
ROBERT FRANCISCO MENDOZA,
Defendant and Appellant.
A jury convicted Robert Mendoza (appellant) of 11 counts of committing a lewd
or lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a)). Counts
one through five involved victim Jane Doe I, counts six through eight involved victim
Jane Doe II and counts nine through 11 involved victim Jane Doe III.1
As to count four, the jury found that appellant engaged in substantial sexual
conduct with the victim. (Pen. Code, § 1203.066, subd. (a)(8).) As to counts five
through nine, the jury found that appellant committed the offenses against more than one
victim.
On July 10, 2012, the court sentenced appellant to the indeterminate term of 45
years to life (Pen. Code, §667.61), plus a determinate term of 18 years in state prison.
1
We refer to the victims in this case as Jane Does to protect their anonymity. For
ease of reading, however, we will refer to the victims as Jane I, Jane II and Jane III.
Appellant filed a timely notice of appeal.
On appeal, appellant argues that CALCRIM No. 1110, which was given in this
case, unconstitutionally negated the need for the jury to find all elements of Penal Code
section 288, subdivision (a) beyond a reasonable doubt. Further, he contends that the
court erred by failing to instruct the jury that the investigating officer's testimony could
not be used to determine whether the molestation claims were true; alternatively, if this
court were to find that the court did not have a sua sponte duty to instruct the jury that it
could only use the officer's testimony for a limited purpose, trial counsel provided
ineffective assistance. Finally, as to counts six through 11, appellant asserts that the
cumulative effect of the trial court errors violated his due process rights. For reasons that
follow, we affirm the judgment.
Testimony Adduced at Trial
Counts Six, Seven and Eight—Victim Jane II
Jane II's mother testified that her daughter was born in April 1998. The family
lived in Seaside from the beginning of 2009 until June 2010. Jane II took Tae Kwon Do
lessons at Seaside Martial Arts studio; appellant was Jane II's instructor. After the family
moved out of state, Jane II asked her mother how she would know if she had been
sexually molested; Jane II was visibly upset at the time. Jane II told her mother that
while she was in her martial arts class, appellant had touched her. While telling her
mother this, Jane II was "shaking, and she started crying."
Jane II testified that she was 14 years old at the time of the trial. When she lived
in Seaside she was in fifth grade; she took Tae Kwon Do lessons for seven or eight
months. At times, appellant would assist her with her stretching exercises. Using a
diagram, Jane II indicated that appellant touched her vagina and her breasts over her
clothes with his hands while he was helping her stretch. Jane II described the touches as
a "petting" motion. She said the first two touches occurred one week apart and that
appellant touched her chest on more than one occasion. Jane II estimated that appellant
2
touched her vagina more than 10 times. The touches occurred in the studio next to a
pillar while other people were in the studio. Jane II testified that while she was being
touched she tried to make eye contact with other people that were in the studio, but no
one was watching her. She admitted that some of the touches occurred while her mother
was present in the studio. Jane II said she was afraid to tell her mother what was
happening while the family lived in Seaside.
Counts Nine, 10 and 11—Victim Jane III
Jane III's mother testified that her daughter was born in January 2003. In 2007 and
2008, appellant and his wife lived with her and her family; appellant and his wife moved
out of her house in March 2008. Jane III's mother testified that she was a nurse and
worked a night shift. Appellant and his wife looked after Jane III and Jane III's brother
while she was at work. The children complained to her about appellant and his wife
being present in the home for a few months before appellant and his wife left.
Jane III, who was nine years old at the time of trial and in the third grade, testified
that she took Tae Kwon Do lessons from appellant; she called him "master." Appellant
moved in with her family. She told the jury that appellant gave her "bad touches." Jane
III used a diagram to show where appellant touched her.2 She said that appellant touched
her over her clothing; she said appellant's finger "slid" over her body. Jane III said that
appellant made her touch his "private part," which was "hairy"; she touched it "a few
times." These touches occurred inside appellant's bedroom; the door was locked so at
times Jane III was unable to get away from appellant. Jane III described how appellant
"played with himself" in front of her; he would "pull" his private parts with his hands
while his pants were down. Jane III testified that she told her counselors about the
touches. Jane III explained that she had not told her mother about the touching because
"the story was sad" and she was scared. Also, appellant had told her not to tell anyone.
