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Filed 5/6/22 P. v. Simmons 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Placer)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BYRON SIMMONS,

Defendant and Appellant.

C092973

(Super. Ct. No. 62-167291)

Defendant Michael Byron Simmons was tried by jury and convicted of one count 

of committing a lewd or lascivious act on his niece and goddaughter, B., a child under the 

age of 14 years, in violation of Penal Code section 288, subdivision (a). The trial court 

sentenced defendant to serve the middle term of six years in state prison and imposed 

other orders.

The central issues in this appeal involve a pretext phone call between B.’s father 

and defendant, in which defendant admitted touching the child’s vagina on one occasion. 

Defendant contends: (1) his trial counsel provided constitutionally deficient assistance 
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by failing to move to exclude defendant’s admission during the phone call because it was 

involuntarily made as a result of coercion; and (2) the trial court prejudicially abused its 

discretion and violated defendant’s federal constitutional rights by excluding testimony 

from a defense psychologist on the subject of defendant’s mental processes, particularly 

his anxiety, as that was relevant to the jury’s assessment of the statements he made during 

the pretext phone call. Defendant’s remaining appellate contentions involve:

(3) additional claims of ineffective assistance of trial counsel; and (4) an assertion of 

cumulative prejudice.

We affirm. As we explain, defendant’s trial counsel made a rational tactical 

decision not to object to the admission of the pretext phone call. Defendant’s assertion of 

ineffective assistance of counsel fails for that reason regardless of whether an objection to 

its admission would have been successful. Assuming, without deciding, that the trial 

court abused its discretion by excluding the proffered expert testimony, this did not 

violate defendant’s constitutional rights and there is no reasonable likelihood of a more 

favorable result had this testimony been admitted. Defendant’s additional claims of 

ineffective assistance of counsel fail for reasons explained later in this opinion. Finally,

defendant’s assertion of cumulative prejudice also fails. 

FACTS

Defendant married B.’s aunt in 2012, when B. was five years old, but the family 

knew defendant for B.’s entire life. He was chosen to be her godfather because, as B.’s 

mother put it, “my daughter loved him very much. There was a special bond between 

them. He would always hold her when she was little, and he’s always had a special 

affection towards her.” 

In January 2019, B. lived with her parents and four sisters in Olivehurst. She was 

11 years old and would turn 12 the following month. Defendant, B.’s aunt, and their 

three children lived in Grass Valley, about 30 miles to the east. 
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With the exception of a four-month period of time immediately preceding the 

events giving rise to defendant’s conviction in this case, during which B.’s mother and 

aunt were not on speaking terms, defendant saw B. “once a month,” if not “every two 

weeks.” They often went to the movies and out to eat. Defendant also routinely bought 

her presents, such as candy and toys, “whatever she asked for.” However, during the 

four-month time period noted above, they had not seen each other at all. 

Contact between defendant and B. resumed after B.’s mother sent a text message 

to her sister inviting her and defendant to B.’s birthday party. Defendant then made plans

to take his daughter, R., to see a children’s movie at the Studio Movie Grill in Rocklin

and called B.’s house to invite her to join them. After B. received permission to go from 

her mother, defendant told her that he would pick her up at around 3:30 p.m. on Saturday. 

Defendant left his house in Grass Valley at about 2:30 p.m. to give himself plenty 

of time to drive to B.’s house in Olivehurst. Defendant’s daughter, who was about five 

years old at the time, sat in a car seat in the back. B. sat in the front passenger seat. For 

some reason, rather than taking a direct route to the Studio Movie Grill, defendant 

backtracked east to Grass Valley, then drove south to Auburn, and finally west to 

Rocklin. What would have been a 40-minute drive ended up taking about an hour and a 

half. 

At the movie theater, B. intentionally sat next to R. instead of defendant. As she 

explained during her trial testimony, she was afraid defendant would touch her “private 

area” if she sat next to him, clarifying that this meant her vagina. B. testified that he had 

done so on multiple occasions during the previous two years, any time they went to a 

movie or out to eat together. During this particular trip to the movie theater, B. 

successfully avoided being touched during the movie. 

After the movie, they planned to eat at a fast-food restaurant in Auburn. Back at 

the car, B. again sat in the front passenger seat and defendant, after securing R. into her 

car seat in the back, got into the driver’s seat and placed his hand on B.’s thigh. He then 
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moved his hand up her leg and touched her vagina beneath her pants and underwear as he 

drove. B. was scared and did not remember whether she told him to stop, but at some 

point he stopped touching her. 

At the fast-food restaurant, defendant went through the drive-through and B. 

climbed into the back seat. Defendant then drove her home, again extending the drive 

considerably. Rather than taking a more direct route, he drove north to Grass Valley and 

then west to Olivehurst. 

As mentioned, B. turned 12 in February 2019 and her mother invited defendant 

and B.’s aunt to her birthday party. The night before the party, after B.’s mother told her 

that they were coming, B. started crying and said she did not want defendant to be there. 

Her mother asked “why she was acting that way,” but did not have time to talk to her 

about it. The next morning, before the party, B. told her mother that she did not want 

defendant to touch her or come near her at the party. When he arrived at the party, 

defendant gave B. a present in the kitchen, but she “threw the gift on the counter” and ran 

out of the kitchen. When B.’s mother scolded her to “behave” around her guests, B. said 

she did not invite them to the party. B.’s mother had never seen her act that way around 

defendant or anyone else. The next day, B.’s mother again asked her “why she was 

acting that way” towards defendant at the party. B. started crying and ran to her room. 

