P. v. Chick

Filed 4/9/08 P. v. Chick CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Wayne Elwin Chick appeals from his conviction of two counts of forcible lewd acts on a child (Pen. Code^[1],  288, subd. (b)(1) counts 1 and 2), one count of child endangerment ( 273a, subd. (a) count 3), and one count of rape of a child under the age of 14 ( 269, subd. (a) count 4). Defendant contends: (1) the admission of his prearrest invocation of his right to remain silent as evidence of guilt violated his Fifth and Fourteenth Amendment rights; (2) the prosecutor improperly suggested that defendants failure to testify in his own defense was an indication of guilt; (3) the trial court erred in admitting evidence of dissimilar conduct under Evidence Code section 1108; (4) the trial court erred in admitting the same propensity evidence from five witnesses under the guise of corroborating the complaining witnesss statement; (5) the evidence of rape was insufficient to establish defendants guilt beyond a reasonable doubt; (6) his convictions of violating section 288, subdivision (b)(1) should be reduced to convictions of violating section 288, subdivision (a) because there was no evidence of the element of force; and (7) the cumulative error doctrine requires reversal.

We conclude the trial court erred in admitting evidence of defendants prearrest silence and in overruling a defense objection to the prosecutors reference to defendants failure to testify, and the trial court abused its discretion in admitting the testimony of five witnesses to corroborate the complaining witnesss statement about a collateral issue. We conclude, however, that whether considered alone or cumulatively, the errors did not cause defendant to have an unfair trial or lead to a miscarriage of justice. We will therefore affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Prosecutions Case

In January 2002, defendant was living with his mother, Marjorie Chick (referred to herein as the grandmother) and his then seven-year-old niece, Jane Doe. Jane Doe appeared at school with a red mark on her neck and told her teacher that defendant had bitten her. The teacher reported the incident, and Jane Doe told a social worker that defendant had bitten her while the two were rough-housing. She said he had turned her over and bitten her and had not stopped when she asked him. She told the social worker the bite had hurt. Jane Doe was removed from the grandmothers home and placed in foster care.

On January 16, 2002, Jane Doe was given a complete physical examination, which revealed a two-centimeter bite mark on the back of her neck. There were no indications of genital or anal trauma. Dr. Susan Horowitz, a physician who had reviewed the report of the examination, testified that most children who are sexually abused have normal examinations because penetration may not be deep enough to tear hymenal tissue, and rectal tears heal quickly back to normal.

In the first weeks of her stay in foster care, Jane Doe wet and soiled her pants. She was allowed contact with her grandmother, who planned an outing to take Jane Doe to an amusement park. As the date of the outing, approached, however, Jane Doe had more frequent accidents in her pants and seemed withdrawn. When the foster mother asked what was wrong, Jane Doe said she was worried defendant might show up.

In an interview with Crystal Schackleford,^[2]an investigator with the Riverside Child Assessment Team (RCAT) on January 29, 2002, Jane Doe said her uncle had bitten her [p]robably 99 times on her back, neck, and bottom when they were playing. When defendant bit her, he lifted up her shirt. Defendant had hit her and her grandmother on their backs with his fist and had hit her all over her body about eight times. He had hit a light bulb with his fist and had broken it. Defendant had started hitting and biting her when she first moved in with her grandmother when she was four years old. Jane Doe stated that when the grandmother was out of the house, defendant took care of her. She then spontaneously added, And sometimes he dresses like a big fat lady.

A second RCAT interview was conducted on May 15, 2002. In that interview, Jane Doe again told Schackleford that defendant had bitten her on the back, neck, and butt. He had once hit her on the back with a big dirt rock. She said defendant sometimes dressed up like a lady when the grandmother was gone. Jane Doe said she had told her foster mother that defendant had stuck something up [her] butt, and she told Schackleford it had happened more than once while they were in the bathroom of her grandmothers house. She had been lying on the floor on her stomach because defendant had told her to do so. Defendant took off her pants and underwear. She felt something enter her butt where the poop comes out, and it hurt. She told Schackleford it had happened twice, and it felt like a stick entering her butt. During the incidents, she felt like she could not get up [b]ecause it really hurt. She said her grandmother knew about the second incident. Both RCAT interviews were videotaped, and the tapes were played for the jury.

Defendant was charged with child endangerment for biting Jane Doe, and with two lewd acts on a child arising from the bathroom incidents. Over the next four years, defendant was represented by a series of public defenders and private attorneys.

