1 Filed 5/1/13 P. v. Zmrzel CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. ROBERT JOSEPH ZMRZEL, Defendant and Appellant. C066741 (Super. Ct. No. 6282501)

Defendant Robert Joseph Zmrzel sexually abused hi s adopted daughter, S., on numerous occasions over an eight-year period beginning when she was eight years old. Defendant was convicted by jury of one count of continuous sexual abuse of a child (count 1), two counts of oral copulation of a person under 16 years of age (counts 8 & 9), two counts of committing a lewd or lascivi ous act on a child of 15 years (counts 10 & 11), one count of attempting to commit a lewd or lascivious act on a child of 15 years (count 13 (lesser included)), and one count of simple battery (count 12 (lesser included)). After dismissing counts 8 and 9, as those crim es were alleged to have occurred during the2 time period covered by count 1, the trial court sentenced defe ndant to state prison for an aggregate term of seven years, eight months. On appeal, defendant contends: (1) the trial court prejudicially erred by denying his request for a psychiatric evaluation of S. in order to assess her competency to testify; (2) the trial court prejudicially erred by declin ing defendant’s request to instruct the jury that the defense expert, Charles L. Scott, M. D., was not allowed to conduct a psychiatric evaluation of S.; (3) the trial court violated defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda ) by (a) allowing testimony that defendant had been given an opportunity to make a statement to police and had done so, and (b) requiring the jury to be informed, during closing argum ent, of the content of this statement; (4) the trial court prejudicially erre d by allowing the jurors to retain, during the remainder of the trial, their copies of the tr anscript of a pretext phone call between S. and defendant; and (5) the cumulativ e prejudice arising from the foregoing assertions of error requires reversal. As we explain, the trial court was not re quired to order a psychiatric evaluation in order to determine whether S. was competent to testify. No r was the trial court required to instruct the jury Dr. Scott was not allowed to co nduct the requested psychiatric evaluation. Without deciding wh ether the trial court improperly required that the jury be informed of the content of a statement de fendant made during custodial interrogation before he was advised of his Miranda rights, we conclude any error was harmless beyond a reasonable doubt. With respect to defendant’ s complaint that the ju rors were allowed to retain their copies of the transcript of the pretext phone call, we also find no prejudice. Finally, defendant’s claim of cumulative prej udice fails. Accordingly, we affirm the judgment.3 

