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Filed 9/28/23 P. v. Roberson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

CLIFFORD DEVON ROBERSON,

Defendant and Appellant.

C096362

(Super. Ct. No. 19FE016457)

Defendant Clifford Devon Roberson appeals from a jury verdict finding him guilty 

of assault with intent to commit oral copulation and assault by means likely to produce 

great bodily injury related to an incident in which he physically assaulted J.D. and 

demanded oral sex from her. He contends the prosecutor committed prejudicial 

misconduct by eliciting his testimony on a collateral matter for the purpose of 

impeaching him with otherwise inadmissible details about his prior robbery conviction. 

Relatedly, he claims the trial court abused its discretion by overruling his objection to the 

evidence, and by indicating that it would allow the prosecutor to introduce testimony 
2

from the victim of that robbery and other evidence concerning that robbery as 

impeachment evidence. 

Defendant further claims the trial court abused its discretion by allowing the 

prosecutor to elicit his testimony about the details of his prior conviction for attempted 

oral copulation of an unconscious person under Evidence Code section 1108, which he 

argues was cumulative.1 Finally, he seeks to preserve his argument that section 1108 

unconstitutionally deprived him of a fair trial under the federal and California 

Constitutions. 

We reject defendant’s claims and affirm the judgment. 

FACTS AND PROCEEDINGS

Prosecution Evidence

On September 10, 2019, after handing out food to unhoused people through a 

nonprofit organization, J.D. went to her mother’s apartment. At around 3:00 a.m. on 

September 11, J.D. walked toward a nearby library to wait for her boyfriend’s sister to 

pick her up. As she walked toward the library, defendant--whom J.D. had never met--

approached her for a cigarette. J.D. gave him a cigarette and continued walking. A short 

time later, defendant grabbed her by the hair, pushed her head into a bench several times, 

grabbed her throat, hair, and face, and tried to choke her. Defendant motioned with his 

hands for J.D. to perform oral sex on him and began to unbuckle his pants and pull his 

pants down. 

J.D. screamed, but no one responded. She then attempted to stall by suggesting 

they go to the library, where it was quieter, and she left her bags on the park bench. As 

they walked toward the library, J.D. took her cellphone out of her pocket, called 911, and 

put the phone back in her pocket. When the 911 dispatcher answered her call, defendant 

1

 Further undesignated statutory references are to the Evidence Code.
3

tried to grab the phone and was able to touch it before J.D. put it away; she told defendant 

the call was an accident.2 

J.D. led defendant to the back area of the library parking lot, where she hoped to

be loud enough to alert someone. Defendant was frustrated that she was “being so loud.” 

J.D. suggested they go back to the park bench because her things were there, and she did 

not want them to be stolen. She was trying to buy time until help or her boyfriend’s sister 

could arrive. 

As J.D. and defendant walked back towards the park, police officers arrived. She 

accepted the officers’ offer to give her a ride home; once separated from defendant, she 

told the officers what had happened. An officer noticed that J.D. had some “newer” 

looking bruising and scratches on her neck. 

A few hours after the assault, a forensic investigator took scrapings from under 

defendant’s fingernails. A criminalist determined there were three contributors to the 

DNA profile obtained from the scrapings of a fingernail on defendant’s right hand, with 

ratios of 53 percent, 27 percent, and 20 percent. Defendant was the 53 percent 

contributor, and J.D. was the 27 percent contributor. The criminalist testified it is rare for 

something other than intimate or violent conduct to cause that amount of a person’s DNA 

to be under a subject’s fingernails. 

Defendant’s Testimony 

Defendant testified that he saw J.D. on the sidewalk of the park and asked her for a 

cigarette. He noticed she was crying and upset. She gave him a cigarette, and they had a 

conversation. As he was leaving, J.D. asked him if he had any methamphetamine, and he 

2

 A transcript of the 911 call, which was played for the jury, reflects that J.D. stated: “I 

didn’t even touch the number. Here, I’m trying to get off!” J.D. testified that she was 

explaining to defendant that the call was an accident, although she reiterated that she was 

intending to make the call. 
4

told her no. About five minutes later, he declined J.D.’s offer of oral sex. He continued 

walking with her because he felt bad for her. He denied assaulting her or demanding oral 

sex from her, and claimed he only made physical contact with her to put drugs in her 

palm with his left hand. 

They walked to the library. J.D. kept stopping because she was receiving text 

messages on her phone, but she refused to tell him what the text messages were about.3 

She began yelling and acting obnoxiously. He tried to grab her phone and touched it with 

his right hand, but she put it away. He did not hear a 911 call coming from the phone. 

Defendant felt unsafe and walked back to the park. He saw a police car pull up 

and approached to speak with one of the officers. Shortly after, he was placed in the back 

of a patrol car and interviewed by Sacramento Police Officer Thomas MacLean. A week 

later, he was interviewed by Detective Loriaux.4 

While testifying, defendant admitted that he committed a felony of moral turpitude 

on September 9, 2019, and that he was convicted of an earlier felony of moral turpitude 

in 2017, oral copulation of an unconscious person in 2015, possession of rock cocaine for 

sale in 2008, and a misdemeanor crime of moral turpitude in 2008. 

