Filed 10/23/18 P. v. Tomlinson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
JARED MICHAEL TOMLINSON,
Defendant and Appellant.
| C079680
(Super. Ct. No. CM039126)
|
Convicted by jury of three counts involving the sexual molestation of a minor identified in the pleadings as John Doe (hereafter Doe 1), defendant Jared Michael Tomlinson contends (1) the trial court erred prejudicially by admitting evidence of uncharged acts pursuant to Evidence Code sections 1108 and 1101;[1] (2) the prosecutor improperly made herself a witness and vouched for the victim’s credibility; and (3) the cumulative effect of the errors violated defendant’s right to due process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural History
An information filed October 23, 2013, charged defendant with committing a lewd act upon Doe 1, a child under 14 (Pen. Code, § 288, subd. (a)—counts 1 through 3); oral copulation of Doe 1, a person under 16, when defendant was over 21 (id., § 288a, subd. (b)(2)—count 4); sodomy of Doe 1, a person under 16, when defendant was over 21 (id., § 286, subd. (b)(2)—count 5); and attempted sodomy of Doe 1, a person under 16, when defendant was over 21 (id., § 664/286, subd. (b)(2)—count 6). Counts 1 through 3 were alleged to have occurred on or about and between August 4, 2003, and April 18, 2004; counts 4 through 6 were alleged to have occurred on or about and between October 10, 2005, and April 18, 2006.
At the close of the People’s case-in-chief, the trial court dismissed count 3 on the People’s motion. The jury convicted defendant on counts 4 through 6, but hung on counts 1 and 2, as to which the court declared a mistrial.
The trial court denied defendant’s request for probation and sentenced him to two years four months in state prison, consisting of the low term (16 months) on count 4, plus consecutive terms of eight months on count 5 and four months on count 6.
Evidence
Prosecution case
When Doe 1 was a 13-year-old eighth grader, he lived in a three-bedroom mobile home with his mother, R.D., his stepfather, his brother, and his aunt. Doe 1 had his own room, but often slept in the living room. The others in the home would close their doors at night.
In early 2003, defendant, a distant relative from the stepfather’s side of the family, moved into the home. He remained there until 2005 or 2006, moving out when Doe 1 was a high school junior. While defendant was there, defendant was attending a police academy. He subsequently became a police officer.
Soon after moving in, defendant began fondling Doe 1’s genitals two or three times a week while Doe 1 tried to sleep on the living room couch and others in the household were sleeping. Doe 1 would pretend to be asleep and would make no noise.
Defendant progressed to orally copulating Doe 1’s penis, also at night two or three times a week. When Doe 1 was 13 or 14, he began performing oral sex on defendant.[2] (Doe 1 acknowledged that he told law enforcement he was 15 or 16 when he began doing this.)
Defendant sometimes had Doe 1 use his penis to anally penetrate defendant. Doe 1 could not remember how often this happened or how old he was, except that he was under 18. When he did this, defendant would ejaculate on Doe 1’s stomach, then clean it up with a bath towel.
On one occasion, when Doe 1 was 14 or 15, defendant tried to penetrate him anally, but Doe 1 pushed him off and started crying.
At some point Doe 1 became depressed and began defecating in his pants. He had no views on homosexuality at that time, and his family did not disapprove of it. He kept quiet about what was going on because defendant asked him not to tell anyone, he did not want anyone to know, and he did not want defendant to go to jail or be interrupted in his career path.
In 2010, Doe 1 married K.H. They moved to North Carolina early in 2011. The marriage ended in divorce in 2012.
