Filed 1/12/18 P. v. Bardo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO JOSEPH BARDO,

Defendant and Appellant.
H043590
(Santa Clara County
Super. Ct. No. C1358139)

I. INTRODUCTION
A jury convicted defendant of two counts of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts 1 & 2) and one count of committing a forcible lewd or lascivious act on a child under the age of 14 years (§ 288, subd. (b)(1)). The trial court found true an allegation that defendant had a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12) and sentenced defendant to an indeterminate prison term of 15 years to life, consecutive to an eight-year determinate term.
On appeal, defendant contends: (1) the trial court erred by giving a general intent instruction with respect to counts 1 and 2, because a violation of section 288.7, subdivision (b) is a specific intent crime; (2) the trial court erred by excluding evidence that the victim had previously been molested, evidence of how she had sexual knowledge, and evidence that she had made a prior false allegation of being molested. Defendant also contends that there was cumulative prejudice from the two asserted errors. For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
The charges against defendant are based on incidents that occurred in the summer of 2012, when Ray Doe was nine years old. At the time, Doe was living in San Jose with her father (M.B.) and his fiancée (A.G.). Doe’s half-brother (M.B.’s son) and step-brother (A.G.’s son) also lived at the home. Doe’s mother (M.F.) lived in San Luis Obispo County.
According to M.F., Doe had always had a good relationship with defendant, her paternal uncle: “She loved him. He took her all kinds of places . . . .” A.G. similarly observed a close relationship between Doe and defendant, who would buy her things and babysit her, usually at his apartment. Doe also testified that before the summer of 2012, she had a good relationship with defendant: she “really liked him.” Defendant would give her “a lot of things,” take her to “fun places,” and be “really nice” to her. Defendant would buy her “[p]retty much anything” she wanted. Defendant also babysat for her often.
A. Doe’s Trial Testimony
Doe was 13 years old at the time of trial. She did not remember the first time that defendant touched her inappropriately, but she remembered that it occurred “[l]ike three” times.
One incident occurred when Doe was sleeping over at defendant’s house. Doe was on a fold-out futon, and defendant was lying down next to her. She fell asleep, but awoke to feel defendant’s hand inside her underwear, touching her vagina. Defendant was moving a finger back and forth. Doe “pretended like it wasn’t there,” because she was scared.
A second incident occurred when Doe had a hole in the back of her shorts. Defendant noticed the hole and instructed Doe to bend over. Defendant said he would sew the hole and asked Doe to remove the shorts. Defendant then told Doe that when she was older, “there was going to be hair right there,” while putting his finger in her underwear and touching her “front private part.” Defendant put his finger inside her vagina and asked, “how does that feel?” Doe felt uncomfortable.
A third incident occurred when Doe was practicing a stretch for cheerleading. Doe told defendant that the stretch hurt. Defendant told Doe to take off her pants “and it would feel better.” Doe removed her pants and did the stretch, which involved spreading her legs. Defendant put his hand on her thigh, close to her vagina. He then moved his hand up and touched her vagina over her underwear.
On another occasion following the three other incidents, defendant hit Doe with a belt. Doe was sitting on the couch in defendant’s apartment, and defendant came over. He laid his head on her lap, but she “didn’t want him to,” so she told him to get up. She also told defendant she wanted to go to the Build a Bear Workshop. Doe eventually got up, and defendant got mad at her. Doe ran to the bathroom, and defendant hit her on the buttocks with a belt.
B. Doe’s Disclosures to A.G. and M.F.
Following the belt incident, Doe told A.G. (her father’s fiancée) what happened. According to Doe, A.G. had noticed that something seemed wrong, and Doe said, “I don’t want to go back there.” Doe explained that defendant had been touching her. She cried, and A.G. told her “it’s okay . . . , you can stay with me.” A.G. also told Doe that something happened to her when she was little, involving an ice cream truck. A.G. did not tell her any details, she “just generally, briefly” mentioned the incident. Doe then told A.G. what defendant had done to her.
According to A.G., Doe’s disclosure occurred after she told Doe “you’re going with your uncle.” Doe said she did not want to go and looked scared, so A.G. asked why she did not want to go with defendant. A.G. told her, “You can talk to me.” Doe said, “He touches me.” A.G. asked, “Where?” Doe pointed to her vagina.
