Filed 6/20/13 P. v. Ramos CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSE R. RAMOS, 

 Defendant and Appellant. 

 B240682 

 (Los Angeles County 

 Super. Ct. No. BA372152) 

 APPEAL from a judgment of the Superior Court for Los Angeles County, 

Frederick N. Wapner, Judge. Affirmed. 

 Richard A. Levy, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. 

Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

 Defendant Jose R. Ramos appeals from a judgment sentencing him to 24 

years in prison after a jury found him guilty of nine counts of lewd act upon a child 

under the age of 14. (Pen. Code,1

 § 288, subd. (a).) He contends the trial court 

(1) gave an erroneous instruction to the jury on evaluating witness demeanor; 

(2) erred by allowing evidence regarding the victim’s disclosure of the abuse; 

(3) erred by failing to instruct on attempted lewd conduct and on battery as lesser 

included offenses; and (4) abused its discretion by denying defendant’s motion for 

a new trial. He also contends that (1) his trial counsel was ineffective in failing to 

request a limiting instruction for the testimony regarding the victim’s disclosure of 

the abuse; (2) the prosecutor committed misconduct by injecting a purported fact 

outside the record during closing argument and by asking inflammatory and 

irrelevant questions during defendant’s cross-examination; and (3) there was 

insufficient evidence to support the conviction on one of the counts. We affirm the 

judgment. 

BACKGROUND 

 Tanya G. was born in November 1993. When she was five or six years old, 

she, her mother, and her sister Kathy began living with defendant, her stepfather. 

 Shortly thereafter, defendant began to come into Tanya’s bedroom early in 

the morning when everyone else was asleep. He would pick her up and take her 

into the living room, where he would put his hands under her pajamas and 

underwear, put his fingers in her vagina, and move them up and down. After a 

while, he would pick her back up and put her in her bed. He did this several times 

a week (although he sometimes skipped a week) for about a year. 

 

1

 Further undesignated references are to the Penal Code. 
3

 Sometime later, defendant began to digitally penetrate Tanya when they 

were alone in the car. In one specific instance when Tanya was in fourth grade, 

defendant told Tanya to come with him to Home Depot. Before she got into the 

car, Tanya put on a pair of jeans that were hard to get into, to try to prevent 

defendant from touching her. When they were stopped at a traffic light, defendant 

tried to put his hand down her pants, but Tanya crossed her legs to make it harder. 

She saw a bicyclist approaching the car, and told defendant that she was going to 

yell at the cyclist if he kept trying. Defendant laughed, and used both hands to get 

into her pants and underwear, and put his fingers in her vagina. Defendant did this 

on at least five to ten occasions, both before and after the Home Depot incident; he 

stopped before Tanya became a teenager. 

 When Tanya was nine or ten, defendant began to have sexual intercourse 

with her. The first time, defendant took Tanya into her room when no one else was 

home. He put her on the floor, pulled down her pants and underwear, and had 

sexual intercourse. When he got up, he tried to hide his penis. When he realized 

Tanya saw it, he said “Ay caray,” and laughed. He pulled up his pants, pulled up 

Tanya’s underwear and pants, and walked out of the room. Later, he called her 

over to the tool shed in the back of the house. He told her that it should not have 

happened and that they should pray about it. 

 Another time, Tanya was passing by defendant’s bedroom while defendant 

was coming out or going in. Defendant told her that he would give her a set of nail 

polishes if she would go into the room with him. She just stood there, but 

defendant pulled her in. He put her on the end of his bed and took off her pants 

and underwear, then pulled down his pants and underwear and had sexual 

intercourse. When it was over, he put her pants and underwear back on and she 

walked out while he sat down against the wall. 
4

 The next incident occurred when Tanya’s younger brother was in the house; 

he was three to five years old.2

 Defendant was standing outside his room and told 

Tanya to come into the room. When she hesitated, he said it would only be for two 

seconds. She told him she would scream if was more than two seconds. They 

went into the room, and defendant locked the door. He put her on the edge of the 

bed, took off her pants and underwear, and had sexual intercourse. Then he lifted 

her shirt and put his mouth on her breasts, and then on her vagina. 

 During this last incident, and many other times beginning when Tanya was 

eight or nine, defendant kissed Tanya on the mouth and forced his tongue into her 

mouth. If he caught her wiping her mouth afterward, he would do it again and 

again until she stopped wiping her mouth. 

 In another incident of sexual intercourse that occurred when Tanya was 10 

or 11, Tanya was alone in the house with defendant at night. She went into her 

bedroom to go to sleep while defendant was watching television. Defendant asked 

her if she was cold. She did not respond, and pretended to be asleep. Defendant 

went upstairs to her bedroom, lay down on the bed next to her, and began to rub 

her vagina, breasts, and stomach. He then took off all of her clothes and his 

clothes, put her on top of him with his penis inside her, and moved her body 

against him while kissing and touching her everywhere. When he was finished, he 

put her clothes back on and went downstairs. 

 Defendant had sexual intercourse with Tanya two or three more times before 

Tanya and her sister Kathy went to live with their father in Indio in 2007, when 

Tanya was in eighth grade. She lived with her father for two years, during eighth 

and ninth grades, and visited her mother and half-siblings during the summers. 

