Filed 11/24/14 P. v. Molina CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO MOLINA,

Defendant and Appellant.

 B250737

 (Los Angeles County

 Super. Ct. No. BA398296)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Clifford L. Klein, Judge. Affirmed.

Randy Short, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and 

Respondent.

___________________________________________________
2

A jury convicted defendant Francisco Molina of two counts of engaging in sexual 

penetration upon a child in violation of Penal Code section 288.7, subdivision (b) (counts 

1 & 2)1 and two counts of committing a lewd or lascivious act upon a child in violation of 

section 288, subdivision (a) (counts 3 & 4). The trial court sentenced defendant to a total 

sentence of 30 years to life, consisting of 15 years to life in each of counts 1 and 2. The 

court imposed concurrent midterms of six years in counts 3 and 4.

Defendant appeals, alleging several instances of ineffective assistance of counsel. 

He also argues he was prejudiced by the complaining witness’s extrajudicial statements 

being entered into evidence without limitation and by the cumulative effect of trial 

counsel’s errors.

FACTS

Prosecution Evidence

C. is the child of G. and W., who separated in 2010. They also had a son, A. C.

was nine years old at the time of trial. Before her parents separated, C. lived on Dalton 

Street in Los Angeles with her parents, brother, uncle, and grandparents. The Dalton 

Street house belonged to C.’s grandparents, who are defendant and Abigail.2 When her 

parents separated, C. at first went to live with G. In December 2011, W. obtained 

custody of C. and A., and they went to live with him in the Dalton Street home.

The Dalton Street home had only one bedroom, where W. slept with his children. 

The uncle slept on the floor of the closet in the same room. The grandparents slept on a 

bed in the living room. C. testified that when she was seven years old, defendant began 

to touch her private parts.

C. testified that defendant would insert his fingers in her “front part” and move 

them from side to side. He did this “more than two times” while they were either on her 

grandmother’s bed or her father’s bed. C. did not want defendant to do this to her, but 

 

1 All further references to statutes are to the Penal Code unless stated otherwise.

2 C. said her grandmother’s name was Abigail, but G. referred to her former motherin-law as “Margarita.”
3

she was scared of getting in trouble. More than three times, defendant rubbed his front 

private part inside her “butt” after pulling down her clothing. Defendant would put a 

blanket over himself and C. Once defendant grabbed C.’s hand and made her touch his 

front part, but she immediately removed her hand. He once he kissed her neck. 

Defendant told C. not to tell anybody because it was just a game. C. said defendant once 

tricked her into getting on the bed by telling her she was too close to the television. 

When she went to the bed, defendant also got in bed, and he molested her. C.

remembered the incidents happening before the Christmas preceding her eighth birthday 

in March of the following year. The last incident was in the month of January. 

On April 20, 2012, C.’s “private” began hurting, and C. complained to G. G.

checked and saw that C.’s vagina looked red and irritated. G. told C. that she did not 

clean herself properly. G. asked if she was okay. C. said “yes,” but then lay down and 

began to cry. G. asked C. to tell her if something was going on, and she said, “It’s 

because of my grandpa.” She said he was touching her private parts. C. said she was 

scared that “they’re going to get mad at me.”

G. immediately called W. G. stepped away while C. told W. about the 

molestations. C. was shaking and crying as she told her father, and he began to cry as 

well. G. took C. to be checked by a doctor at Children’s Hospital. The doctor did not 

prescribe anything but told G. to keep C. clean and put clean clothing on her. The doctor 

found C.’s private parts to be “a little bit irritated.”

Los Angeles Police Officer Jose Campos was dispatched to the hospital. He spoke 

with C., who told him that between January and March 2012, her grandfather had 

touched her private parts. C. estimated that it had occurred about six times in either his 

bedroom or hers. He would wrap a blanket around the both of them and touch her 

vaginal area and insert his fingers in her vagina. On most occasions, he would also pull 

down her pants and rub his penis on her anal area, and at one point he had her touch his 

penis. Officer Campos did not take C. to a sexual assault treatment center because of 

“the lapse in time of the assaults.”
4

A police investigator, Detective Victor Acevedo, also spoke with C. and G. C.

was alone when interviewed, and she described the same incidents of molestation she had 

related to Officer Campos. Detective Acevedo telephoned defendant and said he needed 

to speak to him about an incident with his granddaughter C. Defendant was very 

receptive and voluntarily met with Detective Acevedo at the police station on May 31, 

2012. Defendant came with his wife, who waited outside as defendant was interviewed. 

In the waiting room, Detective Acevedo told defendant that “it was a voluntary statement, 

that he was free to leave, and that he could terminate the interview on his own accord.”

Detective Acevedo confronted defendant with the allegations that C. had made. 

Defendant initially denied them and said, he “did not do any of those things.” Then he 

remained quiet and said, “I might have touched her.” According to Detective Acevedo, 

defendant “kind of went more not directly saying yes, but maybe and might have 

happened unintentionally. Those were his words.” Eventually, he stated “that he touched 

C.’s vagina approximately two times and that he did have contact with her buttocks with 

his erect penis, but it was over the clothing.” He put his finger in her vagina for seconds 

only. Detective Acevedo did not ask defendant about taking C.’s hand and putting it on 

his penis. Defendant admitted telling C. not to tell anyone and that it was a game. 