On October 13, 2006, in preparation for trial, Reese Burchett, a prosecution investigator, played the May 15, 2002, RCAT interview tape for Jane Doe, then aged 12. Jane Doe appeared to become withdrawn and depressed and had a hard time watching the tape. She finally told Burchett that defendant had put his penis in her rectum in the bathroom, and she revealed another incident that had occurred in her bedroom. She said defendant had touched her private part with his penis. She had cried out, and her grandmother had come into the room but had left when defendant told her to get out. Burchett asked Jane Doe to write down where defendant had touched her with his penis, and she wrote, vagina. Burchett asked her to write whether defendants penis was inside or outside her body, and she wrote, in. The interview was not recorded.

Based on Jane Does revelation to Burchett, a new case was filed charging defendant with rape, and on the Peoples motion, that case was consolidated with the older case.

At trial, Jane Doe testified her teacher had sent her to the nurses office when she showed up at school with a bite mark on her neck; she testified defendant had bitten her. She did not remember talking to a police officer about the incident, but she did remember being taken into foster care. She had since been placed in four different foster homes.

Jane Doe testified she was afraid of defendant because he had done bad things to her, but she did not remember what had happened. She testified defendant had been abusing her, but she did not remember what part of her body he had been abusing. She had told the interviewer the truth about what had happened, including that defendant had done things to her where you go to the bathroom. She remembered telling Burchett that defendant had held her down and that she was screaming for somebody. She testified that she had written the word vagina, and that was where defendants private part had been in her body. She testified that the words she had written were the truth.

After the prosecutor played the videotape of the January 29, 2002, interview, Jane Doe testified she remembered being interviewed and had tried to tell the truth in the interview. She remembered saying defendant had bitten her on her neck, but she did not remember saying he had bitten her on her bottom. She remembered saying defendant used to dress up in womens clothing. She testified she had told the investigator that something had happened involving her private part and defendants private part, but she did not remember if it had hurt or if she had screamed.

The prosecutor then played the videotape of the May 15, 2002, interview. Jane Doe testified she did not remember that defendant had put a stick in her butt. She then testified it was true that defendant had put his penis in her butt. She did not remember if she had tried to get away or if it had hurt.

Jane Does cousin, Nicholas, testified he had lived with the grandmother until 1999, when he turned 18. Defendant lived in the garage but sometimes slept in the living room. Nicholas did not like defendant. Shortly after Nicholas moved into the grandmothers house, defendant began to beat Nicholas with his fists and often punched Nicholas in the groin. Defendant would grab Nicholass penis and testicles, squeeze, release, and then run off, rub his hands together, and snicker. The first incidents took place over Nicholass pants, but later incidents took place under Nicholass pants. Over time, the frequency of the incidents escalated to once or twice a day.

In 1992, when Nicholas was 11 years old, he reported the abuse at school, and the police were called. Nicholas stayed with a friend for a few weeks, but he was eventually returned to his grandmothers home. About a month after that, defendant returned and again began sleeping in the grandmothers garage. He resumed pinching, grabbing, [and] pulling Nicholass genitals almost daily. Nicholas did not report the abuse again because he felt it would be useless he had done so once and had nonetheless been returned to the grandmothers home. The abuse ended when Nicholas was about 14 and was strong enough to fight back.

Nicholas testified that defendant broke things in the house, damaged defendants car and the grandmothers car, attacked the grandmother, choked her, and choked Nicholas. Defendant had beaten Nicholass dog, and the dog had died the next day. About once every other month, Nicholas had seen defendant in the yard dressed like a woman with a big exercise ball under the clothing in his stomach area.

Tracy and Sabine Leavitt, next-door neighbors of the grandmother, testified they had seen defendant many times in the yard dressed in maternity clothes. Sabine had once seen defendant and Jane Doe playing together with Barbie dolls, and afterwards, Sabine had seen a child-sized pair of panties on the ground. More than once, Sabine had heard screams coming from the grandmothers home and lasting two or three minutes. The screams sounded as if they were made by a little girl in pain.

Two other neighbors testified they had seen defendant in his back yard wearing what appeared to be maternity clothes.

Patty Muniain testified defendant was employed by her tenant in a commercial center. Defendants mother had brought him to Muniains house to do some work about two years before the trial. Muniain, defendant, and another worker drank together, and defendant became melancholy and kind of crybaby-ish. Defendant told Muniain he was a bad person, he was really sorry, and he had not meant to hurt Jane Doe. Muniain and defendant later had a disagreement about his work. About six months after the drinking incident, Muniain called the district attorneys office to report what defendant had said to her.