3

 J.D. testified that her phone was set to vibrate during the incident, so she was not aware 

she had received text messages “until later.” She read text messages that her boyfriend 

sent her while the incident was taking place, including messages reading, “you stupid 

bitch,” and “you are going to piss me off. Piss me the fuck off, aren’t you?” J.D. 

claimed she was not concerned by the messages and that her boyfriend did not cause the 

injuries she suffered on the night of the incident. J.D. told law enforcement about 

“difficulties” in her relationship and acknowledged an argument before she went to her 

mother’s house the night preceding the assault.

4

 We will address these interviews in greater detail in the Discussion, post. Detective 

Loriaux’s first name does not appear in the record. 
5

Verdict and Sentence 

The jury found defendant guilty of assault with intent to commit oral copulation 

(Pen. Code, § 220; count one), and assault by means likely to produce great bodily injury 

(id., § 245, subd. (a)(4); count two). In bifurcated proceedings, the trial court found true 

six aggravating circumstances. (Rules of Court, rule 4.421(a)(1), (b)(1), (2), (3), (4) & 

(5).) On June 3, 2022, the court sentenced defendant to the upper term of six years in 

prison on count one and to the upper term of four years on count two, stayed under Penal 

Code section 654. 

Defendant timely filed notice of appeal. The case was fully briefed in July 2023 

and was assigned to the current panel on July 31, 2023. 

DISCUSSION

I

Impeachment Evidence

Defendant contends that the prosecutor committed prejudicial misconduct by 

eliciting his testimony on a collateral matter--his out-of-court statements related to a 

cellphone he possessed at the time of his arrest for the assault--in order to impeach him 

with details about his prior robbery conviction that were otherwise inadmissible both 

under the trial court’s in limine order and under section 352. Relatedly, he argues that the 

trial court abused its discretion by overruling defense counsel’s objections to the alleged 

misconduct and by indicating that it would admit evidence regarding details of the 

robbery for impeachment, which caused the parties to stipulate that defendant made false 

statements both out of court and during his trial testimony. As we will explain, we 

conclude the trial court did not abuse its discretion by allowing the prosecutor to question 

defendant about the challenged matter, and the prosecutor did not commit misconduct by 

eliciting defendant’s testimony. 
6

A. Background

The People moved in limine to introduce evidence of defendant’s prior felony 

convictions if he chose to testify, including the 2019 robbery (Pen. Code, § 211) for 

which he was convicted in 2020.5 The trial court observed that for crimes of moral 

turpitude, including robbery, “normally, we just ask whether or not he was convicted of 

these.” Defense counsel requested that if evidence of the robbery conviction was 

admitted, it be sanitized by referring to it as a “ ‘crime of moral turpitude.’ ” However, 

the court initially concluded the robbery conviction was probative of defendant’s veracity 

and did not need to be sanitized because the charged offenses did not include theft or 

robbery, and thus were not so similar to the prior conviction as to be “prejudicial in terms 

of the type, compared to our current case.” 

Following further argument, the trial court agreed with defense counsel that 

robbery was similar to the charged offenses because both involved an accusation of force. 

The court stated: “I think it would be reasonable to call it a crime -- a felony involving 

theft. I think that would be okay, if you’d rather have that.” Defense counsel agreed, and 

the court asked the prosecutor if he “hear[d] that.” The prosecutor confirmed he had. 

Defendant did not testify on direct examination about his possession of a 

cellphone at the time of his arrest or his 2020 robbery conviction. On cross-examination, 

defendant testified that he was interviewed by Officer MacLean when he was placed in 

5

 This robbery was committed on September 9, 2019. The items taken in the robbery 

included the cellphone that was found in defendant’s possession at the time of his arrest 

for the crimes committed against J.D. in the early morning hours of September 11, 2019. 

Defendant was convicted of the robbery in 2020, long before his 2022 trial for the crimes 

against J.D. Defendant’s statements to both the arresting officer on September 11, 2019, 

and the detective investigating the robbery on September 17, 2019, are the subject of his 

claim regarding evidence of a collateral matter that was elicited by the prosecutor and 

permitted by the trial court, i.e., defendant’s false statements to law enforcement in 2019 

regarding the cellphone that was the subject of the 2019 robbery.
7

the back of a police car at the scene. MacLean asked if J.D. was defendant’s friend or 

girlfriend; defendant responded that she was a friend. When asked how long he knew 

J.D., he said that he did not know but that it was “probably like some months.” At trial, 

defendant acknowledged he did not know J.D. personally, had not had a conversation 

with her before the night in question, and did not know her phone number. He testified 

that he had “seen her around” “[m]aybe six months” before the assault. 

The prosecutor then asked defendant if he would have been lying if he had told 

MacLean he did not have a phone while being interviewed. Defendant responded: “I had 

my phone. I had a phone. I didn’t have her phone or her number.” Defendant confirmed 

that the phone MacLean discovered in his possession--a blue Samsung Galaxy Note--was 

his phone. He acknowledged it would have been a lie if he had told MacLean he did not 

have a phone, and he admitted he told MacLean he did not have a phone, but he 

explained that he thought MacLean was asking him if he had a home landline. Defendant 

admitted he had used the cellphone the day before the incident. Defense counsel did not 

object to this line of questioning. 

