P. v. Stone CA1/5 — Fear Not Law

Filed 9/22/26 P. v. Stone CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent, A172143
v.
MARK STONE, (San Mateo County
Defendant and Appellant. Super. Ct. No. 20NF006622A)

Mark Stone appeals after a jury convicted him of three lewd acts on a
child under the age of 14 (Pen. Code, § 288, subd. (a))1 and the trial court
sentenced him to a 10-year prison term. Stone claims the trial court
committed instructional error and that he was denied the effective assistance
of counsel when his attorney failed to object to part of the prosecutor’s cross-
examination. We affirm because he demonstrates no prejudicial error.

BACKGROUND

M. testified that, between December 1, 2012, and December 31, 2013,
Stone squeezed her buttocks on three occasions. On the first occasion, M.
was 10 years old and both she and Stone—her step uncle who was visiting for
Christmas—were laying on the couch and facing the television. Stone was
spooning M. while they watched a movie. M. said that Stone touched her

1 Undesignated statutory references are to the Penal Code.

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buttocks with one hand on the outside of her clothes and then reached both
hands inside her jeans and squeezed her buttocks under her underwear.
Stone moaned or sighed when he touched her. Around 10 people were in the
house at the time, including her mom who was in the kitchen.

M. testified that the second and third incidents were “fuzzy” because
she could not recall the order in which they occurred. As to one incident, M.
testified that several family members were in the living room and adjoining
kitchen preparing to give her a hug goodbye because her father was picking
her up. Stone, while lying on the couch again, gave M. a goodbye hug and,
while doing so, reached into her pants and touched her buttocks. M. testified
that the remaining incident happened while the family was watching a
hockey game in the living room. Stone again squeezed M.’s buttocks under
her clothes while they were spooning on the couch.

M. remembered feeling “[k]ind of weird,” “frozen,” “really gross,”
“scared,” and “a little confused.” She did not tell any adult about what
happened for four or five years because she was afraid of getting in trouble.
M. then disclosed the sexual abuse, in 2017, to her older sister and a school
counselor.

A forensic psychologist testified as an expert in child sexual abuse
accommodation syndrome. She opined that secrecy, helplessness,
accommodation, delayed and conflicted disclosures, and retractions are
common in sexually abused children.

The parties stipulated that, in 2016, Stone pled guilty in Colorado to
two counts of sexual assault on a child under the age of 15. The plea involved
an admission to five listed victims for dates of offense between January 1,
2013 and December 15, 2015.

Stone testified in his own defense and denied having ever touched M.’s
buttocks. He remembered celebrating the holidays at the house where she
lived between 2011 and 2013, with at least 10 other people, but could not
recall ever being alone with M. during those visits.

Stone recalled sitting on the couch and watching a movie with M. He
denied “spooning” or inappropriately touching her. Stone also remembered

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sitting on the couch watching hockey with M. before going to the movies, but
he denied touching her buttocks or spooning. Stone remembered M. giving
him a goodbye hug on another occasion but said that he was standing at the
time and did not touch her buttocks.

The jury convicted Stone on all three counts as charged. The trial court
imposed an aggregate prison sentence of 10 years.

DISCUSSION

Stone contends the trial court violated his federal due process rights by
allowing the prosecutor, on cross-examination, to question him about his
postarrest silence in the Colorado cases. We conclude the argument was
forfeited and any assumed ineffective assistance of counsel was harmless.

On direct examination in the defense case, Stone denied ever touching
M.’s buttocks. He also admitted having been convicted, in 2016 in Colorado,
of two counts of sexual assault on a child. On cross-examination, the
prosecutor asked Stone about his initial interview (in 2015) with detectives
after he was arrested. Although he originally said he did not remember the
2015 interview with detectives, Stone eventually testified, over defense
counsel’s unsuccessful objection “to the form of the impeachment,”2 that he
denied inappropriately touching the Colorado victims.

The following colloquy then occurred, without defense counsel raising
any further objection:

2 Outside the presence of the jury, defense counsel said, “I’m objecting

to the form of the impeachment because he’s being impeached with a
Colorado statement about a Colorado case in a California courtroom with
California accusations. And I think that the form of the impeachment is
improper because it’s suggesting that he didn’t do exactly what he did which
is admit the conduct he was charged with.”

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“Q. [THE PROSECUTOR]: [D]o you remember speaking to detectives
in the Colorado case around December 15th of 2015?

“A. Yes.