 

2

 Defendant and Tanya’s mother had three children: a boy (J.R.) and two girls (E.R. 

and M.R.). 
5

During one of those summers, defendant tried to hug Tanya by picking her up and 

dragging her body down his body; it made her feel uncomfortable because she “felt 

like it was going to lead to something more because I knew it wasn’t just a hug.” 

 At some point after she had moved back in with her mother and defendant, 

Tanya overheard her younger sisters arguing about who was going to ask 

defendant to get them some doughnuts. After some back and forth, she heard E.R. 

say to M.R. that she was not going to ask “because [then] he’s going to touch me.” 

Until this time, Tanya had not told anyone about defendant’s conduct with her 

because she did not want it to ruin her family, but hearing E.R.’s comment was a 

“turning point” for her, because she did not want anyone to go through what she 

had gone through. 

 In the spring of 2010, Tanya was participating in a program with a church 

youth group, during which she revealed that she had secret and asked the group to 

pray for her. The following Friday, Lamar Bass, a member of the group who was 

training to be a leader/mentor, saw Tanya in the prayer room, crying. Bass sat 

down with her, trying to calm her. Tanya revealed to him that she had been 

sexually molested by her stepfather, and she thought he was doing the same thing 

to her little sister. He told her she should tell her mother, but she refused; she was 

worried that it would break up her family. He asked her to talk to two youth 

leaders, Helen Carrillo and Tiffany Mariani, and Tanya promised that she would. 

 Tanya did not talk to either leader that day, but sometime shortly thereafter 

Carrillo, who was one of Tanya’s “accountability partners,” met with Tanya for 

one of their regular accountability meetings. During the meeting, Tanya kept 

alluding to her secret and was very emotional, on the verge of tears. Tanya would 

not say what the secret was, so Carrillo started asking her questions. When she 

asked Tanya if she was in danger, Tanya said that danger was not the word she 

would use. Carrillo then asked Tanya a series of yes-or-no questions: whether 
6

someone was hurting her, whether it was physical, whether she was being 

physically abused at home, and whether it was her stepfather. Tanya answered yes 

to all of the questions. 

 Tanya also spoke to Mariani at around the same time. Mariani approached 

Tanya one night when she was crying at the end of a service. Mariani asked Tanya 

what was going on. Although Tanya did not say anything, Mariani seemed to 

know, and asked if she was being sexually molested, and whether it had progressed 

to rape. Tanya answered Mariani’s questions. Mariani told her they needed to do 

something, and she made a plan to accompany Tanya on a certain date to tell 

Tanya’s mother about the molestation. 

 Before that date, however, Tanya’s sister Kathy overheard Tanya talking to a 

friend who had gone through a similar situation. Kathy heard Tanya tell her friend 

that her stepfather had been touching her and she needed to tell someone. The next 

day, Kathy told a teacher at school that her stepfather was touching one of her 

siblings.3

 The teacher took her to the principal’s office, and the police were called. 

 Following an investigation by the police, defendant was charged by 

information with 11 counts of lewd act upon a child (§ 288, subd. (a)); nine 

counts related to Tanya,4

 and two counts related to two incidents involving 

 

3

 Sometime that Spring, Kathy had overheard a conversation between J.R., E.R., 

and M.R. in which M.R. told J.R. that defendant had been touching E.R. She also had 

observed defendant give E.R. and M.R. extended kisses on their mouths against their 

wishes, and saw him go into the bathroom when E.R. or M.R. were taking showers or 

baths, even though the children were old enough to bathe themselves. Kathy did not do 

anything about her observations or what she heard because she did not know what to do. 

4

 All of the counts were identical except for the date ranges during which the 

offenses occurred. Those date ranges are as follows. For counts 1 and 2, November 16, 

1999 through November 15, 2001. For counts 3 and 4, November 16, 2001 through 

November 15, 2003. For counts 5, 6, 7, and 8, November 16, 2002 through November 

15, 2006. For count 9, November 16, 2002 through November 15, 2007. 
7

E.R.5 The information included special allegations under section 1203.066, 

subdivision (a)(8), that defendant had substantial sexual contact with a victim 

(Tanya) who was under the age of 14, and that defendant had committed an offense 

specified in section 667.61, subdivision (c), against more than one victim within 

the meaning of sections 667.61, subdivision (b), and 1203.066, subdivision (a)(7). 

 At trial, defendant testified that he never engaged in any inappropriate 

touching or sexual relations with Tanya. He said that Tanya was jealous of the 

time he spent with the younger children and resented having to do chores around 

the house. He also testified that he and Tanya had issues about the way she 

dressed – he thought she dressed too provocatively – and that Tanya told him she 

wanted her mother to divorce him.6

 

 In addition to his own testimony, defendant presented testimony from a 

forensic psychologist, Ronald R. Fairbanks, who administered several tests to 

defendant and offered his opinion that defendant is more unlike a child molester 

than like a child molester. Finally, defendant presented testimony from several 

people who knew him and attested to his good character. 

 In closing argument, the prosecutor provided suggestions as to which 

incidents that Tanya described could be used by the jury to convict defendant as to 

each count. She suggested the jury rely on the first incident Tanya described, 

where defendant picked her up, carried her into the living room, and put his fingers 

into her vagina, to convict defendant on count 1. She noted that Tanya testified 

that defendant had done this three to five times per week, and told the jury it could 

 

5

 The jury could not reach a verdict on the two counts related to E.R., and they were 

dismissed. Therefore, we need not discuss the evidence related to those counts. 