The prosecutor next asked defendant whether he recalled being interviewed by 

Detective Loriaux on September 17, 2019 (eight days after the robbery and six days after 

the assault on J.D.), and whether he recalled telling Loriaux that he “had just found that 

phone.” Defendant responded that he did not, and he then asked the prosecutor for more 

information about where the interview occurred. Defense counsel objected based on 

relevance, but the trial court overruled the objection subject to a motion to strike. The 

prosecutor again asked whether defendant remembered telling Loriaux that he had “just 

found that phone.” Defendant testified he did not remember talking to Loriaux, but if he 

had, he would not have lied about where he had acquired the phone. 
8

The prosecutor asked if defendant committed a crime involving moral turpitude 

“at a Wendy’s” on September 9, 2011.6 Defendant responded that he had already been 

convicted of that crime. The prosecutor asked whether the Samsung phone in his 

possession at the time of the assault on J.D. was connected to the crime for which he was 

convicted (in 2020). Defense counsel objected on the basis that the prosecutor was 

“talking about a prior conviction for credibility purposes.” The court overruled the 

objection. 

The prosecutor then asked, “Now, where did that phone come from, or was it 

connected with this crime of moral turpitude?” Defendant responded: “I can’t say for 

sure if that phone came from a crime,” and then testified that the phone had been given to 

him by “[s]omebody that [he] knew,” although he could not remember how long he had 

possessed it. The prosecutor asked defendant whether it was “actually true that the phone 

was one that you took from the victim of your crime of moral turpitude on or about 

September 9th of 2011 [sic].” Defendant said it was not the same phone. 

On rebuttal, Officer MacLean testified that he interviewed defendant on the 

morning of the charged offenses. MacLean asked defendant if he had a phone number; 

defendant responded that he did not have a phone. MacLean subsequently found a blue 

Samsung Galaxy cellphone in his bag. He also said J.D. was his friend and that he had 

known her for a few months. 

The prosecutor stated his intent to call Detective Loriaux as a witness, but then 

recalled that the parties had reached a stipulation. After the parties met in chambers, the 

following stipulation was read to the jury: “The People and defense stipulate that the 

phone that defendant has testified to, the Galaxy Note 9, was taken in a theft offense on 

6

 The referenced year appears to be a misstatement; the parties’ subsequent stipulation 

indicated that the date of that offense was September 9, 2019. 
9

or about September 9th of 2019, and the defendant was convicted of that offense.” The 

parties further stipulated that defendant was convicted of that offense in February 2020. 

After the prosecutor’s closing argument, defense counsel made a record of the 

conference preceding the stipulation. Counsel stated that he had objected to any 

questions about the cellphone on relevance grounds because the evidence was “collateral 

to the case, it’s prior bad acts, it’s a different crime, different investigation,” but the trial 

court had ruled that the evidence was relevant to defendant’s credibility. Counsel 

recalled that the prosecutor had argued the evidence was relevant to defendant’s 

credibility because it contradicted his trial testimony, which counsel asserted is “what [he 

was] worried about in the first place, and why [he] objected to any questions about that 

phone, because it was going to lead to opening doors.” The court responded that the 

cellphone evidence contradicted defendant’s trial testimony, but it also contradicted his 

statements to law enforcement. 

Defense counsel represented: “So we get to the point where [the prosecutor] --

first of all, Your Honor did not agree with my objection in terms of its [sic] [§] 352 and 

so on, so forth. But we went a step further, and [the prosecutor] talked about his intent to 

introduce actual evidence concerning that phone.” Recognizing that eliciting testimony 

from Detective Loriaux regarding the circumstances surrounding defendant’s acquisition 

of the phone would require eliciting a hearsay statement by the robbery victim, the 

prosecutor asserted he would introduce testimony from the victim and photographs from 

that crime. The court had indicated that it would allow that evidence; accordingly, 

defense counsel proposed a stipulation to avoid the victim’s testimony. The court 

observed that the stipulation also avoided informing the jury that the prior crime was a 

robbery, as opposed to “just a theft.” 

During closing argument, the prosecutor emphasized that the jury could disregard 

the entirety of defendant’s testimony because he lied both out of court and during his trial 

testimony. He made multiple references to defendant’s statements about the phone. 
10

While he argued defendant lied about various topics, he characterized defendant’s 

testimony about receiving the phone from a “friend” to be “one of the most galling lies 

that he got up on the stand to say.” The prosecutor noted that the jury was required to 

accept as true the parties’ stipulation that defendant “took [the phone] or was convicted of 

a theft offense for taking that phone just a day and a half or so before he sexually 

assaulted [J.D.]” 

B. Applicable Law

“ ‘[A] defendant who elects to testify in his own behalf is not entitled to a false 

aura of veracity.’ ” (People v. Beardslee (1991) 53 Cal.3d 68, 95.) “ ‘[B]y taking the 

stand, defendant put his own credibility in issue and was subject to impeachment in the 

same manner as any other witness.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 438.) 

Thus, evidence of a prior felony conviction necessarily involving moral turpitude, 

including a conviction for robbery, may be used for purposes of impeachment in any 

criminal proceeding. (Cal. Const., art. I, § 28, subd. (f)(2); § 788 [“For the purpose of 

attacking the credibility of a witness, it may be shown by the examination of the witness 

or by the record of the judgment that he has been convicted of a felony”]; People v. 

Stewart (1985) 171 Cal.App.3d 59, 64 [robbery involves moral turpitude].) 

