Filed 4/22/ 22 P. v. Larios CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MANUEL LARIOS, Defendant and Appellant. G060208
(Super. Ct. No. C1764443)

O P I N I O N

Appeal from a judgment of the Superior Court of Santa Clara County, Eric S. Geffon, Judge. Reversed

.

Robert Brownlee for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Amit Kurlekar and David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.2 Manuel Larios appeals from a judgment aft er a jury convicted him of sexual offenses. Larios argues the trial court erred in admitting evidence, and the prosecutor committed misconduct. As we explain below, the court erred by admitting a priest’s testimony without determining its probative value an d without weighing its probative value, if any, against its prejudicial effect. 1 We reverse the judgment because the court’s error resulted in a miscarriage of justice that denied Larios a fair trial.
FACTS 2

I. Introduction

Briefly, the evidence at tr ial showed the following. While 12

- year

- old Elsa
Doe 3 was living in a 480

- square foot, two

- bedroom San Jose house (House) with her
sister Maria Larios (Maria) , Maria’s husband Larios, and others from about 199 8 to 2000 , Larios molested Elsa

. At various points over 15 years, Elsa reported the abuse to a school homework aide, her future husband Jonathan N

. , her mother, and her sisters.

In 2015, Maria learned of Elsa ’ s accusations and confronted Larios. Trying to save his marriage, Larios sought counseling with a priest, first alone and then with Maria. The priest ultimately concluded he was a mandated reporte r and spoke with the police. Elsa ’ s accusations divided her family, and some either blamed her for not remaining silent after so many year s or did not believe her

. Apparently n ot obtaining the remorse or support she desired , Elsa decided she would “stand up for [herself]” and contacted the police.

1 Because of our conclusion, we need not address Larios’s other contentions.

2 Unfortunately, Larios ’ s appellate counsel failed to include a statement of facts as required by the California Rules of Court. (California Rules of Court, rule 8.204(a)(2)(C) .)

3 At trial, the parties referred to the victim as Elsa Doe. We will refer to her
as Elsa

.3 An information charged L arios with the following: two counts of aggravated sexual assaul t of a child under 14 years old (Pen. Code, § 269, all further statutory references are to the Penal Code, unless otherwise indicated) (count 1

- rape (§ 261, subd. (a)(2) & count 2

- sexual penetration by a foreign object (§ 289, subd. (a));
two counts of lew d or lascivious acts on a child by force or fear (§ 288, subd. (b)) (counts 3 & 4); lewd or lascivious act on a child under 14 (§ 288, subd. (a)) (count 5); and three
counts of oral c opulation by force or fear ( former § 288a, subd. (c), renumbered as § 287 , subd. (c), by Stats. 2018, ch. 423, § 49 ) (counts 6, 7 & 8). 4

II. Pretrial Before trial, the prosecution filed motion s in limine inter alia seeking to
admit the following evidence : Dr. Blake Carmichael ’ s expert testimony on child sexual
abuse accommodation syndrome (CSAAS); an d Jonathan ’ s testimony concerning Elsa ’ s statements Larios molest ed her pursuant to the fresh complaint doctrine.

Larios filed a motion in limine and three supplemental motions in limine

. Larios sought to exclude evidenc e pursuant to Evidence Code section s 350 and 352, the federal and California constitutions, and “ [w]here noted . . . under the hearsay rule. ” As relevant here, Larios requested the trial court exclude the following: Father Thomas Splain ’ s testimony pursuant to Evidence Code section 352 because it was of minimal probative value and would confuse the jury and unduly prejudice him ; Jonathan ’ s testimony; and Carmichael ’ s testimony

. The trial court denied Larios ’ s motion s regarding Splain ’ s and Jonathan ’ s testimony, and denied in part and granted in part the motion concerning Carmichael ’ s testimony

. We will discuss th e court’s ruling regarding Splain’s testimony more fully below. The prosecution’s first witness was Splain , but we recite the facts chronologically.