David Hussey, an investigator for the district attorneys office, testified he had received a letter dated February 19, 2006, written and signed by defendant. The letter stated, To the district attorney. I, Wayne Chick, confess to the charges that I did molest my nephew, Nicky, and that I was the cause of both my father and sisters death.[^[3]] I cant live with it any longer, also my mother molest [sic], molest my niece [Jane Doe]. My mother used to molest me all the time. I do not deserve to have my freedom. All I ask [is] that I be put away for life, as I do not want to hurt anybody[.] Wayne Chick.

Hussey visited defendant and had him provide handwriting exemplars. Hussey learned that another investigator with the Riverside County Sheriffs Department had intercepted a confession letter written by defendant to his friend Scott Phillips; that letter contained language virtually identical to that of the February 19, 2006, letter to the district attorneys office. Pursuant to a search warrant, defendants cell was searched, and nine pages of letters and several envelopes were seized. The letters were sent to the Department of Justice for analysis and were determined to be in defendants handwriting.

One of the seized letters read: This is a copy of the statement that I gave the D.A. investigator, David Hussee [sic], on Monday April 3rd, 2006. [] . . . [] I, Wayne Chick, confess to the charges the D.A. has brought against me are true. I am a menace to society, and should be put away forever. Im sorry that I hurt . . . my niece, [Jane Doe]. . . . There is not anything I can say or do to make up what I have done to [Jane Doe]. Maybe when I am put away she can come back home where she belongs.

B. Defense Evidence

Jeffery Scott Phillips testified he had been defendants friend for more than 30 years. Phillips testified defendant had become depressed while in custody and seemed to give up hope; defendant had sobbed and told the same stories over and over. Defendant made multiple court appearances over many months while represented by public defenders, but no trial was set. Defendant hired a private attorney, but his relationship with her became strained, and she had left the case. Phillips had paid the fees for defendants private attorney.

Jeffrey J. Desuacido, a licensed therapist employed at the Southwest Detention Mental Health Services, testified he had met with defendant at the jail for 30 to 45 minutes weekly for more than a year. Desuacido counseled defendant not to write letters to anyone but his therapist. Defendant had an elevated affect, as indicated by rapid speech and hand movements, getting ahead faster than the therapist could track, and jumping from one subject to another. Desuacido diagnosed defendant as having an adjustment disorder caused by his arrest. The disorder was a mood disorder, possibly Bipolar II. Defendant cycled between being depressed and being elevated in mood. Defendant was also suffering from depression and anticipatory anxiety, which is a means by which persons move forward to confront their fears. He wrote the letters because he was of the mind that if he were going to prison, lets get it over with.

Robert Suiter, a licensed psychologist, testified as an expert on false confessions. He interviewed defendant twice and found no mental disorder. He also reviewed the written confession and other letters defendant had written. In Suiters opinion, the tenor of the letters reflected that defendant was emotionally distraught, despondent, unduly anxious, depressed, had feeling of hopelessness, helplessness, essentially being at what a lay person describes as at the end of his rope, unable to tolerate his circumstances, looking for extreme solutions to the circumstances at the time. Because defendant had had nothing to do with his fathers or his sisters deaths, and there was no known history suggesting his mother had molested him, Suiter formed the opinion that defendants letter was a global confession of things he did not do, including the molestations, written in an attempt to bring an end to his suffering. Suiter testified the confession could not reasonably be relied upon.

Suiter had never talked to defendants therapist Desuacido, and Suiter did not believe defendant suffered from a bipolar disorder. When Suiter interviewed defendant in September and October 2002, Suiter did not believe defendant was suffering from an adjustment disorder. Suiter concluded defendant was of average to above-average intellect. Suiter also concluded that it was unlikely defendant had been incompetent to stand trial at the time he wrote the confession letters.

C. Jury Verdicts and Sentence

The jury found defendant guilty on all four counts. The trial court deemed count 3 to be the principal count and imposed the middle term of four years. The court imposed the middle term of six years each for counts 1 and 2, 15 years to life for count 4, and ordered that all sentences would run consecutively.

Other facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Invocation of Right to Remain Silent

Defendant contends the admission of his prearrest invocation of his right to remain silent as evidence of guilt violated his Fifth and Fourteenth Amendment rights.