### F ACTS In December 1999, S. and her three brothers were adopted by defendant and his wife, Laurie. The Zmrzels already had three ch ildren of their own. The family lived in a two-story house on a 13-acre farm in Ne wcastle, a small town between Lincoln and Auburn. At the time of the adoption, S. was nine years old. S. and her biological brothers lived with the Zmrzel s during the year prior to the adoption becoming final. Defendant began sexually abusing S. soon after she moved into the house. At bedtime, after Laurie went from room to room saying goodnight to the children, defendant would do the same. Defendant st ayed in S.’s room longer than Laurie. Defendant would sit on the floo r next to S., who was on th e bottom bunk of a bunk bed. Because S. was having trouble reading, she would read to defendant for awhile and tell him about her day. Defendant would then say goodnight to S. and tell her he loved her. S. would respond: “I love yo u too, dad.” Defendant “got mad” if she did not tell him she loved him. At some point during these nightly visits, defendant started to rub S.’s back while she read. He then started to reach bene ath her underwear and place his hand on her buttocks and vagina. One night, when S. told defendant to stop, he “got really mad” and “started yelling” at her. S. also tried to end the touching by moving to the top bunk, wrapping herself tightly with he r blankets, and sleeping as clos e to the wall as she could. These obstacles did not prevent defendant fr om molesting her. When S. was 11 years old, she began developing br easts. Defendant’s bedtime routine continued as usual, except that he also began touching S.’s breasts. When S. was about 12 years old, add itional bedrooms were built upstairs. S. moved into one of these bedrooms. Around th is time period, defendant started to kiss S., placing his tongue in her mouth, and kissed her neck, legs, and feet. He also began penetrating S.’s vagina with his fingers. When S. was about 13 or 14 years old,4 defendant began getting into bed with her. On one occasion, S. again told him to stop. Defendant “got violently mad” and “pushed [her] against th e wall,” asking: “[W]hat is wrong with you[?] Do you think this is so mething sexual or something[?]” On another occasion, he told S. that “he was in love w ith [her]” and “he didn ’t love [Laurie].” Defendant continued to kiss and t ouch her on a nightly basis. When S. was about 14 or 15 years ol d, defendant began kissing her vagina. Defendant brought condoms in to S.’s room, and would put on a condom and rub his penis against her vagina, saying that “he didn’ t ever want to take the chance of getting [her] pregnant.” Defendant also told S. he was saving money to run away with her when she turned 18 and showed her a stack of $100 bills he kept locked in an “army box.” Eventually, defendant bought a safe and S. belie ved he transferred the money to the safe. The abuse ended when S. turned 16. One afternoon, defendant came into her bedroom while Laurie and most of the other children were at jujitsu practice. Two of the children were home, but not in the house. As S. explained the encounter with defendant: “I tried to leave, and he got mad and he grabbed my arm. An d I told him that I was sick of keeping his dirty little secrets and I pulled away from him. And I ran down the stairs and he ran after me.” S. then picked up a rocking chair thatwas in the living room, threw the chair at defendant, and ra n into the bathroom, blocking th e door with a towel drawer. As defendant yelled that he was going to br eak the door down, S. found a bottle of Nix head lice treatment under the sink and consid ered drinking it. Defendant’s voice then went from “screaming and yelling” to “nice,” as if he were “trying to calm [her] down.” S. put the bottle of Nix away, waited for defe ndant to leave the house, and then ran away to a friend’s house. The next day, Laurie pick ed S. up at her friend’s ho use and drove to her greatgrandmother’s house so that S. could have another night aw ay from home to calm down. On the way, S. threatened to “keep running away.” Laurie responded: “What do we have to do to make sure thatdoesn’t happen?” S. then to ld Laurie she “did not want5 [defendant] coming into [her] room anymore.” S. did not reveal what defendant had done to her. Laurie did not ask. Laurie then had a conversation with defendant and told him she did not want him spending time alone with S. in her bedroom. Defendant agreed. S. returned to the Zmrzel house. Defendant stopped coming into her room at night. A couple days later, defendant brought S. down to the barn and showed her a gun that was in his truck. He told her that wh en she ran away, “his fi rst response was to kill himself.” Defendant and S. th en went to his workshop and sa t in her brother’s truck. Defendant told S. he loved he r, and she was “everything he ev er wanted.” He also told her he would not be coming into her bedr oom anymore, but if she changed her mind about wanting to be with him, he would s till be saving money fo r them to run away together when she turn ed 18. During this conversation, defendant had his arm around S. and put his hand inside her sh irt. This was the last time defendant molested his adopted daughter. About a month before S. turned 18, defendant found out she had a boyfriend. When S. returned home fro m spending the weekend at her Aunt K.’s house, she discovered one of her goats ha d died over the weekend. Th is particular goat had been sick, so the death was not a su rprise. The location and cond ition of the body were. The goat was lying in the pasture with the back legs spread open and the te sticles removed. It appeared as though the testicles had been “torn” from the b ody. S. told Laurie about the goat and said that if a wild animal had kille d the goat, it would have taken more than the goat’s testicles. Laurie responded: “May be someone did that.” When S. asked who would have done such a thing, Laurie answered: “Dad wa s pretty mad when he found out about your boyfriend yester day.” Laurie then laughed an d said: “[I]t’s probably what he wanted to do to your boyfriend.” S. went back to her Aunt K.’s house. The following weekend, she told her aunt what defendant had done to her. A couple da ys later, S. reported de fendant’s crimes to Detective Michael Davis at the Placer County Sheriff’s Department. S. also made a6 pretext phone call to defendant. During the ca ll, S. told defendant it was only six days until she turned 18 and asked where he stood w ith respect to runni ng away together. Defendant responded: “You wa nt to go with me? Is that what you’re saying?” He also cautioned: “There’s no turning back if you do it.” When S. said that she did, defendant insisted they wait until she tu rned 18 and asked: “What, what happ ened with you and that other guy?” S. answered: “Nothing.” Defendant responded: “All right. You know I love you. You know that.” He then aske d: “And you don’t fu ckin’ dump me in a month or a week or something like that?” S. asked if defendant would marry her. Defendant answered: “Yeah, I would. Don’ t, don’t, don’t be telling anybody this shit either.” S. then said she was “confused” and elab orated: “It’s like, seriously, you are the only person that’s ever loved me. I mean I don’t, I don’t understa nd why you would have touched me and tried to have sex with me a nd all that stuff if, if you didn’t. I, I don’t think that you would do that.” Defendant responded: “I wouldn ’t. I would never do that. I’m telling you the truth.” S. asked: “Is th at why you touched me then and, and wanted to have sex with me really?” Defendant an swered: “Because I love you. Because I wanted you, and it was a confused fucking me ss that the alternativ e is a bullet in my head. That’s the alternative.” S. then aske d whether he still wanted her “even like after two years now of like not even doing anything.” Defendant answered: “I don’t give a fuck about that if we ever do anything again. We don’t ever have to do anything again. I’m dead serious. I don’t need to do that. You don’t want to do that, we don’t do that ever.” S. then asked defendant why he touche d her when she was eight years old. Defendant answered: “No, I didn’t. Not, I didn’t touch you like that when you were [eight].” After S. told him she remembered him putting his hands down her pants when she was eight years old, defendant responded: “Yeah, well that was stupid.” And when she asked him why he touched her like that, defendant answered: “Because I loved you.7 I still love you.” S. then asked whether de fendant loved her more than Laurie, to which he replied: “Look I’ll give everything up for you. If that’s what you, if you’re serious. If you’re just testing me, don’t, don’t do it just to test me because I’ll do it.” S. responded: “So then it’s me, it’s not Mom?” Defendant answ ered: “Yeah, it’s you. It’s always been you. It’s you.” S. then asked him to conf irm he spent time in her room and touched her because he loved her. Defenda nt answered: “Yeah” and “T hat’s it. That’s it.” Later in the call, S. asked whether the “oral sex” was also defendant’s way of expressing his love. Defendant answered: “Y eah, I guess.” He then admitted what he did was wrong and said: “W hen you care about somebody like that, I know I fucked up, okay? It’ll be different from now on, though. It’ll just be you and I.” And when S. said, “I was just a kid, Dad,” defe ndant responded: “I know. I’m sorry about that. Now it’s just you and I. Forget about that. I just want you. I don’t want anything, anything. Just, just want to be with you. Just want to talkto you; just want to do things with you.” Defendant denied touching an y of the other children. Detective Davis arrested defendant late r that day. The house was searched. Defendant’s safe did not contain any money, but an “army box” in the garage contained two large stacks of $100 bills, totaling $39 ,000. Laurie was al so interviewed by Detective Davis. After listening to the pret ext phone call, Laurie confronted defendant with what she had heard during the call. Defendant denied being in love with S. and denied touching her before sh e was 16 years old, but admitted to three instances of oral copulation that he claimed happenedwhen she was 17 years old.8 

### D ISCUSSION
I Request for a Psychiatric Evaluation

Defendant contends the tria l court prejudicially erred by denying his request for an order compelling S. to submit to a psychi atric evaluation in order to assess her competency to testify. He is mistaken.

A. Legal Principles “Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is dis qualified to testify to any matter.” (Evid. Code, § 700.) A person is disqua lified to be a witness only if he or she is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood,” or is “[i]ncapable of understanding the duty of a witn ess to tell the truth.” (Evid. Code, § 701, subd. (a).) “Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusivel y by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a cl ear abuse of discretion.” ( People v. Anderson (2001) 25 Cal.4th 543, 573 ( Anderson ).) “Even if a witness is not entirely disqua lified for incapacity to communicate or to understand the duty to te stify truthfully, his or her testimony on a particular matter (other than expert opinion testimony) is in admissible ‘unless [the witness] has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.’ [Citation.] The testimony must be excluded un less ‘there is evidence sufficient to sustain a finding ’ that the witness has such pe rsonal knowledge.” ( Anderson , supra , 25 Cal.4th at p. 573; see also Evid. Code, § 702, subd. (a).)9 Thus, “a witness must be allowed to testify unless he or she (1) cannot communicate intelligibly, (2) cannot understa nd the duty of truthful testimony, or (3) lacks personal knowledge of the events to be recounte d. But while the first two questions are determined entirely by the court, its role with resp ect to the issue of personal knowledge is more limited. A w itness challenged for lack of personal knowledge must nonetheless be allowed to testify if there is evidence from which a rational trier of fact could find that the witness accurately perceived and recollected the testimonial events. Once that threshold is passe d, it is for the jury to decide whether the witness’s perceptions and reco llections are credible.” ( Anderson , supra , 25 Cal.4th at p. 574; see also People v. Dennis (1998) 17 Cal.4th 468, 525-526.)

