Filed 6/26/26 P. v. Morse CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A171018
v. (Alameda County
TIMOTHY MORSE, Super. Ct. No.
22CR012310)
Defendant and
Appellant.
A jury convicted Timothy Morse of multiple sex offenses
against Jane Doe. Morse’s main contentions on appeal are that
his trial counsel rendered ineffective assistance by failing to
object to expert testimony that exceeded the scope of permissible
Child Sexual Abuse Accommodation Syndrome (CSAAS)
testimony, and by failing to object to the prosecutor’s
mischaracterization of the People’s burden of proof in her closing
argument. We find no prejudicial error and affirm the judgment.
BACKGROUND
The People filed an information charging Morse with nine
counts of lewd acts upon a child under 14 (Pen. Code1, § 288,
1 All further statutory references are to the Penal Code.
1
subd. (a)), three counts of sexual penetration of a child under 14
who was 10 or more years younger (§ 289, subd. (j)), and two
counts of oral copulation of a person under 14 who was 10 or
more years younger (§ 287, subd. (c)(1)).2
The victim, Jane Doe, was 14 when she testified at trial.
Morse was the husband of Jane’s great aunt, Grandma Ag. Jane
had known Morse since she was born.
In September 2020, Jane turned 11 years old. At that time,
Morse and Grandma Ag would come over once a week to have
dinner and Morse would help Jane with homework. Jane’s mom
and stepfather would sometimes leave after dinner to get ice
cream, and Jane and her siblings would stay with Morse and
Grandma Ag. Morse and Jane would do her math homework in
her bedroom. When they were doing homework, Jane would keep
her bedroom door closed because her siblings were loud.
In September 2020, Morse did something in Jane’s room
that made her uncomfortable. After they finished Jane’s
homework, Morse and Jane would play the “dark game,” which
was “basically hide and seek in the dark.” Jane testified that, in
this incident that made her feel uncomfortable, her pants
somehow came off while she was on her bed. Morse touched her
inner thighs, lower stomach, and vagina. Jane did not say
anything.
2 On the People’s motion, the court subsequently dismissed
one count under section 288, subdivision (a), and one count under
section 287, subdivision (c)(1).
2
The next Wednesday, something happened again. Morse
helped Jane with her homework after dinner, and they played the
dark game. Morse again rubbed Jane’s vagina while she was on
her bed. She had a top on without underwear or pants, and she
could not remember how her pants and underwear came off.
Morse kissed Jane’s stomach and thighs. This lasted for about
two minutes and less than five minutes. Jane didn’t say
anything to her family.
The following week, Morse and Grandma Ag came over for
dinner again, and Morse and Jane went to her room after dinner,
did her homework, and played the dark game. Jane did not
remember how her pants came off, but Morse rubbed her vagina
again and put his finger inside Jane’s vagina, which hurt. This
took less than five minutes. Before they went back downstairs,
Morse told Jane not to tell anyone about the game because they
would get in trouble.
The fourth incident was also during September 2020. The
same thing happened, except this time Morse unbuckled his
pants. Morse rubbed Jane’s vagina, put his finger inside her
vagina, and had Jane touch his penis with her hand. Morse told
Jane not to say anything.
The fifth incident occurred the following week. After
dinner, Morse and Jane went to her room and did her homework.
They played normal hide and seek for a while and then Jane
somehow ended up on the bed. They were both on their backs on
the bed, and Morse touched her vagina and put his finger inside
it. Morse put Jane’s hand on his penis and made her move her
3
hand up and down. They heard Jane’s parents coming into the
garage downstairs, so they got dressed and went downstairs.
Morse told Jane not to say anything about the game. Jane was
afraid she had done something wrong and would get in trouble if
she said anything.
Jane also testified that, during one of the incidents, Morse
put his mouth on her vagina. He asked Jane if she liked it and
she said no, so he stopped.
After the fifth incident, Jane told her mom or stepfather
that she didn’t need help with her homework anymore. Morse
still came over to her house, but they didn’t go to her room
anymore. Jane later had her parents take the door off her
bedroom.
Jane told her parents about Morse’s abuse about a year and
a half later. She had been getting in trouble for having bad
grades and skipping school. Jane’s mom asked her if there was
anything else she hadn’t told her, and Jane told her about the
abuse because she was getting in trouble a lot and nothing could
make it worse. Jane had to go to a place to talk to a lady and a
police officer. A female police officer had Jane call Morse on the
phone and had her say what the officer had written down.