A.G. went upstairs and told M.B. (Doe’s father and defendant’s brother), “Your daughter’s stating that [defendant] molested her, and we need to call the police!” M.B. said, “No, no” and instructed A.G. to further question Doe. A.G. told Doe “that’s a big accusation” and that she wanted “to make sure that it’s true.” Doe said, “yes, it happened.”
A.G. asked Doe, “Where? When? How?” Doe then told A.G. about three different incidents. During the conversation, A.G. said that she had been molested as a child herself. A.G. did not disclose details of her own molestation, however. She had previously told Doe and her own children not to trust strangers because an ice cream truck driver had once wanted her to go into his truck and something bad could have happened.
M.F. (Doe’s mother) subsequently received a call from A.G., stating that “something had happened” between defendant and Doe. Soon after that, Doe came back to live with M.F., who initiated a conversation with her. Doe was hesitant to tell M.F.—she was “very worried about getting anybody in trouble or causing any problems.” M.F. told Doe that she had a dream in which Doe’s grandmother said that Doe had something important to tell her.
Doe told M.F. that defendant “had been touching her and that she was afraid of him.” M.F. considered Doe to be a truthful child. M.F. reported the incident to the sheriff on September 6, 2012.
A.G. did not think Doe would lie about something big. Doe’s fourth grade teacher likewise considered Doe to be an honest child. Two family friends also opined that Doe was “very, very honest and trustworthy” and “truthful.”
C. Doe’s Interview
Tracy Nix, a forensic interviewer for the San Luis Obispo County District Attorney’s Office, interviewed Doe on October 17, 2012. Doe told Nix that defendant had touched her when she lived with her father. She specified that the touching was in her front “private part” and that defendant had touched her three times on different days.
The first touching occurred when Doe was sleeping on a futon. Doe woke up because she felt defendant touching her inside her underwear. The second touching occurred when she had a hole in her pants. Defendant had Doe remove her pants and bend over, then stuck his hand into her underwear and touched her inside of her private part with his finger. The third time was in the living room of defendant’s apartment. Doe told defendant she had shaved her legs, and he asked her, “do you shave up here?” When Doe said “no,” defendant said, “let me check” and then felt her on the outside of her vagina.
Doe told Nix that defendant had “smacked” her with a belt after she told him she did not want his head on her lap. Doe told Nix that the belt incident occurred after the second touching.
D. Expert Testimony
Licensed clinical social worker Miriam Wolf testified as an expert on issues involving child sexual abuse and Child Sexual Abuse Accommodation Syndrome (CSAAS). She described common misperceptions about how children react to sexual abuse.
Secrecy refers to a child’s failure to report sexual abuse or delays in reporting. Secrecy is often fostered by the fact that sexual abuse occurs in private. The adult also may expressly direct the child to keep the abuse secret. A child may also feel helpless to report the abuse.
Most sexual abuse involves someone known to the child, often someone trusted by the child and the child’s family. Abusers often give gifts to the child as part of fostering a closer relationship with that child. The abuser often has a long-standing relationship with the child that does not initially involve any sexual activity. This contributes to the implied message that the abuser has some authority over the child. The term “grooming” refers to an abuser’s process of establishing a trusting relationship with the child.
When reporting ongoing sexual abuse, children often combine memories of separate incidents. They may report different details depending on the questions they are asked.
E. Defense Evidence and Argument
E.B., defendant’s wife, testified that in 2012 she regularly worked from 7:00 a.m. to 3:00 p.m. Defendant would often babysit Doe at their home. Doe would sleep in the living room on their futon. E.B. never saw defendant go out and sleep next to Doe.
E.B. gave Doe a pair of shorts that had a broken zipper. E.B. came home one day to find Doe complaining about a pain in her inner thigh. Doe wanted defendant to massage her, but E.B. did it instead.
E.B. and defendant had purchased some clothing and shoes for Doe, and they had given her a ring. Defendant had once taken Doe to a Build a Bear Workshop, but E.B. had never seen him purchase anything else for Doe.