4 During trial, on the prosecution ’ s motion, the trial court dismissed counts 3, 4, and 5.4

II. Prosecution Evidence

In January 1998, Elsa moved from Mexico to California. After a brief stay
with one sister, she moved to San Jose to live with another sister, 27

- year

- old Maria, her husband, 26

- year

- old Larios, and their two children, seven

- year

- old M .L. and four

- year

old D .L. They lived in a 480

- square

- foot home that had two bedrooms and one
bathroom

. Larios and Maria occupied one bedroom. Lario s ’ s brother, Martin Larios (Martin) , his wife Martha Larios (Martha) , and their infant child also lived there and occupied one bedroom. Elsa slept in the living room on a sofa bed with her nieces, but
D.L. o ften slept with her parents.

Not long after Elsa arrived, Larios began to make her feel uncomfortable. He told her that he loved her, he hugged her, and he rubbed her upper arm. Larios made
Elsa wear more modest clothes but not his daughters

. Elsa ’ s sister, Sandra U

. , confirmed
this. Elsa understood Larios “ was the man of the house[ , ] ” and she obeyed th e rules and did not complain.

Sometime after Elsa turned 13 years old, Larios began entering the living room at night and rubbing her body. On the f irst occasion, Elsa was sleeping on her back
when she felt Larios ’ s hand touch her breasts over her clothes

. Elsa did not move or say anything. On the second occasion, Larios did the same thing. Elsa did not report the touching because she did not think anyone would believe her. She started sleeping on the
floor under the pullout portion of the sofa bed.

On the next occasion, Elsa was asleep under the sofa bed. Larios pulled her from under the bed, waking her up. He pulled her pajama bottoms and unde rpants down and used his fingers to penetrate her vagina. He touched his penis to the lips of her vagina but before he could penetrate her, there was a noise . H e got up and went to the
bathroom. Elsa felt worthless and did not think anyone would believe her.5 About a year later, Elsa and her nieces moved into a room that had previously been inaccessible to them. It had a futon bunk bed. On four or five occasions,
Elsa would go to her bedroom to go to sleep while Larios remained in the living room
with his daughters watching television until they fell asleep. Larios would carry his daughters into their room and put them to bed

— D .L. on the top and M .L. on the bottom
with Elsa

. Larios would pull down Elsa ’s pajama bottoms and underwear and perform oral sex on her. He used his tongue to penetrate her vagina. Larios would kneel on the
bed and masturbate. During one of the occasions, Larios told Elsa “ [her] vagina was like [her] sister ’ s. ” During another occasion, he used his fingers to penetrate h er vagina.
D uring these incidents, Elsa did not move or say anything, she was “ paralyzed. ”

At one point, Elsa suggested to Maria that her nieces should go to slee p at the same time she did; Elsa wanted to lock the door. Maria said to leave them with
Lar ios. Elsa occasionally got her nieces to go to sleep at the same time, and she locked
the bedroom door. Around this time, Maria and Larios told Elsa they wanted the best for
her. Elsa s aid , “ No. He want ed me for him. ”

Elsa enjoyed school because she w as not around Larios. But because of what Larios did to her, she had low self

- esteem and did not have many friends. At the end of her sophomore year, the family moved to Madera for about
one year. Larios was home on weekends. Before he left for work on Monday mornings,
Larios would rub Elsa ’ s breasts over her clothing while she was in bed.

The family moved back to San Jose and Elsa began her senior year of high school. Larios and Maria allowed her to have a boyfriend, but Elsa did not tell him what
La rios did because he and Larios worked together and were friends. At school, Elsa told
a homework aide na med Rosa that “ [Larios] had done things to [her ] that were not right. ” The aide did not ask her any questions, offer to get her help, or call the police. This made
Elsa feel like it was not worth discussing.6 In 2003, Elsa graduated from high school, turned 18 years old that summer, and met her future husband, Jonathan later that year. In May 2004, she and Jonathan moved in together. Before the y moved in together, Elsa t old Jonathan that Larios
molested her because she wanted to be honest with him about the issues she was dealing
with. Jonathan confirmed this.

After Elsa moved out, she maintained a relationship with Maria because she
considered her a mother and she loved her nieces. Elsa and Jonathan h ad four daughters.
Elsa let Maria babysit her oldest daughter a few times during the day when Larios was at
work. When Elsa was in the hospital to deliver her third child, she let her two daughte rs spend the night at Maria ’ s house because Jonathan and his family were in Fresno visiting his dying grandmother. Elsa never left her children in Larios’s sole custody

.

