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P. v. Aguilera CA4/3

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P. v. Aguilera CA4/3

Filed 9/11/18 P. v. Aguilera CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. 15CF2004)


Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was sentenced to 60 years to life in prison for sexually abusing multiple children. On appeal, he contends the trial court erred by restricting his right of cross-examination, limiting the admissibility of a statement attributed to one of the victims, and permitting the jury to draw a negative inference from his failure to explain adverse evidence. He also contends the prosecutor misstated the burden of proof in closing argument, he was denied access to subpoenaed records that may have been relevant to his defense, and cumulative error compels reversal. Finding no basis to reverse, we affirm the judgment.


Appellant and his family worshiped at the Kingdom Hall of Jehovah’s Witnesses in Santa Ana. Through their fellowship at the church, they became friends with other families, including that of Luis M. In July of 2015, appellant arranged to take his daughter S., age six, and Luis’ daughter Amy, age eleven, to a Chuck E. Cheese restaurant. After picking up Amy at her residence, appellant told her they were going to go get S. at her school. But instead he drove Amy to his nearby apartment, claiming he needed to change his clothes. Inside the apartment, appellant pulled down Amy’s pants and touched her vagina. When Amy started crying, he pulled her pants back up and told her not to tell her parents what he had done. He and Amy then went to pick up S. at her school, and they all went to Chuck E. Cheese. However, Amy was sad and sullen at the restaurant, so appellant took her home. At the drop off, he again urged Amy not to tell on him, but later that day, she told her mother what happened at appellant’s apartment.

Amy’s parents called the police. When interviewed by one of the responding officers, Amy described how appellant had pulled down her pants inside his apartment. She said she pulled her pants back up before appellant had a chance to touch her vagina. Amy then went to the police station to make a covert call to appellant. During the call, Amy asked appellant to apologize for taking off her pants at his apartment. Appellant told her, “If I did something wrong, I apologize.” But he insisted he did not do anything wrong to her. He also denied any wrongdoing when the police contacted him later that evening at his apartment.

About two weeks later, on August 9, 2015, Amy’s mother took her to the Children’s Hospital of Orange County (CHOC) for a physical examination. The exam did not reveal any conclusive signs of sexual abuse, but Amy did have a urinary tract infection. The exam records include a notation that “patient denies [appellant] touching her.” However, during a subsequent interview by a member of the Child Abuse Services Team (CAST), Amy said appellant wiggled his fingers inside her vagina on the day in question.

Word of Amy’s accusation spread throughout the congregation at appellant’s church. Among the many people who knew about it was appellant’s friend Maria S. In August 2015, Maria S. discussed the accusation with Maria Perez, who used to baby-sit appellant’s daughter S. Perez was surprised to learn of appellant’s alleged misconduct. But the revelation reminded her that the previous summer, S. had said she was upset because she saw appellant kiss her friend Ashley on the mouth. At the time, Perez did not believe S.’s claim, but after talking to Maria S., she began to think S. might have been telling the truth.

Maria S. and Perez decided to talk to Ashley’s mother Belinda about the matter. The conversation occurred in Maria S.’ car. After explaining that appellant may have kissed Ashley on the mouth, Maria S. asked Belinda whether she wanted to talk to Ashley about the matter in private, or whether she wanted Maria S. to help her broach the subject with Ashley right there in the car. Belinda chose the latter option, so they summoned Ashley to the car, and she got into the vehicle with Maria S., Perez and her mother. In response to questioning from Maria S., Ashley said appellant had in fact kissed her on the mouth. She also indicated he had touched her vagina.

Ashley made similar allegations in a subsequent CAST interview and at trial. She said that when she told appellant she was uncomfortable with him touching her, he gave her money in an attempt to buy her silence. She further related that appellant often tried to feel her breasts when giving her hugs and that he had molested other girls, including her friend Abagail.

Like the other victims, Abagail knew and trusted appellant from their church. However, one day while appellant was at her apartment, he touched her breasts and vagina over her clothing while her mother was in the shower. Appellant gave Abagail money to keep quiet about the incident, but when the police interviewed her in August 2015, she told them what appellant had done to her. She also described the incident when interviewed by a CAST member the following month. She further alleged that appellant often rubbed her upper thigh while they were riding in the car together and that he once touched her breasts while showing her some exercise equipment at his apartment.