2
Jane III did not describe what area she had circled. However, the verdict form for
count nine indicates that the lewd act involved appellant touching Jane III's vagina.
3
Counts One, Two, Three, Four, and Five—Victim Jane I
Jane I's father testified that his daughter was born in September 1996. In 2009,
Jane I took Tae Kwon Do classes from appellant. Jane I took classes for four years. In
January 2011, Jane I told him that appellant had touched her inappropriately.
At the time of trial, Jane I said that she was 15 years old. She testified she had
attended Tae Kwon Do classes five or six times a week. In April 2009, appellant began
commenting on her body as it was developing. One day, while she was in the bathroom
checking her weight, appellant closed the bathroom door and grabbed her; he kissed her
on the lips. She managed to open the bathroom door and run out; she began crying. The
next day, appellant forced her to kiss him on the lips after again closing the bathroom
door.
Jane I said that in November 2009, she was in appellant's office when he unzipped
her jacket and pulled her shirt and bra down. Appellant fondled her breasts and kissed
them. Appellant put his hands down her pants, under her underwear and touched her
vagina. Appellant's fingers entered her vagina. Appellant tried to spread her legs when
she closed them; she ran out of the office.
Jane I testified that between April and November 2009, appellant touched her
vagina over her clothes numerous times. The touches would occur while she was
stretching her legs; appellant would push on her vagina. Jane I estimated that appellant
touched her vagina while she was stretching on more than 15 occasions. Jane I said that
appellant had told her to not tell anyone about the touches. Jane I testified that appellant
had said that he had nicknamed her bubbles because of her body. Jane I explained that
she was scared to report what was happening; appellant had told her that the studio would
close down if she ever reported what was happening and it would be her fault. Jane I said
that she had made a pretext telephone call to appellant while a Detective Meroney was
present.
4
Seaside Police Detective Jackie Meroney testified that she had investigated
approximately 35 child sexual abuse cases in her career. She had conducted
approximately 18 interviews of child sexual abuse suspects and approximately 30
interviews of child sexual abuse victims. In her experience, it is common for victims to
delay reporting. Often, the child victims cite fear as a cause for any delay in reporting;
fear of not being believed, fear of disappointing their families or fear because of threats
made by the perpetrator. Sometimes, the child victims initially provide few details out of
fear, and may return to reside with their abuser following the abuse. In her experience,
Detective Meroney found that the abuser was a family member or a close family friend
with access to the victim. In some cases the abuser used videos, books, or magazines to
groom the child victim into committing sexual touches.
Detective Meroney testified that appellant's studio was at the 700 block of
Broadway Avenue in Seaside. She identified photographs depicting the front and interior
of the studio. On January 13, 2011, she took Jane I's report and recorded a pretext
telephone call that Jane I made to appellant. Detective Meroney identified the recording
of the pretext telephone call and it was played for the jury.3
Detective Gabe Anderson testified that he interviewed appellant on January 13,
2011, following his arrest in this case. Detective Anderson identified the recording of the
interview and it was played for the jury.4
Defense Case
Defense counsel called several witnesses who had trained with appellant at his Tae
Kwon Do studio in an attempt to portray Jane I as being an untruthful person. All these
witnesses testified that they had never seen appellant touch anyone inappropriately during
3
We granted appellate counsel's request to augment the record with a copy of the
transcript of the telephone call that was played for the jury.
4
Again, we granted appellate counsel's request to augment the record with a copy of
the transcript of the interview.
5
stretching exercises; some said that they knew Jane I to be untruthful.