On cross-examination, Jane stated that she had read her
earlier testimony in the case and talked to a prosecutor before
coming to court. Jane did not remember telling the CALICO3
interviewer that everything happened when she was 11. She
3 CALICO is the Child Abuse, Listening, Interviewing, and
Coordination Center.
4
didn’t remember how her pants came off, and didn’t remember
telling CALICO that Morse made her take her pants off.
Jane did not remember telling CALICO that Morse “would
put [her] on the bed,” she said she did not remember how she got
on the bed, and she testified that Morse never put her there.
Jane did not remember telling CALICO that Morse made her lie
on top of him when she was fully undressed, and she testified
that she was never on top of him or fully undressed.
Jane didn’t remember telling the prior prosecutor that
Morse pulled down her pants and lifted her onto the bed. Jane
testified that Morse had her touch his penis during the last two
incidents, and she was wrong when she told the prior prosecutor
that this also happened during the second incident. Jane did not
remember telling Morse that it hurt when he put his finger into
her vagina or telling the prior prosecutor that she had said that
and that was why he stopped.
Defense counsel elicited additional inconsistencies between
Jane’s CALICO statements, her preliminary hearing testimony,
and/or her trial testimony about: (1) how Jane’s pants came off
during the incidents; (2) Jane’s preliminary hearing testimony
that she was sitting on Morse’s face during one incident; and (3)
her CALICO statement about kissing Morse’s penis once. Jane
testified that she didn’t know if she had told CALICO the truth
about the third statement or whether she had been lying during
her preliminary hearing regarding the second statement.
Jane’s great aunt and stepfather testified that Morse would
come to dinner at Jane’s house once a week in the fall of 2020,
5
and Morse helped Jane with her homework. Jane’s stepfather
testified that he and his wife had been yelling at Jane about her
school performance when she disclosed the abuse. The People
also called an expert to discuss CSAAS, Dr. Carmichael, and we
describe his testimony in greater detail in our discussion, post.
Finally, the People called Officer Sanchez, who testified
that she took Jane to a CALICO interview and had Jane make a
pretext call to Morse after the interview while Sanchez listened
to the call. Sanchez explained that a pretext call “is an
investigative technique that [police] often use in child abuse and
sex assault cases. It’s when you try and elicit some sort of
information from the suspect to see if they’ll admit to a crime or
apologize to the victim.” The prosecutor played the recording of
the pretext phone call for the jury, and Sanchez identified the
voices as those of Jane and Morse.
On the pretext phone call, Jane asked Morse if he would
come over to help her with math again, and he agreed to do so.
Jane asked, “Um, you know how we used to play the dark game?
Would you still want to play that? Like in return?” Morse said,
“No. I mean, [Jane.] I would, that’s an interesting question. I
would, I would never say no to you, period. End of story. But I
would not be expecting that, right?” Jane asked, “Well, I mean, is
it like weird that I’m older now?” Morse responded, “No, I don’t.
No, it’s, it’s less weird. It’s just, it’s just that, um, I, I, uh, it’s not
weird at all but . . . I, I just can’t — it’s hard for me to express
how I feel about you cause I love you more than just about
anybody. I told you that before.”
6
Jane said she would “be down if, like, if you wanted to.”
Morse responded, “Okay, well let’s keep that in mind. That I will
definitely keep that in mind.” He continued, “I just don’t want to
you to think that, you know, that I, I’m wanting to help you cause
of that.” He said, “I would wanna do that cause of [inaudible]. So
I’ll, I’ll definitely, uh, I’ll, I will not, uh, say no to you [inaudible].”
Jane asked if he would “want to do it tomorrow,” and Morse said,
“Sure.” In response to her question about what his favorite part
of the dark game was, Morse said, “You.” She asked, “Like what
part of me?” He said, “Just all, everything all about you. There’s,
there’s, there’s, there’s just no part of you that’s not like
amazing.” Jane asked if Morse missed “doing it,” and he
answered affirmatively.
Jane asked, “So like, what do you wanna do tomorrow?
Like.” He responded, “I want do whatever it is you want me to.
Um, I want to um (inaudible) it’s hard, [Jane], because I don’t
wanna be like the bad guy, you know?” He continued, “I don’t
want to be somebody, uh, that influences you in a, in a wrong
way. Cause I love you so much.” He said, “I love you as my, my
niece, my great-niece first and as a beautiful young lady. But
you’re — there’s, there’s way too much about you that’s so
attractive.”