In March 2011, Doe 1 revealed to K.H. in a text message that he had been molested when he was in middle school and high school. She said she would go to the authorities, but he tried to dissuade her, claiming that they had been receiving money from defendant and would no longer do so if she told.[3] Later, Doe 1 told K.H.’s mother about the molestation in a text message on Facebook. In a declaration K.H. filed in a California family law case, she incorporated Doe 1’s text message to her.[4]
Doe 1’s mother, R.D., testified that she invited defendant to move in with her family in 2003 after the woman he had been living with died. He was roughly 19 to 21 years old when he lived there. He moved out in 2005 or 2006, but frequently visited afterward; sometimes he would stay and take care of the house and the kids while she and her husband traveled for a week at a time. Her relationship with him was like mother and son, even after he moved out.
R.D. noticed that soon after defendant moved in, Doe 1 became more emotional and argumentative. Twice, when he was 13 or 14, she found underwear in which he had defecated hidden in his room; the defecation “seemed to have a film or a haze over it.” This caused her to wonder whether “somebody was messing with him.”[5] She reported it to her husband.
R.D. also noticed that defendant seemed “clingy” toward Doe 1, “hang[ing] on” him in a way that he did not do with R.D.’s younger son. Defendant often went into the bathroom when Doe 1 was showering, but not when R.D.’s younger son was showering.
Because a friend of R.D. who was living there had just had a baby, there were baby monitors in the home. R.D. tried two or three times to use them to see if she could catch defendant, but the attempts failed.
In 2007 or 2009, according to R.D., defendant named her the executor of his will and named her children the beneficiaries. She believed his estate would be worth millions because he had acquired a ranch. She did not expect to be paid for acting as executor. She had never been told she was not (or was no longer) the executor.[6]
According to R.D., she borrowed $3,000 in cash from defendant in 2011, then repaid the loan in kind by painting the inside of defendant’s house. After that, she wrote defendant a couple of checks, believing that it was right to “do more than you are expected” to do when someone has done something for you. He had never said she still owed him on the loan.
In 2013, R.D. received information from K.H. about Doe 1’s alleged molestation. R.D. then talked to Doe 1 about what K.H. had told her. After the discussion with Doe 1, R.D. cried because “he had just confirmed what had happened to him.”
About two months later, R.D. called her best friend, S.M., who lived in Arkansas. R.D. was too upset at first to talk to anyone: She just wanted to kill defendant, as she admitted to S.M.
Late in March 2013, S.M. and her friend M.B. came to see R.D. They stayed in R.D.’s home.
R.D. texted defendant to try to set up a meeting where she could confront him. The meeting finally took place at her home, with S.M. and M.B. hiding in a bedroom to listen to the conversation.
Defendant came in and tried to hug R.D., but she said: “You don’t get to do that anymore.” Looking shocked, he sat down. She said: “I brought you into this house. I loved you like you were my son. You called me mom. You called my kids your brother, and then I find out you’ve been . . . fucking my son since he was 14.” Defendant turned pale and started shaking. He said: “I am sorry.” She said: “You’ve been fucking my son since he’s 14, and all you can tell me is you are sorry?” He said: “Yes. I am sorry, mom.” She told him he needed “to get his lawyer, and get his cop buddies and get his story straight, because this was not going to end here.”
Shortly afterward, R.D. contacted law enforcement. She also took an active part in the investigation, contacting everyone she could think of who had ever gone to defendant’s ranch. She doubted that the police would do anything.
Sheriff’s Detective Jason Miller, a member of the unit handling child abuse and sexual assault cases, received the case in early April 2013 from officers who had spoken with R.D. After reading their report, he set up interviews with R.D., her husband, Doe 1’s ex-wife K.H., and Doe 1. He became aware that K.H. might have relevant information after R.D. said she had found paperwork from Doe 1’s divorce and a restraining order which bore on the topic.
When Detective Miller interviewed Doe 1, he was open and communicative at first. But as they got into the alleged sexual acts, he began “to shut off and close down.” He slumped over, turned away, almost cried, and gave shorter and shorter answers.
Detective Miller contacted many other people in the course of the investigation. R.D. put him in touch with some, but she was not his only source of leads.