Appellant's wife testified that when they lived with Jane III and her family, she
looked after the children while Jane III's mother was at work. By the time she and
appellant got to the house, the children were in their room sleeping. Appellant never left
the bedroom where she and appellant slept and returned to the bedroom with Jane III; the
only time he left was to go to the bathroom. Appellant was not alone with the children in
the afternoon and he behaved normally around Jane III.
Appellant testified in his own defense. He said that he arrived in the United States
in 2002 to work as a Tae Kwon Do instructor. Appellant explained that Jane I had
emotional problems and was rebellious about maintaining a fighting weight. One time
after successfully weighing in, Jane I came over to him and kissed him on the mouth. He
said that it was the only time they kissed. Appellant admitted that in November 2009,
while he was discussing with Jane I her readiness to compete, Jane I seemed affectionate
so he grabbed her by the shoulders and kissed her on the lips and "maybe her breasts."
Appellant said that he put his hand "inside of her pants." Jane I closed her legs when his
hand got close to Jane I's vagina. Appellant said that he removed his hand and
apologized. Jane I appeared surprised, but not "bothered or worried." Appellant
admitted knowing that Jane I was 13 years old at the time he kissed her mouth and
breasts. He testified he believed Jane I wanted attention at the time he kissed her.
Appellant admitted helping Jane II with her stretching exercises, but denied
putting his hand in the area of her vagina while helping her stretch. Further, he denied
ever telling Jane III to touch his body. Appellant said that he touched Jane III's
shoulders, hands, and head to get her attention.
The parties stipulated that appellant was born on June 25, 1973.
Discussion
CALCRIM No. 1110
The court instructed the jury pursuant to CALCRIM No. 1110 as follows:
6
"The defendant is charged with 11 separate counts of committing a lewd act on a
child under the age of 14 years in violation of Penal Code Section 288, Subdivision 'A.'
[¶] To prove that the defendant is guilty of this crime, the People must prove that, first,
the defendant willfully touched any part of a child's body either on the bare skin or
through the clothing. Or the defendant willfully caused a child to touch her own body or
the defendant's body either on the bare skin or through the clothing. [¶] Second, the
defendant committed the act with the intent of arousing, appealing to, or gratifying the
lust, passions, or sexual desires of himself or the child. [¶] And third, the child was
under the age 14 years at the time of the act. [¶] The touching need not be done in a
lewd or sexual manner. [¶] Someone commits an act willfully when he or she does it
willingly or on purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage. [¶] Actually, arousing, appealing to, or gratifying
the lust, passions, or sexual desires of the perpetrator or the child is not required." (Italics
added.)5
In essence, appellant contends the inclusion of the phrase "[t]he touching need not
be done in a lewd or sexual manner" in CALCRIM No. 1110 directly conflicts with the
express statutory language defining the nature of the crime of lewd act upon a child (Pen.
Code, § 288, subd. (a)), and negates an essential element of the crime.6
Penal Code section 288, subdivision (a), provides: "[A]ny person who willfully
and lewdly commits any lewd or lascivious act, including any of the acts constituting
5
The language reflects the form of the instruction in effect at the time of trial in
May 2012. (Judicial Counsel of California Criminal Jury Instructions, CALCRIM No.
1110 (February 2012 ed.) p. 928.)
6
Appellant concedes that challenges to CALCRIM No. 1110 usually fail because
the alleged touching is inarguably sexual. Here, however, he asserts the error was not
harmless as to counts six, seven and eight because the evidence included incidental non-
sexual touching. Jane II admitted that in addition to touching her vagina and breasts,
appellant touched other parts of her body, such as her hands, feet and legs while she was
practicing kicks and punches.
7
other crimes provided for in Part 1, upon or with the body, or any part or member thereof,
of a child who is under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a
felony and shall be punished by imprisonment in the state prison for three, six, or eight
years."