Jane again asked, “So like, what do you wanna do to me
tomorrow?” Morse responded, “Uh, I would like to, um, explore
your, your feelings and your, your, your body to the degree that
you would want to.” He continued, “Touch you wherever you
want me to touch you.” She started saying, “That sounds . . .” He
7
interrupted, “I would really want it to be, [Jane], that I am not
the one initiating it, but that you are.” Jane confirmed that it
was her initiating it, and Morse said, “It’s really quite
exhilarating. Cause I’ve never stopped, uh, like, I never stopped
thinking about you.” Towards the end of the call, Morse said,
“There’s . . . a spot we have to stop, but other than that, we can
totally explore.”
A recording of the pretext phone call was admitted into
evidence.
Morse did not call any witnesses, and the jury returned
guilty verdicts on twelve counts under sections 288, subdivision
(a), 287, subdivision (c)(1), and 289, subdivision (j). The court
sentenced Morse to 18 years in prison, and he timely appealed.
DISCUSSION
To prove ineffective assistance of counsel, Morse must
establish that his counsel’s performance fell below an objective
standard of reasonableness, and, but for the error, a different
result would have been reasonably probable. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 694; People v. Carter
(2005) 36 Cal.4th 1114, 1189.) If Morse makes an insufficient
showing on either component, his claim fails. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
“A reviewing court will indulge in a presumption that
counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.” (People v. Carter,
supra, 36 Cal.4th at p. 1189.) “If the record on appeal sheds no
8
light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation.” (Ibid.)
As for prejudice, “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland
v. Washington, supra, 466 U.S. at p. 694.) “This does not require
a showing that counsel’s actions ‘more likely than not altered the
outcome,’ but the difference between Strickland’s prejudice
standard and a more-probable-than-not standard is slight and
matters ‘only in the rarest case.’ ” (Harrington v. Richter (2011)
562 U.S. 86, 111–112.) “The likelihood of a different result must
be substantial, not just conceivable.” (Id. at p. 112.) “ ‘If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed.’ ” (Smith v. Robbins (2000) 528 U.S.
259, 286, fn. 14.)
I. The CSAAS Claim
CSAAS testimony has long been “admissible to rehabilitate
[a child] 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.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
“ ‘Such expert testimony is needed to disabuse jurors of commonly
held misconceptions about child sexual abuse, and to explain the
9
emotional antecedents of abused children’s seemingly self-
impeaching behavior.’ ” (Id. at p. 1301.)
“However, pursuit of that laudable rehabilitative purpose
must not lead the expert to cross over into affirmatively vouching
for the truthfulness of a complainant’s allegations against the
defendant.” (People v. Sedano (2023) 88 Cal.App.5th 474, 479–
480.) CSAAS testimony “is not admissible to prove that the
complaining witness has in fact been sexually abused.” (People v.
McAlpin, supra, 53 Cal.3d at p. 1300; People v. Lapenias (2021)
67 Cal.App.5th 162, 171.)
With these parameters in mind, we turn to Dr.
Carmichael’s testimony and then to Morse’s claims of error.
A. Dr. Carmichael’s Testimony
The prosecutor offered Dr. Carmichael, a clinical
psychologist, as an expert in “child sexual abuse and trauma.”
Dr. Carmichael did not review any reports in the case or talk to
Jane Doe. He had no opinion on the truth of the allegations in
the case or on Jane Doe’s credibility.
Dr. Carmichael discussed the differences between common
expectations regarding how children respond to abuse and his
professional experience with this response. There is no typical or
correct way for a child to respond to abuse. One common
misconception is that an abused child would appear angry or sad
and would seek to avoid the perpetrator.
When asked whether there were different categories or
types of misconceptions, Dr. Carmichael responded affirmatively
and said that one has to do with children delaying their
10
disclosures. He stated, “And so really while there may be some
better understanding a lot of kids delay their disclosures, I think
that’s something people have talked about recently in the media,
we know a lot more than that thin slice about the Sandusky and
Cosby. Those are very small samples about what we know about
these kids.”
Dr. Carmichael described the “relationship dynamic”
between children and their abusers, saying there is still “a lot of
ambivalence” towards the idea that children are abused by people
they know. He explained that children sometimes continue to
spend time with an abuser, who might be someone known,
trusted, or loved. This dynamic also can lead to a child feeling
guilty, ashamed, or embarrassed to report abuse.