Detective Miller also interviewed defendant and members of his family. When he interviewed defendant, defendant was under arrest, and Miller advised him of his rights before questioning him. Defendant acknowledged that he understood his rights, then said that “this was all about money that he had lent to somebody, and the family was now upset with him, and that there was a lot of allegations being flown [sic] around.”
A second individual, identified as John Doe 2 (hereafter Doe 2), testified that Doe 1’s home was “like my second home growing up.” He is two years younger than Doe 1 and had maintained a “[f]airly” close relationship with him.
When Doe 2 was a high school freshman or sophomore, in 2006 or 2007, he met defendant at Doe 1’s home.
Doe 2 once spent the night at Doe 1’s home when the family was out of town during a holiday break. He and defendant were the only ones there. After defendant bought liquor, they went back to Doe 1’s home and drank enough to be intoxicated. They ended up in R.D.’s bedroom watching movies. They also talked about sexuality; defendant told him he should be “open-minded” and was too young to know what he wanted.
After falling asleep, Doe 2 woke up to find defendant’s hand on his “ass,” with a finger underneath his clothing and “trying to be put in between my ass cheeks.” Doe 2 left the bedroom and went to the living room to sleep on the couch.
Doe 2 did not talk about the incident afterward with defendant, but he talked about it with his brother less than a month later. He had also recently discussed it with Detective Miller.
Doe 2 admitted that he had told Detective Miller defendant only “rubbed [his] quad”; he did not mention defendant’s hand going beneath his underwear onto his “butt,” or defendant buying liquor and the two of them getting inebriated together. He had not revealed as much then because he did not know how seriously the case would be taken, and because he wanted to talk to Doe 1 and “make sure this is what he wanted to be brought to light.”
Doe 2 was originally contacted about the case by R.D. and her husband about a year and a half before trial. R.D. asked him if he knew what had happened between Doe 1 and defendant, and if anything had happened to him. Neither R.D. nor her husband told him what to say or threatened him with any adverse consequence if he did not go to law enforcement.
Defense case
M.A., defendant’s next door neighbor and longtime close friend, accompanied defendant when he drove to R.D.’s home for what turned out to be his confrontation with R.D. She waited outside as he went in. Ten or 15 minutes later, he came back out, seeming “very upset” and saying “him and [Doe 1] got outed.”
D.R., a Facebook acquaintance of R.D., gave Detective Miller a copy of an e-mail from R.D. that apparently mentioned the sum of $5,000, which D.R. thought might be evidence of an unpaid debt to defendant.
D.K., who had known defendant for four or five years, testified that Detective Miller had contacted him about the case. D.K. told Miller that R.D. had been contacting him and trying to meet with him, but he did not have time then. He said he had text and Facebook messages from R.D. and asked if he should bring them in, but Miller told him it would not be necessary. R.D.’s messages did not say why she wanted to meet with him, and he did not know her well. He inferred that it had to do with defendant because she indicated that she was “done with him.”[7]
DISCUSSION
1.0 Uncharged Acts Testimony
Defendant contends the trial court erred prejudicially by admitting the testimony of Doe 2 pursuant to sections 1101 and 1108. The court did not err.
1.1 Background
The People moved in limine for the admission of “evidence of defendant[’s] sexual conduct with other juveniles” as propensity evidence (§ 1108) or as evidence of intent, common plan or scheme, and/or motive (§ 1101).
After the prosecutor stated in limine that a proposed witness, who might be referred to as “John Doe 2,” would be subject to a section 402 hearing, the trial court reserved ruling on the motion.
At the section 402 hearing, Doe 2 testified that on the evening when he slept over at Doe 1’s home and defendant was there, he woke up to find defendant’s hand on his “lower back” (or “rather very lower back, if you will”). When the trial court said he did not need to use euphemisms, Doe 2 said: “His hand was basically on my ass.”