Detective Acevedo believed he had recorded the interview. He set the recorder, 

but it failed to record the interview except for the first few seconds. The interview lasted 

25 to 30 minutes. Detective Acevedo reset the recorder and summarized the unrecorded 

interview with defendant on the new recording, which lasted about seven minutes and 

was played for the jury.

Dr. Jayme Jones, a clinical psychologist, explained the sexual abuse 

accommodation syndrome, which is a model used to help people understand the behavior 

of children who have been sexually abused. When given a hypothetical based on the 

facts of defendant’s case, Dr. Jones was of the opinion that C. was unlikely to disclose 

the abuse because she has positive feelings for her grandfather. Living in her 

grandfather’s house would increase a sense of helplessness. She would not be expected 

to tell anyone or to act differently around others.
5

Defense Evidence

W. testified that he gained custody of C. and her brother in January 2012. The 

children stayed with him Monday through Friday and with G. on the weekends. His 

mother took the children to school—never his father—and W. picked them up after 

school and took them home. W. worked from 4:45 a.m. until 1:45 p.m. W. stayed at 

home with the children in the afternoon and evening. He was always there and did not 

have his mother or father watch them. W. put the children to bed at 8:00 p.m., and he 

went to bed at the same time. W. could not remember a single time that he left his 

children alone with his father or his father and brother. W. testified that he did the 

laundry every Saturday morning. The children were with their mother. He did not go to 

the grocery store because either his mother or father would go.3

C. never complained to W. about having pain in her private area. There was no 

downturn in her school performance, and she never showed any aversion to being around 

defendant. The allegations only began after W. gained custody of his children. When G.

had custody, W. paid her $980 in child support, but he no longer paid her. G. had not 

tried to win custody of the children since the abuse was disclosed. 

W. acknowledged that when he had custody, there were weekends when G. did not 

feel like picking up the children, and they spent the weekend with him. This happened 

approximately twice a month. If he took his mother to the laundromat, his sister, who 

visited every weekend, would watch the children. He could not say if his sister left the 

house without his children, but he did not think she did. W. later testified that when G.

did not pick up the children, he would do laundry on Mondays. W. admitted he 

sometimes “went outside,” but stated that his mother or brother would be home then. If 

he had to run an errand or go to the doctor, his children were always with him.

 

3 When asked where her father and grandmother were when the abuse occurred, C.

said they were grocery shopping or doing the laundry.
6

DISCUSSION

I. Cross-Examination of Complaining Witness

A. Defendant’s Argument

Defendant contends trial counsel was ineffective in that he failed to cross-examine 

C. or G. in any meaningful way to establish reasonable doubt about their veracity.4

B. Relevant Authority

“To establish entitlement to relief for ineffective assistance of counsel the burden 

is on the defendant to show (1) trial counsel failed to act in the manner to be expected of 

reasonably competent attorneys acting as diligent advocates and (2) it is reasonably 

probable that a more favorable determination would have resulted in the absence of 

counsel’s failings. [Citations.] ‘[W]here the record shows that counsel’s omissions 

resulted from an informed tactical choice within the range of reasonable competence, the 

conviction must be affirmed.’ [Citation.] ‘In some cases, however, the record on appeal 

sheds no light on why counsel acted or failed to act in the manner challenged. In such 

circumstances, unless counsel was asked for an explanation and failed to provide one or 

unless there simply could be no satisfactory explanation, these cases are affirmed on 

appeal.’ [Citation.]” (People v. Lewis (1990) 50 Cal.3d 262, 288.) 

“As the United States Supreme Court noted in Strickland v. Washington [(1984) 

466 U.S. 668]: ‘Judicial scrutiny of counsel’s performance must be highly deferential. It 

is all too tempting for a defendant to second-guess counsel’s assistance after conviction 

or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it 

has proved unsuccessful, to conclude that a particular act or omission of counsel was 

unreasonable. [Citation.] A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time.” (People v. Lewis, supra, 50 Cal.3d at p. 288.)

 

4 Although defendant initially mentions a failure to cross-examine G., he presents 

no specific instances of this alleged failure. Hence, we address only his arguments 

regarding the cross-examination of C.
7

C. Counsel Not Ineffective 

Defendant complains that trial counsel made no attempt to refresh C.’s memory as 

to her preliminary hearing testimony, during which she stated many times that she did not 

recall certain details of the abuse, or to impeach her with the transcript of the hearing. He 

asserts that counsel’s failure to establish the witness’s lack of memory fell below 

professional standards and was prejudicial to him.

Defendant asserts that counsel also failed to ask about the precise circumstances 

and dates of each of the sexual abuse incidents and the reason defendant’s statement that 

it was a game caused C. to be silent. Defendant provides a list of 10 questions he 

believes counsel should have asked.5 According to defendant, if trial counsel had 

questioned C. effectively, a reasonable doubt of his guilt could have been established for 

at least one juror.