B. Additional Background Prior to trial, defendant sought an orde r compelling S. to submit to a psychiatric evaluation for purposes of assessing her competency to testify. The motion was supported by a declaration submitted by Charles L. Scott, M.D., which stated that a review of certain records made available to the defense indicated (1) S. “was a likely recipient of pathogenic (harmful) care during her early childhood,” (2) “[s]uch pathogenic care is an important risk factor for the development of Reactive Attachment Disorder,” and (3) “a teenager or young adult suffering Reactive Attachment Disorder from early childhood presents con cerns in relation to [his or her] ability to accurately relate factual events.” Dr. Scott explained that “Reactive A ttachment Disorder is characterized by markedly disturbed and developmentally inap propriate relatedness in teenage and adult years due to pathogenic care beginning befo re the age of five. Pathogenic care, as described by [the Diagnostic and Statistical Manual of Mental Disorders] may be evidenced by at least one of th e following: [¶] (1) Persiste nt disregard of the child’s basic emotional needs for comfort, stimulati on, and affection; [¶] (2) Persistent10 disregard of the child’s basic physical needs; or [¶] (3) Repeated changes of primary caregiver that prevent formati on of stable attachments (e.g., frequent changes in foster care).” The records reviewed by Dr. Scott indi cated S. was born with methamphetamine in her blood. Her birth mother was incarce rated for four months during the pregnancy and also drank alcohol and usedother drugs while pregnant with S. When S. was about three months old, she was placed in protec tive custody while both of her birth parents were incarcerated. At the age of two years, S. was living with her birth father and his girlfriend. S. was found several blocks fro m home, wandering the neighborhood with her brother, who was three years old, and the girl friend’s son, who was four years old. The children were dirty and had h ead lice. The girlfriend’s son was carrying a dagger and a lighter. The children were taken into protective custody af ter the house they were living in was “declared a dangerous bu ilding.” While at the emergency shelter, S. reported “her dad burned her feet becau se he was mad at her.” She ha d scars on the top of each of her big toes. S. also reported that “her daddy we nt to bed with her and that he beats her, and indicated that she had been touched on her vagina and knee with a knife.” S. was interviewed by a psychologist at the shelter, who noted S. exhibite d “unsocialized ferallike behaviors,” including eating off the floor and climbing on furn iture, and described her as “starved for affection.” S. and her older brother were briefly placed in a foster home, and then returned to their birth mother. S. later told a different me ntal health professional “she was forced to consume beer at age [three to four] and wa s raped at age [five] by her mother’s ‘druggie friend.’ ” By this time, S.’s two younger brothers had been born. S.’s birth mother was again arrested for drugs when S. was six year s old. The house was dirty. The children had head lice. Shortly thereafte r, S. and her brothers were pl aced in a foster home, where they lived for about two years until moving into the Zmrzel house.11 Records from Koinonia Foster Homes, from June and August of 1998, also express a concern that S. was “ ‘demonstrati ng a pattern which is quite typical of an attachment disordered child,’ ” including “[d]eviousness and lying,” “[t]heft followed by disclaimers of responsibility,” “[i]nappropriate sexual talk,” “[m]inim ization or denial of prior sexual victimization,” “ [f]abrication of stories not based upon reality,” “[l]ack of emotional response when info rmed [she] would be removed from her mother and offered for adoption,” and “[d]ifficulty in relating to surrogate mothers due to a love-hate relationship with her own mother.” Laurie al so reported in August 1999 that S. “would seek attention inappropriately, at times from strangers,” and “would discuss her life freely with people she barely knew.” According to Dr. Scott, these reported behaviors are consistent with Reactive Att achment Disorder caused by the pathogenic care S. received early in life. He elaborated: “Persons su ch as [S.] who suffer from Reactive Attachment Disorder often fail to develop a conscience , do not feel empathy and having genuine affection for other people is beyond their reach . Ability to implement an oath to tell the truth, for example, in court proceedings may be significantly impaired.” In addition to Reactive A ttachment Disorder, Dr. Sco tt expressed concern over a Dissociative Experiences Scale (DES) questionn aire S. completed in July 2009. As Dr. Scott explained, “[t]he DE S questionnaire is a screening tool for Dissociative Identity Disorder (DID) that includes 28 questions [asking] the individual about various experiences they may have experienced in thei r life. In addition, the person is asked to what degree (percentage of tim e) the experience described in the question applies to him or her. Many of the symptoms reported as partof the DES are symptoms of a variety of psychiatric disorders to include Schizophr enia, Schizoaffective Disorder, Bipolar Disorder, Posttraumatic Stre ss Disorder (PTSD), Dissoci ative Identi[t]y Disorder, Substance Abuse Disorder, and/or an underlying medical illness.” According to Dr. Scott, S .’s answers to certain questi ons “raise serious concerns regarding her ability to accurately observe, recall, and relate factual events. In particular,12 she acknowledges that over 50% of the time she is not sure if things really happened to her or if she just dreamed them up. Furtherm ore, her ability to testify requires that [she] recall that she is under oath to tell the truth an d be attentive to the questions that are asked of her. Her answer that 40% of the time she finds that she is ‘listening to someone talk and does not realize or hear part of all of wh at is said’ raises se rious concern regarding her ability to focus on questions asked of he r at trial and respond as accurately as possible. Furthermore, [S.] responds that 60% of the time she hears voices inside of her head that tell her what to do or comment on things that they are doing. Although she writes that she believes these ‘voices’ are ‘h er own,’ she also notes that these voices sometimes conflict with each other. [S.]’s description of experiencing ‘voices’ is a symptom that is also charact eristic of auditory hallucinations noted in individuals suffering from Schizophrenia and other psycho tic illnesses. Persons suffering from such psychotic disorders often lose touch with reality and also experience beliefs in things or experiences that are not true (delusions).” Dr. Scott concluded: “[T]he records substa ntiate that [S.] met criteria for Reactive Attachment Disorder since early childhood. In addition, more rece nt records note the presence of marked dissociativ e symptoms that could signifi cantly impact her ability to accurately observe, recall, and relate factual ev ents. Her symptoms of having amnesia for important events, for having impairment in li stening to someone talk, for being unsure if her recall of experiences actually happened or were ‘dreamed up ,’ or for having the experience of hearing ‘voices’ inside her headcould be secondary to a wide variety of psychotic thought disorders or dissociative disorders. A more definitive diagnosis could be further supported by a psychiatric ev aluation of the iden tified victim.” The trial court balanced the right of the de fendant to receive a fa ir trial against the right of the victim to be free from an unjustified intrusion in to her privacy and denied the request for a psychiatric evaluation. Th e trial court explained that Penal Code section 1112 (hereafter § 1112) prohibited it from ordering a psychiatric examination for13 purposes of assessing S.’s credibility. Noting it possessed the authority to order such an examination on the issue of co mpetency, the trial court stated that because competency is a matter for the court to decide, even if an examination was ordered, Dr. Scott’s findings would not be given to the jury to assist in assessing S.’s credibility. The trial court explained that the “really intrusive process” of ordering S. to submit to a psychiatric examination was not required to en able it to rule on her competency to testify. Instead, S. would be allowed to testify, and if the tria l court concluded based on her testimony that she was not competent, it would “deal with that as a matter of how the evidence stands.” The trial court also noted there was a “volumin ous” record of S.’s background and mental health history, which had been released to defendant. Following the jury’s verd ict, defendant moved for a new trial. The motion was based, in part, on the trial court’s failure to order S. to submit to a psychiatric examination. In denying the motion, the trial court stated: “I found as a trier of fact absolutely no basis to challenge the capacity or comp etency of the witn ess to testify. Yes, she was very emotional. Yes, she was confused as to certain facts, but there is nothing in my admittedly lay opinion that rose to a level of concern by me because of her psychiatric status she either lacked capac ity or competency to give testimony.”