A prosecutor cross-examining a defendant may elicit relevant evidence that goes 

to the defendant’s credibility, veracity, or motive, including by introducing evidence 

tending to show his character for honesty or dishonesty, and to show the existence of 

nonexistence of any fact testified to by him. (People v. Carpenter (1999) 21 Cal.4th 

1016, 1054; People v. Dykes (2009) 46 Cal.4th 731, 764; § 780, subds. (e), (i).) The 

limitations on the use of character evidence set forth in section 1101 do not “affect[ ] the 

admissibility of evidence offered to support or attack the credibility of a witness.” 

(§ 1101, subd. (c); see People v. Abel (2012) 53 Cal.4th 891, 928 [§ 1101, subd. (a)’s 

“restriction on the use of character evidence has no application when the evidence is 

offered on the issue of a witness’s credibility”].) Notably, evidence of the circumstances 
11

underlying a prior criminal conviction is admissible to impeach credibility if the 

proponent demonstrates that the evidence is relevant to disproving credibility. (People v. 

Dalton (2019) 7 Cal.5th 166, 214 (Dalton).) 

However, section 352 gives the trial court the discretion to exclude collateral 

evidence if the probative value of the evidence is substantially outweighed by the 

probability its admission will create a substantial danger of undue prejudice, confusing 

the issues, or misleading the jury. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226; 

People v. Morrison (2011) 199 Cal.App.4th 158, 164.) A court may also exercise its 

discretion under section 352 to exclude evidence of prior convictions or, as the trial court 

did here, to sanitize the descriptions of prior convictions where the nature of the 

unsanitized prior convictions would be more prejudicial than probative of the witness’s 

credibility (Dalton, supra, 7 Cal.5th at p. 214; People v. Castro (1985) 38 Cal.3d 301, 

305-306; People v. Massey (1987) 192 Cal.App.3d 819, 825), such as where the 

impeaching offenses are similar or identical to the current charges (People v. Foreman

(1985) 174 Cal.App.3d 175). An appellate court reviews the trial court’s rulings on 

admission of evidence under section 352 for abuse of discretion. (People v. Barnett 

(1998) 17 Cal.4th 1044, 1118.) “ ‘To establish an abuse of discretion, defendant[ ] must 

demonstrate that the trial court’s decision was so erroneous that it “falls outside the 

bounds of reason.” [Citations.] A merely debatable ruling cannot be deemed an abuse of 

discretion. [Citations.] An abuse of discretion will be “established by ‘a showing the 

trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner 

that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Miracle (2018) 

6 Cal.5th 318, 346-347.) 

“ ‘ “A prosecutor who uses deceptive or reprehensible methods to persuade the 

jury commits misconduct, and such actions require reversal under the federal Constitution 

when they infect the trial with such “ ‘unfairness as to make the resulting conviction a 

denial of due process.” ’ ” ’ [Citations.] “ ‘Under state law, a prosecutor who uses such 
12

methods commits misconduct even when those actions do not result in a fundamentally 

unfair trial.’ ” [Citations.] . . . Prosecutorial misconduct can result in reversal under 

state law if there was a ‘reasonable likelihood of a more favorable verdict in the absence 

of the challenged conduct’ and under federal law if the misconduct was not ‘harmless 

beyond a reasonable doubt.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 333-334.) It is 

misconduct for a prosecutor to intentionally elicit inadmissible testimony in violation of a 

court order (People v. Tully (2012) 54 Cal.4th 952, 1035; People v. Crew (2003) 

31 Cal.4th 822, 839), although “merely eliciting evidence is not misconduct” (People v. 

Scott (1997) 15 Cal.4th 1188, 1218 [defendant’s real argument was that the evidence was 

inadmissible]). 

C. Eliciting Testimony About Defendant’s Ownership of the Phone

As we have discussed, the prosecutor was generally entitled to elicit testimony 

from defendant tending to demonstrate his lack of credibility, including his prior false 

statements. (People v. Carpenter, supra, 21 Cal.4th at p. 1054, § 780, subds. (e), (i).) 

Further, evidence of the circumstances underlying defendant’s prior conviction was 

admissible to impeach his credibility if the prosecutor demonstrated that the evidence was 

relevant to disprove his credibility. (See Dalton, supra, 7 Cal.5th at p. 214.) 

Despite these principles, defendant contends the prosecutor committed prejudicial 

misconduct by eliciting defendant’s testimony about a collateral matter--his out-of-court 

statements regarding his possession and ownership of the cellphone--in order to 

contradict that testimony with inadmissible details of the prior robbery conviction. 

Defendant further argues the trial court abused its discretion by overruling his objection 

to the evidence and by indicating that the prosecutor would be entitled to introduce 

testimony from the victim of the prior robbery and other evidence from that crime to 

prove the falsity of defendant’s testimony and statements to law enforcement regarding 

his acquisition and ownership of the cellphone. His argument relies on People v. 

Lavergne (1971) 4 Cal.3d 735 (Lavergne).
13

In Lavergne, the defense attorney asked Oliver, a prosecution witness and 

accomplice, where he got the car used during the commission of the charged crime. Over 

the prosecutor’s objection, Oliver replied that he bought it. The defense attorney then 

asked Oliver if the car was stolen, and he said it was not. The defense then sought to 

impeach Oliver’s credibility with testimony from the owner of the vehicle. The 

prosecution objected, and the trial court sustained the objection under section 352. 