6

 Defendant also denied that he ever took Tanya (or any of his children) to Home 

Depot, saying that Home Depot was too dangerous for children. 
8

use one of those times to convict defendant on count 2. She pointed to the Home 

Depot incident for count 3, and noted the jury could convict on count 4 based upon 

Tanya’s testimony that there were at least five similar incidents in the car. For 

counts 5, 6, and 7, the prosecutor referred to the first three instances of sexual 

intercourse Tanya described. For counts 8 and 9, she explained that the jury could 

rely upon Tanya’s testimony that, during at least one instance of sexual 

intercourse, defendant also kissed her breast and vagina. She also said that count 9 

could be based upon the last incident of sexual intercourse that Tanya described 

(when Tanya pretended to be asleep). The prosecutor told the jury that it did not 

have to choose the acts that she suggested for each count, noting that Tanya had 

testified to multiple acts of kissing, oral copulation, and sexual intercourse, any of 

which the jury could choose for any of the counts as long as all of the jurors agreed 

on acts.7

 Almost as an afterthought, the prosecutor suggested that the jury could 

base a conviction for one of the counts on the sexual hug that occurred when Tanya 

was living with her father and visited during the summer. 

 The jury found defendant guilty on all nine counts related to Tanya, but 

could not reach a unanimous verdict as to the counts related to E.R. The jury also 

found not true the special allegation that defendant committed an offense against 

more than one victim. Defendant moved for a new trial. The trial court denied the 

motion and sentenced defendant to the high term of eight years on count 1, and two 

consecutive years on each of the remaining eight counts, for a total of 24 years. 

Defendant timely filed a notice of appeal from the judgment. 

 

7

 The prosecutor gave as an example, that the jury could use Tanya’s testimony 

about defendant kissing her for counts 2 and 4. 
9

DISCUSSION 

A. Instruction on Credibility of Witnesses 

 After the jury was selected, the court addressed the jurors about the role of 

the jury in the trial, which it had alluded to during jury selection. The court 

reminded the jurors that it had said jurors acted as impartial judges of the facts, and 

told them that they would do this by determining the credibility of the witnesses. 

 The court explained that as jurors, they would “judge the facts by figuring 

out which witnesses you believe, and which witnesses you don’t and how much 

weight or significance to attach to the testimony of each witness, and that you 

don’t have to believe all the witnesses the same; but that you have to use the same 

rules for each witness.” The court noted that the rules would be in a jury 

instruction it would read to them at the end of the case, but said it was “going to 

talk to you about them now and give you some examples so that as you listen to the 

witnesses testify, you’ll have some idea of the kinds of things that you ought to be 

looking for.” 

 The court continued: “It’s not magic. It’s common sense. You do it every 

day, you just don’t think about it. So when you talk to somebody, and they’re very 

serious about what they’re saying, that’s how you take it. And if they’re very flip 

about what they’re saying, that’s how you take it. And it’s the same with witnesses 

in this case. [¶] When you talk to someone, and the longer you talk, the more 

nervous they get. And they won’t stand still; and they won’t look [you in] the eye; 

and pretty soon there’s sweat pouring off them. Now you understand that this is a 

gross exaggeration, but you get the idea. And if they stand still; they look you 

straight in the eye; and they say something with a firm clear voice, that gives you a 

very different idea of whether they’re telling the truth or not. And it’s the same 

with witnesses in this case. [¶] Assume they do look you in the eye. And you 

look right back at them. You don’t say anything, but you think to yourself, that’s 
10

not true. I wasn’t born yesterday. And you’re gonna doubt that statement and 

everything else they say. And it’s the same with witnesses in this case.” 

 Defendant contends on appeal that the court committed error by instructing 

the jury in this manner. He argues that the instruction “improperly singled out 

specific aspects as factors that the jurors should find significant, thereby implying 

that other factors were less significant,” contrary to the holdings of People v. Dail

(1943) 22 Cal.2d 642, Carlston v. Shenson (1941) 47 Cal.App.2d 52, and Fries v. 

American Lead Pencil Co. (1904) 141 Cal. 610. He argues that the more 

significant error, however, is that the court “made clear” that nervousness, 

fidgeting, and gaze aversion showed deceit, while the absence of those traits 

showed truthfulness. 

 We disagree with defendant’s characterization of the court’s comments. The 

court did not “single out” factors that the jury should find significant. The court 

simply instructed the jurors to evaluate the witnesses’ demeanor in the same 

manner they evaluate other people’s demeanor in their everyday lives. And 

contrary to defendant’s assertion, the court did not “make clear” that nervousness, 

fidgeting, and gaze aversion showed deceit, while the absence of those traits 

showed truthfulness. Indeed, in a portion of the court’s discussion that defendant 

omitted from his appellant’s opening brief, the court used as an example of how a 

juror should assess a witness’ credibility just as he or she would assess a person’s 

demeanor generally, a situation in which the juror does not believe a person even 

though that person looks the juror directly in the eye. 

