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Filed 11/14/23 P. v. Olivares 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL OLIVARES,

Defendant and Appellant.

C097068

(Super. Ct. No. 20FE018267)

A jury found defendant Manuel Olivares guilty of committing five sexual offenses 

against a victim under the age of 14 years. Defendant appeals, arguing we should reverse 

his convictions because: (1) his trial counsel performed ineffectively, violating 

defendant’s right to effective assistance of counsel under the Sixth Amendment to the 

United States Constitution, by not objecting to hearsay evidence about DNA analysis;

(2) the trial court abused its discretion by preventing defendant from introducing 

evidence of a motive for the victim’s family to fabricate her allegations; and (3) his trial 

counsel also performed ineffectively by failing to object to the prosecutor’s remarks in 
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closing argument about the victim’s lack of motive. We conclude defendant has failed to 

establish ineffective assistance of counsel and has failed to establish a prejudicial abuse 

of discretion. Accordingly, we will affirm defendant’s convictions.

I. BACKGROUND

Defendant lived in a house with nine other family members, including the victim. 

At trial, the victim testified that defendant put his penis into her anus on more than five 

occasions, made her lick his penis on three occasions, put his fingers in her anus on three 

occasions, licked her anus on one occasion, and touched her buttocks with his hands on 

approximately 10 occasions. The victim specifically recalled the final incident before she 

reported the abuse to her mother: Defendant grabbed her by the wrist and brought her 

into the defendant’s parents’ bedroom, took off her pants and underwear, threw her on the 

bed, took off his own clothes, positioned her with her buttocks lifted off the bed, and then 

moved his penis in and out of her anus while holding her hips so that she could not move. 

She told him to stop, but he did not stop until he was breathing heavily and announced he 

was tired. After defendant stopped, the victim could see “[w]ater was coming out” of his 

penis. After each incident, defendant would threaten to kill the victim if she told anyone 

about the abuse. 

The day of the final incident, the victim told her mother that defendant had 

grabbed her buttocks. Her mother took her to the doctor the next day. Police officers 

were called to the doctor’s office and interviewed the victim in a mix of Spanish and 

English. The victim told the officers that her uncle hurt her by grabbing her buttocks, 

inserting his fingers and then penis into her anus, and inserting his penis into her vagina. 

The victim then stated another incident occurred a month earlier, but did not tell the 

officers any details of that incident. The officer who questioned the victim was not a 

trained forensic interviewer and expected such an interviewer to talk with the victim 

more extensively later. After the interview, the officers brought the victim to a forensic 

sexual examination. 
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Dr. Angela Vickers performed a forensic sexual examination of the victim and 

found no injuries or sexually transmitted diseases. Dr. Vickers also collected samples 

from the victim’s mouth, neck, nipples, genitals, and anus to be tested for bodily fluids. 

Police collected the victim’s underwear and bedsheets from defendant’s bed and his 

parents’ bed for testing. 

Analysts from the Sacramento County Crime Lab tested the samples taken from 

the victim’s body, underwear, and from the bedsheets for bodily fluids and attempted to 

create DNA profiles from the fluids found. Of all the samples, only the one taken from 

the bedsheet from defendant’s parents’ room contained bodily fluid from which the 

analysts were able to develop a DNA profile. As explained in greater detail below, the 

analysis determined the sperm found on the sample from the bedsheet very likely came 

from defendant. 

The prosecution charged defendant with committing five separate lewd or 

lascivious acts against the victim, a child under the age of 14 years, by force or fear of 

immediate and unlawful bodily injury (Pen. Code,1 § 288, subd. (b)(1)). Defendant 

testified at trial that he got up on the day of the final incident described by the victim, 

went to breakfast with his wife, then took a nap for three or four hours. When he woke 

up, he danced with the victim in his parents’ bedroom. They were initially separated 

while dancing, but when the victim started getting closer to defendant, he pushed her 

away because he felt uncomfortable. He thought it was easier to push her away than to 

tell her to back up. At first, defendant testified that he had only pushed the victim. But, 

after being reminded of statements he made to the police the day after the incident, 

defendant admitted that, after he pushed the victim to the ground, he then held her on the 

1

 Undesignated statutory references are to the Penal Code.
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ground to get her to stop getting close to him. Defendant denied any sexual contact with 

the victim. 

The jury found defendant guilty of committing all five lewd or lascivious acts 

against the victim. The trial court sentenced defendant to 30 years in state prison. 

Defendant timely appealed. 