Whether to cross-examine a witness with certain questions is a tactical matter well 

within the defense counsel’s purview. (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 

458.) The instant case is not one where “there simply could be no satisfactory 

explanation” for counsel’s decision. (People v. Mai (2013) 57 Cal.4th 986, 1009.) It is 

probable defense counsel saw there was little to be gained by appearing to badger C. and 

made a tactical decision not to pepper her with the type of questions defendant sets forth 

in his brief. To the jury, C. undoubtedly appeared to be sympathetic and vulnerable. Any 

attempt to try to pin the child down to specific times and acts at her young age would 

have appeared unfair and even humiliating, causing a backlash against defendant. Nor 

was there much to be gained by pointing out relatively minor inconsistencies in C.’s 

 

5 Defendant’s suggested questions for C. are: “When was the first time, the second 

time, the third time, and so forth? What precisely occurred the first time, the second 

time, the third time and so forth? Was there truly penetration of the vagina or rectum? If 

so, when and how many times? Where were the other family members? Why did she not 

immediately tell her parents nor other authority figures? Was it truly because appellant 

told her not to tell because it was just a game? Did she believe it was just a game? Did 

she know what her grandfather was doing was improper?”
8

recollection of the details surrounding each and every incident of molestation, not to 

mention the fact that such questioning would repeatedly drive home the details of the 

sexual abuse. “‘“In the heat of a trial, defendant’s counsel is best able to determine 

proper tactics in the light of the jury’s apparent reaction to the proceedings.”’” (People v. 

Frierson (1979) 25 Cal.3d 142, 158.) In any event, defense counsel did cross-examine C.

on some key inconsistencies in her pretrial statements—indeed, there were 11 pages of 

C.’s cross-examination. In addition, counsel’s closing argument stressed the 

inconsistencies in C.’s overall account, including her lapses in memory regarding certain 

details of the incidents. 

We cannot therefore conclude that counsel was unreasonable in his tactical 

choices with this child victim. Under the circumstances, this was the best course of 

action available, and counsel steered clear of a style of questioning that would probably 

have done more harm than good. “A defendant is entitled only to a fair trial with 

competent representation. Counsel, in order to appear competent, need not indulge in 

idle [or risky] acts.” (People v. Wallin (1981) 124 Cal.App.3d 479, 484.) Moreover, 

since the reasons for counsel’s decisions are not in the record, the judgment should be 

affirmed in any event. (People v. Ledesma (2006) 39 Cal.4th 641, 746; People v. Jones

(2003) 30 Cal.4th 1084, 1115; People v. Mendoza Tello (1997)15 Cal.4th 264, 266-268.)

Defendant’s claim of ineffective assistance may also be disposed of on the ground 

that he has failed to show sufficient prejudice. (People v. Kipp (1998) 18 Cal.4th 349, 

366.) We believe that if more inconsistencies in C.’s testimony compared to the 

preliminary hearing testimony had been brought out it would not have changed the 

verdict. The jury was instructed on imperfect memory with CALCRIM No. 226 and 

given guidance on evaluating a child witness with CALCRIM No. 330. The jury no 

doubt took these instructions into account. The evidence against defendant was 

overwhelming, since he admitted the most crucial elements of C.’s testimony. Defendant 

cannot show that, but for his attorney’s performance, there is a reasonable probability the 

result would have been different. 
9

II. Complaining Witness’s Motive to Lie

A. Defendant’s Argument

Defendant argues that trial counsel, in his cross-examinations of C. and G., failed 

to make any link between the child custody issues with C. and a motive to falsely accuse 

defendant—this despite counsel’s implications in closing argument that the change in 

custody was C.’s motive for lying. 

Defendant also contends counsel completely failed to pursue another potential 

motive for false accusations: that C. was upset about her mother accusing her of poor 

hygiene. According to defendant, counsel should have asked more questions about the 

hygiene issue.6

B. Relevant Authority

An attorney representing a criminal defendant has the power to control the court 

proceedings, and defendant must do more than allege poor tactics on the part of his trial 

attorney or suggest more effective ways of handling the case in order for this court to find 

ineffective assistance. (People v. Kirkpatrick (1972) 7 Cal.3d 480, 486; People v. Floyd

(1970) 1 Cal.3d 694, 704; People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 173.)

C. Counsel Not Ineffective 

As stated previously, counsel was likely wary of appearing to harass the child 

victim. A child witness is not merely a small adult who can be asked the same types of 

questions in the same manner. Also, counsel faced the problem that G. had made no 

move to regain custody of her children and W.’s financial support after C. accused 

defendant of molesting her. Counsel used the fact of the lost support as well as he could 

 

6 Defendant suggests counsel should have asked C. whether there had been a longterm hygiene issue, whether C. was punished in the past for not keeping clean, whether 

C. was ashamed of herself for not keeping clean, whether she created a sexual abuse 

claim to divert her mother’s attention from her lack of cleanliness and to avoid further 

embarrassment or punishment, and whether defendant was telling the truth when he said 

he may have unintentionally touched her private parts while both were clothed and C.

exaggerated the inadvertent touching.
10

by planting the seed in the jurors’ minds that such a motive was possible and leaving it at 

that.

As for exploiting the mention of C.’s possible lack of hygiene, there was no profit 

in humiliating the victim on this point. Moreover, there was no evidence that G. scolded 

C. for a lack of hygiene to the degree that C. would be motivated to invent an elaborate 

story to escape blame. 

It appears from the record that counsel was aware that both of these theories of 

motive were not of much benefit and emphasized instead defendant’s lack of opportunity 

to engage in the sexual offenses due to the impossibility of defendant’s finding a time 

when he could be alone with C. or C. and her younger brother. As noted, “‘[b]ecause of 

the difficulties inherent in making the evaluation, a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action “might be considered sound trial strategy.” 

