Filed 3/22/18 P. v. Tyquiengco CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN CONCEPCION TYQUIENGCO,
Defendant and Appellant.

A149839

(Solano County
Super. Ct. No. VCR224871)


Defendant John Tyquiengco was charged with two counts of lewd conduct involving a child less than 14 years of age. During a hearing on in limine motions, the trial court ordered that evidence of defendant’s allegedly inappropriate sexual behavior towards the child’s mother years earlier was not to be introduced until the court ruled on its admissibility. Despite this order, on re-direct examination of the mother, the prosecutor asked if she had ever had problems with defendant. Defense counsel objected, and the mother did not answer. Defendant was ultimately convicted as charged and sentenced to three years in state prison. On appeal, he contends the prosecutor committed misconduct by asking a question, in violation of the court’s order, that suggested he had a history of sexual misconduct with children. He argues the evidence was inadmissible and the question undermined his defense that he lacked the intent to commit the charged offenses due to dementia. This, he claims, constituted prejudicial error requiring reversal. We disagree, and we affirm.


EVIDENCE AT TRIAL
In 2015, Melanie C. lived in Texas with her seven-year-old daughter, M.C. In July of that year, the two of them traveled to Vallejo, where Melanie had grown up, to visit her mother, V.R., and defendant, V.R.’s long-time partner. They had visited three or four times in the past, and defendant and V.R. had previously taken M.C. on a road trip from Texas to Vallejo with a stop in Disneyland.
On the Fourth of July, the four of them and other family members gathered at V.R.’s house for a celebration. The day’s festivities included going to a parade, barbequing, and watching a fireworks show.
Late that night, after all of the visitors had left, Melanie put M.C. to bed on a cot in the living room. V.R. typically slept on a sofa next to M.C.’s cot, while defendant slept on a recliner in the middle of the living room. Melanie went to sleep in one of the bedrooms.
Around 2:00 a.m., M.C. came into the bedroom where Melanie was sleeping. She woke her mother and asked if she could sleep with her. Melanie asked why, and M.C. responded that “papa was messing with” her. Melanie asked what she meant, and M.C. said that “papa John touched her.” Melanie held M.C. until M.C. fell asleep and then called her boyfriend, M.C.’s father, and the police.
Melanie woke V.R. and told her she had called the police and she and M.C. were going to leave. While she was packing and waiting for the police, defendant left the house.
Vallejo Police Officer Jesse Irvin responded to the call. When he arrived at the house, defendant was outside, waving him down. The officer rolled down his window, and defendant spontaneously told him, “ ‘It’s a big misunderstanding. I only touched her stomach because she felt sick.’ ” Other officers arrived, and Officer Irvin went to speak to Melanie. After Melanie spoke with the officer, she and M.C. left the house, staying at V.R.’s sister’s house for the remainder of their trip.
On July 8, M.C. was interviewed by a forensic interviewer. M.C. said that she was no longer staying at V.R.’s house “because Papa (John) . . . . [D]ug in my underwear. [¶] . . . [¶] And then I—and then he touched my private.”
Asked to talk more about it, M.C. said she fell asleep while watching television and defendant was on the floor. She woke up and saw him lying beside her, touching her face. M.C. then said, “he touched right here,” pointing to her private area. She elaborated that he touched her under her underwear for two minutes and then did it again. She took his hand out of her underwear.
Asked if defendant ever made her touch his privates, M.C. replied, “I was laying down right beside him and he holded [sic] my hand and made me, I think that was a dream whenever I—when like it wasn’t. He holded [sic] my hand and then he put it in there and then I took it out.” She said he put her hand underneath his clothes and she “felt a round part.” She “only touched the outside of it” and then she took her hand out.
M.C. collected her toys and blanket, told defendant she was going to the bathroom, went into the bathroom to wash her hands, and then woke up her mother to tell her what happened. Her mother held her until she fell asleep, and she woke up when her mother got up to talk to the police.
M.C. had not felt sick at all that day, but she was “grossed out,” “kind of sad,” and “angry” after the incident.