Doe 2 testified that he and defendant were alone in the home because Doe 1’s family was out of town and defendant was watching the place; they drank liquor bought by defendant, became intoxicated, and watched a movie in R.D.’s bedroom before Doe 2 fell asleep. At some point defendant talked to Doe 2 about sexuality, saying he should keep an open mind about “guys versus girls” and he was too young to know what he wanted. Then they “measured penises” to compare their respective sizes.
Doe 2 described calls from R.D. and her husband and stated that when she asked him if anything had happened between him and defendant, he told her what had happened. She asked if he wanted to testify, but he was unsure about that at the time; he wanted to talk to Doe 1 first. Sometime after that, he got a call from Detective Miller.
Doe 2 did not tell anyone before now about the penis-measuring incident “ecause it’s embarrassing. It’s weird.” He told the detective defendant’s hand was on his leg, not on his “ass.”
After hearing argument, the trial court ruled as follows:
“Court intends to admit the evidence. The court will find several similarities, including where the events . . . ‘allegedly occurred.’ [¶] . . . [¶]
“I do think that a [section] 352 analysis is important, but anytime you have information that’s going to come to the jury that is negative to the defendant, it’s prejudicial. It’s the nature of the [P]eople’s evidence. The question is, is it going to confuse the issues? Is it going to use undue time, undue prejudice, and will it mislead the jury?
“I just cannot find, in balancing everything, that’s the case. I think it’s relevant under both [sections] 1108 and 1101[, subdivision] (b), on the issues of motive and intent. I have some question about the measuring incident, as opposed to the hand on the rear end testimony. I am going to exclude that. That was new to you, first of all. The witness was quite honest that he had never said it before to anyone. I had admonished him to be open, and to use any words that he felt necessary, and that’s when . . . he presented that. It would be unfair to the defendant to allow that to come before the jury at this time. It’s just going to be the touching.”
1.2 Analysis
Since the trial court admitted the evidence under both section 1108 and section 1101, we consider section 1108, the broader statute, first. Concluding that the evidence was properly admitted under section 1108, we do not consider its admissibility under section 1101.
Under section 1108, subdivision (a), evidence of prior uncharged sexual offenses is admissible to prove defendant’s propensity to commit such offenses, without restriction other than that of section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 915-920 (Falsetta).) Under section 352, the trial court “must consider such factors as [the] nature, relevance, and possible remoteness [of the uncharged act], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.)
Because the decision whether to admit evidence under sections 1108 and 352 is entrusted to the trial court’s sound discretion, we will not disturb its ruling on appeal unless that ruling was arbitrary, capricious, or patently absurd. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097-1098.) Defendant fails to make that showing.
Here, as the trial court found, the uncharged act was similar to the charged offenses in several ways. In addition to their location, which the court expressly noted, the acts were similar in that the alleged victims were males in their early teens; in both the uncharged act and the earlier of the charged acts, defendant tried to take advantage of sleeping victims; and the acts were preceded by or associated with “grooming” behavior (defendant’s “clingy” manner toward Doe 1 and intrusions into the bathroom when he was showering, compared to defendant’s plying Doe 2 with liquor and his barely veiled invitation to consider homosexual acts). Furthermore, the uncharged act was close in time to the last of the charged acts. And the uncharged act—attempting to penetrate Doe 2’s anus with a foreign object—was strongly similar in its nature to attempted sodomy, the conduct charged as count 6.
Because of the similarities of the uncharged act to at least the earlier of the charged acts, the uncharged act evidence was highly relevant. Because the uncharged act was allegedly done on a single occasion and was less serious than at least some of the charged acts, its potential for misleading, distracting, or confusing the jury was minimal. Finally, the trial court exercised discretion under section 352 to render the uncharged conduct less inflammatory by excluding the “penis-measuring” incident, which had no counterpart in the charged acts. (So far as defendant claims the court did not perform a section 352 analysis, this aspect of the ruling proves otherwise.)
Defendant asserts that the uncharged act was “not at all similar” to any of the charged acts because (1) the uncharged act, according to the prosecutor, would have constituted a misdemeanor, while the charged acts were felonies, and (2) the uncharged act was not similar in “kind” or “character” to the charged acts. We are not persuaded.