C. Analysis

A trial court has “broad discretion” to refuse a requested psychiatric examination for the purpose of assessing a vic tim’s competency to testify. ( Anderson , supra , 25 Cal.4th at p. 576; People v. Ayala (2000) 23 Cal.4th 225, 26 4-265.) The trial court did not abuse its discretion in declining to orde r such an examinati on in this case. Section 1112 prohibits the trial court from ordering “any prosecuting witness, complaining witness, or any other witness, or victim in any sexual assault prosecution to submit to a psychiatric or psychological exam ination for the purpose of assessing his or14 her credibility.” 1 However, this provision does not prohibit a trial court from ordering such an examination for the purpose of asse ssing a complaining witn ess’s competency to testify. ( Anderson , supra , 25 Cal.4th at pp. 575-576; People v. Armbruster (1985) 163 Cal.App.3d 660, 663, fn. 1.)
In Anderson , supra , 25 Cal.4th 543, our Supreme Court held that a trial court possesses no sua sponte duty to order a psychi atric examination to assess testimonial competency. ( Id . at p. 576.) The court explained that “the grounds upon which a trial court may disqualify a witness as incompeten t, or exclude the witness’s testimony for lack of personal knowledge, are exceptionally narrow. The witness must be allowed to testify unless he or she cannot communicate in telligibly or understand the duty to tell the truth, or unless no rational jury could believe the witness actu ally saw the events he or she claims to have seen. In many cases, ps ychiatric testimony, itself ‘inherently [subject to] expert debate’ [citation], would be less us eful on these issues than the court’s own evaluation of the witness’s demeanor and re sponses in light of all the evidence. [Citation.]” ( Ibid .) The court further explained that “serious privacy interests, as well as the policy of encouraging witnesses to come forward and te stify voluntarily, would be undermined if courts were compelled to order psychiatri c evaluations of potential witnesses as a condition of their testimony. Moreover, Ballard itself noted the many ‘dangers’ of using psychiatric evidence to impeach credibility; ‘the psychiatri st’s testimony may not be relevant; the techniques used and theories advanced may not be ge nerally accepted; the