Defendant argued that there was no corroboration of Doe’s allegations, that Doe had given conflicting accounts, that A.G. had “introduced the idea of improper touching,” and that Doe’s allegations were a product of confabulation: “the mixture of truth and false.” He also argued that the only reason Doe didn’t want to go to his house was because defendant had hit Doe with a belt.
F. Convictions and Sentence
Defendant was convicted of two counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b); counts 1 & 2) and one count of committing a forcible lewd or lascivious act on a child under the age of 14 years (§ 288, subd. (b)(1)). The trial court found true an allegation that defendant had a prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12) and sentenced defendant to an indeterminate prison term of 15 years to life, consecutive to an eight-year determinate term.
III. DISCUSSION
A. General Intent Instruction
Defendant contends the trial court erred by giving a general intent instruction with respect to counts 1 and 2, because a violation of section 288.7, subdivision (b) is a specific intent crime. He notes that pursuant to a different instruction the jury was also told that a violation of section 288.7, subdivision (b) required a finding that the penetration was “for the purpose of sexual abuse, arousal, or gratification,” and he contends this presented the jury with conflicting instructions that violated his rights under the Fifth and Fourteenth Amendments.
1. Proceedings Below
Pursuant to CALCRIM No. 252, the trial court instructed the jury: “The crimes charged require the proof or union or joint operation of act and wrongful intent.
The following crime[s] require general criminal intent: Sexual penetration with a child as charged in counts one and two. [¶] For you to find a person guilty of these crimes, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime. [¶] The following crime requires a specific intent or mental state: Lewd or lascivious act by force or fear as charged in count three. [¶] For you to find a person guilty of this crime, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime.”
Pursuant to CALCRIM No. 1128, the trial court instructed the jury: “The defendant is charged in counts one and two with engaging in sexual penetration with a child 10 years of age or younger in violation of Penal Code Section 288.7(b).
To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant engaged in an act of sexual penetration with Ray Doe; [¶] (2) When the defendant did so, Ray Doe was 10 years of age or younger; and [¶] (3) At the time of the act, the defendant was at least 18 years old. [¶] Sexual penetration means penetration, however slight, of the genital or anal opening of the other person by any foreign object, substance, instrument, device, or any unknown object for the purpose of sexual abuse, arousal, or gratification. [¶] An unknown object includes any foreign object, substance, instrument, or device, or any part of the body, including a penis if it is not known what object penetrated the opening. The foreign object, substance, instrument, or device includes any part of the body except a sexual organ.”
2. Analysis
Sexual penetration with a child 10 years of age or younger in violation of section 288.7, subdivision (b) requires specific intent. That statute incorporates the definition of “sexual penetration” set forth in section 289, subdivision (k)(1), which requires the penetration be “for the purpose of sexual arousal, gratification, or abuse.” (People v. Ngo (2014) 225 Cal.App.4th 126, 157 (Ngo); see also id. at pp. 170-171 (conc. opn. of Bamattre-Manoukian, J.); People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 (ZarateCastillo).)
This court has previously considered conflicting instructions on the intent required for a violation of section 288.7, subdivision (b). In Ngo, supra, 225 Cal.App.4th 126, the trial court had given both a general intent instruction (CALCRIM No. 250) and CALCRIM No. 1128, which “set[] forth the required specific intent.” (Ngo, supra, at p. 162.) “Thus, the trial court ultimately instructed the jury that it must find defendant committed the sexual penetration for the required purposes.” (Ibid.) This court noted that the jury “reasonably could have interpreted these instructions as requiring it to find both types of intent” and thus that the instructions were not “directly conflicting” but rather “somewhat ‘ambiguous and therefore subject to an erroneous interpretation.’ [Citation.]” (Id. at pp. 162-163; see also ZarateCastillo, supra, 244 Cal.App.4th at p. 1168 [general intent instruction did not suggest jurors “were not to follow” later instructions that required a finding of “ ‘purpose,’ ” i.e., specific intent].)