II. DISCUSSION

A. Ineffective Assistance for Failing to Object to Testimonial Hearsay Evidence

Defendant first contends his trial counsel performed ineffectively by failing to 

object when Joy Viray, a DNA analyst from the Sacramento County Crime Lab, testified 

about the contents of reports prepared by Michelle Chao, another DNA analyst from the 

Sacramento County Crime Lab. Specifically, defendant contends his counsel should 

have objected because Viray’s testimony about the contents of Chao’s reports was 

inadmissible hearsay and violated defendant’s right to confront the witnesses against him. 

We conclude defendant’s counsel could have reasonably decided not to object to Viray’s 

testimony on either ground. Accordingly, defendant has failed to establish ineffective 

assistance of counsel.

1. Factual Background

The specific testimony defendant contends his counsel should have objected to is 

Viray’s agreement with the conclusion of one of Chao’s reports—that the sperm found on 

the bedsheet from the defendant’s parents’ bed, where some of the abuse occurred, was 

very likely to be defendant’s. That sample had been identified as possible semen by 

Desiree Dudley, another DNA analyst at the Sacramento County Crime Lab. Dudley 

selected areas of the bedsheet that appeared to contain semen, performed a test for a 

chemical found in large quantities in semen, and looked at the samples that tested 

positive under a microscope to confirm the presence of sperm cells. She then packaged 

the samples containing sperm cells for DNA testing. 
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Chao performed the DNA testing, adding chemicals and heat to extract DNA 

molecules, isolating part of the DNA to develop a profile, and using software to help 

interpret the profile. The software determined the DNA profile developed from the 

sperm on the bedsheet was 7 octillion times more likely to come from defendant than 

from a random unrelated individual. There was no female contributor in the sample. 

Chao completed a lab report documenting the testing she performed. 

The prosecution moved Chao’s report on the bedsheet sample into evidence, and 

defense counsel did not object. 

2. Legal Background

“[A] defendant cannot automatically transform a forfeited claim into a cognizable 

one merely by asserting ineffective assistance of counsel.” (People v. Thompson (2010) 

49 Cal.4th 79, 121, fn. 14; see People v. Riel (2000) 22 Cal.4th 1153, 1202-1203.) 

Rather, “[t]o establish constitutionally inadequate representation, a defendant must 

demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective 

standard of reasonableness under prevailing professional norms; and (2) counsel’s 

representation subjected the defendant to prejudice, i.e., there is a reasonable probability 

that, but for counsel’s failings, the result would have been more favorable to the 

defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845; see Strickland v. 

Washington (1984) 466 U.S. 668, 687-696.) 

“[R]arely will an appellate record establish ineffective assistance of counsel.” 

(People v. Thompson, supra, 49 Cal.4th at p. 122.) “ ‘When a defendant on appeal makes 

a claim that his counsel was ineffective, the appellate court must consider whether the 

record contains any explanation for the challenged aspects of representation provided by 

counsel. “If the record sheds no light on why counsel acted or failed to act in the manner 

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

unless there simply could be no satisfactory explanation,’ [citation], the contention must 

be rejected.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at p. 845.) 
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3. Analysis

Defendant argues his counsel performed ineffectively by failing to object to 

Viray’s testimony identifying defendant’s DNA in the semen from the bedsheet because: 

(1) the testimony would have been excluded as inadmissible hearsay and (2) admitting 

the conclusion of Chao’s report without permitting cross-examination of Chao violated 

defendant’s right to confront the witnesses against him. The People respond that (1) the 

report was properly admitted under the business records exception to the hearsay rule, 

(2) the evidence was not testimonial hearsay protected by the right to confrontation, and

(3) in any event, defense counsel could have “made a reasonable tactical decision not to 

object.” We agree with the People’s final contention, so we need not decide whether the 

report would have been admissible or was testimonial.

The parties have not identified any evidence in the record explaining defense 

counsel’s decision not to object on either hearsay or confrontation grounds, so we must 

determine whether defense counsel could have no satisfactory explanation for the 

decision. Here, objecting to Viray’s testimony about the conclusion of one of Chao’s 

reports would likely not have benefited defendant. Chao was included on the 

prosecution’s witness list, and nothing in the record indicates she would have been unable 

to testify if called. If Chao had testified about the findings of her analysis, the results 

would not have been hearsay. (See Evid. Code, § 1200, subd. (a) [hearsay is “evidence 

of a statement that was made other than by a witness while testifying at the hearing”].) 