At one point, Maria wanted Jonathan to cosign to purchase a home but Elsa
refused be cause she did not want Larios living near her.

In 2010 or 2011, Elsa finally told her mother that Larios molested her. Her mother said, “‘ You can do nothing about it[] ’” and told her to tell Maria. Her mother did not offer her any support, which made her feel “ alone. ”

In 2015, Elsa was on the telephone with Sandra and another sister when
Sandra asked her if Larios molested her. Elsa said he had, and Sandra was supportive.

Later, during a telephone call, Elsa told Maria that Larios molested her.
Maria told Elsa that she and Larios would come to her house and Elsa could tell her in
Larios ’ s presence. Maria and Larios never went to her house.

Elsa ’ s brothers called her to ask what was happ ening. One brother told her
that “ [she] should have just stayed quiet, ” which made her feel that no one cared and
made her realize she had to “ stand up for [herself]. ”

In April 2015, 29

- year

- old Elsa called the police to report Larios molested
her. She would never had reported the molestation to the police i f Larios admitted what
he did to her. Although s he was a recipient of Deferred Action for Childhood Arrivals7

( DACA )

— she did not report Larios to the police to improve her immigration status or to obt ain a U visa

. 5 The family wa s divided and Elsa had not spoken to Maria since about four years before trial

.

Splain, a Roman Catholic priest at a local church, said M ass and gave his
homi lies in English and Spanish. 6 He also counseled parishioners for a few hours per
week. About 40 years earlier, he studied Spanish for two months in Mexico and five
months in Bolivia. He worked in Paraguay for two years and had spoken Spanish often.

On April 10, 2015, Larios went t o the church office and asked to speak with a priest for counseling. Splain met with 76

- year

- old Larios in his office. They began talking in Spanish but after a few minutes spoke in English. Splain understood Larios. Larios told Splain the following: “ his sister

- in

- law [ Elsa ] lived in the house and that she was making some advances to him and it was some kissing and hugging and that the wife
reacted to that and kicked him out of the house. ” Larios did not elaborate on the
conduct

—he did not mention br easts or intercourse. Splain believed the conduct was

recent. Larios asked Splain to help him reunite with his wife. Splain told Larios his wife also needed to come in for counseling.

The following day, Larios and Maria met with Splain in his office. Splain
understood both of them. According to Splain’s direct testimony, a t some point during the conversation, Larios or Maria mentioned “ the age of 12 ” and Splain was under the

“ impression ” the sister

- in

- law was 12 years old. Larios never denied having inappropriate sexual relations with the sister

- in

- law

. Larios wanted to reconcile with Maria, but she did not.

5 A U visa allows victims of specified crimes (such as rape and sexual assault ) and who a ssist law enforcement to remain in the United States temporarily. ( 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14 (20 22 ).)

6 At trial, Splain was wearing his clerical garb, including his “Roman collar.”8 After the meeting, Splain realized he was a mandated reporter. He called

two people, both of whom said he had to pursue the matter. Splain spoke to Detective
Daniel Krauss several times. With in one month of his meeting s , Splain wrote an e

- mail to Krauss detailing the conversations. After his recollection was refreshed with the

e

- mail, Splain rec alled some of the things he wrote in his e

- mail

.

On cross

- examination, Splain a greed the Spanish spoken in Bolivia and Paraguay differed from the Spanish spoken in Mexico. Defense counsel asked Splain
whether Maria told him the incident between Larios and Elsa occurred 10 years earlier. Splain said he did not make that assumption. Counsel asked who told him that. Splain replied as follows: “You know, I don’t remember. I think there is a little bit of this information I got from . . . Krauss in some of the telephone conversation s and discussions that we had afterwards. I think it might have been he who mentioned ‘12’ and not

-- that was something I picked up in my conversation with either of them.” Splain agreed Larios
never said he raped or molested Elsa

. Counsel asked whether Splain thought any inappropriate sexual contact occurred only once. Splain answered, “I never made that implication. I

-- I think I was assuming that there might have been a couple instances or
moments. Bu t that was never said. He never said, ‘it happened once.’ ‘It happened twice.’ ‘It happened three times.’ [¶] But as he spoke, I said this is something that he
could have done