As to the first point, even assuming the prosecutor’s assessment was correct, defendant cites no authority holding that uncharged acts must be potentially chargeable at the same level as charged acts to be sufficiently similar for purposes of sections 1108 and 352. We do not consider legal propositions unsupported by authority. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
As to the second point, defendant relies on cases involving grossly dissimilar acts erroneously admitted under section 1108. (People v. Earle (2009) 172 Cal.App.4th 372, 379, 396-399 [weak sexual assault case consolidated with strong indecent exposure case]; People v. Harris (1998) 60 Cal.App.4th 727, 736-741 [23-year-old violent sexual assaults admitted in indecent exposure case].) In light of the similarities between the alleged act against Doe 2 and the charged acts against Doe 1, these decisions are inapposite.
Defendant asserts that the uncharged act evidence was prejudicial because it did not result in a conviction. (Cf. Falsetta, supra, 21 Cal.4th at p. 917 [evidence’s “prejudicial impact . . . is reduced” if it resulted in actual conviction, because jury will not be tempted to punish defendant for uncharged acts].) It is true that Falsetta and other decisions have said that uncharged acts evidence is more likely to be prejudicial if it did not lead to a conviction. (We note, however, that the analysis could just as well cut the other way: If jurors learn that uncharged acts did not lead to a conviction, they might conclude the evidence was too weak to rely on.) But these decisions do not hold that evidence with any tendency to be prejudicial is inadmissible under sections 1108 and 352. All evidence adverse to the defendant is “prejudicial” in a sense, but that does not make it unduly prejudicial under section 352: It is so only if it “ ‘ “ ‘tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues.’ ” ’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 1118-1119.) Because the uncharged act evidence here was highly relevant to the issues, it was not prejudicial in that sense.
Defendant asserts that Doe 2’s testimony was unreliable because he “repeatedly embellished” it. That point goes to the evidence’s weight, not its admissibility. The trial court is not required to assess the credibility of uncharged acts evidence before deciding whether to admit it under sections 1108 and 352.
Defendant also asserts that Doe 2’s testimony was not reliable for purposes of section 352 because it was not “independent of the evidence” of the charged offense: According to defendant, Doe 2 “gave testimony at the urging of” R.D. (Cf. People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Defendant fails to support this assertion with citation to the record, which would entitle us to disregard it. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16 [factual claims must be supported by record citation wherever asserted in a brief].) In any event, it misleads by omission: Although R.D. contacted Doe 2 about the matter, he testified that he made up his own mind about whether to testify after talking to Doe 1 and Detective Miller. Lastly, Ewoldt does not hold that evidence whose source is not “independent of the evidence of the charged offense” is inadmissible under section 352: It merely states in dictum that such independence increases the reliability of evidence. (Ewoldt, supra, 7 Cal.4th at pp. 404-405 [noting that this factor is “of limited significance in the present case”].)
Because defendant has failed to show that the trial court abused its discretion by admitting Doe 2’s testimony under section 1108, we need not decide whether it was also properly admitted under section 1101.
2.0 Prosecutor as Unsworn Witness
Defendant contends the trial court erred prejudicially by “allowing the prosecutor to make herself an unsworn witness to rehabilitate the credibility of [Doe 1].” We conclude defendant has not shown error, but if there was any error it was harmless.
2.1 Background
As recounted above, Doe 1 testified on direct examination that he had last engaged in oral sex with defendant when under age 18. On cross-examination, however, he admitted that he had done so as late as age 22.
On redirect, the following colloquy occurred:
“[PROSECUTOR]: Earlier today on direct examination, I asked you how old you were the last time you engaged in an act of oral copulation with the defendant, and whether you were under 18. And you said, ‘yes.’ Is that accurate?
“[DOE 1]: No, ma’am.