1. Background

Before Burchett testified, defense counsel objected to the admission of any statements that defendant had made that he would call Burchett back, but then he didnt, because he contacted an attorney and was advised not to make a statement. Following extensive discussions with counsel, the trial court ruled that the prosecutor could not elicit evidence that defendant had said he wanted to talk to his attorney before talking to Burchett. The trial court ruled, however, that defendants statements that (1) he would call Burchett later in the evening; (2) he was living with a friend; (3) he refused to give Burchett the address and telephone number or the friends name because he wanted to check with the friend first; and (4) Burchett did not hear from defendant or receive any messages from him by the following day, would be admissible. The trial court stated that defendants rights were not triggered because he was not under arrest, he was not in custody, and he was not being questioned.

Burchett thereafter testified that after he learned about Nicholass 1992 complaint, Burchett spoke to the grandmother for about an hour outside the grandmothers house on September 26, 2002. Defendant came outside, approached Burchett, and said he had not done anything wrong and would like to cooperate. Burchett asked defendant to accompany Burchett to the police station to talk. Defendant asked if he was under arrest, and Burchett said he was not. Defendant said he would call Burchett that evening. When Burchett asked defendant where he was living, defendant replied that he was living with a friend in Orange County but declined to give the friends name, address, or telephone number, saying he wanted to check with the friend before disclosing that information. Burchett said it was important that defendant give his side of the story, and if Burchett did not hear from defendant, Burchett would forward the case to the district attorneys office. The prosecutor asked if Burchett had heard from defendant by the following day, and Burchett responded that he had not. The prosecutor asked Burchett if he had attempted to call the grandmothers house that day or the following day, and Burchett testified he had attempted to place more than 10 calls, but no one answered, and there was no answering machine to leave a message.

Defendant did not testify at trial.

The prosecutor discussed Burchetts testimony during argument to the jury, reminding the jury that defendant had first told Burchett he wanted to cooperate, but then refused to tell where he lived or give his friends name and later failed to call Burchett back. That discussion comprised only about one page of approximately 50 pages of the reporters transcript devoted to the prosecutors arguments.

The trial court instructed the jury, A person has the right to remain silent and not give a statement to the police. You cannot consider the defendants silence as evidence of guilt.

2. Analysis

Although the People have analyzed the issue as a purported Miranda^[4]violation, it was not. Defendant does not contend he was in custody when he made his statements to Burchett, that Miranda warnings were required, or that his statements were not voluntary. Rather, defendant contends he invoked his constitutional right to counsel, and the admission of evidence of his silence was therefore error.

It is well established that constitutional protections apply regardless of whether Miranda warnings are given. As this court has stated, [E]ven outside the context of custodial interrogations, silence remains constitutionally protected if it appears to be an assertion of the right to remain silent. (People v. Jennings (2003) 112 Cal.App.4th 459, 473, fn. 2 [Fourth Dist., Div. 2].) We explained, Silence can normally be interpreted as an adoptive admission, but not when the circumstances lend themselves to an inference that [the defendant] was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. [Citation.] (Id. at p. 472.) Thus, we conclude the trial court erred in holding that defendants rights were not triggered because he was not in custody, he had not been arrested, and he was not being questioned.

If a defendant chooses to testify, his prearrest silence may be used for impeachment; otherwise, the prosecution is not allowed to comment on the defendants prearrest silence. (Jenkins v. Anderson (1980) 447 U.S. 231, 238.) In People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520-1521, for example, the court held that evidence the defendant remained silent when questioned by his girlfriend was inadmissible because his attorney had advised him not to speak to her.

Here, we find no error in the admission of defendants statement that he was living with a friend and in his refusal to give Burchett the friends name, address, and telephone number because he wanted to check with the friend first. The statement that he was living with a friend was made voluntarily. And in refusing to give the friends name, address, and telephone number, defendant was not invoking his right to remain silent; rather, his purported reason for the refusal was that he needed to check with the friend.

However, it was undisputed that defendant told Burchett that defendant wanted to talk to an attorney before giving a statement to Burchett. Thus, defendant invoked his right to counsel, and the evidence of his silence should have been excluded; merely excluding the evidence that defendant had invoked his right to counsel compounded rather than cured the error.