M.C.’s trial testimony was consistent with her reporting during the forensic interview. She testified that on the Fourth of July, after staying out late to watch fireworks, she and her mother returned to the house, and she went to sleep on a cot in the living room. V.R. was sleeping on the couch, and defendant was next to M.C. M.C. woke up and saw defendant staring at her. He then touched her in her “private area” underneath her underwear. He also held her hand and put it on his private area on top of his clothes. She pulled his hand away and told him she needed to go to the bathroom. She went into her mother’s bedroom and told her what happened.
Vallejo Police Detective Scott Yates was assigned to investigate the case. He contacted defendant and asked if he was willing to speak to him, and defendant agreed to meet. The substance of the ensuing interview, a video recording of which was shown to the jury, was as follows:
On the Fourth of July, the family had a gathering where they barbequed and watched fireworks. Defendant drank three beers, although he poured most of it on the barbeque to control the flames.
That night, V.R. set up a cot for M.C. in the living room. Defendant generally slept on a recliner in the living room because he had hallucinations four times a week and moved his body around in his sleep, and V.R. slept on a nearby couch. Melanie went to sleep in a bedroom.
M.C. asked defendant to lie down next to her, so he lay on the floor to watch television. As he and M.C. were watching television, M.C. said her stomach hurt so he reached up from the floor and started pressing her stomach, asking her where it hurt. M.C. got up and went into the bathroom and then came back and told him she was going into the bedroom. She went into the bedroom and told her mother he had touched her. Melanie called the police, and defendant went out outside and waited for them to arrive. When they got there, he told the officer he had just pressed her stomach.
Officer Yates told defendant that according to M.C., she never said her stomach hurt that night. Defendant reiterated that she had complained her stomach hurt so he had pressed her stomach and asked where it hurt.
Asked if it was possible his fingers went lower than M.C.’s belly button, defendant said it was possible because he “wasn’t looking, just pressing . . . .” Asked if it was possible he may have brushed the outside of her vagina, he admitted that was also possible but denied he had any intention of doing so. Defendant did not remember if he was pressing on top of clothes or on her skin.
When told M.C. said he had grabbed one of her hands and touched it to him, defendant said he did not remember that. He then claimed he held her hand so she could show him where her stomach hurt. He said it was possible her hand may have accidentally touched his genitals while he held her hand.
When told M.C. said that he touched her underneath her nightgown and inside her underpants, defendant said he did not remember that either. But he agreed it was possible that when he was touching her stomach his hand slipped underneath her underwear.
Defendant then said that the day of the incident, he had been drinking, which may have “limited [his] . . . thinking cap” and memory. He told Officer Yates “drinking’s stupid” and he was not going to drink anymore because it impairs his judgment and ability to think. He felt very sad about what happened, and he apologized “for what transpired” due to his “poor . . . thinking, judgment.”
After expressing his desire to move back to his native Guam and to “correct” himself, defendant continued, “I am very sorry and—‘cause, uh, things like this hurts my, uh, livelihood, you know, like my feelings, I can’t sleep at night.” He worried about where he was going to end up.
Asked if he had thought about M.C. since the incident, defendant said he thought about her every day and hoped she was okay. His lapse of judgment was “killing [him] softly.” He had not apologized to her, although he told V.R. to tell Melanie he was sorry for what happened and ask for her forgiveness. He had “made a bad choice,” and it was “killing” him. He was very spiritual, and he was going to go back to church so he did not have another lapse in judgment. He hoped he would gain the strength to face what was going to happen.
Defendant told Officer Yates it was good they talked because the officer “got things out of my body and my mind,” agreeing when Officer Yates said, “for lack of a better term, a confession” “always feels better . . . .” He thanked the officer for listening and relieving his mind.
The defense presented two witnesses. V.R. testified she and defendant had been domestic partners since 1984. They typically slept in the living room, he in a recliner because he could not lie down after having heart surgery and she on the nearby couch so she could watch him. Defendant experienced nightmares where he would sometimes flail about, swinging his arms and kicking his legs. These sleep issues had gotten worse over the last couple of years.
On the night of the incident, Melanie went to sleep in her old bedroom, while the rest of them slept in the living room. V.R. quickly fell asleep and was later awakened by Melanie, who said she was going to call the police. Based on what Melanie said, V.R. confronted defendant, who denied anything inappropriate had happened. Defendant spoke with the police when they arrived, and V.R. drove Melanie and M.C. to her sister’s house.