(Lavergne, supra, 4 Cal.3d at p. 741.) The Supreme Court affirmed. The court 

recognized that “collateral matters are admissible for impeachment purposes,” but 

observed that “the collateral character of the evidence reduces its probative value and 

increases the possibility that it may prejudice or confuse the jury.” (Id. at p. 742.) The 

court observed that “it appears that the defendant, on cross-examination, purposely 

elicited the testimony for the very purpose of impeaching the witness.” (Id. at p. 743.) 

Recognizing that “[i]t seems apparent that the defense knew the origin of the [car] in 

advance,” the court observed that the defense’s questioning left Oliver in a bind. If he 

answered truthfully, “the defendant would have had the benefit of the admission of an 

irrelevant fact which would affect [his] credibility. But the witness denied it was stolen 

and defendant now wishes to bring otherwise inadmissible testimony in to impeach him.” 

(Id. at pp. 743-744.) The court concluded: “A party may not cross-examine a witness 

upon collateral matters for the purpose of eliciting something to be contradicted. 

[Citations.] This is especially so where the matter the party seeks to elicit would be 

inadmissible were it not for the fortuitous circumstance that the witness lied in response 

to the party’s questions.” (Id. at p. 744.) 

The court further recognized that “[a] witness may have a strong reason to lie 

about the collateral fact which reason would furnish no motive to lie in his other 

testimony. Where such a situation exists, the possible inference that a witness false in 

part of his testimony is not to be trusted as to other parts is weakened.” (Lavergne, supra, 

4 Cal.3d at p. 743.) Recognizing that Oliver had not been charged with the theft of the 
14

car used in the robbery, the court noted that he had a motive to lie about his ownership of 

the car that did not exist with respect to the rest of his testimony. (Ibid.) 

At the outset, we agree with defendant that his testimony about his out-of-court 

statements was a collateral matter, although the People argue to the contrary. However, 

this designation is not dispositive in this case. 

“[A] matter is ‘collateral’ if it has no logical bearing on any material, disputed 

issue. [Citation.] A fact may bear on the credibility of a witness and still be collateral to 

the case.” (People v. Contreras (2013) 58 Cal.4th 123, 152.) The collateral nature of 

evidence is not evaluated in relation to whether it proves the existence or nonexistence of 

any fact attested to by a witness, it is tested by its ability to prove or disprove any issue 

pertaining to the criminal case itself, namely the guilt or innocence of the defendant. 

(People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Here, the issue of whether defendant 

falsely told law enforcement that he did not have a phone, or legally possessed the phone 

found in his bag, had no “ability to prove or disprove any issue pertaining to the criminal 

case itself,” and was thus collateral. 

But Lavergne is not on point here. First, here the prosecutor did not crossexamine defendant “upon collateral matters for the purpose of eliciting something to be 

contradicted,” and the matter the prosecutor sought to elicit was not “inadmissible were it 

not for the fortuitous circumstance that the witness lied in response to the party’s 

questions.” (Lavergne, supra, 4 Cal.3d at p. 744.) In Lavergne, the defense attorney 

asked the witness about how he had obtained the car used in the crime specifically to 

elicit the witness’s untruthful testimony, and the witness’s testimony was relevant only 

because he lied in response to the question, thereby calling his credibility into question. 

But here, defendant’s previous false statements to law enforcement were relevant to his 

credibility irrespective of his answers at trial. This is because it was the falsity of the 

previous statements themselves, not the falsity of the answers to the questions about the 

statements, that was relevant. Thus, the prosecutor did not elicit something to be 
15

contradicted, as was the situation in Lavergne; instead, he simply asked defendant about 

false statements he had previously made to law enforcement. 

Defendant contends that the prosecutor’s purported misconduct was “all the more 

egregious” because his out-of-court statements and the details of the robbery were 

inadmissible based on the trial court’s in limine ruling sanitizing the conviction and, 

alternatively, under section 352. As we next explain, we disagree. 

The trial court’s in limine order was limited to the specific purpose of introducing 

the conviction to impeach defendant’s credibility. (§ 788.) The court implicitly weighed 

the probative value of admitting evidence of defendant’s prior conviction against the 

prejudicial effect of admitting a prior conviction similar to the charged offenses, and 

determined the evidence was inadmissible for that purpose. The court did not conduct a 

section 352 analysis regarding the admissibility of evidence of the prior conviction to 

impeach defendant’s credibility related to out-of-court statements. 

Alternatively, defendant argues that his out-of-court statements were inadmissible 

under section 352. He again relies on Lavergne, where the court recognized that “[a] 

witness may have a strong reason to lie about the collateral fact which reason would 

furnish no motive to lie in his other testimony. Where such a situation exists, the possible 

inference that a witness false in part of his testimony is not to be trusted as to other parts 

is weakened.” (Lavergne, supra, 4 Cal.3d at p. 743.) There, the court recognized that the 

witness had not been charged with the theft of the car used in the robbery, and thus he 

had a motive to lie about his ownership of the car that did not exist with respect to the 

rest of his testimony. (Ibid.) 