[Citation.]’” (People v. Lewis, supra, 50 Cal.3d at p. 288.) Here, defendant has failed to 

carry his burden to affirmatively show error. “‘There are countless ways to provide 

effective assistance in any given case. Even the best criminal defense attorneys would 

not defend a particular client in the same way.’ [Citation.]” (People v. Lewis, supra, 50 

Cal.3d at p. 288.) Accordingly, defendant’s claim of ineffective assistance of counsel 

fails.

III. Complaining Witness’s Extrajudicial Statements 

A. Defendant’s Argument

Defendant contends that C.’s out-of-court statements were presented to the jury as 

substantive evidence without limitation because the trial court erred by reading 

CALCRIM No. 3037 while failing to inform the jury of the testimony to which it applied. 

 

7 The trial court read CALCRIM No. 303 to the jury as follows: “During the trial, 

certain evidence was admitted for a limited purpose. You may consider that evidence 

only for that purpose and no other.”
11

Defendant next contends the prosecution brought forth several out-of-court statements 

made by C. without objection or pertinent cross-examination by defense counsel. 

According to defendant, all of these statements were extremely damaging hearsay 

evidence that violated defendant’s statutory rights and constitutional right to confront 

witnesses, since the court instructed the jury that the prior statements were being offered 

for credibility issues and for the truth of the matter.8 Defendant asserts that, had the jury 

only considered C.’s trial testimony, there would have been a reasonable likelihood of a 

more favorable outcome.

B. C.’s “Fresh Complaint” and the Limiting Instruction 

The trial court permitted G. to testify that C. complained to her of pain in her 

vaginal area and, when G. questioned her, C. said that her grandfather had touched her 

private parts. The statement was admitted under the “fresh complaint” exception to the 

hearsay rule, and G. was not permitted to testify to details of the sexual acts. (People v. 

Brown (1994) 8 Cal.4th 746, 749-750 (Brown); People v. Burton (1961) 55 Cal.2d 328, 

351.)

“[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, 

disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—

namely, to establish the fact of, and the circumstances surrounding, the victim’s 

disclosure of the assault to others—whenever the fact that the disclosure was made and 

the circumstances under which it was made are relevant to the trier of fact’s 

determination as to whether the offense occurred.” (Brown, supra, 8 Cal.4th 746, 749-

750.) Our Supreme Court has emphasized that “evidence of the victim’s report or 

 

8 The trial court read CALCRIM No. 318 to the jury as follows: “You heard 

evidence of statements that a witness made before the trial. If you decide the witness 

made those statements, you may use those statements in two ways: one, to evaluate 

whether the witness’s testimony in court is believable, and, two, as evidence that the 

information in those earlier statements is true.” The court also read CALCRIM No. 226, 

which lists factors for the jury to consider in evaluating a witness’s testimony, among 

which is the following factor: “Did the witness make a statement in the past that is 

consistent or inconsistent with his or her testimony?”
12

disclosure of the alleged offense should be limited to the fact of the making of the 

complaint and other circumstances material to this limited purpose.” (Id. at p. 763) G.’s 

testimony was properly admitted under this doctrine and was nonhearsay. Her testimony 

sufficiently lacked detail so as to avoid being classified as hearsay and were therefore 

admissible under Brown.

Defendant argues that the court erred by failing to inform the jury that it was this

fresh complaint testimony that was to be limited in purpose and use. This allowed the 

jury to use C.’s statement for the truth of the matter asserted. As stated in Brown, a trial 

court has no sua sponte duty to provide a limiting instruction with respect to fresh 

complaint evidence. (Brown, supra, 8 Cal.4th at p. 757; see also People v. Manning

(2008) 165 Cal.App.4th 870, 880.) During the discussion of jury instructions, the 

prosecutor requested that the trial court read CALCRIM No. 303 regarding the fresh 

complaint statement and the expert testimony. The court noted that there had been no 

request for it when the evidence was presented, but stated it would give the instruction 

anyway, and the parties could clarify it in argument. Thus, the record shows that 

defendant did not request such an instruction at the time the evidence was presented and 

did not object to the content of the instruction at the close of trial. He therefore forfeited 

any complaint regarding this instruction. Furthermore, the prosecutor explained during 

closing argument, “There were two things that were admitted for a limited purpose, and 

[one] was [G.]’s statement that [C.] said Grandpa sexually abused her. That was for a 

limited purpose that the complaint was made.” We disagree with defendant that the 

giving of CALCRIM Nos. 200 and 222,9 which instruct the jury to follow the court’s 

 

9 CALCRIM No. 200 was read in pertinent part as follows: “You must follow the 

law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ 

comments on the law conflict with my instructions, you must follow my instructions.”

CALCRIM No. 222 was read in pertinent part as follows: “Evidence is the sworn 

testimony of witnesses, the exhibits admitted into evidence, and anything else I told you 

to consider as evidence. Nothing that the attorneys say is evidence. In their opening 

statements and closing arguments, the attorneys discuss the case, but their remarks are 

not evidence.”
13

instructions if the attorneys’ comments conflict and that nothing the attorneys say is 

evidence, effectively told the jury it had a duty to disregard the prosecutor’s explanation. 

did not conflict with the jury instruction, and it did not purport to be evidence in itself. 