Accordingly, defense counsel could have decided not to waste time further substantiating 

DNA testing he planned to downplay. Defense counsel may even have preferred to have 

Dudley testify, though Dudley was not on the prosecution’s witness list, because Dudley 

was the DNA analyst who located and selected the bedsheet sample, whereas Chao just 

performed a standard test on the sample and recorded the output of the software. Despite 

the opportunity to question Dudley about the subjective decisions she made, defense 
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counsel declined to cross-examine her, suggesting he likewise would have had nothing to 

gain by cross-examining Chao about her more routine work. 

Defense counsel may also have determined objecting to Viray’s testimony about 

the results of the test performed by Chao would have been futile. “ ‘Generally speaking, 

a declarant’s hearsay statement is testimonial if made “with a primary purpose of creating 

an out-of-court substitute for trial testimony.” ’ ” (People v. Tran (2022) 13 Cal.5th 

1169, 1196-1197.) Applying this test, several California courts have concluded reports 

containing DNA analysis like Chao’s are not primarily testimonial because: “(1) they 

were generated by a lab technician pursuant to standardized procedures; (2) even though 

[defendant] had been charged with the crime, lab technicians such as [Chao] have no idea 

what their results might show, and DNA testing is routinely used to inculpate or 

exonerate those charged with crimes; and (3) the accusatory opinions came from expert 

witness [Viray], who was subject to vigorous cross-examination.” (People v. 

Barba (2013) 215 Cal.App.4th 712, 742; accord People v. Holmes (2012) 

212 Cal.App.4th 431, 438-439; People v. Steppe (2013) 213 Cal.App.4th 1116, 1126-

1127.) 

Our Supreme Court has also indicated that machine-generated data in the report of 

a nontestifying analyst does not implicate the right to confrontation “[b]ecause, unlike a 

person, a machine cannot be cross-examined.” (People v. Lopez (2012) 55 Cal.4th 569, 

583.) Though the record is not well developed in this respect, it seems the numerical 

likelihood of the bedsheet sample matching defendant’s DNA profile was the output of 

the lab’s computer software, which would not implicate the right to confrontation. Given 

all this precedent, defense counsel could have reasonably assumed that an objection on 

confrontation grounds would have been futile.

Because defendant has failed to show that his counsel could have had no 

satisfactory explanation for declining to object to Viray’s testimony as inadmissible 
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hearsay or on confrontation grounds, defendant has failed to establish ineffective 

assistance of counsel.

B. Evidence of Motive

Defendant next contends the trial court abused its discretion by preventing him 

from introducing evidence that defendant’s father had decided to give him a share of a 

house previously promised solely to the victim’s father, creating a motive for the victim’s 

family to fabricate her allegations. The People respond that the trial court properly 

excluded the evidence and, in any event, defendant was not prejudiced by the exclusion. 

We conclude the trial court did not abuse its discretion by excluding the evidence.

1. Factual Background

Defendant sought to introduce evidence that his father had originally announced 

his intention to give a house to the victim’s father but then, sometime in the four years 

between making the plan and the victim making her allegations, defendant’s father 

changed his mind and planned to give the house to both the victim’s father and defendant. 

This could have created a motive for the victim’s parents to fabricate allegations against 

defendant in order to discredit defendant in his father’s eyes, which could cause 

defendant’s father to revert to the plan to give the house only to the victim’s father. But 

defense counsel acknowledged that he could only substantiate that defendant’s father and 

the victim’s father knew about the original planned transfer. As for who knew about 

defendant’s father changing his plan, defense counsel told the trial court that he would 

ask the father before putting him on the stand. But defense counsel never provided any 

assertion that anyone knew about the father changing his mind. The victim’s mother, 

who first spoke with police about the victim’s allegations, had already testified that she 

knew nothing about any transfer of the house to her husband. 

The trial court considered this theory “extremely attenuated,” especially because 

defendant’s offer of proof did not establish when defendant’s father had changed his 

mind or whether the victim’s parents knew about the planned transfer or the change. 
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Accordingly, the trial court excluded the evidence, finding it had very little probative 

value that was substantially outweighed by the probability it “would create a substantial

danger of undue prejudice, of confusing the issues or of misleading the jury, as well as 

necessitating undue consumption of time.” Defendant did not call his father as a witness. 

2. Legal Background

Under Evidence Code section 352, “[t]he court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” “ ‘[T]he latitude 

[Evidence Code] section 352 allows for exclusion of impeachment evidence in individual 

cases is broad. The statute empowers courts to prevent criminal trials from degenerating 

into nitpicking wars of attrition over collateral credibility issues.’ ” (People v. Ayala

(2000) 23 Cal.4th 225, 301.) “Because the court’s discretion to admit or exclude 

impeachment evidence ‘is as broad as necessary to deal with the great variety of factual 

situations in which the issue arises’ [citation], a reviewing court ordinarily will uphold 

the trial court’s exercise of discretion.” (People v. Clark (2011) 52 Cal.4th 856, 932.) A 

trial court does not abuse its discretion under Evidence Code section 352 unless it rules in 

an arbitrary, capricious, or patently absurd manner. (People v. Johnson (2019) 8 Cal.5th 

475, 521.) Defendant has not met this high bar here.