The prosecution asked whether children are more likely to
be abused by strangers or people they know, and Dr. Carmichael
confirmed it was the latter. Often, the abuser is trusted and is an
important person to the child, the abuser establishes a
relationship with the child, and the child is supposed to love or
respect them. The abuser then starts integrating sexual contact
or conversations, normalizing these things, called “grooming.”
Dr. Carmichael explained that this relationship dynamic, rather
than physical threats or force, is often the reason why children
stay silent and do not report the abuse. He also testified
regarding the power dynamic between the abuser and the child,
which can lead to the child feeling isolated and that he or she
won’t be believed if they report the abuse.
11
The prosecutor then asked: “Kind of shifting gears. Is it
unusual for a child who’s being sexually abused to not show any
outward signs that they’re being abused?” Dr. Carmichael said it
was a misconception that kids will always appear upset or angry
about what happened or even about the perpetrator themselves.
Research has shown that children can appear stoic even when
talking about abuse.
The prosecutor asked, “Even if there are no outward signs
of abuse, do children who are being abused sometimes act out?”
Dr. Carmichael responded: “[K]ids might be agitated enough to
do things that are out of character, right? So a lot of times,
especially with younger kids even adolescents, like depression
and anxiety, you don’t see the outward displays of those emotions
per se, but their behavior, impulsivity those things might
change.” The prosecutor continued: “Could doing poorly in school
be an example of how a child starts acting out or responding to
abuse?” Dr. Carmichael responded, “Sure. One of the things that
can happen, not all kids, but [what] can happen is kids actively
try to ignore, and avoid, and not think about the bad stuff . . . .
So, if you’re in class, you get distracted. Your attention is drawn
elsewhere and you’re kind of preoccupied with something else, so
I can’t expect you to watch the assignment and keep track, right?
So that can certainly lend itself to school problems. So, that can
absolutely be part of the [sic] what the kid is enduring. They get
in trouble with the school, the grades are going lower, that’s a
problem.”
12
Dr. Carmichael discussed an additional misconception that
adults would be able to perceive abuse happening, and he
reiterated that children often maintain an ongoing relationship
with an abuser. He also explained that abused children may
“numb out” and try to ignore what is going on (called
disassociation). This coping mechanism can impair a child’s
ability to recall specific, rather than core, details about the abuse.
When asked again about delay, Dr. Carmichael responded,
“There are some kids that tell quickly, matter of days or weeks.
Depending on the research that we’re looking at, the majority of
kids don’t tell till after many months, years or even till after they
turn 18. We know that lengthy delays can and do occur.” He also
stated, “The younger the child is, the closer the relationship the
child has with their perpetrator, we tend to see longer
delays . . . .”
Dr. Carmichael testified in more detail about the possibility
that children will give inconsistent testimony about abuse,
especially where there have been many incidents of abuse. At
that point, the prosecutor asked him to talk about the preferred
method for interviewing children who disclose abuse. Dr.
Carmichael said that the preferred method was to ask open-
ended questions and get more specific if needed. At that point, he
continued, “The thing to consider, though, even when you ask a
leading question or a misleading question, it does not uniformly
lead to inaccurate or false information, right? Kids who have
been abused are actually pretty resistant to being misled into
saying they were touched, when, in fact, they had not been. And
13
it’s easier to influence someone to talk about a positive event or a
plausible event, something that’s possible for them, as opposed to
endorsing falsely that a negative event occurred.”
B. Analysis
Morse contends his trial counsel was ineffective for failing
to object to Dr. Carmichael’s testimony when: (1) the prosecutor
requested that Dr. Carmichael be qualified as an expert in “ ‘child
sexual abuse and trauma’, not simply as an expert in CSAAS
theory,” which implied Dr. Carmichael would give improper
testimony; (2) Dr. Carmichael discussed attributes of
perpetrators of sexual abuse, providing “character / profile”
evidence; (3) he referenced Bill Cosby and Jerry Sandusky; (4) he
testified that abused children are resistant to suggestive
questioning; and (5) he gave testimony on predictive
characteristics of abused children—namely that an abused child
may act out and do poorly in school.
With respect to Morse’s first contention, we agree with the
People that Morse does not argue or establish that Dr.
Carmichael was not qualified as an expert on child sexual abuse
and trauma, and Morse does not establish that his trial counsel
was ineffective for failing to object at the outset to an alleged
“implication” that Dr. Carmichael’s future testimony might go
beyond the scope of CSAAS.