 In any event, the court properly instructed the jury with CALCRIM No. 226 

before deliberations began, specifically noting that this instruction was the one it 

had referred to earlier. While the court was reading the instructions to the jury, it 

paused when it reached CALCRIM No. 226 and said: “Before we started the 

testimony, after we got the jury picked, I talked to you about the factors you could 
11

consider in evaluating a witness’ credibility, and I gave you some examples; and I 

said that when the case was over, I would read you a jury instruction that had those 

factors in this. So this is the instruction I was talking about.” The court proceeded 

to read the pattern instruction. That instruction correctly tells the jurors, as the trial 

court did earlier, to use their common sense and experience in deciding whether a 

witness’ testimony is true and accurate, and provides some factors the jurors may 

consider, including the witness’ behavior while testifying. We find no error in the 

trial court’s pretrial instructions. 

B. Admissibility of Evidence of Tanya’s Disclosure of Abuse 

 Defendant contends the trial court committed prejudicial error by admitting 

the testimony of Bass and Carrillo, from the church youth group, regarding 

Tanya’s disclosure of defendant’s abuse. He argues that this testimony did not 

have any “specific relevance” to a contested issue, since those disclosures did not 

trigger the police investigation, and therefore the testimony was inadmissible 

hearsay. We disagree. 

 In People v. Brown (1994) 8 Cal.4th 746 (Brown), the Supreme Court 

examined the history of the “fresh-complaint doctrine,” which allowed the 

admission of evidence that a victim of a sexual offense had made a complaint of 

the injury. Under the doctrine, the evidence was admitted “only for a nonhearsay 

purpose, i.e., not to prove the truth of the content of the victim’s statement but, 

rather, simply to show that a prompt complaint was made.” (Id. at p. 755.) The 

justification for admission of the evidence was that “‘[i]t is natural to expect that 

the victim of a crime would complain of it, and the prosecution can show the fact 

of complaint to forestall the assumption that none was made and that therefore the 

offense did not occur.’” (Id. at p. 756.) Although the Court found that this 

justification has been discredited, it nevertheless concluded that “so long as the 
12

evidence in question is admitted for the nonhearsay purpose of establishing the 

circumstances under which the victim reported the offense to others, such evidence 

ordinarily would be relevant under generally applicable rules of evidence, and 

therefore admissible, so long as its probative value outweighs its prejudicial effect. 

(Evid. Code, § 352.)” (Id. at pp. 759-760.) The Court noted, however, that “[t]he 

specific relevance of the extrajudicial-complaint evidence . . . must be shown in 

every case.” (Id. at p. 763.) 

 In this case, defendant argues that Tanya’s disclosures to Bass and Carrillo 

were not relevant because they “had nothing to do with the chain of events, such as 

how the police got involved.” Defendant takes too narrow a view of relevance. 

This case came down to Tanya’s credibility. There was no physical evidence of 

sexual abuse, no witnesses to the abuse, and defendant denied ever touching Tanya 

inappropriately. In addition, the alleged abuse had gone on for many years, and 

there was a significant delay between the last instance of abuse and the first time 

Tanya ever told anyone about it. As the Supreme Court explained in Brown, 

“when the victim of an alleged sexual offense did not make a prompt complaint but 

instead disclosed the alleged incident only some time later, evidence of the fact and 

circumstances surrounding the delayed complaint . . . may be relevant to the jury’s 

evaluation of the likelihood that the offense did or did not occur. In the absence of 

evidence of the circumstances under which the victim ultimately reported the 

commission of an alleged offense, the jury in many instances may be left with an 

incomplete or inaccurate view of all the pertinent facts.” (Brown, supra, 8 Cal.4th 

at p. 761.) 

 Here, Bass’ and Carrillo’s description of the circumstances surrounding 

Tanya’s disclosures to them -- how distraught she was, her reticence in telling 

them (or her mother) about the abuse, and her expression of concern about what 

would happen to her family as a result of her disclosure -- were relevant not only to 
13

explain the reasons for her delay in disclosing the abuse, but also to the jury’s 

evaluation of the credibility of both her testimony and defendant’s testimony 

suggesting that Tanya made up the accusations because she was angry or jealous. 

Moreover, Bass’ and Carrillo’s testimony did not include any details about the 

alleged abuse itself; it was limited to Tanya’s emotional state and the fact that she 

had disclosed to them that her stepfather had sexually abused her. Thus, it 

complied with the Supreme Court’s directive that, “in light of the narrow purpose 

of its admission, evidence of the victim’s report or disclosure of the alleged offense 

should be limited to the fact of the making of the complaint and other 

circumstances material to this limited purpose.” (Brown, supra, 8 Cal.4th at p. 

763.) 

 Defendant’s assertion that the testimony was inadmissible precisely because 

it focused in large part on Tanya’s demeanor simply is wrong. The testimony 

about Tanya’s demeanor was not hearsay. It was testimony about the witnesses’ 

observations rather than about Tanya’s out-of-court statements. That Tanya’s 

distraught state and hesitancy to tell Bass or Carrillo about the abuse may tend to 

enhance Tanya’s credibility as to the truth of her accusations against defendant 

does not render the testimony about the fact of her disclosure and her demeanor 

inadmissible. 

 Nor does the fact that the testimony focused on Tanya’s emotional state 

render it inadmissible under Evidence Code section 352 as more prejudicial than 

probative, as defendant contends. “‘Evidence is substantially more prejudicial than 

probative . . . [only] if, broadly stated, it poses an intolerable “risk to the fairness of 

the proceedings or the reliability of the outcome” [citation].’ [Citation.] ‘“The 

prejudice which . . . Evidence Code 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 
14

etymological sense of ‘prejudging’ a person or cause on the basis of extraneous 

factors.”’ [Citations.]” (People v. Eubanks (2011) 53 Cal.4th 110, 144.) “‘The 

admission of relevant evidence will not offend due process unless the evidence is 

so prejudicial as to render the defendant’s trial fundamentally unfair.’” (People v. 