Appellant argues that CALCRIM No. 1110 allowed the jury to find he had
committed lewd acts on Jane II (counts six, seven and eight) without finding an essential
element of the offense—that the touching had been done lewdly. We disagree.
CALCRIM No. 1110, as presented to the jury below, correctly stated the law regarding
the crime of lewd act upon a child.
The language of CALCRIM No. 1110 comports with the statutory elements of the
offense of lewd or lascivious act on a child. In discussing the definition of a "lewd" act
under section 288, the Supreme Court has explained the "statute itself declares that to
commit such an act 'wilfully and lewdly' means to do so 'with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual desires' of the persons involved."
(In re Smith (1972) 7 Cal. 3d 362, 365 (Smith).) The focus of the offense is on the intent
of the perpetrator. "[T]he courts have long indicated that section 288 prohibits all forms
of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has
always been the defendant's intent to sexually exploit a child, not the nature of the
offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the
controlling factor and each case is to be examined in the light of the intent with which the
act was done. . . . If [the] intent of the act, although it may have the outward appearance
of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator
[or the child,] it stands condemned by the statute . . . .' [Citation.]" (People v. Martinez
(1995) 11 Cal. 4th 434, 444 (Martinez ).)
The sentence to which appellant objects correctly states the law and makes it plain
to the jury the physical act of touching involved need not be seen as lewd or offensive in
8
and of itself. Even a physical touching that may appear innocent, if done with the
requisite statutory intent, can be found to be a prohibited act under section 288. "As
suggested in [In re] Smith, we can only conclude that the touching of an underage child is
'lewd or lascivious' and 'lewdly' performed depending entirely upon the sexual motivation
and intent with which it is committed." (Martinez, supra, 11 Cal.4th at p. 449; accord,
People v. Lopez (1998) 19 Cal. 4th 282, 289 [any touching of a child under the age of 14
violates section 288, subdivision (a), even if the touching is outwardly innocuous and
inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of
either the perpetrator or the victim]; see also People v. Sigala (2011) 191 Cal. App. 4th
695, 700–701 [holding same language in CALCRIM No. 1120 to be correct statement of
law].) In short, CALCRIM No. 1110 does not improperly negate a statutory element of
section 288.
Appellant's reliance on People v. Cuellar (2012) 208 Cal. App. 4th 1067 is
unavailing. Cuellar concerned the identical language in CALCRIM No. 1120. The court
in Cuellar did not conclude the instruction was infirm, constitutionally or otherwise.
Cuellar stated the language is "possibly confusing" (Cuellar, at p. 1071), but, reading the
instructions as a whole and given the overwhelming evidence against the defendant, the
language did not mislead the jury. (Id. at p. 1072.) Subsequent to Cuellar, and effective
February 26, 2013, the Advisory Committee on Criminal Jury Instructions deleted the
sentence from the form jury instructions for both CALCRIM No. 1110 and No. 1120.
(Judicial Counsel of California Criminal Jury Instructions, CALCRIM Nos. 1110 and
1120 (February 2013 ed.) pp. 831, 842).)7
7
The instruction in Cuellar stated in part: "Lewd or lascivious conduct is any
willful touching of a child accomplished with the intent to sexually arouse the perpetrator
or the child. The touching need not be done in a lewd or sexual manner." (Cuellar,
supra, 208 Cal.App.4th at p. 1070, italics omitted.) The defendant argued "the second
sentence is inconsistent with the first and negates the requirement that the touching be
done in a lewd or lascivious manner." (Id. at p. 1071.) Cuellar agreed the sentence,
"[t]aken by itself," was capable of the defendant's interpretation and "[a]t best, it is
9
Nevertheless, the revision to CALCRIM No. 1110 does not alter our assessment of
the validity of CALCRIM No. 1110 as given in this case. There has been no change in
the well-established law that a violation of section 288 does not require an explicitly
sexual or inherently lewd touching.