The police arrested and interviewed appellant in September 2015. After waiving his Miranda rights, he denied any wrongdoing and said he could not understand why the victims were accusing him of sexual misconduct. Later in the interview, though, he admitted they might be telling the truth. In fact, at one point he admitted Ashley’s allegation about him kissing her on the mouth was “probably” true. While claiming he had no recollection of molesting anyone, appellant said he wanted to see a psychiatrist in order to determine whether he was a pedophile. He conceded it was possible he had in fact molested the victims and was simply blocking those memories from his mind.

At trial, the prosecution presented testimony from an expert on child sexual abuse accommodation syndrome. She explained it is common for children who are sexually abused to feel a sense of shame, fear and helplessness. Thus, they often delay reporting the abuse or do so in a tentative, minimizing fashion. And once they realize the ramifications of their reporting, they will sometimes recant their allegations, in an attempt to get their lives back to normal.

For its part, the defense presented testimony from several character witnesses who vouched for appellant’s honesty and trustworthiness. In addition, two women Amy claimed to have seen at appellant’s apartment complex on the day he molested her testified they did not remember seeing Amy that day. The central witness for the defense, however, was appellant himself. Although he denied the victims’ allegations, he said it was hard for him to call them liars because his church discourages people from passing judgment on others. But generosity is encouraged, which is why he gave the victims money and gifts from time to time. He was at a loss to explain why children he loved and cared about would ever accuse him of sexual misconduct.

The jury reached a split decision on the 10 charges appellant faced. It found him guilty of four counts of lewd conduct with a child for touching Amy, Ashley and Abigail on the vagina and kissing Ashely. (Pen. Code, § 288, subd. (a).) However, the jury was unable to reach a verdict on charges that appellant kidnapped Amy to molest her and that he committed four additional lewd acts by touching Ashley and Abigail on their thighs and breasts. And it found appellant not guilty of committing a lewd act on a fourth alleged victim, Amy’s cousin. Because appellant committed lewd acts against multiple victims, the trial court sentenced him to prison for 60 years to life. (Pen. Code, § 667.61, subds. (b), (e).)


Cross-examination of Maria S.

Appellant contends the trial court erred by refusing to allow him to ask Maria S. whether she was a victim of sexual abuse. Appellant claims the court’s decision was not only erroneous as a matter of state law but also violated his federal due process rights. We uphold the court’s ruling.

On direct examination, Maria S. testified in detail regarding the circumstances under which she questioned Ashley about appellant. She said she and Ashley’s mother Belinda were sitting in the front seat of her car, and Ashley and Perez were sitting in the back. Maria S. told Ashley she had heard about appellant kissing her. She asked Ashley if that was true, and the girl said yes. Maria S. then asked Ashley where appellant had kissed her, and Ashley pointed to and said her mouth. Maria S. asked Ashley if that was the only thing appellant had done to her. When Ashley said no, Maria S. asked what else he did, and Ashley said he also touched her. Maria S. asked where the touching occurred, and Ashley pointed to her vagina. At that point, Ashley told her mother she was sorry for not telling her this before. They were both crying and emotional as Ashley revealed what had happened.

On cross-examination, defense counsel asked Maria S. if she too got emotional during Ashley’s disclosures. Maria S. said she did, but not until Ashley apologized to her mother for failing to reveal the abuse to her sooner. Defense counsel then asked Maria S. if she had ever “been a victim.” Before Maria S. could answer the question, the prosecutor objected on relevancy grounds, and the court met with counsel in chambers to discuss the matter.

Defense counsel argued the fact Maria S. may have been a victim of sexual abuse was relevant to whether she questioned Ashley in an unduly suggestive manner. Counsel asserted it wouldn’t take her long to go over this issue with Maria S. In fact, she said she only needed to ask Maria S. one question: “Were you a victim of sexual abuse?” Defense counsel believed that single question would suffice because Maria S. had already answered it in the affirmative when she testified before trial during an Evidence Code section 402 hearing concerning the permissible scope of her testimony.

However, the trial court was skeptical as to whether Maria S.’ sexual history had any relevance to the case. It also felt questioning on that topic would likely be protracted because it would require an examination into such areas as how and when Maria S. was abused, how the abuse affected her, and what counseling she may have had to help her cope with it. It thus precluded defense counsel from inquiring into the issue.