Her explanation was actually helpful to the defense. Therefore, defendant was not 

prejudiced by the lack of a more detailed instruction.

Defendant argues that because the hearsay affected defendant’s substantial 

rights— to confront and cross-examine witnesses and to due process—counsel’s lack of 

objection to the court’s failure to identify the fresh complaint testimony as the evidence 

being limited does not prevent review. Although we have identified grounds for 

forfeiture, we have not denied review, having found that defendant was not prejudiced by 

the challenged instruction even if error occurred. Defendant’s claim on this point must 

therefore fail. 

Defendant cites the same alleged trial court error as a violation of defendant’s 

confrontation right. He argues that C.’s statements to her mother were testimonial in 

nature because it is reasonable to believe that G.’s questioning of her daughter would 

have elicited a statement that would be available for use in prosecution. We disagree.

In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court 

held that, “when the declarant appears for cross-examination at trial, the Confrontation 

Clause places no constraints at all on the use of [the declarant’s] prior testimonial 

statements.” (Id. at p. 59, fn. 9.) C. testified in the prosecution’s case-in-chief and was 

cross-examined. Also, Crawford does not apply to nonhearsay statements admitted under 

the fresh complaint doctrine because the confrontation clause “does not bar the use of 

testimonial statements for purposes other than establishing the truth of the matter 

asserted.” (Id. at p. 59, fn. 9.) Though no comprehensive definition of testimonial has 

been articulated, Crawford notes that at a minimum, it includes “prior testimony at a 

preliminary hearing, before a grand jury, or at a former trial; and to police 

interrogations.” (Id. at p. 68.) These concrete examples show that a testimonial 

statement requires a more formal setting than a conversation between a child and her 

mother. (Id. at pp. 51-52.) 
14

C. C.’s Other Out-of Court Statements

Defendant next contends that the prosecutor asked Officer Campos questions 

eliciting narrative answers and clear hearsay, with the result that Officer Campos gave 

detailed testimony regarding C.’s out-of-court statements without objection. In addition, 

the prosecutor asked Detective Acevedo what C. said about the sexual abuse without a 

hearsay objection from defense counsel or thorough cross-examination. Defendant also 

points out that the prosecutor asked C. on direct examination about being questioned by 

police officers at the hospital and elicited that C. had told them “the truth.” The 

prosecutor also elicited that C. recalled being questioned by Detective Acevedo, and she 

confirmed that she told him “the truth.” C. also informed the jury she had recently met 

with the prosecutor and Detective Acevedo in the prosecutor’s office and told them “the 

truth.” Counsel did not object or cross-examine with regard to these extremely damaging

prior consistent statements without foundation, which were admitted in violation of 

Evidence Code sections 791 and 1200.

10

 Defendant argues that counsel’s failure to 

object to this hearsay was also a violation of his constitutional right to confront witnesses 

under Crawford.

Absent an express or implied charge that a witness’s trial testimony is recently 

fabricated or influenced by bias or improper motive, evidence of a prior consistent 

statement is not admissible. (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. 6; 

People v. Frye (1985) 166 Cal.App.3d 941, 950.) “[A] prior consistent statement is 

admissible if it was made before the existence of any one or more of the biases or 

motives that, according to the opposing party’s express or implied charge, may have 

influenced the witness’s testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609; Evid. 

Code, § 791.)

 

10 Defendant also says the statements were admitted in violation of Evidence Code 

section 1231, but this must be an error, since that section addresses decedents’ sworn 

statements regarding gang-related crimes. 
15

Defendant must overcome presumptions that counsel was effective and that the 

challenged action might be considered sound trial strategy. (In re Jones (1996) 13 

Cal.4th 552, 561.) We consider counsel’s overall performance throughout the case, 

evaluating it from counsel’s perspective at the time of the challenged act or omission 

and in light of all the circumstances. (People v. Bolin (1998) 18 Cal.4th 297, 335.) “To 

the extent the record on appeal fails to disclose why counsel acted or failed to act in the 

manner challenged, we will affirm the judgment ‘unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation . . . .’ [Citation.]” (Id. at p. 333; see also People v. Mai, supra, 57 Cal.4th at 

p. 1009.) 

Officer Campos succinctly recounted C.’s statement at the hospital—an account 

that was largely consistent with her trial testimony. Detective Acevedo’s testimony 

regarding C.’s statements was extremely brief, since the bulk of his testimony was 

devoted to defendant’s admissions. Had defense counsel objected, the prosecutor could 

have sought admission of the prior statements to Detective Acevedo and to Officer 

Campos under Evidence Code section 1360, which provides a hearsay exception for 

statements by children under the age of 12 in child abuse cases.11 Thus, the evidence was 

 

11 Evidence Code section 1360 provides, in pertinent part: “(a) In a criminal 

prosecution where the victim is a minor, a statement made by the victim when under the 

age of 12 describing any act of child abuse or neglect performed with or on the child by 

another, or describing any attempted act of child abuse or neglect with or on the child by 

another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] 

(1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court 

finds, in a hearing conducted outside the presence of the jury, that the time, content and 

circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child 

either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which 

case the statement may be admitted only if there is evidence of the child abuse or neglect 

that corroborates the statement made by the child. [¶] (b) A statement may not be 

admitted under this section unless the proponent of the statement makes known to the 

adverse party the intention to offer the statement and the particulars of the statement 

sufficiently in advance of the proceedings in order to provide the adverse party with a fair 

opportunity to prepare to meet the statement.”
16

not inadmissible per se. (See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 757-758 

[defendant’s hearsay arguments regarding witness’s statements erroneously assume 

prosecutor could not have demonstrated admissibility under other provisions of the 

Evidence Code].) As in Dykes, however, we need not speculate whether the prosecutor 

could have established the proper foundation for these statements because the admission 

of C.’s statements to the police was harmless in light of defendant’s admissions to 

Detective Acevedo and C.’s compelling testimony. (see Dykes, at p. 759.)