Over the past few years, V.R. had noticed changes in defendant’s behavior. He had become more quiet and forgetful. For example, he would forget why he had walked into a room, he misplaced things like his keys more frequently, and he would repeatedly check a door to make sure it was locked. He talked less, spending a lot of time gardening in the backyard. He used to bowl but after he retired, he quit bowling and spent more time alone.
On cross-examination, V.R. acknowledged that the first time she had told anyone about defendant forgetting things and not being as social was a couple days earlier when she spoke to defense counsel. She also acknowledged she did not want defendant to get in trouble for anything that had happened because she cared about him very much.
The second defense witness was clinical psychologist Robert Wagner, who had conducted a psychological evaluation of defendant. He reviewed defendant’s jail medical records and interviewed him twice in person, one time each in May and June 2016. He offered two opinions.
First, Dr. Wagner was trained in assessing whether an individual suffers from a pedophilic disorder. Based on his evaluation, Dr. Wagner did not believe defendant met the criteria for a pedophilic disorder diagnosis.
Second, Dr. Wagner was also trained in recognizing the symptoms of dementia. Some of the symptoms include confusion, memory problems, disorganized thought and speech, dizziness, difficulty sleeping, nightmares, hallucinations, apathy, loss of interest in things that used to be interesting, withdrawal, lapses in judgment, impulsivity, flat affect, and repetitiveness. Dementia can also impair a person’s executive functioning and lower his or her sexual inhibition.
Dr. Wagner believed that dementia can affect the ability of a person to form the specific intent to commit a crime. At a high level of impulsivity due to mental illness or dementia, the person may be unable to form a specific intent. But he also agreed that someone exhibiting low level impulsivity could still form the intent to act. He could not say if a person suffering from dementia is more likely to act out in a sexual manner.
In physically observing defendant, Dr. Wagner noted several symptoms of dementia, including flat affect, impoverished speech, moments of confusion, and a restrictive range of emotion. He reviewed the transcript of defendant’s police interview and noticed instances of repetitiveness and “a couple times” where defendant exhibited disorganized thought and “considerable rambling.” Dr. Wagner opined that at the time he interviewed defendant in May and June 2016, defendant was at the beginning of the middle stage of dementia, which he had been suffering from in July 2015.
On cross-examination, Dr. Wagner admitted he was not qualified to diagnose dementia, acknowledging that at an earlier hearing in the case he had stated, “ ‘I would never presume to diagnose dementia myself.’ ” Rather, he could only identify its symptoms. He also acknowledged that the symptoms he identified in defendant could be explained by something other than dementia. For example, poor memory can be explained by normal aging, depression, and anxiety.
PROCEDURAL BACKGROUND
An information charged defendant with two counts of committing a lewd act upon a child under 14 years old in violation of Penal Code section 288, subdivision (a). A jury found him guilty as charged.
Prior to sentencing, defendant objected to a prison term on the ground that sentencing a 70-year-old man with dementia to prison for a first-time offense that did not involve force or bodily injury was cruel and unusual punishment under the state and federal constitutions. The court rejected his argument and sentenced him to the low term of three years in state prison on count 1 and a concurrent term of three years on count 2.
This timely appeal followed.
DISCUSSION
Background
During a hearing on motions in limine, the court considered defendant’s motion to require the prosecution to provide notice of impeachment evidence as to defendant. It asked the prosecutor: “Do you have any such acts you’re seeking to use?” The prosecutor replied: “Nothing I haven’t disclosed to the defense.” Defense counsel expressed concern about a misdemeanor conviction in the 1980s and, as significant here, an “alleged incident” involving Melanie when she was young. The referred-to incident concerned a statement by Melanie to a police officer that when she was a teenager, defendant hugged her from behind and she believed he had an erection.
The court noted that the prosecution had not filed a motion seeking to introduce evidence of prior bad acts or character and accordingly ordered that the prosecutor was “not to bring up either in voir dire or opening statements or your case in chief any sort of prior bad acts, moral turpitude type conduct without leave of the Court. At this point those are otherwise inadmissible until we have a hearing on that.” The prosecutor acknowledged the order: “Okay. I anticipated we would kind of get into that when we go through the transcript, which is where it would all come in any ways. So I will have an argument to admit some of that stuff at that point.” The court confirmed: “All right. Don’t mention it in jury selection or opening statements until there is a formal order by the Court.”