Under the Evidence Code, relevancy is a prerequisite to the admissibility of trial evidence: No evidence is admissible unless it has a logical bearing on a material issue in the case. (Evid. Code, §§ 210, 350.) Moreover, Evidence Code section 352 empowers courts to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” On appeal, we will not reverse a decision to exclude evidence under this section unless the court acted in an “‘arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]’ [Citation.]” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.)

Notwithstanding this deferential standard, we must keep in mind that the exclusion of proffered defense evidence may implicate the defendant’s fair trial rights. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ [Citation.]” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) Under these constitutional provisions, “the defendant in a criminal prosecution [has] the right of cross-examination, which includes exploration of bias. [Citation.]” (People v. Greenberger (1997) 58 Cal.App.4th 298, 349.)

However, these rights only pertain to “relevant and material” evidence. (Washington v. Texas (1967) 388 U.S. 14, 23.) Evidence lacking significant probative value may properly be excluded without offending the constitution. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) As the United States Supreme Court has explained, the Constitution “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics omitted.) Indeed, trial judges retain broad discretion to impose reasonable limits on cross-examination. (People v. Quartermain (1997) 16 Cal.4th 600, 623.)

Applying these principles to the case at hand, it is clear the trial court did not err by precluding defense counsel from asking Maria S. whether she had been a victim of sexual abuse. In arguing otherwise, appellant contends Maria S.’ own victimization made her inherently biased when it comes to the issue of sexual abuse. Appellant asserts this bias would have led Maria S. to believe the allegations against appellant were true, which would have led her to question Ashley about those allegations in an unduly suggestive manner, rendering Ashley’s answers untrustworthy. Thus, by not allowing him to reveal that bias to the jury, Maria S.’ testimony was given a false aura of veracity that undermined the reliability of the fact-finding process.

Although not directly on point, the recent case of In re Manriquez (2018) 5 Cal.5th 785 (Manriquez) is instructive here. In that case, the California Supreme Court considered whether a juror’s experience of having been raped as a child precluded her from fairly considering evidence showing the defendant had committed rape. More particularly, the court had to decide whether the juror’s failure to disclose that experience during voir dire created a substantial likelihood she was biased against the defendant. The court acknowledged there is always a possibility of bias when a juror has been the victim of a crime the defendant is accused of committing. (Id. at pp. 806-813.) However, it rejected the notion that circumstance gives rise to inherent bias. (Ibid., citing Gonzales v. Thomas (10th Cir. 1996) 99 F.3d 978, 989 [“To hold that no rape victim could ever be an impartial juror in a rape trial would, we think, insult not only all rape victims but also our entire jury system”].)

In so doing, the Supreme Court drew a distinction between a juror using their life experiences to help shape their opinions, which is permissible, and a juror being so affected by their life experiences that they have difficulty separating them from others’ comparable experiences, which is problematic. (Manriquez, supra, 5 Cal.5th at pp. 808-813.) Ultimately, the court determined the subject juror’s rape experience did not impair her ability to be fair and impartial because the record indicated she had put the experience behind her, it was only somewhat similar to the rape the defendant allegedly had committed, and a considerable amount of time had passed between her experience and the defendant’s trial. (Ibid.)

Based on the reasoning of Manriquez, appellant’s claim that Maria S.’ own victimization tainted her ability to fairly question Ashley on the topic of sexual abuse is speculative at best. Indeed, the main takeaway from Manriquez is that “certain life experiences may create impermissible biases and others will not.” (Manriquez, supra, Cal.5th at p. 811.) The issue of bias depends on a multitude of factors and cannot be presumed simply because the person has experienced a situation similar to the one at issue in the trial. That being the case, it would have taken more than a single question to expose any bias held by Maria S. Unless counsel intended to just float the issue out there with a single question and invite the jury to speculate about its effect, it would have been necessary to question Maria S. extensively about her sexual abuse to establish whether it was similar to the charges at issue in this case and whether the abuse tarnished her ability to discuss the issue of child sexual abuse with Ashley in a fair and unbiased manner. As the trial court correctly noted, this would have bogged down the trial on an issue that was exceedingly unlikely to reap any benefit for the defense.