Appellant recognizes that Cuellar, supra, 208 Cal. App. 4th 1067 is at odds with
People v. Sigala, supra, 191 Cal. App. 4th 695 (Sigala), which held, in a prosecution under
Penal Code section 288.5, subdivision (a) (continuous sexual abuse of a child under 14),
only the intent must be lewd and lascivious, not the touching itself. (Id. at p. 700.)
Nevertheless, he argues that the analysis in Sigala suffers from a fatal problem because it
relied on People v. Lopez, supra, 19 Cal. 4th 282 and People v. Martinez, supra, 11
Cal. 4th 434, both of which were decided before CALCRIM No. 1110 was created; and
they parsed a CALJIC instruction that did not contain the language challenged here. We
are not persuaded.
The fact that CALCRIM No. 1110 was not created at the time Lopez and Martinez
were decided is irrelevant. The crux of appellant's argument is that there needs to be a
lewd touching, that is the act itself must be inherently lewd; Martinez specifically
rejected the argument section 288 is violated only if a defendant touches a child in an
inherently lewd manner. (People v. Martinez, supra, 11 Cal.4th at p. 442.)
We reject appellant's argument that the evidence as to counts six, seven and eight
involving Jane II was ambiguous in terms of the sexual or lewd nature of the contact.
Jane II testified that appellant touched her vagina and breasts. In our view, this behavior
was explicitly sexual; we have no doubt the jury found the behavior was explicitly
unfortunate and possibly confusing," faulting Sigala 's analysis as failing to "focus on just
what information the second sentence is designed to impart that is not already stated in
the first sentence." (Ibid.) It urged revising the instruction to make "the two
sentences . . . complement each other" and remove "any arguable inconsistency." (Id. at
p. 1072.) Arguably, Cuellar 's critique of Sigala is inapplicable because the instruction in
this case does not contain the first sentence found in those cases.
10
sexual.
In sum, CALCRIM No. 1110 as given in this case correctly stated the law and did
not remove an element of the offense from the jury's consideration.
Alleged Instructional Error Regarding Detective Meroney's Testimony
Appellant argues that the court erred by failing to instruct the jury that Detective
Meroney's testimony could not be used to determine whether the molestation claims were
true. He asserts that Detective Meroney presented Child Sexual Abuse Accommodation
Syndrome (CSAAS) evidence.
We note that the trial court did not qualify Detective Meroney as an expert witness
on CSAAS or as an expert witness on anything; and no mention of CSAAS was made
during her testimony.8 However, Detective Meroney was allowed to testify to her
experiences investigating more than 35 sexual assault cases during her career as noted
ante.
On cross-examination, Detective Meroney admitted that in some cases of child
sexual abuse she had investigated there was no delayed reporting, and that some victims
had reported at the first opportunity. Further, she had observed that some victims refuse
to return to the residence of the abuser or have anything else to do with their abuser.
Detective Meroney testified that she is obligated to take a child victim's report, but she
does not determine credibility. She explained that the fact that a child victim
8
The prosecutor sought to qualify Detective Meroney as in expert in the
investigation of child sexual abuse cases. Defense counsel argued that Detective
Meroney was not qualified to give expert testimony. After an Evidence Code section 402
hearing, the court determined that "clearly detective Meroney does have extensive
investigative experience, her actual formal training is relatively limited . . . . [¶] [O]n the
subject of child sexual assault and some of the psychological aspects about victims and
perpetrators, it is still relatively limited to something in the order of 16 to 20 intensive
training hours. My concern there is that for an expert designation based on that level of
training, we don't want to be conflating law enforcement training with experience with
expert experience at this level." Accordingly, the court did not qualify Detective
Meroney as an expert.
11
immediately reports or delays a report does not establish their credibility.