Jablonski (2006) 37 Cal.4th 774, 805.) Here, the evidence of the circumstances of 

Tanya’s disclosures to Bass and Carrillo was relevant to explain the reasons for her 

delay in reporting the abuse, and her emotional state in particular was highly 

probative because it tended to contradict defendant’s suggestion that Tanya made 

up the accusations against him because she resented having to do chores or was 

jealous of the time he spent with her younger siblings. The fact that this evidence 

might have had a powerful impact on the jury (or the trial court) in assessing 

Tanya’s and defendant’s credibility does not mean it was prejudicial within the 

meaning of Evidence Code section 352. In short, the trial court did not abuse its 

discretion in admitting Bass’ and Carrillo’s testimony. (People v. Jablonski, supra, 

37 Cal.4th at p. 805 [trial court’s ruling on admissibility of evidence is reviewed 

for abuse of discretion].) 

C. Ineffective Assistance of Counsel 

 When evidence of a victim’s extrajudicial complaint has been admitted, 

counsel may request that the trial court instruct the jury as to the limited purpose 

for which the hearsay evidence was admitted. Absent such a request, the court is 

not required to give the instruction. (Brown, supra, 8 Cal.4th at p. 757.) In the 

instant case, defense counsel did not request a limiting instruction. On appeal, 

defendant contends his counsel provided ineffective assistance by failing to request 

the instruction. 

 “There are two components to an ineffective assistance of counsel claim: 

deficient performance of counsel and prejudice to the [defendant]. Strickland v. 
15

Washington (1984) 466 U.S. 668, 697, informs us that ‘there is no reason for a 

court deciding an ineffective assistance claim to approach the inquiry in the same 

order or even to address both components of the inquiry if the defendant makes an 

insufficient showing on one. In particular, a court need not determine whether 

counsel’s performance was deficient before examining the prejudice suffered by 

the defendant as a result of the alleged deficiencies. The object of an 

ineffectiveness claim is not to grade counsel’s performance. If it is easier to 

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

which we expect will often be so, that course should be followed.’” (In re Cox

(2003) 30 Cal.4th 974, 1019-1020.) We conclude that defendant has not 

established he was prejudiced by his counsel’s failure to request a limiting 

instruction. 

 Defendant argues his counsel’s failure to request the limiting instruction was 

prejudicial for the same reason he contends Bass’ and Carrillo’s testimony should 

have been excluded in the first place: because the evidence of Tanya’s demeanor 

when she disclosed the abuse to Bass and Carrillo tended to enhance her 

credibility. But this argument ignores that the hearsay for which a limiting 

instruction may have been appropriate was Tanya’s statements to Bass and Carrillo 

that defendant had sexually abused her. Given that Tanya testified in detail about 

defendant’s sexual abuse of her, it is not reasonably probable that a different result 

would have been reached had the jury been instructed that it could not consider 

Tanya’s statements to Bass and Carrillo for their truth. (People v. Manning (2008) 

165 Cal.App.4th 870, 880-881 [failure to give limiting instruction is harmless error 

where victim testified at trial].) Therefore, defendant was not prejudiced by his 

trial counsel’s failure to request a limiting instruction. 
16

D. Prosecutorial Misconduct 

 Defendant contends the prosecutor committed prejudicial misconduct by 

“inject[ing] a purported fact that [was] not in evidence” during closing argument 

and asking inflammatory and irrelevant questions during defendant’s crossexamination. We disagree with defendant’s characterization of the prosecutor’s 

comment during closing argument, and find that the prosecutor’s questions do not 

rise to the level of misconduct. 

 During closing argument, the prosecutor told the jury that the opinion 

offered by defendant’s expert witness, forensic psychologist Ronald R. Fairbanks, 

that defendant is more unlike a child molester than like a child molester was 

“meaningless.” The prosecutor continued: “Did you notice that he didn’t actually 

tell you what the profile of a child molester is? Well, what is it? If he isn’t, if he 

doesn’t fit the profile, what is the profile? What is it? [¶] And ladies and 

gentlemen, the bottom line is that there isn’t one. Because they come from all 

walks of life. They’re married; they’re single; they’re different occupations. I 

mean, all you have to do is turn on the news: Teachers. Read the paper: 

neighbors, priests, all walks of life, ladies and gentlemen. [¶] When you watch the 

news . . . and there’s some story about so and so has been arrested or convicted or 

whatever for being a child molester, who of the people interviewed said, I knew it? 

Everyone. Neighbors, the friends: I had no idea. Oh, my god. He seemed like -- 

he or she seemed like such a nice person. It’s totally unbelievable. We trusted him 

or her. [¶] That’s because, ladies and gentlemen, there isn’t a profile. Because 

child molesters, they have to pretend to be a certain person.” 

 On appeal, defendant contends this statement was improper because the 

prosecutor did not present any expert testimony or other evidence that there is no 

such thing as a profile of a child molester, and therefore the prosecutor improperly 

referred to facts outside the record. (See, e.g., People v. Cunningham (2001) 25 
17

Cal.4th 926, 1026 [“A prosecutor commits misconduct by referring in argument to 

matters outside the record”].) Read in context, however, what the prosecutor 

appears to be saying is that there is no one “profile” into which all child molesters 

will fit -- a fact that the prosecutor elicited in her cross-examination of Dr. 