We nonetheless conclude the error was harmless beyond a reasonable doubt. (See People v. Eshelman, supra, 225 Cal.App.3d at p. 1522.) As the United States Supreme Court has stated, evidence of silence is so ambiguous that it is of little probative force. (United States v. Hale (1975) 422 U.S. 171, 176.) The evidence that defendant initially said he would call Burchett and then failed to follow through was an insignificant part of the prosecutions case. Jane Doe told Schackleford in recorded interviews about defendants molestations of her, and Burchett testified about another interview in which Jane Doe revealed that defendant had raped her. Jane Doe testified at trial, and although she did not remember the molestations, she testified she had told the truth when speaking to the interviewers. Defendant expressed remorse and guilt to Muniain. More significantly, defendant confessed his guilt in letters to the district attorney and a friend. The trial court instructed the jury it could not consider defendants silence as evidence of his guilt, and we presume, in that absence of evidence to the contrary, that the jury followed that instruction. (People v. Mendoza(2007) 42 Cal.4th 686, 701.) Thus, we conclude any error in the admission of evidence that defendant invoked his right to remain silent was harmless.

B. Prosecutors Comment on Defendants Failure to Testify

Defendant contends the prosecutor improperly suggested that defendants failure to testify in his own defense was an indication of guilt. The People concede, and we agree, that the prosecutors remark was error.

1. Background

During argument to the jury, defense counsel noted that Jane Doe had told an investigator that her grandmother had walked in during one of the molestations. Defense counsel continued, Well, hello, didnt you want to go and investigate grandma, didnt you want to go at least talk to her and say[,] Did this ever happen? Ladies and gentlemen, if they didnt do that, if they didnt bring grandma in, and it is not my burden of proof to bring grandma in, it is their burden to prove it to you beyond a reasonable doubt . . . . During closing argument, the prosecutor affirmed that the People had not called the grandmother as a witness and acknowledged the Peoples burden to prove the charges beyond a reasonable doubt. After discussing evidence concerning the relationship between defendant and the grandmother, the prosecutor noted that both sides had the power to subpoena witnesses. The prosecutor then stated, If there was any piece of evidence [defense counsel] thought would be helpful to her client, [defendant] would be up on the witness stand. Defense counsel objected on the basis that it was improper argument, but the trial court overruled the objection.

The trial court instructed the jury, A defendant has an absolute [c]onstitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.

2. Analysis

A court and prosecutor in a criminal case are forbidden from stating or implying that the jury may draw an inference of guilt from the defendants failure to testify. (Griffin v. California (1965) 380 U.S. 609, 614.) However, the prosecutor may comment on the state of the evidence and the defendants failure to introduce material evidence or call logical witnesses in his favor. (People v. Wash (1993) 6 Cal.4th 215, 263.)

Although the People concede Griffinerror, they argue that error was harmless beyond a reasonable doubt. [B]rief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citation.] (People v. Turner (2004) 34 Cal.4th 406, 419-420.)

Here, from the context of the statement, the prosecutors remark was apparently intended to point out defendants failure to call the grandmother as a logical witness in his favor rather than point out defendants own failure to testify. The trial court explicitly instructed the jury that it could not consider, for any reason, the defendants failure to testify. We presume, in the absence of evidence to the contrary, that the jury followed that instruction. (People v. Mendoza, supra, 42 Cal.4th at p. 701.) In light of the context of the statement, the strength of the case against defendant, and the trial courts instruction to the jury, we find no reasonable likelihood the jury verdict was attributable to the error. (People v. Turner, supra, 34 Cal.4th at p. 421.)

C. Evidence Code Section 1108

Defendant contends the trial court erred in admitting evidence of dissimilar conduct under Evidence Code section 1108.^[5]

1. Background

Over defense objection, the trial court admitted evidence of defendants molestations of Nicholas over the course of several years. Nicholas testified, among other things, that defendant had repeatedly grabbed Nicholass penis and testicles, both through and under Nicholass clothing.

2. Standard of Review

The trial court has broad discretion in ruling on the admissibility of evidence under Evidence Code section 1108, and we review the trial courts ruling for abuse of discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) In other words, we determine whether the trial courts ruling fell outside the bounds of reason. (Ibid.)

3. Analysis

When determining the admissibility of evidence under Evidence Code section 1108, the trial court considers such factors as the nature of the uncharged offense, its relevance, possible remoteness, the certainty the uncharged offense was committed, the likelihood of confusing, misleading, or distracting jurors, the similarity of the uncharged offense to the charged offense, the likely prejudicial impact on jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives. (People v. Abilez (2007) 41 Cal.4th 472, 502.) Another court has stated that in assessing the prejudicial effect of evidence of uncharged offenses, we consider whether the uncharged offenses resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offenses, and whether the evidence of the uncharged offenses was stronger or more inflammatory than the evidence of the charged offenses. (People v. Walker(2006) 139 Cal.App.4th 782, 806.)