“Q. Okay. And during the entire month of January of 2016, you didn’t
go admit and say, ‘You know what? I actually lied to you’; correct?

“A. Correct.

“Q. Okay. And the entire month of February of 2016, you didn’t go
back to detectives and say, ‘You know what? I lied to you’; correct?

“A. Correct.

“Q. The entire month of March, you didn’t go back to detectives and
say, ‘You know what? I lied to you’; correct?

“A. Correct.

“Q. Okay. You didn’t actually finally admit anything until July of
2016; isn’t that right?

“A. Correct.”

On redirect examination by defense counsel, Stone admitted lying to
the detectives initially. He also testified that this occurred after he was
arrested and given warnings pursuant to Miranda v. Arizona (1966) 384 U.S.
436 (Miranda). He was later charged, went to court, and then pled guilty.

Stone’s position on appeal is that, although the prosecutor’s
impeachment concerning his original denial to the Colorado detectives was
permissible, the prosecutor’s related questions about Stone’s failure to follow
up between that initial denial and his guilty plea violated due process and
penalized his exercise of both his Fifth Amendment right to silence and his
Sixth Amendment right to counsel. Stone concedes his trial counsel did not
object to the challenged testimony on that ground but insists that trial
counsel’s failure to do so constituted ineffective assistance of counsel.

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Stone relies on Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), in which the
United States Supreme Court held that it violates due process and
fundamental fairness to use, for impeachment of a defendant’s trial
testimony, their silence after receiving Miranda warnings. (Id. at pp. 617-
619; People v. Collins (2010) 49 Cal.4th 175, 203.) “[S]uch impeachment [is]
fundamentally unfair because Miranda warnings inform a person of his right
to remain silent and assure him, at least implicitly, that his silence will not
be used against him.” (Anderson v. Charles (1980) 447 U.S. 404, 407-408.) In
People v. Belmontes (1988) 45 Cal.3d 744 (Belmontes), the California Supreme
Court extended the Doyle rule to cross-examination that focuses on a
defendant’s silence after exercising their right to counsel. (Belmontes, at pp.
784-786, disapproved on other grounds by People v. Cortez (2016) 63 Cal.4th
101, 118 (Cortez) and People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; see
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65.) Stone asserts that
the challenged impeachment violated both Doyle and Belmontes.

Although the People’s briefs largely miss Stone’s broader point by
focusing solely on the unchallenged cross-examination regarding his initial
denial, we agree with the People that Stone forfeited the argument he makes
on appeal by failing to object on Doyle or Belmontes grounds below. (See
Evid. Code, § 353, subd. (a); People v. Collins, supra, 49 Cal.4th at p. 202.)
Although Stone’s trial counsel did object to the (now unchallenged) denial
part of the prosecutor’s cross-examination, he did not object to the subsequent
part (based on silence between his interview and change of plea), much less
raise the due process challenge Stone presses on appeal. However, we
proceed to the merits because Stone contends that his counsel’s failure to
object constituted ineffective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must show
(1) counsel’s performance was so deficient that it fell below an objective
standard of reasonableness, under prevailing professional norms, and (2) the
deficient performance was prejudicial, rendering the results of the trial
unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466
U.S. 688, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-
217.) “If it is easier to dispose of an ineffectiveness claim on the ground of

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lack of sufficient prejudice . . . that course should be followed.” (Strickland,
at p. 697.)

“Because the decision whether to object is inherently tactical, the
failure to object to evidence will seldom establish incompetence.” (People v.
Freeman (1994) 8 Cal.4th 450, 490-491.) Here, defense counsel did not state
why he did not object when the prosecutor asked Stone “during the entire
month of January of 2016, you didn’t go admit [to detectives] and say, ‘You
know what? I actually lied to you’; correct?”

However, we note that the prosecutor’s cross-examination about Stone’s
affirmative denial to Colorado detectives was not improper. (See People v.
Dykes (2009) 46 Cal.4th 731, 764 [“prosecutor is entitled to attempt to
impeach the credibility of a defendant’s testimony [citation] and point out
inconsistencies between his or her testimony and prior inconsistent
statements”]; Anderson v. Charles, supra, 447 U.S. at p. 408 [“cross-
examination that merely inquires into prior inconsistent statements . . .
makes no unfair use of silence, because a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to remain silent”].)
During the earlier conference on his objection “to the form of the
impeachment,” defense counsel said he had postponed raising any objection
because his client was in a “damned if you do and damned if you don’t”
situation.