Melanie was the first witness to testify at defendant’s trial. During cross-examination, defense counsel established that defendant had known M.C. since she was an infant, Melanie and M.C. had visited on multiple occasions, V.R. and defendant had taken M.C. on a road trip from Texas to California, and Melanie was unaware of any prior problems. On redirect, after noting Melanie’s testimony that M.C. and defendant had spent time together in the past and M.C. had not reported any problems, the prosecutor asked her: “Have there been any problems between him and you?” When defense counsel objected, the prosecutor countered: “Door is opened.” The court called for a sidebar conference, where this exchange occurred:
“MS. LEE [counsel for defendant]: The door hasn’t been open [sic], and if it has, it was very improper for the D.A. to comment on that in front of the jury before the Court did any ruling pursuant to admonishments the Court made to not respond to the objections in front of the jury.
“THE COURT: . . . What are you planning on going into here?
“MR. WRIGHT [the prosecutor]: We discussed this. The Court—we talked a little bit about this, how there is evidence that the defendant when she was a child he would come up to her with an erection and rub up against her. You do not get to elicit character evidence of he’s been around her, nothing bad has ever happened, they’ve been alone together, they traveled together, no problems, nothing of the sort. That is character evidence all day long. I will cite you numerous cases that is character evidence, so I am certainly allowed to rebut that with negative character evidence. In addition, 1108 would let me do it independently unless there is some 352 argument she would have to make that shows it’s so fairly unprejudicial to overcome the prejudicial value. There is multiple bases to do it.
“THE COURT: Are you offering this under 1108 or rebuttal character evidence or both?
“MR. WRIGHT: Both.
“THE COURT: Go ahead, Ms. Lee.
“MS. LEE: This is hugely improper if because [sic] of the Court’s ruling that you were not going to allow this without any hearing and just to do it in front of the jury and then make a speaking—I mean, it’s already been—this is highly improper. I actually would like to argue it beyond whispering. I disagree with everything counsel said, but regardless of that, it was very clear that this was not to be brought up until we had a hearing.
“THE COURT: I did make a ruling that we’re not going to go into it until leave of the Court. Whether the door is opened, I need to decide that.”
The court then recessed so counsel could argue the issue, which argument included this:
The prosecutor represented that Melanie would testify that when she was younger, on more than one occasion defendant had approached her from behind with an erection, grabbed her, and made inappropriate sexual contact.
Defense counsel responded that was the first time she had heard about inappropriate sexual conduct. She represented that Melanie had told Officer Yates that on one occasion when she was younger, defendant had hugged her from behind and she believed he had an erection. She reiterated that the court had ordered that before the prosecutor attempt to elicit any testimony about that incident, there was to be a hearing. She disagreed any door had been opened. She moved for a mistrial because “you can’t unring a bell in this situation.”
The prosecutor responded that the testimony was admissible, arguing: “If you introduce conduct about your guy being good around children, that is almost the widest door you can open in a sexual assault case.”
Defense counsel countered that the evidence she elicited from Melanie was not character evidence: “If I said to her has there been—you know, is he known to you as, you know, whatever appropriate person, I did not do that. That’s character evidence, and they did a specific in limine about that. We even got into that. Also it would [be] different if I asked her if anything like this happened to her. . . . [S]o I did not even open the door by just asking did things go okay, were there problems in these other visits.”
The court then ruled it was not going to allow the question: “I’m not convinced, Mr. Wright, this is necessarily character evidence that opens the door. In any event, I don’t think it’s proper to bring it up on the fly for the Court as well. . . . At this point I’m not going to allow it. . . . At this point I’m not entirely convinced rebuttal the character evidence [sic], especially if (M.C.) already said it in the interview there has been no problems. I’m not sure it’s coming in necessarily as character evidence . . . .” The court added that if the prosecutor was seeking to introduce the evidence pursuant to Evidence Code section 1108, it was untimely since they were in the middle of trial and it should have been brought up earlier.