Lavergne is distinguishable here, because defendant not only lied to law 

enforcement at the time when he would have been motivated to lie about how he obtained 

the phone, he also lied during his trial testimony when no such motive existed. At the 

time of trial, he had already been convicted of the robbery that he later stipulated resulted 

in his acquisition of the cellphone at issue. Without objection by defense counsel and in 
16

response to the prosecutor’s question about whether he would have been lying had he told 

MacLean that he did not have a phone, defendant testified: “I had my phone. I had a 

phone. I didn’t have her phone or her number.” (Italics added.) In response to the 

prosecutor’s question, “So your testimony now is that was your phone?” defendant 

confirmed: “Yes. . . . [T]hat was my phone in my possession.” Defense counsel 

objected on the basis of relevance to the prosecutor’s subsequent line of questioning 

regarding whether defendant recalled telling Detective Loriaux that he had “just found 

that phone.”7 However, by the time counsel objected, defendant had already testified 

falsely, and repeatedly, that the phone he possessed on the date of the assault was his

phone. Thus, even assuming for the sake of argument that the reasoning in Lavergne 

applies here despite the disparate facts, and the probative value of defendant’s out-ofcourt statements was reduced due to his motive to lie at the time he made the statements 

because he had not been charged with the robbery at the time he made the statements, he 

doubled down on the falsehood while under oath long after he had been convicted of the 

robbery, distinguishing this case from Lavergne. 

The prosecutor did not commit misconduct by eliciting defendant’s testimony 

regarding his out-of-court statements. While it is misconduct to intentionally elicit 

inadmissible testimony, the prosecutor had no reason to believe the out-of-court 

7

 The People contend that defendant has forfeited his claim that the evidence was 

inadmissible under section 352. Typically, an objection is not sufficient to preserve a 

claim that the evidence was inadmissible unless the objection is “timely made and so 

stated as to make clear the specific ground of the objection or motion.” (§ 353; see 

People v. Valdez (2012) 55 Cal.4th 82, 130 [objection to relevance insufficient to 

preserve claim that evidence was inadmissible under § 352].) But here, defense counsel’s 

relevance objection adequately raised the issue that the prosecutor’s questioning 

regarding the cellphone constituted a collateral matter subject to exclusion. 

Subsequently, at sidebar, defense counsel reiterated that he had raised an objection “in 

terms of its [sic] [§] 352 and so on, so forth.” In the context here, the record provides 

adequate bases to conclude that defendant preserved his claims. 
17

statements were inadmissible here. While Lavergne recognized the probative value of 

false statements is reduced where the witness had a motive to lie that did not apply to the 

rest of his testimony, an objection on that basis would have required the trial court to 

engage in a section 352 analysis to determine its admissibility because the testimony was 

not inadmissible per a court order, as we have discussed. Further, defense counsel did 

not object to the testimony. Accordingly, at the time the prosecutor elicited the 

testimony, he had no reason to know that the evidence was inadmissible, even assuming 

it was. 

Defendant next contends the conduct underlying his prior robbery conviction was 

inadmissible under section 352. But while he argues that evidence of prior offenses 

generally should be excluded where the prior and charged offenses are both assaultive in 

nature (citing People v. Duran (1983) 140 Cal.App.3d 485, 498), and that whether 

defendant stole a phone in the prior robbery was not probative as to the credibility of his 

testimony in this case, his arguments ignore the circumstances under which the evidence 

was being offered. The evidence was not being offered simply to show that he had 

convicted of a prior offense; it was initially offered to demonstrate that he lied to law 

enforcement and, subsequently, to demonstrate that he lied during his testimony. The 

trial court did not abuse its discretion by allowing the prosecutor to introduce limited 

evidence regarding the circumstances of defendant’s prior offense in the form of the false 

statements he made in relation to that crime to impeach his credibility. (See Dalton, 

supra, 7 Cal.5th at p. 214.)

Finally, defendant contends the trial court abused its discretion by indicating that it 

would allow the prosecutor to introduce testimony from the robbery victim to prove that 

the phone defendant possessed at the time of the assault on J.D. was recently stolen. But 

as we have discussed, evidence of the circumstances of defendant’s prior conviction are 

generally admissible when those circumstances are relevant to determine whether 

defendant lied during his testimony. (See Dalton, supra, 7 Cal.5th at p. 214.) 
18

Additionally, although the court indicated evidence of the circumstances of the robbery 

would be admissible, the court would have retained the discretion, under section 352, to 

limit the evidence presented of defendant’s prior crime. The court never had the 

opportunity to exercise its discretion to admit or exclude evidence; thus, we are unable to 

find abuse of that discretion. 

In sum, we conclude that evidence regarding defendant’s prior false statements 

was admissible, and defendant has not shown that the trial court abused its discretion by 

admitting this evidence, either in contravention of its in limine order or under section 

352. Additionally, because the prosecutor did not intentionally elicit inadmissible 

testimony, he did not commit misconduct. 

II

Section 1108 Evidence

Defendant contends the trial court abused its discretion by allowing the prosecutor 

to cross-examine him on the details of his prior conviction of a sexual crime. He 

contends that his testimony was cumulative and lacked probative value because the 

victim of the crime, R.D., testified about the assault, a detective testified about his 

confession to the crime, and he had admitted the offense and agreed with R.D.’s and the 

detective’s testimony. We disagree.