1 This provision was enacted in 1980, and wa s designed to overrule a line of authority, beginning with Ballard v. Superior Court (1966) 64 Cal.2d 159, 171-177 that “indicated a trial court should grant a defense moti on for a psychiatric examination of the complaining witness in a sex-crime case wher e psychiatric evidence appeared necessary to assist the trier of fact in assessing the witness’s credibility .” ( Anderson , supra , 25 Cal.4th at p. 575.)15 psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communi cation between the psychiatrist and the jury; too much reliance may be placed upon th e testimony of the psychiatris t; partisan psychiatrists may cloud rather than clarify issues; the testim ony may be distracti ng, time-consuming and costly . . . .’ [Citations.] Ma ny, if not all, of these concerns are also pertinent to a court determination of competence. [Citation.]” ( Anderson , supra , 25 Cal.4th at p. 576.) Here, the trial court appropriately took in to consideration S.’s privacy interests, balanced these interests against the right of defendant to receive a fair trial, and concluded that an additional psychiatric examin ation was not necessary in order to assess whether she was competent to testify. (See, e.g., People v. Browning (1980) 108 Cal.App.3d 117, 125 [shootin g victim possessed a cons titutional right against an unwarranted intrusion into hi s body for purposes of extr acting bullets for forensic examination; this right must be balanced against the defendant’s constitutional right to receive a fair trial].) Defendant complains the trial court appeared to rely on article I, section 28 of the California Constitution (The Victims’ Bill of Ri ghts) as the basis for the privacy interests it balanced against defendant’s right to a fair trial. As one of the many listed victim’s rights, this constitutional provision states thata victim shall “be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or j uvenile justice process.” (Art. I, § 28, subd. (b)(1).) In addition, in Anderson , supra , 25 Cal.4th 543, our Supreme Court used “serious privacy interests” as one justifica tion for declining to impose a sua sponte duty to order a psychiatric examination. ( Id . at p. 576; see also People v. Browning , supra , 108 Cal.App.3d at p. 123 [psychiatric exam ination involves an invasion into “ ‘personal dignity and privacy’ ”].) We s ee no reason to conclude that the victim’s privacy interests cannot be considered by th e trial court in ruling on a request for a psychiatric examination.16 Defendant also suggests the trial court erroneously believed section 1112 limited its authority to order a psychiatric examina tion for purposes of assessing competency. Not so. The trial court clearly acknowledged th at section 1112 “is focused on the issue of credibility” and neither stated nor implied that this statutory provision prevented it from ordering an examination for purpos es of assessing competency. Moreover, we do not believe a psychiatric examination would have changed the trial court’s conclusion that S. was competen t to testify. Again, the trial court was required to allow her testimony unless it determined that she could not communicate intelligibly or understand the du ty to tell the truth, or unle ss no rational jury could believe she possessed personal knowledge of the ev ents that transpired between her and defendant. (See Anderson , supra , 25 Cal.4th at p. 576.) There was no claim that S. lacked the ability to communicate intelligibly . With respect to he r ability to understand the duty to tell the truth, Dr. Scott opined that Reactive Attachme nt Disorder “may” significantly impair her ability to testify truthfully, and the trial court possessed the “voluminous” record relied upon by Dr. Scott in forming this opinion. However, during S.’s testimony, she stated she understood the du ty to testify truthfully and would do so. The trial court was entitled to believe her. Nor do we believe that a psychiatric evaluation would have changed the trial court’s implied finding that a rational jury co uld believe S. possessed personal knowledge of the sexual abuse she suffered at the hand s of defendant. Again, the trial court possessed Dr. Scott’s declaration and all of th e records he relied upon in concluding that S.’s ability to accurately per ceive and recall events may be impaired, including the DES questionnaire. Nevertheless, many of S.’s allegations were corroborated by defendant himself in the pretext phone call and in his subsequent conversation with Laurie. Based on this corroboration, the trial court was jus tified in concluding a reasonable jury could conclude S. accurately percei ved and recollected the abuse. “Once that threshold is passed, it is for the jury to decide whether the witness’s perceptions and recollections are17 credible.” ( Anderson , supra , 25 Cal.4th at p. 574; see also People v. Dennis , supra , 17 Cal.4th at pp. 525-526.) In this regard, Anderson , supra , 25 Cal.4th 543 is instructive. There, in order to prove the defendant had engaged in violent criminal conduct other than the capital crimes with which he was charged, the People intr oduced evidence that he had previously murdered Mackey, i.e., Baros’s testimony that she witnessed the mu rder. The defendant presented evidence that Baros believed certain “imaginary” people existed, that an imagined son named Anthony was present durin g the murder, that sh e remembered many events through dreams, and that the defendant could co mmunicate with her through telepathy. ( Id . at p. 570.) Nonetheless, the trial c ourt allowed Baros to testify, explaining that because she gave “a coherent account [o f the murder], many details of which were corroborated by independent evidence and wo uld not likely be known by one who was not present,” a rational trier of fact coul d conclude she was present and accurately perceived and recollected what she had seen. ( Id . at p. 571.) Our Supreme Court held that “the trial c ourt correctly allowed Baros to testify, and to permit the jury to determin e from all the relevant evidence whether her perceptions and memories were true.” ( Anderson , supra , 25 Cal.4th at pp. 5 74-575.) The court explained, “the trial court noted the many i ndicia by which a rational trier of fact could conclude that Baros, despite her specifi c delusions, was actually present during the Mackey robbery and murder, and had accurately perceived and recollected those events. Aside from her insistence that her son Antho ny was present, Baros presented a plausible account of the circumstances of Mackey’s murder. [Citation.] Baros’s description included many details, unlikely to be know n by a person not pr esent, that were corroborated by independent evidence.” ( Id . at p. 574.) The court also pointed out that extensive evidence was presen ted to the jury indicating Anthony was a delusion and certain other individuals were also imaginary. The jury also hear d Baros’s disclosures regarding dreams and telepathy. Accordingly, th e jury “had ample basis upon which to18 judge the reliability of Baros’s observations.” ( Id . at p. 575; see also People v. Lewis (2001) 26 Cal.4th 334, 357 [w hile Pridgon’s testimony “cons isted of inconsistencies, incoherent responses, and po ssible hallucinations, delusions and confabulations,” he “ ‘presented a plausible account of the circum stances of [the victim’s] murder’ ”].) Similarly, here, S. provided a plausi ble account of the sexual abuse defendant inflicted upon her during the time she lived at his house. This account was corroborated by both physical evidence and defendant’s own statements ma de during the pretext phone call. S. testified the sexual abuse began when she was eight years old as defendant spent extra time in her room at bed time. During the pretext cal l, defendant initially denied touching her when she was that young. However, when S. said she remembered him putting his hands down her pants at that age, defendant responded: “Yeah, well that was stupid.” And when she asked him why he touched her like that, defendant answered: “Because I loved you. I still love you.” S. then asked him to confirm that he spent time in her room and touched her because he love d her. Defendant said that was true. S. also testified that defendant kisse d her vagina, brought condoms up to her bedroom, and rubbed his penis against her va gina when she was around 14 or 15 years old. During the pretext call, she told defendant she did not understand why he “would have touched [her] and tried to have sex with[her]” if he did no t love her. Defendant agreed and explained in his ow n words why he did those thi ngs: “Because I love you. Because I wanted you, and it was a confused fucking mess that the a lternative is a bullet in my head.” Later in the call, S. asked wh ether the “oral sex” was also defendant’s way of expressing his love. Defendant answered: “Yeah, I guess.” He then admitted what he did was wrong and said: “W hen you care about somebody like that, I know I fucked up, okay? It’ll be different from now on, though. It’ll just be you and I.” And when S. said, “I was just a kid, Dad,” defe ndant responded: “I know. I’m sorry about that.” S. further testified that, when she was about 15 years old, defendant told her he wanted her to run away with him when she tu rned 18 and he showed her a stack of $10019 bills locked in an army box wh ich was set aside for this purpo se. During the pretext call, defendant confirmed he wanted to run away w ith S. when she turned 18. And $39,000 in $100 bills was found in an army box in the garage. S. testif ied that the abuse ended when she turned 16. This was co rroborated by the portion of th e pretext call in which she asked whether defendant still wanted her “even like after two years now of like not even doing anything.” Defendant answered: “I do n’t give a fuck about that if we ever do anything again. We don’t ever have to do anything again.” S. also testified about the incident involving the goat and defendant’s discovery that she was dating someone. During the pretext call, defendant asked “what happened with [her] and that other guy” and was concerned she would “dump [him] in a month or a week or something” if they did run away together. We conclude that a rational jury could have found that S. possessed personal knowledge of the abuse. Nevertheless, defendant asserts, “[a]t the very least, the [trial ] court should have held a competency hearing and heard testimony from [S.] and Dr. Scott. The prosecution case depended entirely on the testimony of [S.], and the [trial] court had a duty to resolve the question of her competency. It failed to do so, and [defendant ’s] convictions rest upon the testimony of a single witness of doub tful competency.” The issue of whether the trial court erred by failing to hold a comp etency hearing is different from the issue of whether the trial court erred by declining defendant’s reque st to order a psychiatric examination. The point is fo rfeited by defendant’s failure to raise it “under a separate heading or subheadin g summarizing the point,” and by the failure to provide any “argument” or “citation of authority” on the issue. (Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, we disagree. The trial court was able to observe S.’s testimony and never expressed a doubt concerning her competency. While, prior to S.’s testimony, she ran out of the courthouse and a victim’s advocate talked to her over the lunch break before she testified, the trial court was made aware of this incident and stated: “It is certainly subject to fair questio ning by either [side], but I don’t feel there is20 a need at this point as a preliminary matter. She appears to be or iented, calm, testifying clearly, responsive to the questions. I don’t see a need to go into that issue right now.” The record supports this assessment. Finally, defendant points out that “[a] conviction dependent up on the testimony of an incompetent witness rende rs the trial fundamentally unfair and violates the defendant’s due process rights under the stat e and federal [C]onstitu tions. [Citations.] Such a conviction cannot stand.” He also reviews the facts of two cases, People v. Lyons (1992) 10 Cal.App.4th 837, 844, in which the Court of Appeal held it was error to admit into evidence at trial the preliminary heari ng testimony of a witness who was “delusional and unable to distinguish truth from lies at the time of the preliminary hearing,” and Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 833, in which the Court of Appeal issued a writ of prohibition compelling the trial court to dismiss one count of an information charging the defe ndant with lewd and lasciv ious conduct with a child, holding that while the “otherwi se incompetent” out-of-court statement of the three-yearold complaining witness would have been ad missible under Evidence Code section 1228 for the purpose of establishing the elements of the crime in order to admit as evidence the defendant’s confession, there was no confessi on to admit into evid ence. However, while defendant provides the foregoing “citation of authority,” he does not provide any “argument” that S. was in factincompetent to testify and th at his due process rights were therefore infringed by the admission of her testimony. (Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, as we have explai ned, the trial court properly found that S. possessed the ability to communi cate intelligibly and underst ood the duty of truthful testimony, and that a rational trier of f act could find she accurately perceived and recollected the abuse inflicted by defendant. Accordingly, this cont ention also fails. The trial court did not abus e its discretion by declining to order S. to submit to a psychiatric examination before allowing her to testify or by failing to hold a formal21 hearing to ensure such competency. No r were defendant’s due pr ocess rights violated by the trial court’s decision to allow S.’s testimony.