Fairbanks, who conceded that some child molesters may not fit the typical profile. 

There was no misconduct here. (People v. Sanders (1995) 11 Cal.4th 475, 526 

[“We review prosecutorial remarks to determine whether there is a ‘reasonable 

likelihood’ that the jury misconstrued or misapplied the prosecutor’s remarks”].) 

 With regard to the prosecutor’s cross-examination of defendant, defendant 

points to a handful of questions asked by the prosecutor that he argues had no 

purpose other than to inflame the jury. While we agree that one of the questions 

was entirely inappropriate -- the prosecutor’s final question to defendant: “Did 

you think about Tanya while you were having sex with your wife?” -- the 

remaining few questions about which defendant complains were not so 

objectionable as to give rise to a claim of prosecutorial misconduct. 

 “‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution 

when it comprises a pattern of conduct ‘so egregious that it infects the trial with 

such unfairness as to make the conviction a denial of due process.’”’ [Citations.] 

Conduct by a prosecutor that does not render a criminal trial fundamentally unfair 

is prosecutorial misconduct under state law only if it involves ‘“‘the use of 

deceptive or reprehensible methods to attempt to persuade either the court or the 

jury.’”’” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) 

 In this case, the questions at issue involved (1) the prosecutor challenging 

defendant’s version of events by asking whether other witnesses had lied or were 

mistaken in their testimony; (2) a series of three questions in response to 

defendant’s testimony that he never took his children to Home Depot because it 

was a dangerous place, in which the prosecutor asked variations of the question, 
18

“Would you consider the home in which Tanya was sexually abused by you a 

dangerous place?”; and (3) a question about whether defendant reprimanded Tanya 

for dressing too provocatively because he wanted Tanya’s body just for himself. 

These few questions, while in many instances objectionable8

 (and to which 

objections properly were sustained), neither violated due process nor were 

reprehensible. In short, defendant has not made out a case of prosecutorial 

misconduct. 

E. Sufficiency of the Evidence on Count 9 

 When suggesting to the jury which incidents it could rely upon to convict 

defendant on count 9, the prosecutor offered several possibilities, including one 

incident for which defendant contends there was insufficient evidence. Therefore, 

he contends the conviction must be reversed. Although we agree there was 

insufficient evidence that the incident at issue -- the so-called hugging incident, in 

which defendant picked Tanya up and dragged her down his body -- took place 

when Tanya was under the age of 14,9

 we disagree that the conviction must be 

reversed. 

 

8

 Questions asking whether other witnesses were lying are not categorically 

objectionable, particularly when the defendant being asked the questions knows the 

witnesses well and might know of reasons why the witnesses may lie. (People v. 

Chatman (2006) 38 Cal.4th 344, 382.) 

9

 Tanya testified that the incident occurred when she returned to visit her mother in 

the summer when Tanya was living in Indio with her father. She testified that she lived 

with her father for two years while she was in eighth and ninth grades, in 2007 through 

2009. She was born in November 1993, and was about to graduate from 12th grade when 

she testified in March 2012. Thus, she was 13 years old when she started eighth grade in 

the fall of 2007. But because her birthday is in November, she was 14 years old by the 

summer after eighth grade. Although, as the Attorney General notes, Tanya testified that 

she was “12 or 13” when she visited the summer the incident occurred, that testimony 

cannot constitute substantial evidence that she was under 14 years old because it is a 
19

 Count 9 charged defendant with committing a lewd act upon Tanya “[o]n or 

between November 16, 2002 and November 15, 2007.” Tanya testified to many 

incidents of abuse during that time period. She testified that defendant began 

having sexual intercourse with her when she was nine or ten years old, described 

four specific incidents – stating that in one of those incidents, after defendant had 

sexual intercourse with her he orally copulated her and put his mouth on her 

breasts -- and said there were two or three additional incidents of sexual 

intercourse, the last one of which occurred when she was 10 or 11 years old. She 

also testified that defendant started kissing her and forcing his tongue into her 

mouth when she was eight or nine, and that he did that “often.” During closing 

argument, the prosecutor suggested that count 9 could be based upon defendant’s 

kissing of Tanya’s breast or vagina, the last incident of sexual intercourse Tanya 

described (when she pretended to be asleep), or the hugging incident, but also 

reminded the jury that Tanya had testified that there were two or three incidents of 

sexual intercourse or other lewd touching that she did not specifically discuss, any 

of which the jury could use to convict defendant. 

 A verdict based upon any of those incidents, other than the hugging incident, 

would be a factually sufficient ground for conviction. (See People v. Jones (1990) 

51 Cal.3d 294, 314 [“even generic testimony (e.g., an act of intercourse ‘once a 

month for three years’) outlines a series of specific, albeit undifferentiated, 

incidents, each of which amounts to a separate offense, and each of which could 

support a separate criminal sanction”]; People v. Matute (2002) 103 Cal.App.4th 

1437, 1445-1446.) “‘Where the jury considers both a factually sufficient and a 

factually insufficient ground for conviction, and it cannot be determined on which 

ground the jury relied, we affirm the conviction unless there is an affirmative 

 

mathematical impossibility. (Cf. Bennett v. Chandler (1942) 52 Cal.App.2d 255, 261-

262.) 
20

indication that the jury relied on the invalid ground.’” (People v. Thompson (2010) 

49 Cal.4th 79, 119.) The reason for this is that “[a]n appellate court necessarily 

operates on the assumption that the jury has acted reasonably, unless the record 

indicates otherwise. [¶] . . . Thus, if there are two possible grounds for the jury’s 

verdict, one unreasonable and the other reasonable, we will assume, absent a 

contrary indication in the record, that the jury based its verdict on the reasonable 

ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1127.) 