A. Background 

The prosecution moved in limine to admit evidence of defendant’s conviction for 

oral copulation on R.D. when she was unconscious. (Evid. Code, § 1108; former Pen. 

Code, § 288a, subd. (f) [now Pen. Code, § 287, subd. (f)].) The trial concluded the 

evidence was admissible. 

R.D. and Detective John Wilson testified at trial. R.D. testified that she and 

defendant were friends; R.D. was a lesbian and did not have sexual relationships with 

men. She testified that she was awoken one night in 2015 to defendant lying on top of 

her and whispering in her ear. Defendant had pulled down her underwear while she slept. 
19

He held her down, put his hand over her mouth, and touched her vagina. She pushed him 

off and ran to her door, which she discovered had been locked. She opened the door and 

immediately reported the assault to law enforcement. 

Wilson testified that he interviewed defendant following the incident, and 

defendant admitted to kissing R.D., touching her vagina, and pulling down her pants and 

performing oral sex on her while she slept. Defendant also admitted that he locked 

R.D.’s door because he was worried that someone would come in. When R.D. woke up 

and realized who he was, she got angry, pushed him away, and ran out of the room. 

Wilson agreed that defendant expressed remorse and admitted that what he did was 

wrong. 

On cross-examination, defendant acknowledged that he heard R.D.’s and Wilson’s 

testimony. He agreed with the prosecutor that “most of what [R.D.] said is accurate,” and 

he agreed “for the most part” with Wilson’s testimony about his confession. 

The prosecutor asked defendant about the details of the assault against R.D. 

Defendant testified that he went to R.D.’s house in the early morning when there were 

four or five people in the house. When asked whether knowing there were other people 

in the house prevented him from sexually assaulting R.D., defendant responded: “Those 

were never my intentions.” At the time of the assault, defendant knew that R.D. was a 

lesbian, but her sexual orientation did not stop him from making sexual advances toward 

her because “circumstances, people change.” 

Defendant was asked to recount what happened during the assault. He stated that 

he began kissing R.D., and he disagreed with the prosecutor that R.D. tried to push him 

off her. Defense counsel objected under section 352 on the basis that “[defendant has] 

admitted it. [R.D. has] testified to it. There’s no evidentiary value in going through all 

the details again. It’s just not relevant now to deal with the admission, the obvious 

confession.” The trial court overruled the objection, reasoning that “[t]he People do have 

to prove this in order to have the jury consider it.” Defense counsel reiterated that his 
20

objection was based on the premise that the assault had already been proved, and further 

questioning on the subject was inadmissible under section 352. The court responded: 

“The People still have the right to prove [the allegation].” 

Defendant testified that he locked R.D.’s door for her privacy or safety. He 

disagreed that he was on top of her, but was instead kneeling over her. He kissed her 

forehead, lifted up her sweater and kissed her navel, and eventually “went further” after 

he believed she had woken up and declined to reject him. The assault ended when R.D. 

jumped up after someone knocked on the door. He did not realize until later that R.D. did 

not consent to his conduct. He admitted that he had made “the wrong decision” because 

he would never want to hurt her. 

B. Applicable Law

As a general rule, evidence of a person’s character or character trait is 

inadmissible when offered by the opposing party to prove the defendant’s conduct on a 

specified occasion unless it involves commission of a crime, civil wrong, or other act and 

is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition 

to commit such an act. (§ 1101, subds. (a), (b).) There is an exception for the use of 

propensity evidence in sex offense cases. “In a criminal action in which the defendant is 

accused of a sexual offense, evidence of the defendant’s commission of another sexual 

offense or offenses is not made inadmissible by Section 1101, if the evidence is not 

inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) As our Supreme Court has 

explained, “evidence of a defendant’s other sex offenses constitutes relevant 

circumstantial evidence that he committed the charged sex offenses.” (People v. Falsetta

(1999) 21 Cal.4th 903, 920 (Falsetta).) “[T]he Legislature’s principal justification for 

adopting section 1108 was a practical one: By their very nature, sex crimes are usually 

committed in seclusion without third party witnesses or substantial corroborating 

evidence. The ensuing trial often presents conflicting versions of the event and requires 

the trier of fact to make difficult credibility determinations. Section 1108 provides the 
21

trier of fact in a sex offense case the opportunity to learn of the defendant’s possible 

disposition to commit sex crimes.” (Id. at p. 915.)

Section 352 provides “a realistic safeguard” for the admission of sex offense 

evidence to show propensity. (Falsetta, supra, 21 Cal.4th at p. 918.) “Evidence is not 

inadmissible under section 352 unless the probative value is ‘substantially’ outweighed 

by the probability of a ‘substantial danger’ of undue prejudice or other statutory 

counterweights.” (People v. Holford (2012) 203 Cal.App.4th 155, 167.) Under section 

352, evidence of uncharged offenses may be inadmissible where “the evidence would be 

merely cumulative regarding an issue that was not reasonably subject to dispute,” and 

thus the “prejudicial effect of such evidence would outweigh its probative value.” 