II Requested Defense Instruction Defendant also claims the trial court prej udicially erred by declining his request to instruct the jury that Dr. Scott was not allowe d to conduct a psychiatri c examination of S. We disagree. At the same time defendant requested an order compelling S. to submit to a psychiatric examination, defe ndant also argued that “[s]h ould the Court determine that the examination requested by Dr. Scott . . . is barred by . . . section 1112, [defendant’s] right to due process and a fair trial under th e Fourteenth Amendment to the United States Constitution mandates an offsetting jury in struction.” The requested instruction provided: “You have heard testimony from Char les L. Scott, M.D., an expert witness. Prior to commencement of trial Dr. Scott re quested permission from the Court to conduct a psychiatric diagnostic interview of the alle ged victim in this matter. Dr. Scott also requested permission to conduct psychological testing if that became appropriate. The requests of Dr. Scott were denied by the Court. California law prohibits the participation of an alleged victim in the requested pro cedures in cases such as this one.” The trial court declined to give the reque sted instruction. Explaining it denied defendant’s request for a psychiatric examinati on in order to protect S.’s rights, the trial court clarified that the fact Dr. Scott was not allowed to conduct such an examination could not be used by the prosecution “as a sword against the other side.” Thus, the prosecutor would not be allowed “to ask of Doctor Scott or argue in front of the jury, [‘]well, he didn’t even look at her, he didn ’t meet her,[’] when clearly there has been a request, a legitimate good faith request for that to happen.” The trial court continued, “if there is a suggestion to the ju ry that Doctor Scott’s opinion should be discounted because22 he did not personally in terview her, then I will consider an instruction along the lines that the defense has tendered here. . . . [¶] . . . No instruction to the ju ry, unless somehow it is put into play by the prosecution.” The pr osecutor did not comment on the lack of a personal examination. Accordingly, the requested instruction was not given. Defendant argues: “The in struction was necessary to en sure that the jury did not discount or devalue Dr. Scott’s opinion on a false basis, i.e., that he could have interviewed [S.] but chose not to. It was clear to the ju ry that there had been no interview; the danger was that they would conclude that the reason Dr. Scott had chosen not to interview her was either because he feared an interview would contradict his [Reactive Attachment Disorder] diagnosis or because he was less than competent. The instruction would have quickly and easily ended any such prejudicial speculation.” The notion that the jury speculated as to why Dr. Scott did not personally examine S. is itself speculation. As mentioned, the prosecutor wa s not allowed to bring up the fact that no such examination took place. More importantly, a trial court “may prope rly refuse an instru ction offered by the defendant if it incorrectly stat es the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supporte d by substantial evidence [citation].” ( People
v. Moon (2005) 37 Cal.4th 1, 30; see also People v. Earp (1999) 20 Cal.4th 826, 886 [a pinpoint instruction is properly rejected as argumentative if it invites the jury to draw an inference favorable to one of the parties from specified items of evidence].) Here, the proposed instruction misstates the law by st ating that “California law prohibits the participation of an alleged vic tim in the requested procedures in cases such as this one.” As we have explained, while California law does not allow the trial court to order a psychiatric examination for the purpose of assessing cred ibility (§ 1112), such an examination is allowed for the purpose of asse ssing competency to testify if the trial court determines, in its discretion, that the exam ination is warranted. However, even if the instruction was modified to more accurately state the law, it would still be argumentative.23 Had the prosecution requested an instruction pointing to the specific fact that Dr. Scott did not personally examine S., thereby inviting the jury to draw the inference that his testimony should be discredited, the inst ruction would be properly refused as argumentative. So too with re spect to the proposed defens e instruction pointing to the specific fact that Dr. Scott asked to exam ine S. but was prevented from doing so. Even if the proposed instruction should have been given, there is no conceivable prejudice. Assuming for the sake of argum ent that the jury discounted Dr. Scott’s testimony because he did not personally examin e S., being informed as to the reason for the lack of a personal examination would not have changed the fact that such an examination did not take place. In othe r words, while the proposed instruction undoubtedly sought to add cr edibility to Dr. Scott’s testim ony by informing the jury he tried to conduct a personal examination, th e reason the examinati on did not occur is irrelevant to the jury’s assessment of the believability of his opini on. CALCRIM No. 332 correctly instructed th e jury: “In evaluating the believab ility of an expert witness, . . . consider the expert’s knowledge, skill, experi ence, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion .” (Italics added.) Nowhere in this instruction is the jury directed to consider either the reason the expert was given facts or information relied upon in reaching his or her opinion, or the reason the expert was prevented from receiving facts or information that could have been useful in reaching such an op inion. Moreover, as mentioned, S.’s testimony was corroborated by defendant himself in the pretext phone call and in his subsequent conversation with Laurie. Based on th is corroboration, we conclude there is no reasonable probability the jury woul d have disbelieved S.’s testimony had they been informed Dr. Scott re quested to conduct a psychiatric evaluation of her, but was prevented from doing so. The trial court was not required to prov ide the requested instruction. Nor was defendant prejudiced by the abse nce of this instruction.24 III Defendant’s Statement to Police
Defendant contends the trial court violated his Miranda rights by (1) allowing testimony that he was given an opportunity to make a stat ement to police and had done so, and (2) requiring the jury to be informed, during closing argument, of the content of this statement. We conclude any error was harmless beyond a reasonable doubt.