 Defendant argues that in the present case, the record provides an affirmative 

indication that the jury relied on the hugging incident, based on three factors: 

(1) the prosecutor argued that the jury could rely on the hugging incident; (2) the 

date range for count 9 (November 2002 to November 2007) ran one year longer 

than the date range for counts 5 through 8 (November 2002 to November 2006), 

and there was no reason for the additional year except to point the jury to the last 

incident, i.e., the hugging incident; and (3) the jury must have relied upon the 

specific incidents Tanya described rather than the generic ones because it was 

unable to reach a verdict until Tanya’s and defendant’s testimony was read back to 

it. 

 None of those factors, however, either alone or collectively, provides an 

affirmative indication that the jury relied upon the hugging incident in finding 

defendant guilty on count 9. Indeed, they constitute conjecture at best. Because 

we presume the jury acted reasonably, and relied upon a factually sufficient ground 

for its verdict on count 9, we must affirm the conviction. 

F. Instruction on Lesser Included Offenses 

 Defendant contends the trial court erred as to certain counts by failing to 

instruct the jury on attempted lewd conduct and battery as lesser included offenses 

to lewd conduct. He notes that the prosecutor suggested to the jury that it could 
21

convict defendant on counts 2 and 4 based upon Tanya’s testimony that defendant 

kissed her on several occasions, and that it could rely on the last incident that 

Tanya described -- when defendant hugged her by picking her up and dragging her 

body down his -- to convict him on count 9. He argues that the jury may have 

relied upon those incidents, and contends that the evidence regarding those 

instances could have constituted battery or attempted lewd conduct rather than the 

completed crime of lewd conduct. We need not address his argument as it relates 

to count 9 in light of our conclusion that the jury could not have relied upon the 

hugging incident in convicting him. And as to counts 2 and 4, defendant’s 

argument is not persuasive. 

 “A trial court must instruct the jury sua sponte on an uncharged offense that 

is lesser than, and included in, a greater offense with which the defendant is 

charged ‘only if [citation] “there is evidence”’ [citation], specifically, ‘substantial

evidence’ [citation] ‘“which, if accepted . . . , would absolve [the] defendant from 

guilt of the greater offence” [citation] but not the lesser’ [citation].” (People v. 

Waidla (2000) 22 Cal.4th 690, 733; see also People v. Breverman (1998) 19 

Cal.4th 142, 162 [trial court must instruct on lesser included offenses only if there 

is substantial evidence “‘“from which a jury composed of reasonable [persons] 

could . . . conclude[]”’ that the lesser offense, but not the greater, was 

committed”].) 

 We need not determine whether battery is a lesser included offense of lewd 

conduct -- a question about which appellate courts have disagreed (see, e.g., 

People v. Thomas (2007) 146 Cal.App.4th 1278, 1293-1294 [battery is a lesser 

included offense of lewd conduct]; People v. Santos (1990) 222 Cal.App.3d 723, 

738-739 [battery is not a lesser included offense]) and which is currently before the 

California Supreme Court (see People v. Gray, review granted December 14, 2011, 

S197749; People v. Shockley, review granted March 16, 2011, S189462) -- or 
22

whether defendant is correct that an attempted, rather than completed, violation of 

section 288 occurs when the perpetrator touches the victim with the intent to 

receive sexual gratification in the near future rather than immediately. Even if we 

assume that battery is a lesser included offense and that defendant is correct about 

what may constitute attempted lewd conduct, the acts at issue here cannot be found 

to constitute battery or attempted lewd conduct rather than completed lewd 

conduct. They either constitute actionable lewd conduct, or they are not criminal 

offenses at all. 

 With regard to the kissing incidents, in telling the jury that it could base 

convictions on counts 2 and 4 on defendant kissing Tanya, the prosecutor 

specifically referred to Tanya’s testimony that defendant forced his tongue in her 

mouth when he kissed her. Such conduct cannot be deemed “merely affectionate, 

though certainly unwanted and offensive from her perspective,” and therefore 

simply a battery, as defendant contends. Nor can it be characterized, as defendant 

posits, as offensive touchings that were only to facilitate defendant’s sexual 

gratification in the near future rather than his immediate sexual gratification, and 

therefore attempted rather than completed lewd conduct. We agree with our 

colleagues in Division 7 of this District: “Unlike kissing without the use of 

tongues, which is an important means of demonstrating parental love and affection 

for a child, there can be no innocent or lovingly affectionate tongue kissing of a 

child by an adult.” (In re R.C. (2011) 196 Cal.App.4th 741, 750-751.) Thus, to the 

extent the jury relied upon the kissing incidents described by Tanya, those 

incidents could only constitute completed lewd acts within the meaning of section 

288, subdivision (a), rather than battery or attempted lewd conduct. Therefore, the 

trial court had no duty to instruct the jury on battery or attempted lewd conduct as 

lesser included offenses with regard to counts 2 and 4. 
23

G. Denial of Motion For New Trial 

 Defendant challenges the trial court’s denial of his motion for a new trial. 