Later in the week, B. disclosed to her mother that defendant was touching her 

inappropriately.

In late February or early March, B.’s mother took her to a local medical clinic and 

told medical staff what B. had told her about the sexual abuse. That facility referred her 

to UC Davis Medical Center. B.’s mother took her there on March 6. B. disclosed the 

abuse to both medical staff and a clinical social worker in the emergency department, 

who reported the allegations to child protective services, who in turn filed a report with 

law enforcement in Yuba County. 
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During a subsequent forensic interview, B. again disclosed the abuse, specifically 

describing the incident in Rocklin. This caused the case to be forwarded to the Rocklin 

Police Department, where Detective Justin Infante orchestrated the pretext phone call 

between B.’s father and defendant that is central to the main issues raised in this appeal. 

We provide the details of this phone call during the discussion portion of this opinion. 

For now, we note that defendant initially denied abusing B., but eventually admitted 

touching her vagina, claiming he “only did it . . . once” and “just the outside.” He also 

said he stopped going over to their house afterwards because he “was feelin’ bad about 

it.” 

Defendant testified in his own defense and denied any abuse occurred. He 

claimed he made the statements noted above during the pretext phone call because he was 

afraid of B.’s father. According to defendant, B.’s father was “a very aggressive 

individual” and “an ex-boxer” who had previously claimed he “knew people in the 

cartels.” Defendant claimed several statements made by B.’s father during the phone call 

were threats to physically harm defendant if he did not admit to touching B.’s vagina. 

These threats caused defendant to suffer an anxiety attack, and after several adamant 

denials, defendant decided to try to appease B.’s father by giving him an answer that 

defendant thought “he would accept as ‐‐ as a confession” without actually confessing to 

anything. According to defendant, when B.’s father was asking him to admit touching 

B.’s vagina, he said he “only did it . . . once” and “just the outside” because he thought 

B.’s father would think he was confessing, but in reality he was referring to having 

“touched her only one time in the vehicle which was to move her leg off of the gearshift, 

and that was on the outside of her leg . . . .” 

Defendant was arrested the day after the pretext phone call and interviewed by 

Detective Infante. He maintained his innocence throughout the interview. We need not 

describe this interview in any detail. It will suffice to note that defendant, who initially 

claimed he did not remember going to the movies with B. on the day in question, did not 
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mention either being afraid of B.’s father or touching the outside of B.’s leg to move it 

off of the gearshift.1

DISCUSSION

I

Central Ineffective Assistance Claim

Defendant did not object to the admission of the pretext phone call below, 

forfeiting a direct challenge to its admission in this appeal. (See People v. Quiroz (2013) 

215 Cal.App.4th 65, 78 (Quiroz).) Implicitly acknowledging this fact, defendant 

contends his trial counsel’s failure to object amounted to ineffective assistance of counsel 

because a motion to exclude defendant’s statements during the call would have been 

successful, and without these statements in evidence, a more favorable outcome was 

reasonably probable. The reason, according to defendant, that such a motion would have 

been successful is that B.’s father acted as an agent of the police when he spoke to 

defendant during the pretext phone call and he extracted an involuntary confession from 

defendant by making implied threats and promising leniency if defendant admitted B.’s 

allegations were true. We need not determine the merits of this hypothetical motion 

because defendant has not persuaded this court that his trial counsel did not make an 

informed and reasonable tactical decision not to object to admission of the phone call. 

A.

The Pretext Phone Call

As previously mentioned, Detective Infante facilitated a pretext phone call 

between B.’s father and defendant. The call was recorded. The detective, who was 

1 Competing expert testimony on the subject of child sexual abuse accommodation 

syndrome was also presented at trial, as was certain character evidence offered on 

defendant’s behalf, none of which need be recounted here.
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present during the call, told B.’s father to confront defendant with the accusations of 

abuse and provided various suggestions as to what to say to elicit a confession. 

The phone call began with B.’s father telling defendant that B. had told him 

“something that’s bad” and he wanted to “know what the deal is.” B.’s father said he was 

the only one who knew and then made the accusation: “I wanna know when every time 

you would . . . take her to the movies touching her and everything why?” Defendant 

responded: “I didn’t do nothing.” When B.’s father said he took B. to the doctor and she 

had “an injury in her private part,” defendant responded: “What?” B.’s father insisted 

that defendant “be honest” and explain what he had done. Defendant responded: “I 

didn’t even do anything. I don’t even know what you’re talking about. What is - what is 

that? What is that what you’re saying? What did . . . .” B.’s father clarified: “Okay, 

okay listen. Every time you had taken her to the movies you were touching her. I wanna 

know why.” Defendant answered: “I put my arm around her. That’s it.” B.’s father 

responded: “No - no - no - no - no - no, not the arm around her. She told me that you -

you touch her private part. I took her to the doctors and she’s got an injury and the doctor 

say she’s got an injury in her private part.” Defendant responded: “Well, I didn’t do 

anything.” 

B.’s father then said that he trusted defendant, gave him a place to stay when he 

needed it, and wanted to know why defendant betrayed that trust. He also suggested that 

defendant gave B. “all these good presents and everything” in order to continue touching 

her. B.’s father also accused defendant of continuing to touch her even though she told 

him repeatedly to stop. 