How do we know the defense had little prospect for success in exploring the issue of bias with Maria S.? Because at the pretrial 402 hearing Maria S. indicated her own victimization had no bearing on her conduct in this case. When defense counsel asked Maria S. if her memories of her own abuse made her emotional when questioning Ashley, she said, “I wasn’t crying because of that. I was crying because the pain I saw on [Ashley and] her mother” after Ashley revealed what appellant had done to her. Maria S. admitted the memories of her own experience are “kind of always there in the background” of her mind. However, she indicated she had largely put the issue behind her with the help of therapy. That being the case, it is unlikely the jury would have been left with a significantly different impression of Maria S.’ credibility had defense counsel been allowed to explore this issue at trial.

That doesn’t mean defense counsel was powerless to attack Maria S.’ partiality. Indeed, if she felt Maria S.’ questions to Ashley were unduly suggestive, she actually had the best evidence available to prove this in the form of the questions themselves. Although Maria S. could not remember every detail surrounding the circumstances under which she questioned Ashley, she was able to recall many of the questions she asked her and Belinda was a witness to the whole thing. Insofar as the reliability of Ashley’s statements is concerned, the substance of these questions was more important than Maria S.’ motivation for asking them. As such, the trial court did not abuse its discretion in refusing to allow appellant to question Maria S. about her past sexual abuse, and its decision did not violate state evidentiary law or infringe appellant’s federal fair trial rights in any respect. [1]

Admissibility of Amy’s Hospital Statement

Appellant also takes issue with the court’s decision respecting Amy’s alleged statement at CHOC that appellant did not molest her. He asserts the trial court erred in limiting the admissibility of that statement, but we find no basis to disturb the court’s ruling.

The admissibility of the subject statement was litigated at a hearing outside the presence of the jury. At the hearing, Dr. Beena Raviendran testified she was the supervising attending physician at CHOC when Amy was examined in August 2015. However, she was not in the room when the examination took place. The only people who were present at that time were Amy, her mother, the examining physician, and a Spanish interpreter.

Relying on Amy’s medical records, Dr. Raviendran testified her history was obtained from her and/or her mother. The reason Dr. Raviendran was unable to be more specific about this is because Amy’s records do not reveal the precise source of her history. Rather, they simply list “mother/patient/interpreter” as the source. With regard to the substance of Amy’s history, Dr. Raviendran testified it reveals that appellant removed Amy’s pants at his apartment on the day in question. However, there is also a notation in the history that states, “Patient denies him (appellant) touching her.”

Defense counsel argued this denial was admissible for its truth as a prior inconsistent statement made by Amy – that is, to prove appellant did not touch her at his apartment. However, the trial court determined there was insufficient evidence to prove the denial actually came from Amy. While acknowledging Amy was in the room when the denial was made, the court was concerned that the “note” in question did not indicate who provided that information; it could have come from another source, such as her mother. Accordingly, it ruled the denial was admissible only to help explain Amy’s treatment plan as a potential victim of sexual abuse and could not come in for its substantive truth.

Following the court’s ruling, Dr. Raviendran testified at trial regarding the physical findings reflected in Amy’s medical records. She was also asked about the notation in Amy’s history that says patient denies appellant touching her. She said she would be inclined to attribute that statement to Amy. However, she admitted that “from reading the report, it’s not clear who specifically gave which statement and who was in the room at the time the [history] was given.” She also conceded that in addition to the examining doctor, Amy, her mother, and the interpreter, a social worker might have been present when Amy’s history was obtained.

When the admissibility of a hearsay statement depends on the existence of a preliminary fact, the proponent of the statement has the burden of proof as to that fact. (Evid. Code, § 403, subd. (a)(1).) The proponent must produce evidence that “is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.” (People v. Marshall (1996) 13 Cal.4th 799, 832; accord, People v. Herrera (2000) 83 Cal.App.4th 46, 61.) In reviewing the trial court’s determination as to whether this standard has been met, we apply the substantial evidence test. (People v. Charles (2015) 61 Cal.4th 308, 321; People v. DeHoyos (2013) 57 Cal.4th 79, 132; People v. Riccardi (2012) 54 Cal.4th 758, 831, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Phillips (2000) 22 Cal.4th 226, 236.) We do not reweigh or resolve conflicts in the evidence; we simply must determine whether the court’s decision is supported by evidence that is reasonable, credible and of solid value. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

Here, the preliminary fact at issue was whether Amy made the statement reflected in her medical records that “patient denies him (appellant) touching her.” Of course, that statement could have come from Amy. Indeed, Dr. Raviendran surmised that since Amy was the patient in question, the statement likely emanated from her. However, Dr. Raviendran was not present when the statement was made. And she admitted that, because Amy’s records show her history was obtained from “mother/patient/interpreter,” there was no way of telling who made the statement. Given the ambiguity in the record concerning the source of statement, we cannot disturb the trial court’s ruling. There is substantial evidence to support the court’s finding that appellant failed to prove the statement was attributable to Amy. Therefore, the court did not err in limiting the admissibility of the statement and the court’s ruling did not infringe appellant’s rights under state or federal law.