“[PROSECUTOR]: Why did you say—why is it not accurate?
“[DOE 1]: I was under the influence [sic] we were only speaking about the criminal matters in this case, not my adult life.
“[PROSECUTOR]: Did you engage in sexual acts with the defendant after you turned 18?
“[DOE 1]: Yes, ma’am.
“[PROSECUTOR]: How long did you continue to engage in sexual acts with the defendant after you turned 18?
“[DOE 1]: Until I was 22.
“[PROSECUTOR]: Why did you choose to engage in sexual acts with the defendant after you became an adult?
“[DOE 1]: Because it had happened since I was 13. It was just a normal part of my life at that point.
“[PROSECUTOR]: Who was the initiator in terms of sexual contact between the two of you after you became an adult?
“[DOE 1]: It would go both ways.
“[PROSECUTOR]: Did your relationship—you said until you were 22, the relationship went on?
“[DOE 1]: Yes, ma’am.
“[PROSECUTOR]: How did that relationship end?
“[DOE 1]: I stopped talking to [defendant]. My mother found out, and kind of called him out that he had been molesting me since I was 13, and he disappeared.”
On re-cross, defense counsel asked Doe 1 whether he had gone over his testimony in the last two hours with the prosecutor. Doe 1 said he had. Counsel asked: “Did you discuss an explanation as to why you hadn’t told the truth about the last oral sex act being after the age of 18?” Doe 1 said: “Yes, sir.” Counsel continued: “And you’ve told us now that it was because you were having a relationship, a consensual relationship with my client, correct?” Doe 1 again said: “Yes, sir.”
Later, the prosecutor asked:
“[PROSECUTOR]: You testified that you had met with me today, correct?
“[DOE 1]: Yes, ma’am.
“[PROSECUTOR]: And prior to today, did you understand or think that you were going to be asked questions by me regarding sexual acts that occurred between . . . you [and defendant] after you turned 18?”
Defense counsel objected. The trial court replied: “You raised the issue.” Counsel said: “Then I get to follow. Thank you.”
The prosecutor attempted to follow up: “And when we met previous to that, did I tell you that we were not going to be talking about—” Defense counsel objected, adding: “If the DA wants to make herself a witness in the case, then we can continue on this line. She’s pretty much offering that position.” (Italics added.) The trial court overruled the objection, stating: “The basis of overruling the objection is you asked the question of the witness whether the district attorney had certain discussions.” Counsel said: “And I have no problem with that. But another Deputy DA should come in, ask the questions so that I can put her on the stand.” (Italics added.) The court replied: “That’s not going to happen. The objection is overruled.”
The prosecutor then asked Doe 1: “When we had a conversation previously, did I advise you that I would not be asking you any questions about sexual acts that occurred between you and the defendant after you had reached the age of 18?” Doe 1 answered: “Yes, ma’am.”
Defense counsel subsequently asked Doe 1: “You were not surprised about questions that occurred after age 18 coming up in these proceedings, were you?” Doe 1 said: “No, sir.” Counsel asked: “You had gone into great detail with what happened after 18 with Detective Miller, correct?” Doe 1 said: “Yes, sir.” Counsel asked: “And Detective Miller had already questioned you as to your truth and veracity regarding your answers to what happened after age 18, correct?” Doe 1 said: “Yes, sir.” Counsel asked: “So what you are telling us is that when you came here into the courtroom, you thought you could limit your testimony to only what happened—up until your allegations as to what happened up until age 18, but you didn’t have to go into anything after that?” Doe 1 said: “It’s what I was told.”
2.2 Analysis
Defendant asserts that the trial court’s ruling was error because it improperly allowed the prosecutor to vouch for Doe 1’s credibility by acting as an unsworn witness. However, he cites no supporting authority on point. He relies mainly on case law involving prosecutors who actually testified or proposed to do so (the very thing he sought to force the prosecutor to do at trial). (People v. Snow (2003) 30 Cal.4th 43, 85-86 [possibility that prosecutors from a large district attorney’s office might testify does not require recusal of the entire office]; People v. Donaldson (2001) 93 Cal.App.4th 916, 922-926; People v. Guerrero (1975) 47 Cal.App.3d 441, 443-444.)