At this point, B.’s father said: “Be a man - be a man and fucking stand up. I don’t 

wanna go to the cops. I don’t wanna do nothing like that. We’re gonna handle this. But 

you have to be honest. How we gonna handle this? You have to be honest. I’m not 

gonna go to the cops. I don’t want to ruin your life. I don’t wanna do nothin’ stupid but 

you have to be honest with me.” Defendant again said all he did was put his arm around 
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her. This answer was not accepted by B.’s father, who repeated: “I don’t wanna - I don’t 

wanna go to the cops. How we gonna handle this?” Defendant said he did not know. 

B.’s father then repeated the accusation and added: “She’s a little girl. And listen I’m 

not gonna go to the cops because I don’t wanna do that to you, but at the same time you 

have to be a man and stand up and state the fuckin’ truth.” B.’s father continued:

“Answer to me please. I don’t wanna do something stupid. All I wanna know why. Just 

say.” 

In response, defendant first said he did not know and then said he did not touch 

her, prompting B.’s father to ask how it was that defendant did not know. Defendant 

again denied touching B. B.’s father said he knew defendant did it and added: “Listen 

. . . if you don’t wanna admit it in front of me I’m going to the fuckin’ cops and I’m 

gonna do that . . . . So you have to tell me you want me to go to the cops or you gonna 

tell me just between me and you and I’m not gonna tell [B.’s mother]. Or you want me to 

go to the cops? Because she’s got an injury in her private part.” Defendant answered:

“Oh shit no man I don’t know. I don’t know what to say.” B.’s father responded: “You 

don’t know what to say? Okay so you want me to go to the cops? They’re gonna get you 

. . . . And I don’t wanna do that. So you fuckin’ be - you have to be honest with me, 

okay? I’m not gonna do nothin’ stupid. I’m not gonna go up there and beat the shit out 

of you. I’m not gonna do that (unintelligible) life either. But at the same time you have 

to be honest with me or you want me to tell [B.’s mother] and everybody and your wife 

and everybody that find out how you are. What do you want me to do? You have to be 

honest with me and say this fuckin’ - [B.’s] telling me. I believe her. And I know that -

that happened. That’s why you always giving these good presents and everything. Either 

you tell me or I’m goin’ to the cops.” 

Defendant again said that he did not know what to say. B.’s father responded that 

he wanted defendant to admit what he did and he also wanted to know why. Defendant 

responded: “I don’t know why.” In response to further exhortation from B.’s father, 
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urging defendant to “be a fuckin’ man for once” and “admit it,” promising not to “do 

something stupid” if defendant did admit to touching B., and also promising to tell both 

the police and family members if defendant did not admit what he did, defendant 

repeated twice: “I don’t know why.” He then stated: “Yeah, I mean, I - I did it - I only 

did it the once and I didn’t do anything (though).” B.’s father responded: “What?” 

Defendant answered: “I only did it the one - the one and I didn’t do anything else - (I 

mean) just the outside.” 

B.’s father followed up with: “Okay - okay you admit it now though. What did 

you do? Put your hand in - in her private part like she’s telling me? Why . . . ? You 

have kids too. Why?” Defendant repeated: “I don’t know why.” He then added: “It - it 

was just that one time though but I didn’t do it any other time though.” He also said he 

stopped going over to their house afterwards because he “was feelin’ bad about it.” 

The phone call ended with B.’s father thanking defendant for admitting what he 

did. He again promised not to go over to defendant’s house to “do something stupid,” 

like “beat the shit out of [him],” but also warned defendant not to come “around [his] 

family no more.” 

B.

Analysis

A criminal defendant has the right to the assistance of counsel under both the Sixth 

Amendment to the United States Constitution and article I, section 15, of the California 

Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the 

defendant not to some bare assistance but rather to effective assistance. [Citations.] 

Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting 

as his diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden of proving a 

claim of ineffective assistance of counsel is squarely upon the defendant. (People v. 

Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of 

counsel, a defendant must first show counsel’s performance was “deficient” because his 
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“representation fell below an objective standard of reasonableness . . . under prevailing 

professional norms.” [Citations.] Second, he must also show prejudice flowing from 

counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a 

“reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 

813, 832-833, disapproved on another point in Shalabi v. City of Fontana (2021) 11 

Cal.5th 842, 854-855, fn. 5; Strickland v. Washington (1984) 466 U.S. 668, 687.) 

Because defendant has not carried his burden with respect to the first element, we decline 

to address the second. 

“ ‘Failure to object rarely constitutes constitutionally ineffective legal 

representation. . . .’ [Citation.] Moreover, ‘[i]f the record on appeal fails to show why 

counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was 

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v.

Huggins (2006) 38 Cal.4th 175, 206.) “In reviewing an ineffective assistance of counsel 

claim, courts do not generally second-guess counsel’s tactical decisions. [Citations.] 

‘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. Because 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 
11

that, under the circumstances, the challenged action “might be considered sound trial 

strategy.” [Citation.]’ [Citation.]” (In re Alcox (2006) 137 Cal.App.4th 657, 665.) 

Here, defendant’s trial counsel made a tactical decision not to object to admission 

of the pretext phone call. Indeed, during discussion of motions in limine with the trial 

court, defense counsel noted that he filed an amended motion in which he “removed the 

issue regarding the involuntary statement.” Later, the trial court specifically asked 

defense counsel: “Are you objecting or not objecting to the introduction of his pretext 

statement your client made?” Counsel responded: “No, sir.” The trial court then ruled 

with respect to defendant’s testimony, “if your client does testify, then I think he would 

be permitted to explain why he made certain statements” in the pretext phone call. 