We also reject Morse’s claim that Dr. Carmichael gave
impermissible testimony about the character of a perpetrator.
Dr. Carmichael testified that children are more likely to be
abused by someone they know and it is common for abusers not
14
to use physical force to keep children quiet because of this
relationship dynamic, and Dr. Carmichael described grooming—
introducing sexual contact and conversations “to normalize that
sexual stuff in a preexisting relationship.” His testimony
elaborated on the context in which child abuse generally occurs
and dispelled a common misunderstanding as to the relationship
between victims and their abusers. (See People v. McAlpin,
supra, 53 Cal.3d at pp. 1302–1303 [one popular notion requiring
correction is layperson imagines offender is a stranger]; People v.
Sedano, supra, 88 Cal.App.5th at p. 482 [testimony that 94% of
child abusers are not strangers was permissible].) This
testimony also helped the jury understand child-victim secrecy
and reporting behavior. Such testimony falls within the ambit of
permissible CSAAS evidence to counter common misconceptions
about child sexual abuse and explain why child sexual abuse
victims may delay reporting abuse.4 (People v. Sedano, at p. 479.)
Dr. Carmichael’s testimony that children who are abused
are “pretty resistant” to being misled into lying about abuse, on
the other hand, seems to have crossed the line. (People v.
4 Without directly asserting impropriety, Morse also states
in his opening brief that Dr. Carmichael gave “predictive
testimony” when he testified that the majority of children do not
report abuse for many years and both the young age of a child
and the closeness of the relationship to the abuser can lead to
longer delays. If Morse intended to claim ineffective assistance in
his counsel’s failure to object to this testimony, his claim fails.
(See People v. Sedano, supra, 88 Cal.App.5th at pp. 481–483
[expert testimony that delayed disclosure was more the rule than
the exception and giving statistics on delayed reporting was
admissible].)
15
Lapenias, supra, 67 Cal.App.5th at p. 179 [expert testimony that
it was “rare” for children to make false allegations of sexual
abuse was inadmissible].) But even if we accept the failure to
object to this testimony as error, and even if we also accept that
counsel should have objected to the testimony that an abused
child may do poorly in school and to the reference to Cosby and
Sandusky because both “had nothing to do with CSAAS” as
Morse claims, we still reject Morse’s ineffective assistance claim
because he does not establish prejudice. (Smith v. Robbins,
supra, 528 U.S. at p. 286, fn. 14.)
Dr. Carmichael’s testimony on these three topics was brief,
as was the prosecutor’s sole reference to child abuse causing poor
school performance in her rebuttal closing argument. The
prosecutor reminded jurors that Dr. Carmichael had not testified
that Jane Doe was telling the truth, which was the issue for the
jury to decide. The statements Morse made in the pretext phone
call provided strong evidence supporting Jane Doe’s testimony, as
the prosecutor argued, and the jury deliberated only an hour and
seventeen minutes. Furthermore, the court instructed the jury
that: “[T]estimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of
the crimes charged . . . . [¶] You may consider this evidence only
in deciding whether or not Jane Doe’s conduct was consistent
with the conduct of someone who has been molested, and in
evaluating the believability of [Jane Doe].” (CALCRIM
No. 1193.) The court also instructed that jurors were not bound
by an expert’s opinion, and they were the sole judge of the
16
credibility of the witnesses. (See CALCRIM No. 332; CALCRIM
No. 226.) We presume the jurors understood and followed the
instructions. (People v. Lapenias, supra, 67 Cal.App.5th at
p. 180.)
In sum, on this record, we find that it is not reasonably
probable that Morse would have received a more favorable result
in the absence of the aspects of Dr. Carmichael’s challenged
testimony that we have assumed were improper. (People v.
Lapenias, supra, 67 Cal.App.5th at p. 180.)
II. The Prosecutorial Misconduct Claim
A. Challenged Remarks from Closing Argument
Morse maintains that the prosecutor committed misconduct
by arguing that a reasonable account of the evidence satisfied her
burden of proof and by referring to facts not in evidence.
The prosecutor started her argument by telling the jury
that it was her burden to prove the case beyond a reasonable
doubt, and she then defined the standard accurately for the jury:
“Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt.” At the same time, she
showed the jury a slide with the beyond a reasonable doubt jury
instruction.