Defendant also appears to object to C.’s statements, elicited by the prosecutor, that 

she told the truth to officers at the hospital, to Detective Acevedo, and to the prosecutor 

herself. Given that admission of the statements to Detective Acevedo and Officer 

Campos were harmless beyond a reasonable doubt, we perceive no prejudice in allowing 

the prosecutor to question C. about her truthfulness on those occasions. 

Defendant has not demonstrated that it was reasonably probable that exclusion of 

the consistent statements would have led to a more favorable verdict. Therefore, 

defendant suffered no prejudice and counsel cannot be found ineffective. Likewise, we 

conclude defendant’s constitutional right to confront witnesses and to due process were 

not violated. “The Confrontation Clause is not violated by admitting a declarant’s out-ofcourt statements, as long as the declarant is testifying as a witness and subject to full and 

effective cross-examination.” (California v. Green (1970) 399 U.S. 149, 158; see also 

People v. Hayes, supra, 52 Cal.3d at p. 610.)

IV. Defendant’s Incriminating Statements

A. Defendant’s Argument

Defendant contends his trial counsel was prejudicially ineffective in defending 

against his incriminating statements to Detective Acevedo. He makes several arguments 

under this rubric: (1) counsel was ineffective for failing to file a Pitchess12 motion

regarding Detective Acevedo; (2) counsel was ineffective for failing to file a motion to 

 

12 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess).
17

suppress the statements, since defendant received no Miranda13 advisement; (3) counsel 

failed to thoroughly cross-examine Detective Acevedo; and (4) a false confession expert 

should have been called to testify on behalf of defendant, since his statements were 

equivocal and ambiguous.

B. Pitchess Motion

Assuming defense counsel could have produced an affidavit with information 

sufficient to trigger discovery of some type of prior police misconduct on the part of 

Detective Acevedo, defense counsel’s failure to do so does not equate to ineffective 

assistance.14 The record contains no evidence from which an inference could be drawn 

that a successful Pitchess motion would have elicited evidence of one or more prior 

instances of relevant improper conduct by the detective. Even if the Pitchess motion 

uncovered personnel complaints against Detective Acevedo, defendant has failed to show 

the result of the trial would have been different. The evidence against defendant was 

very strong. In addition, Detective Acevedo’s testimony was corroborated by the 

recording played for the jury. Thus, defendant has failed to show any “possible 

prejudice” flowing from the failure to file a timely Pitchess motion. (See In re Avena 

(1996) 12 Cal.4th 694, 730.) 

In the context of a failure to investigate a claim, an appellant “must demonstrate 

that counsel knew or should have known that further investigation was necessary, and 

must establish the nature and relevance of the evidence that counsel failed to present or 

 

13 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

14 In Pitchess, the California Supreme Court held that a criminal defendant is entitled 

to discovery of the personnel files of officers if the information contained in the records 

is relevant to the defendant’s ability to defend against the charge. (Pitchess, supra, 11

Cal.3d at pp. 535-536.) The trial court determines whether there is good cause for the 

disclosure. (Evid. Code, § 1043; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 

1019.) Good cause for such discovery is shown “‘first by demonstrating the materiality 

of the information to the pending litigation, and second by “stating upon reasonable 

belief” that the police agency has the records or information at issue. [Citation.]”’ 

(Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 187.) 
18

discover.” (People v. Williams (1988) 44 Cal.3d 883, 937.) Defendant must show 

specifically what would have been uncovered and that the failure to discover or present 

the evidence was prejudicial. (Ibid.) The failure to make the motion is not enough. 

Accordingly, defendant cannot show a reasonable probability that a more 

favorable determination would have been made had his counsel brought a Pitchess

motion. Because the record does not reveal that defense counsel’s representation fell 

below an objective standard of reasonableness in this regard under prevailing 

professional norms, his claim of ineffective assistance of counsel is rejected. 

C. Lack of Miranda Warnings

Miranda warnings are required only when a person is subjected to custodial 

interrogation. (Miranda, supra, 384 U.S. at p. 444.) “Custody” in this context includes 

actual custody and any situation in which a person has been deprived of his freedom of 

action in a significant way. (People v. Mickey (1991) 54 Cal.3d 612, 648.) Not all police 

inquiries amount to interrogations that require Miranda warnings. Preliminary inquiries 

seeking to obtain identifying information or to investigate a suspicion of criminal 

conduct, may not require Miranda warnings. (People v. Morris (1991) 53 Cal.3d 152, 

198, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 

1.) The rule excluding preliminary inquiries from the scope of Miranda “recognizes the 

value of routine and nonintrusive police inquiry before arrests and accusations are made. 

Such inquiry serves to minimize mistakes and protect the innocent.” (Morris, at p. 198.)