Counsel responded: “Yes, sir.” That is precisely what defendant did. As we have 

recounted more fully above, defendant claimed during his testimony that he essentially 

told B.’s father what he wanted to hear because defendant was afraid. According to 

defendant, he viewed statements made by B.’s father during the phone call as threats of 

physical violence, which caused him to suffer an anxiety attack, and after several 

adamant denials, defendant decided to try to appease him by giving him an answer that 

defendant thought “he would accept as -- as a confession.” The jury obviously did not 

accept this testimony. But that does not render counsel’s decision not to object to 

admission of the pretext phone call, and to instead attempt to rebut it with defendant’s 

testimony, an unreasonable trial strategy. 

Quiroz, supra, 215 Cal.App.4th 65, involved somewhat similar circumstances. 

There, the defendant challenged the admission of defense witness Gonzales’s statement 

to police as coerced. Our colleagues at the Second Appellate District held the claim was 

forfeited by defendant’s failure to object below and further concluded his trial counsel 

was not “constitutionally ineffective for not objecting.” (Id. at p. 78.) The court 

explained: “Quiroz’s trial counsel did more than not object—he called Gonzales as a 

witness and, during his direct examination, elicited facts about the alleged coerciveness 
12

of the earlier police interrogation. What is more, counsel then used those facts in his 

closing argument to make the point that the police were coercing statements from 

Gonzales and others to fit their theory that Quiroz was the shooter. Counsel’s decision to 

call Gonzales and elicit these facts in the service of his closing argument is a classic 

tactical decision. It defeats any contention that counsel was asleep at the switch or 

otherwise ineffective.” (Ibid.) 

Similarly, here, defense counsel made a tactical decision not to object to the 

admission of the pretext phone call. He then elicited testimony from defendant 

concerning the coerciveness of that phone call and used those facts in his closing 

argument in an attempt to persuade the jury that defendant’s admissions during that 

phone call should not be believed because it was only in that phone call, under coercion, 

that defendant arguably admitted touching B., something he repeatedly denied during his 

subsequent police interrogation and his trial testimony. Counsel specifically argued:

“With [B.’s father], we know three things about that conversation. He dominated, he 

overwhelmed, and he overpowered [defendant]. [B.’s father] is a tough guy. [He] is not 

a guy to mess with, to screw around with. He’s a tough guy. [Defendant] explained and 

defined that relationship that he has with [B.’s father]. He’s afraid of this guy. [¶] [B.’s 

father] mentions in that recording, You know me, . . . . You know how I react. You also 

heard the language that [B.’s father] used. I don’t want to ruin your life. I don’t want to 

have to kick the shit out of you. I don’t want to do anything stupid. And [B.’s father] 

would not take no for an answer.” 

We conclude it was within the realm of reasonable tactical decisions for defense 

counsel not to object to the pretext phone call, and instead use the facts of that phone call 

to cast doubt on the incriminating statements defendant made during that call. This 

strategy was apparently designed both to elicit sympathy for defendant and to highlight 

the other statements made by defendant, where no alleged coercion was present, in which 
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defendant steadfastly denied touching B. In short, defendant has not persuaded this court 

that counsel’s performance fell below an objective standard of reasonableness. 

II

Exclusion of Expert Testimony

Defendant also claims the trial court prejudicially abused its discretion and 

violated his federal constitutional rights by excluding testimony from a defense 

psychologist on the subject of defendant’s anxiety and the effect it might have had on 

him during the pretext phone call. We conclude any assumed abuse of discretion was 

harmless. 

A.

Additional Background

Defendant moved in limine to allow expert testimony from a psychologist, Dr. 

Sharon P. Howard, regarding her psychological assessment of defendant. The motion 

stated: “Her assessments reported difficulties consistent with a significant depressive 

experience. She mentioned that his internal thought processes were marked by 

confusion, distractibility, and difficulty concentrating, and he may experience thoughts as 

being somehow blocked or disrupted. She also mentioned that he is likely to be plagued 

by worry to the degree that his ability to concentrate and attend are significantly 

compromised.” Defendant argued the doctor’s testimony was relevant to the jury’s 

assessment of the reliability of his statements during the pretext phone call because B.’s 

father caused him to “become distressed and to experience a high degree of tension and 

distraction.” 

Defense counsel reiterated this argument at the hearing on the motion, adding:

“[T]he doctor is not going to say, hey, this wasn’t voluntary. I’m just saying to you these 

are his thought processes, this is how it can affect why this person may have responded 

the way that he did under the circumstances. That’s it.” The trial court asked counsel 

whether the doctor intended to “say something similar to, you know, I have examined his 
14

psychological makeup, and my opinion at the time he got the call, he was under a great 

deal of stress, he ‐‐” Defense counsel interjected: “Yes.” The trial court continued, 

“‐‐ he’s the type of person who reacts poorly to stress ‐‐” Counsel again interjected:

“Yes.” The trial court concluded: “‐‐ and doesn’t necessarily, you know, whatever, and 

then to allow you to explain of why he might have made certain allegedly incriminating 

statements?” Counsel responded: “Correct.” Asked whether the doctor intended to 

testify that certain specific statements were not credible or reliable, defense counsel 

answered: “How did his ‐‐ how did his ‐‐ these disorders that he has, these personality 

issues here, how ‐‐ what causes, you know, what would cause him to respond the way he 

did.” Counsel then agreed with the trial court that defendant would have already testified 

before he planned to call the doctor to the stand. The trial court deferred ruling on the 

motion until after defendant testified. 