Here, the offenses involved defendants molestations of his niece and nephew when they were dependents in the grandmothers household. The offenses against Nicholas began when Nicholas started living with the grandmother when he was about eight years old and continued until Nicholas was about 14 years old. The offenses against Jane Doe began when she started living with the grandmother when she was about four years old and continued until her first grade teacher noticed the bite mark on her neck and Jane Doe was removed from the grandmothers house. The offenses against Nicholas and Jane Doe were of the same class and nature. (See People v. Wesson, supra, 138 Cal.App.4th at pp. 969-970 [holding the trial court did not abuse its discretion in admitting evidence of the defendants 1990 guilty pleas to forcible oral copulation and sexual battery in the defendants 2003 trial for sodomy by force and other crimes].) As the court stated in People v. Frazier (2001) 89 Cal.App.4th 30, 41 (fn. omitted), It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108. Thus, dissimilarities between the charged and uncharged offenses go to weight, not admissibility. (People v. Mullens (2004) 119 Cal.App.4th 648, 659-660.)

Here, the evidence of defendants molestations of Nicholas was certainly no more inflammatory than the evidence of defendants sodomizing and raping Jane Doe. Thus, the factor that the uncharged offenses were particularly inflammatory (People v. Walker, supra, 139 Cal.App.4th at p. 806) does not support defendants argument. Moreover, the evidence of the molestations of Nicholas was not stronger than the evidence of defendants rape and sodomization of Jane Doe; rather, defendant confessed to abusing both children. Although defendant argues his confession was unreliable because of his mental state, the determination of reliability was for the jury. (See People v. Pierce (2002) 104 Cal.App.4th 893, 901.)

Although it was apparent from Nicholass testimony that defendant had not been charged with or convicted of the offenses against Nicholas, there was also no evidence the jury considered whether defendant had been punished for his offenses against Nicholas. (See People v. Branch (2001) 91 Cal.App.4th 274, 284.)

The offenses against Nicholas were not remote. Nicholas began living with the grandmother when he was eight years old and the offenses continued until he was 14 years old, which would have been in 1995. The offenses against Jane Doe took place up to January 2002.

Finally, we note that Nicholass testimony was relatively brief. His entire testimony spans approximately 38 pages of the 841-page reporters transcript. However, those 38 pages include general background information, and his testimony was interrupted by discussions among counsel and the court concerning administrative matters and the admissibility of other evidence. In fact, only about 28 pages directly discuss defendants mistreatment of Nicholas, Nicholass 1992 reporting of that conduct, and the aftermath of Nicholass report. (See People v. Pierce, supra, 104 Cal.App.4th at pp. 900-901 [noting that [l]ittle time had been devoted to the prior offense, involving only 17 pages of transcript].)

We conclude the trial court did not abuse its discretion in admitting evidence of defendants molestations of Nicholas.

D. Propensity Evidence

Defendant contends the trial court erred in admitting the same propensity evidence, specifically, evidence of defendants cross-dressing as a pregnant woman, from five separate witnesses.

1. Background

Over defense objections that the evidence was more probative than prejudicial and cumulative, the trial court allowed Nicholas and four neighbors to testify they had seen defendant dressed as a pregnant woman. The challenged evidence was admitted to corroborate Jane Does statement that she had seen defendant dressed as a big fat lady.

2. Standard of Review

The trial court has broad discretion in ruling on the admissibility of evidence, and we review the trial courts ruling for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 120.)

3. Analysis

The admission of the testimony of five separate witnesses to address a collateral issue was, in our view, an abuse of discretion the witnesses testimony was clearly cumulative (Evid. Code,  352; see also, e.g., People v. Maestas (1993) 20 Cal.App.4th 1482, 1495-1496), although it would not have been an abuse of discretion to admit the brief testimony of one or two witnesses on the issue.

We determine, however, that the error was harmless under any standard of review. First, as compared to the nature of the charged offenses, the evidence of cross-dressing was innocuous, and, as noted, defendants cross-dressing was merely a collateral issue. Second, it was not an abuse of discretion to admit any testimony about the issue, but merely to allow the testimony of five separate witnesses on the same point. Thus, the same evidence would properly have been before the jury, albeit from the mouths of fewer witnesses.