“In determining whether an individual was in custody, a court must examine all of 

the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply 

whether there [was] a “formal arrest or restraint on freedom of movement” of the degree 

associated with a formal arrest.’ [Citation.]” (Stansbury v. California (1994) 511 U.S. 

318, 322.) “Miranda warnings are not required ‘simply because the questioning takes 
19

place in the station house, or because the questioned person is one whom the police 

suspect.’ [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 402.)15

Under the totality of the circumstances here, defendant was not in custody when 

police spoke with him. Detective Acevedo was the only police officer in the room, and

nothing in the record suggests that he attempted to intimidate, place pressure on, or 

threaten defendant. Defendant was not physically restrained during the interview of 

approximately half an hour. Defendant came voluntarily to the interview and his wife 

was waiting for him, indicating that he believed he was free to leave. Indeed, he was told 

he was free to leave. Under these circumstances, a reasonable person in defendant’s 

position would not have considered himself to be in police custody. Therefore, any 

motion to suppress defendant’s admissions would have been without merit, and counsel 

is not required to file meritless motions to avoid later claims of ineffective assistance. 

(People v. Taylor (1984) 162 Cal.App.3d 720, 726.) Counsel was not ineffective. 

D. Cross-Examination of Detective Acevedo

Defendant criticizes trial counsel for not thoroughly cross-examining Detective 

Acevedo. As we have noted, counsel may have had tactical reasons for limiting his 

 

15 Courts have identified a variety of circumstances relevant to the determination of 

whether the defendant was in custody, including the following: “whether contact with 

law enforcement was initiated by the police or the person interrogated, and if by the 

police, whether the person voluntarily agreed to an interview; whether the express 

purpose of the interview was to question the person as a witness or a suspect; where the 

interview took place; whether police informed the person that he or she was under arrest 

or in custody; whether they informed the person that he or she was free to terminate the 

interview and leave at any time and/or whether the person’s conduct indicated an 

awareness of such freedom; whether there were restrictions on the person’s freedom of 

movement during the interview; how long the interrogation lasted; how many police 

officers participated; whether they dominated and controlled the course of the 

interrogation; whether they manifested a belief that the person was culpable and they had 

evidence to prove it; whether the police were aggressive, confrontational, and/or 

accusatory; whether the police used interrogation techniques to pressure the suspect; and 

whether the person was arrested at the end of the interrogation.” (People v. Aguilera

(1996) 51 Cal.App.4th 1151, 1162.) No single factor is dispositive; their interplay and 

combined effect must be assessed. (Ibid.)
20

cross-examination to the questions he asked. Therefore, the judgment must be affirmed. 

(People v. Ledesma, supra, 39 Cal.4th at p. 746; People v. Jones, supra, 30 Cal.4th at p. 

1115.) Defendant suggests challenging questions that should have been asked regarding 

the malfunctioning recorder.16 He also suggests questions regarding the detective’s 

investigatory tactics.17 Defendant asserts his statement is riddled with ambiguities and 

uncertainty, and counsel should have questioned the detective as to each of the equivocal 

statements. Defendant again presents a litany of questions counsel should have asked.18

Detective Acevedo’s testimony and the recorded portion of the interview clearly 

showed defendant had admitted the acts of molestation described by C. It is highly likely 

counsel did not wish to have the sordid minutiae of defendant’s acts repeated and 

analyzed so as to ingrain them in the minds of the jury members. As for the tape recorder 

malfunction, Detective Acevedo explained what had happened, and his testimony 

indicates there was little more to be said on the subject, leaving a credibility issue for the 

jury to resolve. The questions suggested by defendant have the transparent purpose of 

 

16 “Was it really a malfunction or an intentional act of the detective? Did the 

detective intentionally fail to record the interview to allow him to manipulate the 

appellant without having his tactics and methods scrutinized? Had this type of recording 

malfunction occurred in any of his previous interviews with suspects? Did the recorder 

have an indicator for how much memory was available? If so did he view it prior to 

recording appellant’s statement? Was the recorder available for the jury to view? Did 

the detective take notes during the first interview?”

17 “Did the detective’s method of interrogation cause the appellant to change from 

statements of complete denial to admitting to portions of the victim’s allegations? How 

much information about the victim’s statements had been told to appellant? If appellant 

sat silently and then made incriminating statements, then why did it take 25-30 minutes 

for him to give the first statement when the second statement was only 7 minutes?”

18 A few of the questions defendant suggests are: “Were the statements made during 

the first interview similar in their uncertainty as the second statement? What were the 

exact words used when appellant admitted acts of sexual abuse? If appellant did not say 

his penis was erect, but that he was aroused, what exactly was said about the arousement

[sic]? Why did appellant not admit arousal in the tape recorded statement when he was 

asked if he was aroused when he touched her private areas? (CT 97)”
21

impugning the detective’s honesty, and it is unclear what counsel would have gained by 

doing so, except to imply to the jury by means of his questions that the detective had 

deliberately not recorded the interview and was lying about defendant’s statements. The 

manner of cross-examination is within counsel’s discretion and “‘rarely implicate[s] 

ineffective assistance of counsel.’” (People v. Mai, supra, 57 Cal.4th at p. 1018.) 