A. Additional Background Following the pretext phone call, detec tives with the Place r County Sheriff’s Department drove to defendant’s work site. Detective Michael Davis made contact with defendant, introduced himself, and informed defendant he “h ad spoken with his daughter [S.]” and “wanted to talk to him.” Defendant responded: “Well, let’s go then.” Detective Davis then placed de fendant in handc uffs, informed him he was under arrest, and put him in the back of the police car. While in th e car, prior to being given Miranda warnings, defendant was asked multiple times whether he wanted to make a statement. Eventually, defendant responded: “[s]hut the fuck up.” Prior to trial, the People moved to admit this statement into evidence. Defendant opposed the motion, arguing the statemen t was elicited in violation of his Miranda rights and should be excluded. Ruling that the se cond statement, “[s]hut the fuck up,” was inadmissible, the trial court explained: “The transcript reflects that the officers asked several times do you want to give a statement, do you want to give a statement. They kept pressing him. All this was before the Miranda rights were given.” Detective Davis testified at trial and di d not mention the excl uded statement. On cross-examination, defense counsel asked: “Y ou didn’t take [defendant] to some safe place off the freeway to talk first?” Detec tive Davis answered: “Well, the immediate lane where we were was closed, so I tried talk ing to him. I don’t know if I can talk about that.” Prior to redirect, the prosecutor requ ested a bench conference and argued this line25 of questioning implied that Detective Davi s “bungled the investigation.” Defense counsel again objected to th e admission of any statements defendant made “after he was handcuffed because he was not advised of his rights.” After reviewing the transcript, the trial court stated: “The impression from those questions leaves me with the suggestion that when the police arrived, they simply cuffed him up, carted him off to jail without asking hi m any questions. That is the clear import of what has been asked here, and that would have to be the reasonable conclusion drawn by the jury.” Nevertheless, the trial court ma intained its position thatthe “[s]hut the fuck up” statement was inadmissible under Miranda . The court elaborated: “I also do feel, [defense counsel], you did open the area. The clear tenor of your cross-examination has been to the effect that the investigation wa s somewhat superficial, went directly from the pretext call right into action, no investigation or minimal investigatio n. And certainly the comments that were elicited that I stated verbatim on the record previo usly indicate to me that it telegraphs to the jury that basica lly the police swooped in, picked him up and moved him to the jail without giving him an o pportunity to explain. That is the clear tenor of it. That to me is inappropriate. [¶ ] I am not prepared to go to the point where the full statement however comes in. I am going to permit the district attorney to ask: Did you give him an opportunity to give a statement and did he give one. Yes.” In accordance with the trial court’s ruli ng, the prosecutor as ked Detective Davis whether he gave defendant an opportunity to make a statement. Detective Davis answered: “Yes.” Defense counsel then asked whether defendant in fact made a statement when given the opportunity. Detective Davis answered: “Yes.” During closing argument, defense counsel stated: “And we know from Detective Davis that when they talked, [defendant] made a statement to him. If that statement had been an admission or a confession in any way, shape or form about any of the allegations, you would have heard it. You would have heard it. You di dn’t because it wasn’t.” A short time later, during a brief recess, the prosecutor objected to defense counsel’s26 argument that defendant did not provide an admission or confession when he spoke to Detective Davis. The trial court concluded th is line of argument violated the “spirit” of its ruling that defendant’s statement to De tective Davis was excluded because of the Miranda violation and ordered the statement read to the ju ry when defense counsel resumed his closing argument. Defense coun sel expressed disagreement with the trial court’s ruling, but agreed to read the transcript to the jury. The jury was then in formed that defendant told Dete ctive Davis to “[s]hut the fuck up” when pressed for a statement.