Expert testimony concerning CSAAS is used to describe and explain how children
commonly react to sexual molestation. (People v. Bowker (1988) 203 Cal. App. 3d 385,
394 (Bowker); see also People v. Patino (1994) 26 Cal. App. 4th 1737, 1742–1743, 1744
(Patino).) Common stress reactions of children who have been sexually molested "may
include the child's failure to report, or delay in reporting, the abuse." (People v. McAlpin
(1991) 53 Cal. 3d 1289, 1300 (McAlpin).) A sexually molested child may also react by
recanting his or her story in whole or in part. (Bowker, supra, 203 Cal.App.3d at p. 394.)
"[E]xpert testimony on the common reactions of child molestation victims is not
admissible to prove that the complaining witness has in fact been sexually abused; it is
admissible to rehabilitate such witness's credibility when the defendant suggests that the
child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or
her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at p. 1300; see also
Patino, supra, 26 Cal.App.4th at p. 1744 [although inadmissible to prove that a
molestation occurred, CSAAS testimony has been held admissible for the limited purpose
of disabusing a jury of misconceptions it might hold about how a child reacts to a
molestation].)
Thus, expert CSAAS testimony "is admissible solely for the purpose of showing
that the victim's reactions as demonstrated by the evidence are not inconsistent with
having been molested." (Bowker, supra, 203 Cal.App.3d at p. 394.)
A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal. 4th 686, 744), that is, " ' " 'those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury's understanding of the case.' " ' " (People v. Valdez (2004) 32
Cal. 4th 73, 115.)
In general, a trial court has no duty to give the jury a limiting instruction on the
admissibility of evidence in the absence of a request by the parties. (Evid. Code, § 355;
12
People v. Dennis (1998) 17 Cal. 4th 468, 533.) However, with respect to CSAAS
evidence, People v. Housley (1992) 6 Cal. App. 4th 947 (Housley) held that "it is
appropriate to impose upon the courts a duty to render a sua sponte instruction limiting
the use of such evidence. Accordingly, in all cases in which an expert is called to testify
regarding CSAAS we hold the jury must sua sponte be instructed that (1) such evidence
is admissible solely for the purpose of showing the victim's reactions as demonstrated by
the evidence are not inconsistent with having been molested; and (2) the expert's
testimony is not intended and should not be used to determine whether the victim's
molestation claim is true." (Id. at p. 959.) There are older Court of Appeal decisions that
disagree with this principle. (See, e.g., People v. Sanchez (1989) 208 Cal. App. 3d 721,
735 [instruction required only upon request]; People v. Bothuel (1988) 205 Cal. App. 3d
581, 587–588 [same], overruled on other grounds in People v. Scott (1994) 9 Cal. 4th 331,
348.)
The purpose of the limiting instruction is to avoid misuse of CSAAS testimony
and the expert inadvertently corroborating the victim's claim "because the expert
commonly is asked to offer an opinion on whether the victim's behavior was typical of
abuse victims, an issue closely related to the ultimate question of whether abuse actually
occurred." (Housley, supra, 6 Cal.App.4th at p. 958.) Here, Detective Meroney was not
asked any such question, but she did offer testimony on her experiences in investigating
child sexual abuse cases that could be construed as showing the victims' reactions as
demonstrated by the evidence were typical of abuse victims.
Implicitly, appellant's argument raises two issues, which would require further
analysis to resolve: (1) whether the rules about the admissibility of CSAAS evidence
apply to expert testimony that does not specifically refer to CSAAS, but instead,
generally describes the behavior of children who have been sexually abused; and
(2) whether a trial court has a sua sponte duty to provide a limiting instruction regarding
CSAAS evidence, or, in contrast, whether an instruction must be requested by defense
13
counsel. We need not undertake such an analysis in this case. Even if the trial court had
been required to give a sua sponte limiting instruction, it is not reasonably probable that
appellant would have received a more favorable result had the instruction been given.
Simply put, we will assume for the sake of argument that the court had a sua
sponte obligation to instruct the jury how to consider Detective Meroney's testimony.