We are also convinced that any error that occurred by limiting the admissibility of the statement was manifestly harmless. First, based on what Amy told investigators – that appellant pulled down her pants but did not touch her vagina – the jury was already aware Amy had made a prior statement that was inconsistent with her trial testimony. Thus, even if the subject statement had been admitted for its truth, it would have been duplicative of what Amy told the police. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1119 [erroneous evidentiary ruling deemed harmless where subject evidence was cumulative of other evidence that was adduced at trial]; People v. Houston (2005) 130 Cal.App.4th 279, 301 [same]; People v. Helton (1984) 162 Cal.App.3d 1141, 1146 [same].)

Second, as respondent correctly notes, the jury was not required to find appellant touched Amy’s vagina in order to convict him of committing a lewd act against her. Instead, the jury simply had to find that appellant pulled down her pants with the intent to gratify his sexual desires. Therefore, it is largely immaterial that the trial court refused to admit Amy’s alleged denial about appellant touching her for its substantive truth. Any error in doing so is not cause for reversal.

Appellant’s Failure to Explain or Deny Adverse Evidence

Next, appellant contends the trial court erred in giving CALCRIM No. 361, regarding a defendant’s failure to explain or deny adverse evidence. He argues the instruction was factually inapt, but we disagree with that assessment.

The impetus for the instruction was appellant’s testimony regarding the incident involving Amy. Appellant said that after picking up Amy at her residence, they never went to his apartment, as she alleged. Instead, they drove directly to S.’s school to pick her up before heading off to Chuck E. Cheese. Appellant’s story had a slight timing problem, however, because the evidence showed he arrived at Amy’s residence at around 10:30 a.m., and S. was not released from her school – which was only 1.5 miles away from Amy’s residence – until 11:45 a.m. To explain this hour and fifteen-minute gap, appellant testified that after he arrived at Amy’s residence, he waited

some time before she came out to his car. When asked if he could estimate how long he waited, he said, “I can’t tell you, but it was a lot of time.” Appellant also claimed they got to S.’s school about 20 minutes before she was released from class. And he said it took him between 15 and 20 minutes to drive from Amy’s residence to S.’s school. However, on rebuttal, a police officer testified it only took him about six minutes to complete the drive.

Based on appellant’s timeline of events, the trial court instructed the jury as follows: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. [¶] Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it’s up to you to decide the meaning and importance of that failure.” (CALCRIM No. 361.)

In People v. Cortez (2016) 63 Cal.4th 101 (Cortez), our Supreme Court held CALCRIM No. 361 is applicable when the defendant “claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (Id. at p. 117.) The evidence in Cortez showed the defendant was driving a car from which her front passenger fired several shots at two teenagers, killing one of them. Although the defendant testified she did not know how or why the shooting transpired, the evidence indicated she facilitated the shooting and knew it was gang related. Under these circumstances, the Supreme Court determined it was proper to give CALCRIM No. 361. (Id. at pp. 121-122.) The instruction was warranted, the court reasoned, because there was evidence the defendant knew the circumstances under which the shooting occurred but claimed ignorance of them in her testimony. (Ibid.)

Likewise, here, appellant was able to provide a detailed timeline respecting certain events on the morning he picked up Amy at her residence. For instance, he knew what time he arrived at her place, he knew how long it took for him and Amy to drive to S.’s school, and he knew what time they arrived at the school. Yet, when asked how long he waited outside Amy’s residence before she came out to his car, he could not even give a ballpark estimate; all he could say is that he waited “a lot of time.” Given the specificity with which appellant explained other aspects of his encounter with Amy, he could reasonably be expected to have a better idea of how long he waited for her in his car. Therefore, the trial court did not error in giving CALCRIM No. 361.