After defendant’s testimony regarding the pretext phone call, the trial court 

revisited the issue of Dr. Howard’s testimony. Defense counsel again described the 

doctor’s intended testimony, including defendant’s “discomforting level of anxiety.” The 

trial court again asked whether the doctor intended to offer an opinion with respect to the 

reliability of specific statements made during the phone call. Counsel answered: “She is 

not going to render any opinion whether these statements were involuntary or unreliable.” 

Counsel then clarified that the doctor intended to testify that defendant had the following 

mental issues: “Anxiety, plagued by worry, ability to concentrate and attend are 

compromised, feels great deal of tension, difficulty relaxing, stress, anxiety, has overt 

physical signs of tension, sweaty palms, trembling hands.” In response to further 

questioning, counsel agreed that this testimony was being offered to corroborate 

defendant’s testimony about feeling anxious and making the statements he did during the 

pretext phone call in order to appease B.’s father. 
15

After hearing argument from the prosecution, and further argument from defense

counsel, the trial court excluded the testimony under Evidence Code2section 352, 

explaining that the testimony “has marginal relevance” and “could confuse the issue since 

it happened after -- it sounds like she was assessing mainly his psychological well-being 

after he had been arrested and charged, while he’s in jail, and I also feel that it could open 

the door in cross-examination about him being in custody which I’m assuming you 

wouldn’t want to highlight for the jurors.” 

B.

Analysis

“No evidence is admissible except relevant evidence” (§ 350), and “[e]xcept as 

otherwise provided by statute, all relevant evidence is admissible.” (§ 351.) Evidence is 

relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action,” including “evidence relevant to the 

credibility of a witness.” (§ 210.) However, “[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.” (§ 352.) Section 

352 “permits the trial judge to strike a careful balance between the probative value of the 

evidence and the danger of prejudice, confusion and undue time consumption,” but also 

“requires that the danger of these evils substantially outweigh the probative value of the 

evidence.” (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Tran (2011) 51 

Cal.4th 1040, 1047.) 

Defendant argues “the trial court abused its discretion in denying his request to 

introduce Dr. Howard’s expert testimony detailing his anxiety and the extent to which 

2 Undesignated statutory references are to the Evidence Code. 
16

that can cause someone in [his] position to say something, even something false, in order 

to appease the questioner and diffuse the situation.” He takes issue with the trial court’s 

conclusion that the proffered evidence was only marginally relevant, citing several cases 

holding the trial court abused its discretion in excluding evidence of a defendant’s 

psychology or background where relevant to the question of the reliability of his 

confession. 

One such case is People v. Xiong (2020) 54 Cal.App.5th 1046 (Xiong), in which 

this court held evidence of the defendant’s experience growing up in a Thai refugee 

camp, specifically his understanding that denying allegations made by police officers in 

such a camp often resulted in violent retribution, was relevant to the defendant’s state of 

mind when he made certain admissions during his postarrest interrogation. We 

concluded this evidence should have been admitted as relevant to his defense that he 

falsely confessed during the interrogation because he was afraid of the detectives and 

wanted the interrogation to end. (Id. at pp. 1066-1067, 1069-1070.) 

There are obvious differences between an immigrant defendant’s experience in a 

refugee camp and the more commonplace occurrence of having an anxiety disorder in 

terms of the materiality of such evidence to the question of whether the defendant’s state 

of mind would have led him to falsely confess to a crime. For purposes of our analysis, 

we assume the trial court abused its discretion by excluding the proffered evidence. 

Returning to Xiong, we concluded the error in excluding the evidence in that case 

was harmless. On the question of prejudice, we first noted the United States Supreme 

Court held in Crane v. Kentucky (1986) 476 U.S. 683 “that exclusion of testimony at trial 

of the circumstances of a defendant’s confession relevant to voluntariness violated the 

defendant’s constitutional right to present a defense.” (Xiong, supra, 54 Cal.App.5th at 

p. 1071.) Although the proffered evidence of Xiong’s background did not go to “the 

circumstances under which a confession or admission was obtained,” we concluded it 

was nevertheless “germane to the probative weight to be given to the confession by the 
17

jury,” and therefore “potentially implicated” his “right to present a defense as to the 

credibility of the confession.” (Id. at p. 1072.) 

We then explained why Xiong’s constitutional rights were not in fact violated. 

Relying on People v. Page (1991) 2 Cal.App.4th 161, we explained: “In [Page], the 

court applied Crane and concluded that the exclusion of certain evidence did not deprive 

the defendant of a meaningful opportunity to present a complete defense. There, the trial 

court excluded aspects of an expert’s proposed testimony concerning the reliability of the 

defendant’s confession. [Citation.] . . . Addressing the claim that preclusion of the 

evidence violated the defendant’s right to present a defense and his right to fair trial, the

Page court found no constitutional error. [Citation.] It noted that the Crane court had 

concluded, ‘on the facts before it,’ that ‘ “the blanket exclusion of the proffered testimony 

about the circumstances of [the defendant’s] confession deprived him of a fair trial.” ’ 

[Citations.] But the Page court determined there were ‘obvious and important 

differences’ between the case before it and Crane. [Citation.] In Page, the trial court 

permitted the defendant and the prosecutor to thoroughly explore the physical and 

psychological environment in which the confession was obtained. [Citation.] 