Any assumed error in not giving the CSAAS limiting instruction sua sponte was
harmless. In analyzing claims of instructional error, we apply the standard set forth in
People v. Watson (1956) 46 Cal. 2d 818, 836 (Watson). (See People v. Flood (1998) 18
Cal. 4th 470, 490 [applying Watson standard in determining whether instruction removed
an element of the crime from the jury's consideration].) Under Watson, reversal is
warranted only on a determination that it is reasonably probable that defendant would
have obtained a more favorable result in the absence of any error. (Watson, supra, 46
Cal.2d at p. 836.) Instructional error such as that claimed here is "trial error whose
prejudicial effect may be assessed in light of the entire record." (People v. Flood, supra,
18 Cal.4th at p. 503.)
First, we note that the court instructed the jury "[y]ou alone must judge the
credibility or believability of the witnesses." Any risk that Detective Meroney's
testimony would be mistaken by the jury as support for the victim's credibility was
eliminated by her testimony that she is obligated to take a child victim's report, but she
does not determine credibility and that the fact a child victim immediately reports or
delays a report does not establish their credibility—in other words these things could not
be used to corroborate the victims' claims. In light of these comments, the jury would not
reasonably have understood Detective Meroney's testimony as being offered for the
purpose of corroborating the victims' claims of molestation.
Furthermore, this case did not turn on delayed reporting, but rather on whether
what Jane II and Jane III said happened was possible in light of the public nature of the
molestation to Jane II; and as to Jane III the fact that the molestation was alleged to have
14
occurred in the bedroom that appellant shared with his wife, during a time when it was
highly probable his wife was present in the room.
Appellate review under Watson "focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the error under
consideration." (People v. Breverman (1998) 19 Cal. 4th 142, 177.) "In making that
evaluation, an appellate court may consider among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result." (Ibid.) After an examination
of the entire case, including the evidence, we conclude there is not a reasonable
probability that a result more favorable to appellant would have been reached had the
cautionary instruction regarding Detective Meroney's testimony been given. (People v.
Watson, supra, 46 Cal. 2d 818, 835-836; People v. Housley, supra, 6 Cal.App.4th at p.
959.) Jane II and Jane III each provided detailed testimony regarding various
molestations perpetrated on them by appellant. Contrary to appellant's assertions,
nothing in Jane II's and Jane III's testimony was inherently improbable.
Having determined this error was harmless, we need not address appellant's
contention that his counsel provided ineffective assistance by failing to request a limiting
instruction, since appellant cannot show he was prejudiced by counsel's error. (People v.
Ledesma (1987) 43 Cal. 3d 171, 217, [defendant must establish prejudice to obtain relief
on an ineffective assistance claim].)
Cumulative Error
With respect to counts six through 11, appellant argues that the cumulative effect
of the trial court's errors violated his due process rights.
Certainly, " '[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.'
15
[Citation.]" (People v. Cunningham (2001) 25 Cal. 4th 926, 1009.) The combined effects
of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia
(2002) 97 Cal. App. 4th 785, 795.) However, as discussed ante, since we have found none
of appellant's claims of error meritorious and/or prejudicial, a cumulative error argument
cannot be sustained. No serious errors occurred, which whether viewed individually or in
combination, could possibly have affected the jury's verdict. (People v. Martinez (2003)
31 Cal. 4th 673, 704; People v. Valdez, supra, 32 Cal.4th at p. 128.) To put it another
way, since we have found no substantial error in any respect, appellant's claim of
cumulative prejudicial error must be rejected. (People v. Butler (2009) 46 Cal. 4th 847,
885.) Appellant was entitled to a fair trial, not a perfect one. (People v. Bradford (1997)
14 Cal. 4th 1005, 1057.)
Disposition
The judgment is affirmed.
________________________________
ELIA, J.
WE CONCUR:
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RUSHING, P. J.
______________________________
PREMO, J.
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