B. Analysis Defendant first argues the trial court shou ld not have allowed Detective Davis to testify that defendant was gi ven an opportunity to make a statement and had done so, noting he “did not make a ‘statement’ in the commonly accepted understanding of the word,” i.e., “a confession” or “an ‘incriminating response .’ ” Accordingly, argues defendant, “the jury would, understandably, think that [he] had made a statement that incriminated him[self].” We disagree for two reasons. First, defendant’s argument ignores the fact it was his trial counsel who initiated this line of testimony concerning whether Detective Davis tried to talk to hi m. And after the prosecutor was allowed to elicit from Detective Davis th at he did give defendant an opportunity to make a statement, defense counsel was the one who followed up by asking whether defendant in fact gave a statement. Thus, defendant e licited the very testimony with which he now takes issue. (See People v. Steele (2002) 27 Cal.4th 1230, 12 47-1248.) Second, we do not accept defendant’s premise that the jury would necessarily have taken the word “statement” to mean “confession” or “incri minating response.” In common usage, the word “statement” means “something stated,” e.g ., “a single declaration or remark” or “a report of facts or opinions.” (Merriam-W ebster’s Collegiate Di ct. (11th ed. 2006) p. 1219, col. 1.) Moreover, even if the jury initially believed defendant gave an27 incriminating response, the jury was later informed what he really said was, “[s]hut the fuck up.” This statem ent in no way incriminated defendant. Second, defendant argues the jury should not have been informed of the content of the statement. As the trial court correctly concluded, the “[s]hut the fuck up” statement was elicited in violation of defendant’s Miranda rights. Defendant was formally arrested, handcuffed, and placed in the back of a police car. He wa s then asked a series of questions. There can be no question this was a custodial interrogation in which Miranda warnings were required and not provided. (See People v. Pilster (2006) 138 Cal.App.4th 1395, 1404 [ Miranda warnings are required where “the su spect is placed under restraints normally associated with a form al arrest,” such as being handcuffed, “becau se the suspect understands the detention is not likely to be ‘temporary and brie f’ and therefore is ‘completely at the mercy of the police’ ”].) Thus, the trial court properly kept defendant’s statement out of evidence during the trial. The question remains whether it was error to inform th e jury of the content of the stat ement during closing argument as a remedy for defense counsel’s statement that defendant made no admi ssion or confession to police. We need not d ecide the question because, a ssuming the trial court’s ruling violated defendant’s Miranda rights, the error was harmless beyond a reasonable doubt. Federal Miranda error “is subject to harmless e rror analysis in accordance with Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].” ( People v. Racklin (2011) 195 Cal.App.4th 872, 877.) We must be c onvinced the error was “harmless beyond a reasonable doubt.” ( Chapman , at p. 24 [17 L.Ed.2d at p. 711].) In light of S.’s testimony, corroborated in large part by st atements defendant made both during the pretext phone call and during his subsequent co nversation with Laurie, we conclude that the statement, “[s]hut the fuck up,” in no way contributed to th e verdict. Rather than an incriminating statement, the ju ry heard four words that ha d no bearing on the facts, the evidence, or the guilt orinnocence of the defendant. De fendant argues that because the28 jury was instructed with CALCRIM No. 357, 2 informing the jury on the use of adoptive admissions, “[a] juror could readily conclude that [defendant] would have denied what [S.] had told the police if it were not true a nd that his failure to do so was an adopted admission under the court’s instruction.” We disagree. Detective Davis made no statement for defendant to admit or deny. He simply stated he ha d spoken with S. and asked whether defendant wanted to make a st atement. Defendant responded: “Shut the fuck up.” No reasonable juror would have taken this statemen t to be an adoptive admission. Accordingly, any error wa s harmless beyond a re asonable doubt.

IV Retention of the Pretext Phone Call Transcript
Defendant further asserts the trial court prejudicially erred by allowing the jurors to retain, during the remainder of the trial, th eir copies of the transcript of the pretext phone call between S. and defendant. We ne ed not determine whether the trial court erred in this regard because we conclude there was no prejudice. We first note that the transcript of the pretext phone call was admitted into evidence without objection. Thus, defendant has forfeited any argument that the jury could not consider this transcri pt during their deliberations. ( People v. Houston (2012) 54 Cal.4th 1186, 1213.) Defendant did object to the fact th at the jury was allowed to

2 CALCRIM No. 357, as given to the jury in this case, provides: “If you conclude that someone made a statement outside of the court that accused the defendant of the crime or tended to connect the defendan t with the commission of the cr ime, and the defendant did not deny it, you must decide whether each of the following is true: First, the statement was made to the defendant or made in his presence. Second, the defendant heard and understood the statement. Third, the defend ant would under all circumstances naturally have denied the statement if he thought it wa s not true. And, fourth, the defendant could have denied it but did not . [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.”29 retain their copies of the transcript betw een the time the phone call was played and the time they began their deliberations. He argue s this procedure “ ‘unduly emphasize[d]’ ” the content of the phone call, citing People v. Stevenson (1978) 79 Cal.App.3d 976, a case in which the Court of Appeal found it to have b een error for the tria l court to provide the jury with transcripts of the preliminary hearing tes timony of two dead prosecution witnesses while this testimony was read into evidence. ( Id . at p. 990.) The court explained: “An analogy can be drawn to the reason for the procedural rule as to past recollection recorded evidence in Evidence Code section 1 237, subdivision (b): ‘The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.’ . . . [T]he reason for the rule ‘is to prevent giving past recollection recorded evidence greater stature than the oral testimony of a witness.’ ” ( Stevenson, at p. 990.) However, because the cour t reversed the defendant’s convictions for other reasons (i.e., the prej udicial failure to instruct the jury on every material question presented by the evidence), it did no t decide whether the additional error of providing the jury with th e transcripts of the preliminary hearing testimony was prejudicial. Here, even assuming the trial court erred by allowing the jury to retain their copies of the pretext phone call transcri pt throughout the trial, the error was harmless. There is no assertion that the purported error violat ed any of defendant’s federal constitutional rights. Accordingly, the standard fo r reversal is that articulated in People v. Watson (1956) 46 Cal.2d 818, 836. Under this standard, “[r]eversal is required if it is reasonably probable a result more favorable to [defendant] would ha ve been reached” had the jury not been allowed to retain th e transcripts between the time the phone call was played and the time they began their deliberations. ( People v. Moten (1991) 229 Cal.App.3d 1318, 1327.) For the reasons pr eviously stated, there wa s no such probability.30 V Cumulative Prejudice
We have found no error. Nor have we found prejudice where error has been assumed. Indeed, assuming there was a Miranda violation, we conclude the error was harmless beyond a reasonable doubt. Nor w ould we find “any cumulative deficiency arose from a combination of particular errors requiring reversal.” ( People v. Salcido (2008) 44 Cal.4th 93, 156.) Accordingly, defendant’s asse rtion of cumulative prejudice fails.



### D ISPOSITION The judgment is affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P. J.

MAURO , J.