Additionally, the defendant testified and presented his own version of the interrogation, 

explaining in detail how his statement came about. The trial court allowed the expert to 

testify to the psychological factors which could lead to a false confession, and defense 

counsel made the connection to those factors in closing argument. [Citation.] Thus, the

Page court concluded that the excluded expert testimony was a ‘far cry from the “blanket 

exclusion” of evidence the Supreme Court faced in Crane. Unlike Crane, Page was not 

“stripped of the power to describe to the jury the circumstances that prompted his 

confession,” ’ and ‘that power was, at most, marginally curtailed. Consequently, in our 

view, the trial court’s ruling did not deprive Page of “ ‘a meaningful opportunity to 

present a complete defense.’ ” ’ [Citation.]” (Xiong, supra, 54 Cal.App.5th at pp. 1072-

1073, italics omitted.) 
18

Applying Page, we noted Xiong’s testimony challenged the credibility of his 

confession, explained how the confession came about, and claimed that he was afraid of 

the detectives and “made up a story that sounded good” because of that fear. (Xiong, 

supra, 54 Cal.App.5th at p. 1073.) This testimony was also supported by psychological 

testimony concerning “compliant personality disorder.” (Ibid.) And Xiong’s trial 

counsel cross-examined the detectives about the interrogation and argued during closing 

argument that Xiong believed he had to “confess to something he did not do.” (Id. at 

pp. 1073-1074.) On these facts, we concluded “there was ample evidence admitted on 

his contention that he falsely confessed because he was afraid of the detectives and 

essentially felt he had to tell them what they wanted to hear to end the interrogation 

uninjured. Similar to Page, . . . defendant’s right to present a defense was only 

‘marginally curtailed.’ [Citation.] Unlike in Crane, defendant here was able to provide 

an answer to the question: ‘If [he] is innocent, why did he previously admit his guilt?’ 

[Citation.] There was no ‘blanket exclusion’ of a defense and he was not deprived of a 

‘ “meaningful opportunity to present a complete defense” ’ on this point. [Citations.]” 

(Id. at p. 1074.) 

Applying Page and Xiong to the facts of this case, we reach the same conclusion. 

Defendant offered a thorough explanation for his statements during the pretext phone 

call; he was afraid of B.’s father, an ex-boxer with a reputation for violence who claimed 

ties to the cartels. According to defendant, after several denials of the accusations, he 

ultimately said what he thought B.’s father would accept as a confession, when in reality 

he was not confessing to touching B.’s vagina, but rather touching the outside of her leg 

to move it off of the gearshift. In essence, defendant’s explanation was that while he did 

not actually confess, his statements appear to be a confession because he had to appease 

B.’s father, who repeatedly promised to keep it a secret if defendant confessed and also 

repeatedly implied that he would physically harm defendant if he did not confess. Aside 

from defendant’s testimony in this regard, the jury heard the pretext phone call and also 
19

heard testimony from Detective Infante regarding how the call came about. While the 

proffered expert testimony would have corroborated defendant’s claim that he suffered an 

anxiety attack during the phone call, and apparently would have also explained in general 

how anxiety can affect the reliability of statements made while in an anxious state, 

exclusion of this testimony did not deprive defendant of a meaningful opportunity to 

present a complete defense. Unlike in Crane, and like in Page and Xiong, “defendant 

here was able to provide an answer to the question: ‘If [he] is innocent, why did he 

previously admit his guilt?’ [Citation.]” (Xiong, supra, 54 Cal.App.5th at p. 1074.) 

Defendant’s answer was two-fold: (1) he did not actually admit his guilt; but (2) it may 

look that way because he was afraid of B.’s father, for good reason, and had to tell him 

something he would accept as a confession to avoid physical harm. We conclude 

defendant’s constitutional rights were not violated. 

Under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, we must 

determine “whether it is reasonably probable that, but for the error, the jury would have 

reached a result more favorable to defendant. [Citation.] ‘[T]he Watson test for harmless 

error “focuses not on what a reasonable jury could do, but what such a jury is likely to 

have done in the absence of the error under consideration. In making that evaluation, an 

appellate court may consider, among other things, whether the evidence supporting the 

existing judgment is so relatively strong, and the evidence supporting a different outcome 

is so comparatively weak, that there is no reasonable probability the error of which the 

defendant complains affected the result.” ’ [Citation.]” (Xiong, supra, 54 Cal.App.5th at 

p. 1074.) 

The case against defendant was very strong. B.’s allegations of abuse were 

credible and corroborated by defendant’s admission during the pretext phone call. Her 

testimony recounting that abuse was consistent with her prior statements to her mother, 

medical personnel, and law enforcement. Circumstantial evidence, such as the gifts 

defendant bought for B., taking her to movies, out to dinner, and unnecessarily extending 
20

the amount of time he spent in the car with her, also provided corroboration for the 

allegations. As did B.’s behavior towards defendant at the birthday party. While none of 

these circumstances, alone or even viewed together, necessarily imply the existence of 

sexual abuse, when combined with B.’s testimony, her out-of-court statements, and 

defendant’s admission during the pretext phone call, they add to an already strong case 

against defendant. 