In Ngo, this court noted that because “the trial court ultimately instructed the jury that it must find defendant committed the sexual penetration for the required purposes,”
the proper standard of prejudice was probably the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Ngo, supra, 225 Cal.App.4th at p. 162.) However, this court declined to decide the standard of prejudice issue, finding no prejudice “[e]ven under the Chapman[ ] standard—which requires a showing that the error was harmless beyond a reasonable doubt.” (Ngo, supra, at p. 163.) This court explained that there was no possibility of a more favorable outcome because the record contained “no plausible explanation for why the defendant would have intentionally penetrated the victim unless he did so for purposes of sexual arousal, gratification, or abuse.” (Ibid.; see also id. at p. 171 (conc. opn. of Bamattre-Manoukian, J.); ZarateCastillo, supra, 244 Cal.App.4th at p. 1169 [record provided no basis for finding “that defendant penetrated the victim’s vagina for any purpose other than sexual abuse, arousal, or gratification”].)
Defendant contends that Ngo is distinguishable because the instructions in this case were “directly contradictory” rather than merely ambiguous. Defendant does not explain how the instructions given here differed from the instructions given in Ngo, and we observe them to be nearly identical. Moreover, even assuming that the instructions here were directly conflicting as opposed to merely ambiguous, such that they should be reviewed for prejudice under Chapman, the error was harmless beyond a reasonable doubt. As in both Ngo and ZarateCastillo, the record in this case provides no basis for a reasonable juror to find that, if defendant touched Doe’s vagina, he did so for a purpose other than sexual abuse, arousal, or gratification. Beyond a reasonable doubt, “the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)
B. Evidentiary Ruling
Defendant contends the trial court erred by excluding evidence that Doe had previously been molested, evidence of how she had sexual knowledge, and evidence that she had made a prior false allegation of being molested. He contends the error improperly restricted his ability to cross-examine Doe in violation of his due process, confrontation, and fair trial rights under the Fifth, Sixth, and Fourteenth Amendments.
1. Proceedings Below
Defendant filed a motion in limine to admit evidence of Doe’s prior sexual knowledge and acts pursuant to Evidence Code section 782, which sets forth procedures for determining the admissibility of “evidence of sexual conduct of the complaining witness” that is offered “to attack the credibility of the complaining witness” in certain sex offense cases. Defendant sought to establish that Doe was more “knowledgeable about the acts that constitute molestation” than would be expected at her age. Defendant submitted a declaration in support of the motion. Defendant indicated that during the massage incident, Doe said that the massage reminded her of how she felt when she was “previously molested,” and she specified that the previous molestation, which had occurred in New York, had included someone having put a finger into her vagina. Defendant also alleged that M.B. had previously told him about “the molestation” in New York and that M.F. had “mentioned” that Doe had “previously been molested.” Defendant’s trial attorney submitted a declaration asserting that Doe had made an allegation about A.G.’s son, Joshua, “inappropriately touching her.”
The prosecution’s motions in limine included a request that the defense be prohibited from introducing “any prior sexual conduct” of Doe. Specifically, the prosecution argued that the trial court should exclude “any mention” of Doe having been molested in New York or having engaged in sexual conduct with Joshua. The prosecution noted that there were no details of “what happened in New York” and that at the preliminary hearing, Doe had denied falsely accusing Joshua of touching her private parts. The prosecution acknowledged there was evidence that Doe and Joshua had both accused each other of touching their private parts and that defendant’s wife, E.B., had made a statement indicating that Doe said she “knew about sex from the movies.”
The trial court granted the prosecution’s motion to “limit irrelevant character evidence.” The trial court specified its ruling covered “evidence of an alleged molestation that occurred in New York” and “an alleged molestation by a boy named Joshua.” In light of its rulings on the prosecution’s motions, the defense motion to admit that evidence was moot.
2. Analysis
Defendant contends the trial court should have held a hearing regarding Doe’s prior molestation in New York, her prior false report of being molested by Joshua, and her prior viewing of “pornographic adult movies.”
Defendant relies primarily on People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett), where the court explained: “A child’s testimony in a molestation case . . . can be given an aura of veracity by his [or her] accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. [¶] In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.” (Id. at p. 757.)
In Daggett, the defendant was charged with molesting his stepson. (Daggett, supra, 225 Cal.App.3d at p. 754.) Prior to trial, the defendant sought to introduce evidence that his stepson has been molested by two older children when he was five years old, based on statements the stepson had made to a mental health worker and a doctor. (Id. at p. 757.) The trial court found that the defendant’s offer of proof was insufficient and thus excluded the evidence, but the appellate court held that the trial court should have “ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here.” (Ibid.)