Defense counsel could have reasonably concluded that—because he
would be unable to exclude this line of impeachment inquiry altogether—it
was better not to object so as not to draw further attention to it. Thus, we
cannot conclude that the record “affirmatively discloses counsel had no
rational tactical purpose” for failing to object or that “there simply could be
no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

But even if we assume (without deciding) that the prosecutor’s follow-
up questions constituted Doyle or Belmontes error and that trial counsel had
no rational tactical purpose for failing to object, we are not persuaded that,
but for the error, there is any reasonable probability of a different outcome.
(Strickland, supra, 466 U.S. at p. 694.) A reasonable probability is a

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probability sufficient to undermine confidence in the outcome. (In re Hardy
(2007) 41 Cal.4th 977, 1018.)

Although Stone is correct that this case turned on whether the jury
believed him or M., the prosecutor’s challenged questioning of Stone—
regarding Stone’s failure to alert Colorado detectives to the falsity of his
original denial—was exceedingly brief. It constituted a total of four questions
and less than half a page in the reporter’s transcript.

And the cross-examination that Stone challenges on appeal was
essentially cumulative of much stronger evidence that was undisputedly
admissible—the prior convictions themselves and the fact that Stone
originally denied his crimes to Colorado detectives. Given the parties’
stipulation regarding Stone’s convictions on uncharged sex offenses, the jury
was entitled to find that Stone has a propensity to commit sex offenses and
that he was likely to have committed the charged lewd and lascivious acts.
(See Evid. Code, § 1108, subd. (a); CALCRIM No. 1191A.)

Indeed, the prosecutor only referenced Stone’s prior convictions and his
affirmative denial to the Colorado detectives in her closing argument to
suggest Stone’s testimony was not credible. In contrast to the authority
Stone relies on, where the prosecution’s use of the defendant’s exercise of
Miranda rights was deemed prejudicial (People v. Schindler (1980) 114
Cal.App.3d 178, 182-186, 190), the prosecutor in this case did not mention
Stone’s silence after his 2015 arrest in closing argument.

It is not reasonably probable that the jury would have reached a more
favorable result absent counsel’s assumed ineffective assistance. Putting
aside the issue of forfeiture and ineffective assistance of counsel, we would
reach the same result—any assumed Doyle or Belmontes error was
harmless—under Chapman v. California (1967) 386 U.S. 18. (See People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 63 [Chapman standard applies
to Doyle error].)

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B.

Stone also insists the evidence does not support the trial court’s
decision to instruct the jury with CALCRIM No. 361. We conclude any error
was harmless.

The trial court instructed the jury: “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 is up to you to decide the meaning and importance of that failure.”

Stone’s trial counsel did not raise any objection to CALCRIM No. 361.
Nonetheless, we proceed to the merits of Stone’s challenge. (See § 1259
[“appellate court may also review any instruction given, refused or modified,
even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby”]; People v.
Andersen (1994) 26 Cal.App.4th 1241, 1249 [“[a]scertaining whether claimed
instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the claim”].)

We review claims of instructional error de novo (People v. Mitchell
(2019) 7 Cal.5th 561, 579), considering the instructions in context. (People v.
Burton (2018) 29 Cal.App.5th 917, 924.) “ ‘It is an elementary principle of
law that before a jury can be instructed that it may draw a particular
inference, evidence must appear in the record which, if believed by the jury,
will support the suggested inference.’ ” (People v. Saddler (1979) 24 Cal.3d
671, 681 (Saddler).)

Our Supreme Court has instructed that CALCRIM No. 361 should be
given only when a testifying defendant completely fails to explain or deny
incriminating evidence or claims to lack knowledge despite evidence that the

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defendant could reasonably be expected to have such knowledge. (Cortez,
supra, 63 Cal.4th at pp. 117–118.) A defendant’s contradiction of the
prosecution’s evidence is not by itself a failure to deny or explain. (Id. at p.
117.) Nor is a defendant’s failure to recall necessarily an appropriate basis
for this instruction. (See People v. De Larco (1983) 142 Cal.App.3d 294, 309.)