When ruling on a new trial motion, the trial court “independently examines all the 

evidence to determine whether it is sufficient to prove each required element 

beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’” 

(Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) “‘“‘The determination of a 

motion for a new trial rests so completely within the court’s discretion that its 

action will not be disturbed unless a manifest and unmistakable abuse of discretion 

clearly appears.’” [Citations.] “‘[I]n determining whether there has been a proper 

exercise of discretion on such motion, each case must be judged from its own 

factual background.’” [Citation.]’” (People v. Howard (2010) 51 Cal.4th 15, 42-

43.) 

 In this case, defendant moved for a new trial on the grounds that (1) the 

incidents of sexual abuse were not established with sufficient specificity for the 

jury to determine which alleged acts were associated with each count, and (2) there 

was insufficient evidence to corroborate Tanya’s testimony. The trial court denied 

the motion. 

 First, the court found that Tanya’s testimony of specific incidents, combined 

with her generic testimony regarding other incidents, was sufficient for the jury to 

determine which incidents could be relied upon for each count. Next, the court 

explained that it acted as a “13th juror” and re-weighed the evidence, and 

concluded that it believed Tanya’s testimony and disbelieved defendant’s 

testimony. In doing so, the court noted that it had difficulty with some of the 

details Tanya gave about the touching incident in the vehicle on the way to Home 

Depot and some of the acts of sexual intercourse. But the court explained why it 

believed her testimony and disbelieved defendant: “[Defendant] testified and he 

lied. He just lied, flat out lied. Why would he lie? He didn’t say I took her to the 
24

Home Depot. We went to the Home Depot and nothing happened. He said I 

would never take my kids to the Home Depot. It’s too dangerous. I’ve been to the 

Home Depot. I’ve taken my kids to the Home Depot. There are kids in strollers at 

the Home Depot. It’s too dangerous? Are you kidding me? [¶] And then he says 

in his testimony, well, she’s making it up because resentment of having to do the 

dishes. Come on. So why is he going to lie if he didn’t do this? So then I go back 

to Tanya and I think, okay. She’s young at the time. It happens. One of the 

problems in delayed reporting is that not only are you young, but you’re likely to 

forget the details. Does she forget that she’s molested? I don’t think so. [¶] And 

what really did it for me, and this is pretty typical of most cases, okay. Let’s get 

away from the defendant who is involved, the witness who is involved. Let’s go to 

some independent witness. In this case we don’t have an independent witness who 

saw the crime, but we have Mr. Bass who says that first one week she said that she 

had some secret and then she wasn’t going to talk about it. And he comes in the 

next week and there’s Tanya in the prayer room by herself and she’s crying, 

uncontrollably crying. And he talks to her and then she reveals for the first time 

what happens. [¶] Now, if this is all done by her, she’s made up the entire thing to 

get her father in trouble, then this has got to be a huge acting job and it’s all 

planned out that she’s intending to fool Mr. Bass into testifying for her and getting 

on her side by going into this acting job. I don’t buy it for a minute. So I think 

that what happened to her happened to her. She’s got some of the details wrong, 

but when I weigh all of the evidence, I believe the evidence proves beyond a 

reasonable doubt that he’s guilty of all of these crimes.” 

 On appeal, defendant contends the trial court denied his motion as to counts 

3 and 4 based upon a fact not in evidence -- i.e., that Home Depot is not dangerous 

for children -- from which the court concluded that defendant was lying when he 

testified that he never took his children to Home Depot. He argues that, in doing 
25

so, the court abused its discretion. (Citing People v. Cluff (2001) 87 Cal.App.4th 

991, 998 [“A trial court abuses its discretion when the factual findings critical to its 

decision find no support in the evidence”].) Defendant misconstrues the trial 

court’s comments. 

 The trial court’s comments regarding Home Depot were not specifically 

directed at counts 3 and 4. Rather, they were made in the context of the court’s 

discussion about the relative credibility of Tanya and defendant. Sitting as a “13th 

juror” and using its common sense and experience -- as the jury is instructed to do 

(see CALCRIM No. 226 [“In deciding whether testimony is true and accurate, use 

your common sense and experience”]) -- the court concluded that defendant’s 

testimony that he never brought his children to Home Depot and that Tanya made 

up the allegations about abuse because she resented having to do the dishes was 

not believable. But more importantly, the court disbelieved defendant’s denial of 

abuse because it believed Tanya’s assertion of abuse, in part because of Bass’ 

testimony regarding her demeanor when she disclosed the abuse for the first time. 

 Defendant contends in a separate argument, however, that the trial court’s 

reliance on Bass’ testimony to deny the new trial motion was an abuse of 

discretion. He argues that the court’s consideration of Bass’ testimony about 

Tanya’s demeanor when she disclosed the molestation by defendant was improper 

because only the fact of the disclosure is admissible. (Brown, supra, 8 Cal.4th at p. 

763.) For the reasons expressed in Section B., ante, defendant is incorrect. We 

conclude the trial court did not abuse its discretion by denying defendant’s motion 

for a new trial. 
26

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 WILLHITE, J. 

 We concur: 

 EPSTEIN, P. J. 

 MANELLA, J.