Arguing that defendant’s offer of proof was insufficient to warrant a hearing, the Attorney General relies primarily on People v. Mestas (2013) 217 Cal.App.4th 1509 (Mestas), in which the defendant was convicted of molesting his girlfriend’s two young sisters. Before trial, the defendant had filed a motion, pursuant to Evidence Code section 782, to admit evidence of a prior molestation and evidence that the victims had viewed pornographic movies. (Id. at p. 1515.) The motion was supported by a declaration containing details of the evidence, but the trial court excluded most of the evidence, without a hearing, after finding it was not sufficiently similar to the facts of the case. On appeal, the Mestas defendant challenged the exclusion of three of the incidents, but the appellate court upheld the trial court’s decision not to hold a hearing. One allegation, that some boys had removed one victim’s shirt and underwear when she was three years old, was not probative of that victim’s credibility in this case because there was “no allegation that she learned something from that incident that would inform the jury that some of [her] testimony in this case may be false.” (Id. at p. 1517.) A second allegation, that the other victim was molested when she was three years old, was not probative of that victim’s credibility because “the details of the molestation were ‘sketchy and unconfirmed,’ ” and thus a hearing regarding the incident would have been “a fishing expedition.” (Id. at p. 1518.) A third allegation, that one victim had masturbated, had very little probative value with respect to that victim’s credibility because the allegations against defendant were not similar. (Ibid.)
Defendant contends that because he was not trying to show that Doe consented (see Evid. Code, § 1103, subd. (c)), the trial court’s duty to hold a hearing did not arise under Evidence Code section 782 but under principles of due process. He also argues that a hearing was warranted based on the “balancing factors” of Evidence Code section 352.
With respect to the prior molestation in New York, defendant’s declaration stated that Doe told him that the molestation had involved someone having put a finger into her vagina, that he had also heard about the New York molestation from M.B., and that M.F. had “mentioned” that Doe had “previously been molested.” Other than defendant’s self-serving declaration, there was no evidence that Doe was previously the victim of a similar molestation—i.e., one involving digital penetration or vaginal touching. Nothing in defendant’s declaration indicated that Doe had told anyone else, such as M.B. or M.F., such details of the prior molestation. Thus, the trial court could reasonably determine that “the details of the molestation were ‘sketchy and unconfirmed,’ ” such that a hearing would be tantamount to “a fishing expedition.” (Mestas, supra, 217 Cal.App.4th at p. 1518.) For the same reason, the trial court could reasonably determine that defendant’s allegations had very little probative value with respect to Doe’s credibility and thus that a hearing was not warranted under principles of due process or Evidence Code section 352.
Regarding Doe’s allegation of Joshua “inappropriately touching her,” the trial court could reasonably determine that the evidence would not be relevant to Doe’s credibility because there was no evidence that the allegation was false. As the prosecution pointed out, at the preliminary hearing, Doe had denied falsely accusing Joshua of touching her private parts. Thus, the trial court reasonably determined that defendant’s offer of proof was insufficient under Evidence Code section 782, and that no hearing was warranted under principles of due process or Evidence Code section 352.
Finally, defendant mischaracterizes E.B.’s statement indicating that Doe said she “knew about sex from the movies.” There is no evidence in the record indicating that (as defendant now claims) Doe had ever viewed “pornographic adult movies” and no evidence supporting defendant’s theory that Doe could have learned about sexual acts, such as digital penetration, from such movies. The trial court therefore reasonably declined to hold a hearing on the admissibility of that evidence.
In sum, the trial court did not abuse its discretion by determining that defendant’s proffered evidence of Doe’s prior sexual knowledge and acts was insufficient to warrant a hearing and by excluding that evidence from being introduced at trial.
C. Cumulative Prejudice
Defendant contends cumulative prejudice resulted from the instructional error and evidentiary ruling. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error”].) However, we have found the instructional error harmless beyond a reasonable doubt and we have found the evidentiary ruling was not an abuse of discretion. Because there are not multiple errors, there can be no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.








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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.