Defendant also asserts generally that improper vouching for a witness’s credibility by a prosecutor may be prejudicial because the jury is likely to be unduly influenced by the prosecutor’s presumed credibility. While we do not disagree with this abstract proposition, we do not understand how the prosecutor is supposed to have vouched for Doe 1’s credibility here. Once it became clear that Doe 1 had given a literally false answer to an important question, the jury needed to learn whether that false testimony could have an innocent explanation. The questions of both counsel allowed that issue to be thoroughly explored. The prosecutor never stated that she personally believed Doe 1 to be credible on this subject, and if the trial court had allowed defense counsel to put the prosecutor on the stand and testify under oath about it, that would have run a greater risk of improper vouching than what actually happened.
But even assuming the trial court erred by not allowing defendant to force the prosecutor to testify under oath, defendant fails to show any possible prejudice from what occurred. Contrary to his assertion, the case did not “turn[] on the credibility of [Doe 1].”
Although, as is typical in molestation cases, there was no direct evidence corroborating Doe 1’s account of what passed between himself and defendant with no witnesses present, there was abundant circumstantial evidence that corroborated his account. Not only did Doe 2 tell a story that showed defendant’s propensity for molestation, but R.D., K.H., and Detective Miller testified persuasively as to what Doe 1 told them. Above all, when R.D. directly accused defendant, he did not deny the charge. He said only “I am sorry”—a classic adoptive admission.
Although we are not persuaded that the trial court erred by overruling trial counsel’s objection to the prosecutor’s line of questioning, we are convinced that any error was harmless under any standard.
3.0 No Cumulative Error
[b] Defendant contends the cumulative effect of the errors violated his right to due process. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we have found defendant was not prejudiced by the trial court’s admission of uncharged acts evidence, and the prosecution did not present unsworn testimony or improperly vouch for the victim’s credibility. Accordingly, there was no cumulative error.
DISPOSITION
BUTZ , Acting P. J.
We concur:
MAURO , J.
RENNER , J.
[1] Undesignated statutory references are to the Evidence Code.
[2] Doe 1 gave facially contradictory testimony about when he stopped doing so. Originally he said it was when he was under 18, but later he admitted he had continued to engage in oral sex with defendant until he turned 22, and explained that when he gave his first answer he did not think he was being questioned about events in his adult life. Over objection, the prosecutor was allowed to make a record before the jury that she advised Doe 1 pretrial that she would not ask him about what he and defendant did after he turned 18. Defendant now contends the trial court’s ruling allowing the prosecutor to make this record without testifying under oath was prejudicial error. (See pt. 2.0 of the Discussion, post.)
[3] According to K.H., defendant gave Doe 1 a few hundred dollars from time to time for work on defendant’s ranch when she and Doe 1 still lived in California, but had not done so since then.
[4] This declaration was apparently filed in the course of seeking a domestic violence restraining order against Doe 1.
[5] The trial court sustained defense counsel’s objection to the question whether R.D. had any idea who the molester might be.
[6] Law enforcement officers found a note by defendant purporting to name R.D. as his executor, but no will.
[7] Defense counsel argued to the jury that the testimony of Doe 1 and Doe 2 was uncorroborated and incredible, and Doe 2’s story changed every time he told it. Counsel also asserted that Detective Miller had failed to seek out any witnesses or evidence that might rebut R.D.’s charges.
According to counsel, R.D. had tried to frame defendant for two reasons. First, she could not accept her son’s sexuality: when defendant told her he was “sorry,” it was not an admission of guilt but an expression of regret that she had not known the truth about Doe 1. Second, she was trying to find a way to get out of repaying her debt to defendant.