Morse challenges the remarks the prosecutor made
thereafter (referred to herein as the prosecutor’s first set of
comments): “So this is not a beyond-all-doubt standard. The
question here is what is reasonable. What is a reasonable versus
17
an unreasonable doubt. [¶] And that’s a very important word,
reasonable. How do you, as our jury, how do you as the finders of
fact in this case decide what is reasonable versus what is
unreasonable. Well, when we picked you as jurors, we did not
ask you to leave your common sense at the door. You can and
you should use your common sense in deciding what is a
reasonable conclusion based on the evidence in this case.”
Morse also challenges the following statements from
various points in the prosecutor’s closing argument (referred to
herein as the prosecutor’s second set of comments): “[C]ommon
sense is going to play a very important role in your evaluation of
the evidence and the testimony in this case in deciding what is
reasonable versus what is unreasonable and, like what we talked
about in voir dire, who is telling the truth and who is telling a
lie.” “In deciding whether testimony is true and accurate, use
your common sense and experience.” The prosecutor stated that,
among other things, the jury should consider, “How reasonable —
again that word ‘reasonable’ — is the testimony when you
consider the evidence?” “It’s been over three years since this
happened. It is not reasonable to expect that she’s going to get
every detail perfect, that she’s going to get every single detail
right.” And, “That’s what she did. She told you the truth the
best she could remember it. And now calling her a liar because of
the way that she’s remembering things over time, it’s just not
reasonable.”
Finally, Morse contends that statements about
corroborating evidence and credibility were improper (hereinafter
18
the prosecutor’s third set of comments): “[T]he testimony alone of
a victim of sexual assault is enough, can be enough if you find it
credible and believable to prove that a crime of sexual assault
happened.” And, “The prior statement that she said about sitting
on his face. She didn’t remember that during trial, but you can
use that — you can accept that as true if you found it credible.”
B. Analysis
This part of Morse’s ineffective assistance claim relies
mainly on People v. Centeno (2014) 60 Cal.4th 659, 674–677
(Centeno), wherein our high court found counsel constitutionally
ineffective for failing to object to prosecutorial misconduct in a
child molestation case. In Centeno, one problem with the
prosecutor’s argument was that it “strongly implied” the People’s
burden was met if the People’s theory was reasonable. (Id. at
p. 671.) “The prosecutor told the jury that in reaching its decision
it must reject impossible and unreasonable inferences, and only
consider reasonable possibilities. She stated that ‘your decision
has to be in the middle. It has to be based on reason. It has to be
a reasonable account.’ ” (Ibid.) Centeno acknowledged that “it is
permissible to argue that the jury may reject impossible or
unreasonable interpretations of the evidence and to so
characterize a defense theory.” (Id. at p. 672.) But it is not
sufficient “that the jury simply believe that a conclusion is
reasonable. [The jury] must be convinced that all necessary facts
have been proven beyond a reasonable doubt.” (Id. at p. 672.)
“[I]t is error for the prosecutor to suggest that a ‘reasonable’
account of the evidence satisfies the prosecutor’s burden of proof.”
19
(Ibid.) The prosecutor “confounded the concept of rejecting
unreasonable inference with the standard of proof beyond a
reasonable doubt. She repeatedly suggested that the jury
could find defendant guilty based on a ‘reasonable’ account of the
evidence. These remarks clearly diluted the People’s burden.”
(Id. at p. 673.) And counsel’s failure to object was prejudicial
given the closeness of the case (main witnesses changed their
stories dramatically at trial) and the lack of any corrective action
after the error (objection, judicial admonition, or judicial
instruction on the concept of reasonable doubt). (Id. at pp. 676–
677.)
Here, the prosecutor’s second set of comments related to
the jury’s evaluation of whether the testimony was reasonable or
unreasonable. In fact, in one of the challenged remarks, the
prosecutor read almost verbatim from CALCRIM No. 226. This
second set of comments was not objectionable. (Centeno, supra,
60 Cal.4th at p. 672 [argument that jury must decide what is
reasonable versus unreasonable to believe and accept the
reasonable and reject the unreasonable does not lessen
prosecution’s burden of proof].)
Whether aspects of the prosecutor’s first set of the
comments — particularly her statement that “[y]ou can and you
should use your common sense in deciding what is a reasonable
conclusion based on the evidence in this case”—crosses the line
described in Centeno presents a closer question. We need not
ultimately decide whether these comments were erroneous or
whether counsel was deficient for failing to object, however,
20
because Morse has not established that the first set of comments
was prejudicial.