“The instruction acknowledges to the jury the ‘reasonable inferences
that may flow from silence’ when the defendant ‘fail[s] to explain or deny
evidence against him’ and ‘the facts are peculiarly within his knowledge.’ ”
(Cortez, supra, 63 Cal.4th at p. 117.) “As to incriminating evidence that a
testifying defendant denies or explains, there is no silence from which an
inference ‘may flow.’ ” (Ibid.) “Even if the defendant’s testimony conflicts
with other evidence or may be characterized as improbable, incredible,
unbelievable, or bizarre, it is not, as the People assert, ‘the functional
equivalent of no explanation at all.’ ” (Ibid.) When a witness’s efforts to
explain away undisputed circumstances are inherently implausible,
CALCRIM No. 226 (on assessing credibility of witnesses in general) is
appropriate, but not CALCRIM No. 361. (Cortez, at pp. 117-118.)

Stone asserts the instruction was unsupported because he did not fail
to explain or deny any part of the People’s case against him. We assume he is
right.

The People assert the instruction was supported by Stone’s testimony
that he did not remember the details of his 2015 conversation with detectives
in Colorado and that, although he remembered talking to M.’s mother during
a pretext call, he did not remember any of the specifics they discussed. We
agree with Stone that these instances of failure to recall did not warrant
giving CALCRIM No. 361. He provided some explanation of the evidence,
even if it may have been “improbable, incredible, unbelievable, or bizarre.”
(Cortez, supra, 63 Cal.4th at p. 117.) Although CALCRIM No. 226 applies,
CALCRIM No. 361 was not warranted. (Id. at pp. 117-118.)

But even if we assume that Stone is correct that there is no other
evidence supporting the instruction, any error was harmless. Giving an

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irrelevant or inapplicable instruction is generally only a technical error not
requiring reversal. (People v. Cross (2008) 45 Cal.4th 58, 67.) Because error
in giving CALCRIM No. 361 does not implicate a defendant’s constitutional
rights, prejudice is shown only if it is reasonably probable that a more
favorable result would have otherwise been reached. (People v. Barrett (2025)
17 Cal.5th 897, 993; Saddler, supra, 24 Cal.3d at pp. 679-681, 683; People v.
Lamer (2003) 110 Cal.App.4th 1463, 1471-1472 (Lamer).)

The impact of CALCRIM No. 361 was mitigated by the language of the
instruction itself, which does not direct the jury to draw adverse inferences
against the defendant. (Lamer, supra, 110 Cal.App.4th at p. 1472.) In fact,
CALCRIM No. 361 instructs that a failure to explain or deny, by itself, is not
a sufficient basis upon which to infer guilt. The instruction also emphasizes
the People’s burden to prove guilt beyond a reasonable doubt and leaves the
meaning and importance of the defendant’s failure to explain or deny to the
jury. (Lamer, at p. 1472; cf. People v. Barrett, supra, 17 Cal.5th at p. 993.)
Any possible prejudice was further mitigated by CALCRIM No. 200, which
instructed the jury that “[s]ome of these instructions may not apply,
depending on your findings about the facts” and to “follow the instructions
that do apply to the facts as you find them.” (See Saddler, supra, 24 Cal.3d
at p. 684; Lamer, supra, 110 Cal.App.4th at p. 1472.) We presume the jury
followed this instruction. (People v. Fuiava (2012) 53 Cal.4th 622, 669.)

Stone insists the instructional error was prejudicial because this case
involved a credibility contest between him and M. We disagree. M. gave
detailed and credible testimony supporting Stone’s guilt on all three counts.
M.’s testimony was corroborated by her previous consistent disclosures to a
school counselor and M.’s sister, as well as the propensity evidence.

Although Stone denied having committed the charged acts against M.,
the jury had plenty of reason to question his credibility without the
challenged instruction. Stone was effectively impeached by the evidence of
his previous denials in the Colorado case. During closing argument, although
the prosecutor argued Stone’s testimony was not credible, the prosecutor did
not mention CALCRIM No. 361 or urge the jury to convict based on Stone’s
inability to explain or deny any of the evidence against him.

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It is not reasonably probable Stone would have obtained a more
favorable verdict had CALCRIM No. 361 not been given. (See Lamer, supra,
110 Cal.App.4th at p. 1472 [“courts have routinely found that the improper
giving of [the precursor to CALCRIM No. 361] constitutes harmless error”].)

Contrary to Stone’s assertion, we conclude the prejudice resulting from
the assumed errors is so minimal—whether considered alone or
cumulatively—that there is no reasonable possibility that the errors affected
the outcome of the proceedings.

DISPOSITION

The judgment is affirmed.

Burns, J.

WE CONCUR:

Jackson, P. J.
Chou, J.

A172143/People v. Stone