Defense counsel reiterated her request for a mistrial because “you can’t unring a bell when the prosecutor makes that very dramatic, often illegal comment of opening the door, suggesting that the defense is hiding evidence or hiding the truth of it, doing that in front of the jury. And that’s pursuant to Mr. Tyquiengco’s rights under the California Constitution as well as our US Constitution. That does constitute prosecutorial misconduct, so for the reasons I stated before the break, as a violation of the order but also pursuant to due process and D.A. misconduct.”
The court denied the request for a mistrial, reasoning: “I don’t think it’s something that can’t be cured. Even if there is an issue, I’m not sure the jury understands what opening the door means under this context. In any event, I don’t find it to be prosecutorial misconduct, nor grounds for a mistrial. I will give a curative instruction to any extent you wish such that I’ll advise the jury, ladies and gentleman, you’re not to speculate about any line of questioning regarding any door being opened. If you want something like that, I’ll give that to you. If you feel it may highlight the issue further, that’s a strategic call on your part. Or if you have another idea in terms of a curative instruction, I’ll certainly hear that. There was no answers given.”
Defense counsel asked for a moment to think about a curative instruction, and the court said they could address it the following week so she had an opportunity to “flush that out.” Defense counsel never subsequently requested a curative admonition. The court did, however, instruct the jury: “If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did.”
The Prosecutor Did Not Commit Prejudicial Misconduct
Defendant asserts one argument on appeal: the prosecutor committed prejudicial misconduct when he asked Melanie if she had had any “problems” with him. According to defendant, the question violated the court’s in limine order that no evidence of his alleged prior misconduct involving Melanie was to be introduced before the court heard argument and ruled on the admissibility of such evidence. He argues the evidence was inadmissible under Evidence Code sections 1102 and 1108, but the jury nevertheless heard the insinuation that he had behaved inappropriately towards Melanie when she was younger. This undermined his defense that the incident with M.C. was a one-time event caused by his dementia and he lacked the intent required for a conviction. He contends that no admonition could have cured this harm, the trial court should have granted a mistrial, and the prejudice he suffered violated both state law and his federal right to due process. (See People v. Hill (1998) 17 Cal.4th 800, 819 [misconduct violates the federal constitution “ ‘ “ ‘when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” ’ ” ’ ”; misconduct violates state law when it involves the use of deceptive or reprehensible methods to attempt to persuade the court or the jury].)
The People counter that, first, defendant did not preserve this issue for appellate review because defense counsel did not request a curative admonition, which is required to preserve a claim of prosecutorial misconduct. (See People v. Sanchez (2016) 63 Cal.4th 411, 475–476 [“To preserve a claim of misconduct, the defendant must object in a timely fashion and request an admonition. A claim of misconduct is preserved for review only if an admonition would not have cured the harm.”].) As to the substance of defendant’s appeal, the People contend it is meritless because: (1) his counsel opened the door to introduction of the evidence by introducing evidence of defendant’s good character; (2) it was not necessarily misconduct even if the evidence was inadmissible; and (3) he did not suffer prejudice if there was misconduct.
We need not determine whether defendant forfeited the issue or whether the evidence was admissible or whether the prosecutor committed misconduct, because even if we were to agree there was prosecutorial misconduct, we conclude defendant did not suffer prejudice. (People v. Shazier (2014) 60 Cal.4th 109, 127 [prosecutorial misconduct in violation of federal law warrants reversal only if it is reasonably probable the trial outcome was affected]; People v. Holt (1984) 37 Cal.3d 436, 458 [prosecutorial misconduct warrants reversal where it is reasonably probable defendant would have obtained a more favorable result in the absence of the error]; People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant’s prejudice claim is grounded in his defense at trial. His defense was that at the time of the incident, he suffered from dementia, which impaired his judgment and impulse control such that he lacked the intent required for a conviction of committing a lewd act on child. He points first to V.R.’s testimony that she had observed behavioral changes in him, including increased forgetfulness and withdrawal. Second, he points to Dr. Wagner’s testimony that he observed signs of dementia in defendant when they met in May and June 2016, that defendant’s medical records confirmed a dementia diagnosis, and that he was likely suffering from dementia at the time of the incident. Dr. Wagner testified that dementia can affect an individual’s judgment, including in the area of sexual inhibition. The prosecutor’s question, however, suggested he had committed a prior sexual offense, portraying his inappropriate sexual behavior as a longstanding problem, not a one-time product of his dementia. We conclude defendant has not demonstrated there was a reasonable probability of a more favorable outcome for him had the prosecutor not asked the disputed question.