Finally, after each witness testified about defendants cross-dressing and as part of the general instructions, the trial court instructed the jury with defendants special jury instruction No. 1, which provided: Witness testimony that the defendant dressed up as a woman is admitted only for the limited purpose of corroborating the statement of [Jane Doe] regarding the defendant having dressed up as a woman. You are instructed that such evidence may be considered only for that limited purpose. Do not consider this evidence for any other purpose. Thus, the jury heard the special instruction six times. We presume, in the absence of evidence to the contrary, that the jury followed that instruction. (People v. Mendoza, supra, 42 Cal.4th at p. 701.)

We therefore conclude there was no miscarriage of justice requiring reversal. (Evid. Code,  353, subd. (b).)

E. Sufficiency of Evidence of Rape and of Violation of Section 288, Subdivision (b)(1)

Defendant contends the evidence of rape was insufficient to establish his guilt beyond a reasonable doubt. He also contends his convictions of violating section 288, subdivision (b)(1) should be reduced to convictions of violating section 288, subdivision (a) because there was no evidence of the element of force.

1. Standard of Review

When a criminal defendant challenges the sufficiency of the evidence to support his conviction, this court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 578.)

2. Sufficiency of Evidence of Rape

Defendant was charged in count 4 with aggravated sexual assault of a child under the age of 14, in violation of section 269, subdivision (a)(1).^[6] Defendant asserts that because Jane Doe was not a credible witness, because she said his penis was in her instead of inside her vagina, and because her medical examination was normal, there was no evidence of penetration sufficient to prove the charge.

We must view the evidence in the light most favorable to the judgment. (People v. Johnson, supra, 26 Cal.3d at p. 578.) Jane Doe testified she had written in response to Burchetts questioning that defendants penis had been in [her] body, and the words she had written were the truth. Penetration, however slight, is sufficient to establish rape (In re John Z. (2003) 29 Cal.4th 756, 761), and the victims testimony alone is sufficient evidence to support the conviction of rape (People v. Stevenson (1969) 275 Cal.App.2d 645, 650) unless the testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

As defendant points out, Jane Doe did not report the rape until five years after the incident; during that five years, she had been placed in four different foster homes and undoubtedly learned the facts of life from her exposure to other foster children and schoolmates. Defendant therefore argues that Jane Doe was not a credible witness; however, the jury is the sole judge of the credibility of witnesses. (See People v. Young, supra, 34 Cal.4th at p. 1181.)

Here Burchett testified, based on his training and experience, that its not uncommon for children to disclose more incidents and more details as time goes on. He explained, They may feel more comfortable and less embarrassed of the situation, they may recall more of the incidents as theyre talking about it and . . . at certain times a specific incident may enter their mind, they may recall it. And, at that time, theyre likely to disclose that specific incident that they didnt previously disclose. Thus, Jane Does failure to report the rape in her initial disclosures does not make the rape inherently improbable.

Moreover, the failure to find evidence of genital or anal trauma in the medical examination of Jane Doe does not establish that Jane Doe had not been raped. As Dr. Horowitz testified, a majority of sexually abused children have normal examinations because penetration is not deep enough to tear the hymen, and rectal tears heal quickly back to normal. We therefore conclude the evidence amply supports defendants conviction of rape.

3. Sufficiency of Evidence of Violation of Section 288, Subdivision (b)(1)

Defendant was charged in counts 1 and 2 with violating section 288, subdivision (b)(1). For purposes of section 288, subdivision (b)(1), force means physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (People v. Neel (1993) 19 Cal.App.4th 1784, 1790 (Neel), italics omitted.) Defendant contends the evidence was insufficient to establish force under that standard.

Although defendants argument focuses on force, a violation of section 288, subdivision (b)(1) may be committed not only by force, but also by violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . . ( 288, subd. (b)(1).) The jury was instructed under Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1111, on the definitions of each of those terms, and the prosecutor argued all those alternative theories to the jury. The jurys verdict did not specify on which basis it found defendant guilty of violations of section 288, subdivision (b)(1).

Even if we assume for purposes of argument only that the evidence was insufficient to establish force, the evidence nonetheless clearly established duress or menace. Duress, for purposes of section 288, subdivision (b)(1), means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary sensibilities to (1) perform an act which otherwise would not have been performed or (2) to acquiesce in an act to which one otherwise would not have submitted. [Citation.] (People v. Leal (2004) 33 Cal.4th 999, 1011.) In assessing whether an act was committed under duress, we consider the total circumstances, including the age of the victim, and [her] relationship to defendant. (People v. Pitmon (1985) 170 Cal.App.3d 38, 51, superseded by statute as stated in People v. Valentine (2001) 93 Cal.App.4th 1241, 1250.) We also consider threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family [citations]. (People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran).)