But even assuming otherwise, the instruction is not cause for reversal. By its terms, the instruction is fairly balanced; it permits, but does not require, the jury to draw an adverse inference. And it states that any failure to explain or deny is insufficient by itself to prove guilt and that the People must still prove guilt beyond a reasonable doubt. Moreover, the trial court made it clear not all of its instructions were necessarily applicable, and the jurors should follow the instructions that applied to the facts as they found them to be. (CALCRIM No. 200.) This mitigated any prejudicial effect related to the giving of CALCRIM No. 361 and rendered any error in giving the instruction harmless. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1472; People v. Ballard (1991) 1 Cal.App.4th 752, 756.)

Alleged Prosecutorial Misconduct

Appellant claims the prosecutor committed prejudicial misconduct in closing argument by misstating the burden of proof. The claim is not well taken.

During her closing argument, the prosecutor told the jurors multiple times that in order to find appellant not guilty, they would have to find the victims (and other prosecution witnesses) were lying about the alleged offenses and had conspired with each other to frame appellant. Defense counsel objected to these remarks on the basis they shifted the burden of proof to the defense, but the court determined they constituted proper argument. In so doing, the court also reminded the jury, “It’s the prosecution’s burden to prove the case.”

Appellant contends the prosecutor’s remarks implied the defense had to prove the victims were lying in order to obtain an acquittal. In his view, this was improper because 1) the defense does not have to prove anything in a criminal case, and 2) the jury can acquit a criminal defendant without being absolutely convinced the state’s witnesses were lying, e.g., it could find reasonable doubt on the basis it was merely unsure whether they were telling the truth.

It is obviously misconduct for the prosecutor to misstate the burden of proof in a criminal trial. (People v. Hill (1998) 17 Cal.4th 800, 831–832.) However, “[w]hen attacking the prosecutor’s remarks to the jury [on appeal], the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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. [Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th 659, 667.)

Viewing the prosecutor’s remarks in context, it seems highly unlikely the jury would have interpreted them to mean the defense was obligated to prove the victims were lying in order to obtain an acquittal. The prosecutor never actually said that. Fairly read, what she said was that the only version of the facts that would allow for acquittal held together only if a conspiracy of lies was assumed. Without so much as mentioning the burden to prove, she was simply trying to make the point that appellant’s “fate rested on whether the jury found [the victims] credible,” which was both accurate and unobjectionable. (People v. King (2010) 183 Cal.App.4th 1281, 1307.)

Moreover, in response to defense counsel’s objection, the court reminded the jury the burden was on the prosecution to prove appellant’s guilt. The court reiterated this point in its final instructions to the jury (CALCRIM No. 220), and both defense counsel and the prosecutor spoke to it during their closing arguments. Since the jury was repeatedly informed the burden of proof was on the prosecution to establish guilt beyond a reasonable doubt, we do not believe it would have been confused about that issue, even considering the challenged remarks. We therefore reject appellant’s claim of prosecutorial misconduct. (People v. King, supra, 183 Cal.App.4th at p. 1307.)

Subpoenaed Records

At appellant’s request, the trial court conducted an in camera review of various medical records he had subpoenaed from CHOC. Finding the records were not germane to appellant’s defense, the court denied his request for access to them. Appellant has made an unopposed request for us to independently review the records. Having done so, we agree with the trial court’s assessment the records had no bearing on any of the issues raised in this case. Therefore, the trial court did not error in failing to make them available to the defense.

Cumulative Error

Lastly, appellant contends that if none of the errors he has identified are sufficient to warrant reversal in and of themselves, the judgment should be reversed due to the cumulative effect of those errors. However, as we have explained, we do not believe any of appellant’s assignments of error have merit. We therefore reject his claim of cumulative error.


The judgment is affirmed.





[1] As set forth above on page 6, it appears to us that Maria S.’ questions to Ashley were actually quite straightforward and evenhanded. They were also generally corroborated by everyone else who was in the car at the time. It is extremely doubtful that allowing the defense to question Maria S. about any past sexual abuse would have changed the outcome of the case.

Description Appellant was sentenced to 60 years to life in prison for sexually abusing multiple children. On appeal, he contends the trial court erred by restricting his right of cross-examination, limiting the admissibility of a statement attributed to one of the victims, and permitting the jury to draw a negative inference from his failure to explain adverse evidence. He also contends the prosecutor misstated the burden of proof in closing argument, he was denied access to subpoenaed records that may have been relevant to his defense, and cumulative error compels reversal. Finding no basis to reverse, we affirm the judgment.
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