First, “[a] party is generally not prejudiced by a question to which an objection has been sustained.” (People v. Peoples (2016) 62 Cal.4th 718, 795; People v. Mayfield (1997) 14 Cal.4th 668, 755, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) Here, defense counsel promptly objected to the question, and Melanie did not answer it. Thus, the jury did not hear evidence about any alleged incidents involving her and defendant. This significant factor distinguishes defendant’s case from other cases in which the witness answered an improper question and an admonition could not cure the resulting harm. (See, e.g., People v. Roof (1963) 216 Cal.App.2d 222, 225–226; People v. Ozuna (1963) 213 Cal.App.2d 338, 342.)
Second, defendant overstates the significance of the prosecutor’s question. The question was vague, asking only if Melanie had ever had “problems” with defendant; it did not ask if defendant had engaged in any improper sexual behavior around her. It is speculative that the jury construed the question as an insinuation that defendant had engaged in improper sexual conduct with Melanie when she was younger.
Third, it is unlikely the jury understood what the prosecutor meant when he claimed the “[d]oor is opened.” Defendant contends that by stating that the defense had opened the door, the prosecutor “informed the jury the parties had discussed the matter before trial, and that the evidence of past misconduct was being kept from the jury unless the defense did something to make it relevant.” We do not interpret the exchange as defendant advocates. A typical juror would not know that defense counsel “opens the door” to the prosecutor introducing evidence of defendant’s bad character by first introducing evidence of his good character.
Fourth, the court instructed the jury: “If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did.” We presume the jury followed the court’s instructions. (People v. Covarrubias (2016) 1 Cal.5th 838, 933.)
Fifth, the evidence supporting defendant’s dementia-based defense was less than compelling. During his interview with Officer Yates, defendant was aware, responsive, and coherent, and evidenced an understanding of the questions the officer asked. He carried on a lengthy conversation, during which he answered extensive and detailed preliminary questions about his background without ever asserting a lack of recall. Only when Officer Yates confronted him with M.C.’s allegations did he become forgetful and claim he could not remember. While Dr. Wagner testified that in the interview, there were instances of repetitiveness and “a couple of times” where defendant exhibited disorganized thought and “considerable rambling,” that occurred only after Officer Yates began asking about M.C.’s allegations. Further, Dr. Wagner only reviewed a transcript of the interview, while the jury viewed the video recording of it. The jury could just have had a different impression of defendant’s mental state based on his demeanor in the interview. Dr. Wagner also acknowledged that there were alternative possible explanations for the symptoms defendant exhibited, such as normal aging, depression, and anxiety. And he agreed that someone who exhibited low level impulsivity in the early stages of dementia could still form a specific intent to act.
Lastly, the evidence of defendant’s guilt was overwhelming. The record shows that M.C. was an articulate seven year old who presented as a credible witness with no incentive to lie. She immediately told her mother defendant had touched her. Her accounts during the forensic interview and at trial were consistent and unambiguous: defendant touched her private parts underneath her underwear and placed her hand on his penis, she pulled her hand away and went into the bathroom, she collected her blanket and toys from the living room and went into the bedroom where she told her mother what defendant had just done.
Defendant’s confession was equally as—if not more—damning. Although he initially denied M.C.’s allegations, he eventually agreed it was possible his hand touched her vagina underneath her underpants and her hand touched his genitals while he was holding her hand. And then he admitted he had a lapse of judgment and “made a bad choice,” blaming it on alcohol. He expressed his hope M.C. was okay and his intent to go back to church to prevent another lapse in judgment, and repeatedly thanked Officer Yates for listening to him and helping him relieve his burden by admitting what he had done. To put it mildly, defendant’s interview with Officer Yates was extremely incriminating.
In short, defendant has not established that it is reasonably probable he would have obtained a more favorable result absent the prosecutor’s question.
DISPOSITION
The judgment of conviction is affirmed.



_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.

























A149839; P. v. Tyquiengco