In Cochran, the court found sufficient evidence of duress when, among other things, the victim was the defendants nine-year-old daughter; the defendant was a foot and a half taller than the victim and outweighed her by about 100 pounds, the acts occurred in the family home, the victim complained during the acts that the defendant was hurting her. (Cochran, supra, 103 Cal.App.4th at p. 15; see also People v.Pitmon, supra, 170 Cal.App.3d at p. 51 [finding duress when the defendant, a stranger to the eight-year-old victim, physically controlled the victim during the molestations].)

Here, Jane Doe reported to Schackleford that defendant stuck something up my butt. She said that she had been in the bathroom lying on her stomach on the floor because defendant had told her to do so. Defendant stood behind her, and he removed her pants and underwear. Defendant then push[ed] the stick down, and Jane Doe felt she could not get up [b]ecause it really hurt. A next-door neighbor testified that more than once, she had heard horrible screams coming from the grandmothers house when both defendant and Jane Doe were living there. The screams continued for two or three minutes at a time, and the neighbor testified they sounded as if they were made by a little girl in pain. Moreover, Jane Doe was only seven years old at the time of the crimes. Defendant lived in the same house as Jane Doe and her grandmother, and defendant was Jane Does caretaker when the grandmother was away; the offenses took place in the family home. Defendant had frequently bitten Jane Doe since she was four years old, and he was violent with both Jane Doe and the grandmother, striking them with his fists, breaking things, and throwing things around the house. The discrepancy in Jane Does and defendants sizes was undoubtedly similar to that in Cochran.^[7]

We conclude the evidence of duress and menace was not merely sufficient; it was overwhelming.

F. Cumulative Error Doctrine

Defendant contends the cumulative error doctrine requires reversal.

Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] (People v. Hill (1998) 17 Cal.4th 800, 844.) Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. (Ibid.) The litmus test for cumulative error is whether defendant received due process and a fair trial. [Citation.] (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)

In People v. Hill, supra, 17 Cal.4th at pages 844-848, for example, the Supreme Court held that pervasive prosecutorial misconduct, along with instructional and other errors, required reversal. (See also People v. Cuccia, supra, 97 Cal.App.4th at pp. 790-795 [finding prejudicial cumulative error when (1) the defendant was required to either testify out of order or rest his case when a scheduled defense witness could not be located, and (2) the trial court denied the defendants request to testify on surrebuttal]; People v. Hernandez (2003) 30 Cal.4th 835, 871-877 [finding prejudicial cumulative error in the penalty phase of a capital trial when, the numerous and serious errors included erroneous admission of evidence about a crime of which the defendant had been acquitted and about fear of the victim of an uncharged murder that the defendant would kill him, and an improper instruction pertaining to others involved in criminal activity with the defendant combined with the failure to instruct the jury on accomplice liability].)

Because defendant invoked his constitutional right to counsel, we have found error in the admission of evidence that defendant offered to call Burchett but later failed to do so. We have also found error in the prosecutors mention of defendants failure to take the stand and have concluded the trial court abused its discretion in admitting the testimony of five separate witnesses to corroborate Jane Does statement about a collateral issue, defendants cross-dressing.

Even though we have found multiple errors, however, we also note that those errors were relatively minor and were not comparable to the pervasive and fundamental errors that occurred in the cases discussed above in which cumulative error has been found to require reversal. This was not a close case defendant confessed his guilt multiple times. Jane Doe described the offenses in three interviews, and although she testified at trial that she could not remember the molestations, she also testified she had told the truth during the interviews. We are not persuaded, therefore, that the errors, whether considered alone or cumulatively, led to an unfair trial or a miscarriage of justice. (People v. Hill, supra, 17 Cal.4th at p. 844.)

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The witnesss name also appears in the record as Crystal Shackleford.

^[3] There was no evidence defendant had anything to do with those deaths; the defense psychologist testified defendants father had died of cancer, and his sister had died of AIDS.

^[4]Miranda v. Arizona(1966) 384 U.S. 436 (Miranda).

^[5] Evidence Code section 1108, subdivision (a) provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352.

^[6] As it read in 2002, section 269 provided: (a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [] (1) Rape, in violation of paragraph (2) of subdivision (a) of Section 261. ( 269, subd. (a)(1).)

Section 261, subdivision (a) defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . . [] . . . [] (2) Where it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

^[7] The probation report indicates that defendant is five feet seven inches tall and weighs 149 pounds.