Defense counsel did elicit that most of the interview was not recorded. Counsel also 

posed questions designed to determine if defendant had been manipulated. Counsel

asked the detective if anything had been promised to defendant—such as that he would 

be free to go if he admitted everything—and whether the detective had employed ruses or 

outright lies. Defendant chose not to testify and thus did not deny the truth of his 

interview statements, and no other evidence was offered to call into question the 

admissions. Defendant’s list of questions that were not asked does not persuade us to 

conclude counsel’s cross-examination of the detective amounted to ineffective assistance. 

As for defendant’s claim that his recorded statement was not a clear and 

unequivocal confession to the molestation allegations, and that trial counsel should have 

established by means of investigation, expert testimony, questioning, and evidence that 

the admissions were the result of manipulation, we conclude that defendant has not 

shown that counsel did not investigate this issue and determine that his limited 

questioning of the detective was the appropriate strategy. In the seminal case regarding 

ineffective assistance of counsel, the California Supreme Court stated that a reviewing 

court “should avoid second-guessing counsel’s informed choice among tactical 

alternatives” and should only conclude performance was constitutionally deficient if 

“trial counsel makes a critical tactical decision which would not be made by diligent, 

ordinarily prudent lawyers in criminal cases.” (People v. Pope (1979) 23 Cal.3d 412, 

424.) We do not reach that conclusion in defendant’s case.

E. False Confession Expert

In People v. Linton (2013) 56 Cal.4th 1146 (Linton), the Court considered a claim 

that exclusion of expert testimony about false confessions was an abuse of discretion and 

violated the defendant’s right to present a defense. The Linton court rejected the claim, 
22

concluding that where there was a “dearth of evidence indicating a false admission or 

confession,” as well as a “multitude of corroborative evidence . . . that suggested 

defendant’s admissions and confession were true.” (Id. at p. 1182.) Under these 

circumstances, “it fell within the trial court’s broad discretion to determine that [the 

expert’s] proffered testimony had, at most, minimal probative value, which was 

substantially outweighed by its likely undue consumption of time. [Citations.]” (Ibid.) 

Likewise, in the instant case, there was a dearth of evidence indicating that 

defendant’s confession was false. Defendant cannot show that even if trial counsel had 

sought such an expert, the trial court would have allowed the testimony, given the 

decision in Linton. Like the defendant in Linton, “[a]s was his right, defendant did not 

testify and thus did not deny the truth of his interview statements. There was no other 

evidence offered that logically called into question the veracity of his admissions.” (Id. at 

p. 1181.) Whether to call particular witnesses is a matter of trial tactics that a reviewing 

court may not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.)

Defendant offers no explanation as to what such an expert would show that was 

favorable to his defense, such as certain psychological factors he might possess that 

would have led to a false confession, or specific police tactics apart from those about 

which defense counsel inquired. Furthermore, CALCRIM No. 358 instructed the jury 

that it was free to decide whether defendant made the oral statement attributed to him in 

whole or in part. The jury members were told it was up to them to decide the importance 

of the statement and to consider it with caution unless it was recorded or written. The 

jury was also instructed that defendant could not be convicted based on his statement 

alone. (CALCRIM No. 359.) Under the circumstances of this case, the jury could 

understand and evaluate all of the evidence presented regarding defendant’s admissions 

without the assistance of an expert. 

A defendant must “do more than surmise that defense experts might have provided 

more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5.) 

Defendant’s ineffective assistance claim lacks merit.
23

V. Stipulation 

A. Defendant’s Argument

Defendant contends trial counsel’s errors were compounded when he stipulated 

that: “Dr. Escalona did not perform a sexual assault examination, nor did she refer [C.] 

for such an exam based on the length of time that had elapsed from the last incident to the 

date of treatment.” According to defendant, trial counsel in effect agreed that there were, 

in fact, multiple sexual assaults on C., which constituted conduct below reasonable 

professional standards and caused prejudice.

B. No Ineffective Assistance

We disagree with defendant. In light of G.’s testimony and the subsequent 

evidence and argument presented by the defense, there was no reasonable probability that 

the jury would construe that defendant was admitting his guilt with this stipulation. G.

testified that the doctor’s only suggested remedy for C.’s complaint was to “have her 

clean, take a shower and put clean clothes.” The doctor found only that C.’s “private 

parts” were “a little bit irritated.” After the parties stipulated, the defense called W., who 

testified repeatedly to the fact that C. was never left alone with defendant, which was the 

basis of the defense. Furthermore, the fact that C. complained of pain only after a 

considerable amount of time had passed was beneficial to the defense case and detracted 

from the credibility of the accusations. Finally, the need for or lack of a sexual assault 

examination was never an issue in this case and was not mentioned in oral argument by 

either party. We believe that entering into the stipulation fell within the permissible 

range of trial tactics of a reasonably competent attorney. Accordingly, the claim of 

ineffective assistance of counsel lacks merit. 

VI. Cumulative Prejudice from Alleged Ineffective Assistance of Counsel

Defendant contends counsel’s multiple errors at trial amounted to ineffective 

assistance of counsel and violations of his constitutional rights. According to defendant, 

he has shown prejudice from the cumulative impact of the multiple deficiencies even if 

no single error significantly impaired the defense.
24

We have concluded that no prejudicial error occurred. Accordingly, there was no 

error to accrue to defendant’s prejudice. (People v. Sanders (1995) 11 Cal.4th 475, 565; 

People v. Cudjo (1993) 6 Cal.4th 585, 630.)

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.