Here, the prosecutor began her argument by correctly
defining proof beyond a reasonable doubt while showing jurors a
slide with the jury instruction. She told the jurors the judge
would read them the instruction when argument was done and
they would get a copy of the instruction. Defense counsel then
correctly explained the burden of proof to the jurors. And,
importantly, the court instructed the jury after the closing
arguments with the standard instruction on the presumption of
innocence, reasonable doubt, and the prosecutor’s burden of
proof. (CALCRIM No. 220.) The court instructed the jury on
circumstantial evidence and the beyond a reasonable doubt
standard (CALCRIM No. 224.) The court also instructed the jury
that nothing the attorneys said was evidence (CALCRIM No.
222), and, if the attorneys’ comments on the law conflicted with
the court’s instructions, the jury must follow the instructions
(CALCRIM No. 200). Unlike in Centeno, the court had the
accurate “last word.” (Centeno, supra, 60 Cal.4th at 677.)
Next, this is not the “very close case” presented in Centeno.
(Centeno, supra, 60 Cal.4th at p. 677.) In Centeno, the
prosecutor’s case depended on the victim’s testimony, the victim
did not voluntarily report the molestation, and the victim initially
testified at trial that the defendant had not touched her at all.
(Ibid.) The victim’s father, who previously reported seeing the
defendant lying on the victim, also changed his testimony at trial.
(Ibid.) In this case, there were inconsistencies in Jane Doe’s
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statements with respect to certain specific details of the abuse,
but she never recanted her report of abuse or denied any touching
occurred. And the jury heard the pretext phone call between
Morse and Jane Doe, with Morse’s statements providing strong
evidence to support Jane Doe’s testimony.
On this record, we conclude that it was not reasonably
probable that, if defense counsel had objected to the prosecution’s
first set of comments and requested an admonition, Morse would
have received a more favorable verdict. And Morse’s cursory
assertion on the issue of prejudice—that “[a]ny argument that
the jury could convict by finding . . . the prosecution’s theory
‘reasonable’ would have been prejudicial”—does not convince us
otherwise.
Providing an alternative Centeno argument, Morse
contends that the prosecutor’s third set of comments “argued that
if the jury found Jane’s testimony ‘credible’ or ‘believable’, it
would be enough to prove her case beyond a reasonable doubt,”
and this was objectionable because it told the jury that if there
was a reasonable probability Jane Doe was credible, the
prosecutor had satisfied her burden of proof. We disagree. The
prosecutor argued that the jury could find Jane’s testimony true
if the jury believed her, and these statements track the jury
instructions: “The testimony of only one witness can prove any
fact. Before you conclude that the testimony of one witness
proves a fact, you should carefully review all the evidence.”
(CALCRIM No. 301.) “Conviction of a sexual assault crime may
be based on the testimony of a complaining witness alone.”
22
(CALCRIM No. 1190.) The prosecutor did not, as Morse
contends, additionally argue that jurors could believe Jane and
convict Morse if they found there was a reasonable probability
that Jane was telling the truth. In sum, Morse cannot establish
that his trial counsel was ineffective for failing to object to the
prosecutor’s third set of comments.
Finally, Morse briefly contends that his counsel should
have objected to the following argument: “Why would she lie?
Why would she lie about this? There is nothing in evidence in
this case, no reason at all why Jane Doe would want to see her
family torn apart, would want to see a man that she looked at
like a grandfather arrested, would want to have to talk to perfect
strangers over and over and over again about her vagina and his
penis and all of these things, these horrible acts that she came in
here and testified about. There is nothing in evidence in this case
to suggest why she would do that.” He maintains there was no
evidence that Jane Doe was aware of the listed consequences of
reporting the molestation or that her family was “indeed ‘torn
apart.’ ” But Morse does not argue in his opening brief that this
failure to object caused prejudice, so we reject this final aspect of
his ineffective assistance of counsel claim as well.5
DISPOSITION
The judgment is affirmed.
5 In his reply brief, Morse writes that “[a] different outcome
would have resulted” had his counsel objected to the “facts not in
evidence,” but this conclusory argument is forfeited. (Gund v.
County of Trinity (2020) 10 Cal.5th 503, 525 [argument forfeited
when made for first time in reply].)
23
BROWN, P. J.
WE CONCUR:
STREETER, J.
SWEET, J.
People v. Morse (A171018)
Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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