3. Analysis

Evidence of a motive for the victim’s parents to pressure her into fabricating 

allegations could have been relevant. Likewise, evidence that the victim’s mother lied 

when she said she knew nothing about any potential transfer of a house would have been 

relevant impeachment. But defense counsel’s offer of proof did not include such facts. 

As the trial court noted, defense counsel had not offered any testimony about when the 

father had changed his mind or who the father had told about changing his mind. 
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We agree with the People that testimony on this subject could have turned into a 

trial within a trial about defendant’s father’s plan for the house, who knew about the plan, 

and the credibility of those individuals. This could confuse the issues, mislead the jury, 

and consume undue time by turning the trial away from the testimony and credibility of 

the victim and defendant to this side issue. (See People v. Verdugo (2010) 50 Cal.4th 

263, 291 [affirming exclusion of evidence whose introduction would have entailed “a 

lengthy evidentiary detour into a matter that was only marginally relevant and might well 

have confused the jury”].) And, given that the side issue would be relevant only if the 

defendant’s father happened to testify to facts unknown to defense counsel at the time he 

made his offer of proof, we agree with the trial court that any relevance was extremely 

attenuated. Accordingly, we cannot say the trial court abused its discretion by excluding 

this line of questioning.

C. Ineffective Assistance for Not Objecting to Prosecutorial Misconduct

Lastly, defendant contends his trial counsel also performed ineffectively by failing 

to object to the prosecutor’s remarks in closing argument about the victim’s lack of 

motive. The People respond that the prosecutor’s remarks were not improper and, in any 

event, they did not prejudice defendant. While we agree with defendant that the 

prosecutor’s remarks were improper, we conclude defense counsel could have made a 

reasonable tactical decision not to object. Accordingly, defendant has not established 

ineffective assistance of counsel.

1. Factual Background

In closing argument, amid arguing that the victim’s and her mother’s testimony 

was more credible than defendant’s, the prosecutor argued that the victim and her mother 

had no motive to lie and that the process of reporting the abuse was instead unpleasant for

the victim. Specifically, the prosecutor stated:

“And when you think about those things and you compare [the victim], her mom, 

and the way that they talked about these things, there’s no motive for them to lie. There’s 
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no motive for [the victim] to say these things about [defendant], because when people lie, 

whether it’s an adult or a child, they do so for a reason. You lie to get out of trouble. 

You lie for a benefit. There is no benefit to [the victim] to tell her mom that [defendant]

put his penis inside of her anus.

“It’s the opposite of a benefit, because we saw what happened. She told her mom. 

She had to go see her first doctor, who called the police. Then she had to go to the BEAR

[Clinic]. She had to have an invasive exam where her genitalia is looked at, her anus is 

looked at. She had to talk to police officers. She had to go through an interview. She 

had to come in to testify. There’s no benefit. It’s not cool at eight years old to say, 

[defendant]’s penis was in my butt. That doesn’t give you street cred. on the playground, 

doesn’t give you clout. There’s no motive.

“And when I sit down once I’m done with my comments here, I’m going to listen 

to defense counsel and see, because if they’re asking you to find the defendant not guilty, 

they are asking you to find that [the victim] lied, and if they are doing that, there should 

be a reason. There should be a motive. And from what I’ve seen in the evidence, there is 

no motive, no motive for [the victim] to make it up.

“And I would suggest that you listen to defense and see, see what motive there is 

that’s not speculation, that’s not a guess, but actually within the evidence, within the four 

walls of this courtroom, and I don’t think there’s going to be one. And if they come up 

with one, I’ll address on it my rebuttal.” 

Defense counsel did not object, and the prosecutor moved on to discuss the 

credibility of other witnesses. 