(People v. Ewoldt (1994) 7 Cal.4th 380, 406; see People v. Evers (1992) 10 Cal.App.4th 

588, 599, fn. 4 [“Evidence is cumulative if it is repetitive of evidence already before the 

jury”].) Presentation of cumulative evidence may “create[ ] a substantial danger of undue 

prejudice” and “unduly consume[ ] the court’s time,” and accordingly the People do not 

have the right to “ ‘over-prove their case or put on all the evidence that they have.’ ” 

(People v. Williams (2009) 170 Cal.App.4th 587, 610-611 (Williams).) However, 

“ ‘ “[t]he prejudice which [section 352] is designed to avoid is not the prejudice or 

damage to a defense that naturally flows from relevant, highly probative evidence.” 

[Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a 

person or cause on the basis of extraneous factors.” ’ [Citation.] Painting a person 

faithfully is not, of itself, unfair.” (People v. Harris (1998) 60 Cal.App.4th 727, 737.) 

We review for abuse of discretion a trial court’s rulings on relevance and the exclusion of 

evidence under section 352. (People v. Avila (2006) 38 Cal.4th 491, 578.) 

C. Analysis

Defendant does not challenge the admissibility of the section 1108 evidence, but 

rather contends that the trial court abused its discretion by allowing the prosecutor to 
22

“ ‘over-prove’ ” his prior crime.8 He argues that requiring him to rehash the details of the 

assault was cumulative, lacked probative value, and inflamed the jury because he 

acknowledged his conviction, acquiesced to R.D.’s detailed account of the assault, and 

affirmed his confession as testified to by Wilson. 

We disagree. First, defendant’s testimony was not cumulative. At the outset of 

his testimony on this issue, defendant agreed with the prosecutor’s assertion that “most of 

what [R.D.] said is accurate,” and agreed “for the most part” with the prosecutor’s 

assertion that what Wilson said about his confession was accurate. That testimony did 

not constitute unequivocal agreement with R.D.’s and Wilson’s testimony and did not 

foreclose the possibility that he disagreed with portions of it. Moreover, defendant’s 

testimony included details of his prior crime that were not offered by R.D. or Wilson. He 

testified about how he came into R.D.’s house without the intention to sexually assault 

R.D. and that his knowledge about her sexual orientation did not prevent him from 

making sexual advances toward her. He testified that he began kissing her and disagreed 

with the prosecutor (and R.D.) that R.D. tried to push him off after he began kissing her. 

He testified about why he locked the door, that he knelt over her rather than lay on top of 

her, and that he “went further” than merely kissing her because she did not reject him. 

He added that he realized only later that R.D. did not consent to his conduct. 

Defendant’s testimony is readily distinguishable from the cumulative evidence in 

Williams, supra, 170 Cal.App.4th at page 610, upon which he relies. In Williams, the 

prosecutor put on evidence for at least a day and a half that was literally “a repeat of 

previous evidence,” resulting in a situation where the “sheer volume of evidence 

extended the trial—and the burden on the judicial system and the jurors—beyond 

reasonable limits . . . amounted to a virtual street brawl.” (Id. at p. 611.) Here, 

8

 We note defendant’s claim that section 1108 is unconstitutional, which we discuss, 

post. 
23

defendant’s testimony on this issue lasted only a few minutes and was not merely a repeat 

of R.D.’s and Wilson’s testimony. 

We also disagree with defendant that the evidence unduly inflamed the jury. 

Defendant characterizes his testimony as an “exhaustive accounting,” but his testimony 

on this issue only consumed eight pages of the trial transcript. Moreover, it is unlikely 

that defendant’s testimony would have inflamed the jury because it had only just heard 

from R.D. and Wilson, and thus the jury was already familiar with the facts of the crime. 

Additionally, defendant’s prior conduct resulted in a conviction, making the jury less 

likely to have confused the issues or be tempted to punish defendant for uncharged 

crimes. (People v. Loy (2011) 52 Cal.4th 46, 61.)

Finally, there is no indication that the testimony was confusing, misleading, or 

distracting to the jury, which was instructed appropriately about how to consider the prior 

sexual crime evidence. We presume the jury followed the court’s instructions. 

(Williams, supra, 170 Cal.App.4th at p. 613.) The trial court did not abuse its discretion 

by allowing the prosecutor to question defendant about his prior sexual offense.9 

III

Constitutionality of Section 1108

Defendant wishes to preserve for further review the claim that section 1108 is 

unconstitutional under the federal and California Constitutions. Our Supreme Court has 

repeatedly rejected the argument that admitting prior crimes evidence under section 1108 

violates the constitutional right to due process and a fair trial. (See, e.g., People v. 

Dworak (2021), 11 Cal.5th 881, 900; People v. Rhoades (2019) 8 Cal.5th 393, 415; 

Falsetta, supra, 21 Cal.4th at p. 917 [recognizing that the trial court’s discretion to 

exclude propensity evidence under § 352 “saves section 1108 from defendant’s due 

9

 Defendant argues that cumulative error compels reversal of the judgment. We have 

found no trial court error, and therefore his claim lacks merit. 
24

process challenge”].) The court has also found that section 1108 does not improperly 

alter or reduce the prosecutor’s burden of proof. (Falsetta, at p. 920.) We are obligated 

to follow this binding authority from our Supreme Court. (Auto Equity Sales, Inc. v. 

Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Accordingly, we 

reject defendant’s argument but recognize that he has preserved it. 

DISPOSITION

The judgment is affirmed.

 /s/

Duarte, Acting P. J.

We concur:

 /s/

Renner, J.

 /s/

Wiseman, 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.