While the excluded testimony was relevant to the question of reliability of 

defendant’s admission during the pretext phone call, as we have explained, defendant’s 

testimony thoroughly apprised the jury of his explanation for admitting to touching B. 

The jury did not believe his testimony in this regard. We conclude there is no reasonable 

probability that expert testimony regarding defendant’s anxiety would have changed the 

jury’s assessment of the pretext phone call.

III

Remaining Ineffective Assistance Claims

Defendant further asserts his trial counsel provided constitutionally deficient 

assistance by: (A) eliciting damaging testimony during cross-examination of B.’s 

mother; (B) failing to object to improper opinion testimony elicited from Detective 

Infante; and (C) failing to object to the trial court’s imposition of certain mandatory fines, 

fees, and assessments without a determination of his ability to pay. We address and 

reject each in turn. 

A.

Cross-examination of B.’s Mother

The prosecution called B.’s mother as a witness. She testified about B.’s 

relationship with defendant, her behavior at the birthday party, disclosure of the abuse 

after the party, and bringing her to the local medical clinic and then to UC Davis Medical 

Center. During defense counsel’s cross-examination, counsel asked whether B.’s older 

sisters had ever made any complaints about defendant. B.’s mother answered: “Only on 
21

one occasion, um, my oldest daughter did.” Counsel asked what the complaint was 

about. B.’s mother answered: “The complaint was that when he was living at the home 

that he had offered her alcoholic beverages, beer, and for her not to say anything.” 

During redirect, B.’s mother elaborated that the alcohol incident happened about six years 

before trial. Her oldest daughter, S., was 18 years old at the time of trial. She did not say 

anything at the time defendant offered her the beer. However, after B. disclosed the 

abuse, her mother asked all of her girls whether defendant had done anything to them, at 

which point S. said defendant “entered her bedroom on one occasion and offered her 

alcoholic beverages” and told her “not to say anything to anyone, to keep quiet.” During 

recross-examination, defense counsel asked B.’s mother whether she told an officer about 

the alcohol incident; she said she did. 

Defendant argues defense counsel rendered constitutionally ineffective assistance 

by eliciting this “damaging information” from B.’s mother. We are not persuaded. 

As our Supreme Court explained in People v. Cleveland (2004) 32 Cal.4th 704

(Cleveland): “Although in extreme circumstances cross-examination may be deemed 

incompetent [citation], normally the decision to what extent and how to cross-examine 

witnesses comes within the wide range of tactical decisions competent counsel must 

make. [Citation.] ‘Even where defense counsel may have “ ‘elicit[ed] evidence more 

damaging to [the defendant] than the prosecutor was able to accomplish on direct’ ” 

[citation], we have been “reluctant to second-guess counsel” [citation] where a tactical 

choice of questions led to the damaging testimony.’ [Citation.]” (Id. at p. 746.) 

Here, defense counsel made a tactical decision to ask B.’s mother whether her 

other daughters had made any complaints about defendant. It is readily apparent that 

counsel reviewed the police reports, saw no other complaints mentioned therein, and 

assumed B.’s mother would answer no to his question. In asking the question, counsel 

ran the risk that B.’s mother would answer yes. However, counsel could have reasonably 

assumed any complaint made by one of the other daughters would have been minor since 
22

B.’s mother either did not mention it to police or, as apparently happened, the officer did 

not deem it important enough to write down. We cannot second-guess counsel’s decision 

to take this calculated risk. Finally, to the extent defendant blames counsel for opening 

the door for the prosecutor to ask B.’s mother about S.’s complaint on redirect

examination, the Cleveland court further stated: “Rigorous cross-examination risks 

eliciting damaging redirect examination. Whether to run that risk is a tactical choice 

counsel must be permitted to make.” (Cleveland, supra, 32 Cal.4th at p. 747.) 

We conclude defendant has not demonstrated deficient performance on the part of 

defense counsel in cross-examining B.’s mother. 

B.

Detective Infante’s Testimony

During the prosecutor’s redirect examination of Detective Infante, the prosecutor 

asked whether he perceived defendant’s reaction to the accusations made during the 

pretext phone call to be “normal.” The detective answered: “To me it wasn’t, no.” The 

prosecutor asked: “And why is that?” Detective Infante responded: “My thing is I don’t 

know why he would admit to something you didn’t do if you didn’t do it.” The 

prosecutor then asked what the detective understood defendant to mean by various 

statements defendant made after he admitted to touching B. in the phone call. The 

detective understood “that’s also why I didn’t go anymore” and “probably why I felt bad 

also, ‘cause I don’t know why” to mean that “he felt bad for what he did” and that was 

“why he wasn’t going to [B.’s] house anymore.” Finally, the prosecutor asked Detective 

Infante about certain pauses during the phone call. The detective responded: “A lot of 

times, the way we are trained with interviewing interrogation, sometimes that is the 

suspect buying time to come up with an explanation or to think about what he’s going to 

say next.” 

Defendant argues defense counsel provided constitutionally deficient assistance by 

failing to object to this line of questioning because Detective Infante’s answers amounted 
23

to improper opinion as to defendant’s guilt. As previously stated: “ ‘Failure to object 

rarely constitutes constitutionally ineffective legal representation. . . .’ [Citation.] 

Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the 

instance asserted to be ineffective, unless counsel was asked for an explanation and failed 

to provide one, or unless there simply could be no satisfactory explanation, the claim 

must be rejected on appeal.’ [Citation.]” (People v. Huggins, supra, 38 Cal.4th at 

p. 206.) 

Here, there is no indication in the record as to why defense counsel did not object 

to these questions and answers. However, with respect to the pauses in the pretext phone 

call, counsel might have concluded Detective Infante’s experience participating in over 

20 pretext phone calls, and his more extensive experience interrogating witnesses during 

his 12 years as police officer, provided him with the specialized knowledge required to 

offer an opinion on tactics suspects use during questioning. Defendant acknowledges his 

testimony on this point “is akin to expert testimony,” but complains that the prosecutor 

did not lay the proper foundation for such testimony. However, we are not reviewing 

whether the testimony was properly admitted over a foundation objection, but rather 

whether defense counsel was ineffective for not making such an objection. Had the 

proposed objection been made, we have no doubt the appropriate foundation could have 

been laid. Counsel was not ineffective for failing to delay the inevitable by interposing 

such an objection. 

The remaining questions and answers are more troubling. As defendant argues in 

his briefing on appeal, Detective Infante was in no better position than the jury to 

determine what defendant meant by certain statements made during the pretext phone 

call, and he certainly should not have offered his opinion, albeit implied, that defendant 

was being truthful when he admitted touching B. during that phone call. (See People v. 

Brown (2016) 245 Cal.App.4th 140, 158 [“juries are competent to decide such things as 

witness credibility [citation], a defendant’s guilt or innocence [citation], or whether a 
24

crime has been committed [citation], without expert assistance in all circumstances”].) 

But again, we are tasked with determining whether counsel rendered constitutionally 

ineffective assistance by failing to object. 

The Attorney General argues “counsel could have reasonably decided to highlight 

the shortcomings of Infante’s testimony through cross-examination rather than a bare 

objection.” We agree. While improper opinion, in these circumstances, counsel could 

have reasonably concluded Detective Infante’s testimony was not particularly damaging 

because it merely said aloud what the jury was likely already thinking: Why would 

defendant have admitted to doing something he did not do? A sizable portion of 

defendant’s testimony was devoted to explaining just that, as we have already recounted. 

Instead, counsel cross-examined the detective about whether he was able to view 

defendant’s demeanor during the pretext phone call, assess his body language, or 

determine whether he was nervous, scared, stressed, depressed, or exhausted. Counsel 

elicited agreement that the goal of the phone call was to extract a confession. Counsel 

also walked the detective through defendant’s multiple denials and each of the statements 

made by B.’s father forming the basis for defendant’s coercion claim discussed above. 

Counsel further asked the detective for his opinion as to what B.’s father meant by certain 

statements he made, such as “I don’t wanna do anything stupid.” This cross-examination 

served as another opportunity to highlight the allegedly coercive nature of the pretext 

phone call. Defense counsel took full advantage of that opportunity. 

We conclude it was within the realm of reasonable tactical decisions for defense 

counsel not to object to Detective Infante’s testimony regarding defendant’s statements 

during the pretext phone call. 

C.

Dueñas Claim

Defendant’s final assertion of ineffective assistance of counsel is based on People 

v. Dueñas (2019) 30 Cal.App.5th 1157. Relying on that decision, defendant argues 
25

defense counsel provided constitutionally ineffective assistance by failing to object to the 

trial court’s imposition of various fines, fees, and assessments without first determining 

his ability to pay. However, for reasons explained more fully elsewhere, we are in 

agreement with the line of cases that conclude Dueñas was wrongly decided.

3

(See, e.g., 

People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Hicks (2019) 40 

Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Kingston

(2019) 41 Cal.App.5th 272, 279-281; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-

1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927-928.) 

Stated simply, the strands of precedent relied upon by the Dueñas court in 

expanding due process protections to require an ability to pay determination before 

imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, 

such an expansion. Imposition of the challenged financial obligations has not deprived 

defendant of access to the courts. Nor has defendant been incarcerated because of his

inability to pay. Rather, he was incarcerated because he sexually abused B. 

We therefore conclude any objection to the modest fines, fees, and assessments 

imposed in this case would have been properly rejected. Counsel was not ineffective for 

failing to lodge a futile objection. (People v. Maury (2003) 30 Cal.4th 342, 419 [counsel 

cannot be faulted for failing to make a futile objection].) 

3 Our Supreme Court is now poised to resolve this question, having granted review 

in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844, which agreed with the court’s conclusion in Dueñas that due process requires 

the trial court to conduct an ability to pay hearing and ascertain a defendant’s ability to 

pay before it imposes court facilities and court operations assessments under Penal Code 

section 1465.8 and Government Code section 70373, but not restitution fines under Penal 

Code section 1202.4. (Kopp, at pp. 95-96.) 
26

IV

Cumulative Prejudice

Finally, defendant claims he is entitled to reversal based on the cumulative 

prejudicial effect of the foregoing assertions of error. Not so. The only error potentially 

present in this case is the assumed evidentiary error discussed above, which we have 

concluded was harmless. As there is no additional error, there is no prejudice to

accumulate. (See People v. Williams (2013) 58 Cal.4th 197, 291; People v. Russell

(2010) 50 Cal.4th 1228, 1274.) 

DISPOSITION

The judgment is affirmed. 

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

KRAUSE, J.