2. Legal Background

A number of cases have criticized prosecutors who successfully argue for the 

exclusion of evidence based on a lack of relevance but then argue in closing that the lack 

of the excluded evidence is relevant to the jury’s consideration. For example, in People 

v. Varona (1983) 143 Cal.App.3d 566, the defense sought to introduce evidence the 
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victim had previously pled guilty to prostitution, but the prosecutor successfully argued 

for the exclusion of the evidence. (Id. at p. 568.) In closing argument, the prosecutor 

then argued that there was no evidence the woman was a prostitute. (Id. at p. 569.) The 

appellate court concluded the prosecutor had committed misconduct, reasoning: “We 

agree that, in a proper case, a prosecutor may argue to a jury that a defendant has not 

brought forth evidence to corroborate an essential part of his defensive story. But we 

know of no case where such argument is permissible except where a defendant might 

reasonably be expected to produce such corroboration. Here the prosecutor not only 

argued the ‘lack’ of evidence where the defense was ready and willing to produce it, but 

he compounded that tactic by actually arguing that the woman was not a prostitute 

although he had seen the official records and knew that he was arguing a falsehood. The 

whole argument went beyond the bounds of any acceptable conduct.” (Id. at p. 570.)

In People v. Castain (1981) 122 Cal.App.3d 138, the appellate court reversed a 

conviction for battery upon a police officer and resisting arrest after the prosecutor 

successfully argued for the exclusion of a second incident where the officer had allegedly 

used excessive force and then argued to the jury that the evidence showed only one such 

incident. (Id. at pp. 140, 146.) The court referred to this as “the prosecutor’s obvious 

misconduct.” In People v. Daggett (1990) 225 Cal.App.3d 751, the court reversed 

convictions for four sexual offenses against a child, in part because the prosecutor 

“unfairly took advantage of the judge’s ruling” excluding evidence by “ask[ing] the 

jurors to draw an inference that they might not have drawn if they had heard the evidence 

the judge had excluded.” (Id. at pp. 754, 758.) In People v. Roberts (2021) 65 

Cal.App.5th 469, the appellate court considered it clear misconduct to say there was no 

evidence as to whether the victim had gone to the hospital after an incident of domestic 

violence after successfully arguing for the exclusion of evidence the victim had been 

arrested after the incident and could not have gone to the hospital. (Id. at p. 481.) 

Specifically, the court reasoned that “[a]fter convincing the trial court to exclude 
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evidence of the victim’s arrest on the basis that its minimal relevance was outweighed by 

its prejudicial effect, the prosecutor then took unfair advantage of that very ruling by 

implying that what the victim may have done after the incident was relevant.” (Ibid.)

Claims of prosecutorial misconduct are, however, subject to forfeiture. “In order 

to preserve a claim of misconduct, a defendant must make a timely objection and request 

an admonition; only if an admonition would not have cured the harm is the claim of 

misconduct preserved for review.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)

3. Analysis

As an initial matter, we agree with defendant that the prosecution took unfair 

advantage of the trial court’s ruling excluding evidence of a potential motive by 

subsequently arguing to the jury that defendant had failed to offer any evidence of 

motive. Though the offer of proof in this case was less definitive than the evidence 

excluded in the cases cited above, we conclude the same principle applies: The 

prosecution cannot stop the defense from seeking to introduce evidence based in part on 

that evidence’s lack of relevance and then emphasize the lack of that evidence to the jury 

as relevant to their decision. 

But here we must decide whether defense counsel performed ineffectively by 

failing to object to this misconduct and request the trial court to admonish the jury. 

“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim 

of ineffective assistance of counsel [citation], and there is a “strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ ” 

(People v. Weaver (2001) 26 Cal.4th 876, 925.) 

Here, defense counsel made a tactical decision to address the victim’s motive to lie 

in his own argument. Beginning early in his argument, defense counsel argued that the 

lack of motive fit his theme, that the victim was a child whose story changed and grew 

each time she interacted with a new group of adults trying to prove defendant had 

committed a crime. Defense counsel emphasized only one of the questioners was a
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forensic interviewer trained to avoid leading questions, which can “put a story in a child’s 

head.” Depicting the victim’s story as spiraling out of control from its beginning as a 

small lie or misunderstanding about an interaction with defendant was a reasonable 

approach. Defense counsel would have expected the jury to wonder why the victim 

would lie, whether the prosecutor mentioned it or not. He had prepared to answer this 

question, and stopping the prosecutor from discussing motive would not have assisted his 

strategy and could have looked suspicious to the jury, especially given the prosecutor’s 

discussion of motive took up only one page, two-thirds of the way through the 30-page 

transcript of her argument. 

We conclude defendant has not established that defense counsel acted 

unreasonably by deciding not to object to the prosecutor’s argument about the victim’s 

lack of motive.

III. DISPOSITION

The judgment is affirmed.

 /s/

Wiseman, J.*

We concur:

 /s/

Mauro, Acting P. J.

 /s/

Mesiwala, J.

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.