-- could have happened several times over time. ” Splain’s “impression” was it happened more than once but it was limited to “kissing and petting.” In explaining his thought process after the two meetings, Splain stated he was a mandated report er , not an in vestigator, and he made “assumptions” and had “ strong impressions ” based on

“ some information ” that supported those impressions. Splain was surprised his e

- mail to Krauss stated he spoke only in Spanish with Larios during their first meeting , which

contra dicted his direct testimony

. He agreed his memory had changed because he was “80 years old and this [ was ] four or five years ago.”9 Krauss spoke to Splain and received an e

- mail from him. As to Splain ’ s

e

- mail, the prosecutor presented several questions where she would read a portion of the

e

- mail and ask Krauss if she read it correctly.

As presented, the e

- mail stated the following : “ ‘ Dear

. . . Krauss. I have some information that will be helpful in the case o f . . . Larios ’ s suspected sexual abus e of a minor. [¶] . . . [¶] To review briefly, a Mexican male came by my office at our . . . church on the afternoon of Friday, April 10, 2015. [¶] He said his name was [Larios]

. We spoke only in Spanish. And he told me that his wife had kicked him out of the house
because of sexual contact with his sister

- in

- law, who, at the time, lived at the house. He admitted that he touched her and kissed her in inappropriate ways but that she had made strong sexual advances towards him. [¶] The impressio n he made was that the sister

- in

law was in her late teens or early 20s, that he wanted

-- what he wanted from me was help getting his wife back. The wife was taking the side of her sister. [¶] I suggest

-- I suggested that he could arrange a lie detect or test in the presence of his wife. He left and later phoned me to make an appointment to meet again, this time with his wife. [¶] . . . [¶] The following day, Saturday, April 11, he returned with his wife, and I got a completely different take on the circumstances. [¶] . . . [¶] The incidents occurred [10] years ago when the wife ’ s sister was 12. The sister was no longer living in the house.
The sister had for some time avoided Manuel ’ s wife because of embarrassment. The wife finally confronted h er sister and got the story of the alleged abuse. The wife believes the sister. She did not want to take any legal action against [Larios] . She just
wants him out of her life. [¶] . . . [¶] Unfortunately, I did not act fast enough to get
contact infor mation. It was shortly after they left I realized I was a mandated reporter on
this case. [¶] . . . [¶] I did some googling and found a

. . . Larios, 43, here in San Jose

. . . . I would be out of my league going any further here. I ’ m sure you have mo re professional methods of pursuing this case further. ’ ”10 Krauss interviewed Elsa , Larios, Maria , and Splain

. Larios told Krauss that his English was good and he understood “ 80 percent. ” Splain told Krauss that Larios said
he touched “ the breasts and genitals. ”

Carmichael, a clinical psychologist, testified as an expert on CSAAS. He

s tated CSAAS did not prove whether abuse happened and all five components were not always present. He des cribed CSAAS’s five components

— secrecy; helplessness; entrapment and accommodation; delayed disclosure; and retraction. His testimony helped the jury understand why Elsa delayed reporting the incident, her peculiar sleeping habits, and why she continued t o see Larios

. III. Defense Evidenc e

Larios’s landlord testified she rented the 478

- square foot home to Larios and Maria and one could hear noises through the walls. She observed Larios with Elsa and other young girls and she never saw him do anything inappropriate.

Martin , Martha , and their daughter lived in the house with Larios and
Maria. Neither of them saw Larios do anything inappropriate.

Larios ’ s daughters , M .L. and D .L. , testified their parents treated Elsa like a daughter

. M .L. and Elsa would sleep on the sofa bed in close proximity to each other.
M .L. never saw Larios come into the bedroom in the middle of the night. They never
saw him be “ overly affectionate ” with Elsa

.

Larios testified concerning his background and said he had a sixth grade
education and worked in construction. Larios and Maria learned that when Elsa first
moved to the United States , she was not going to school so they asked her to live with
them. Larios and Maria agreed to raise Elsa as their own daughter an d tried to apply the same rules to all their children. Maria was responsible for all aspects of the children ’ s lives. Larios had a good relationship with Elsa and did not tell her what to wear. He
confirmed Elsa ’ s account of the sleeping arrangements. After the girls moved to the back bedroom, he did not enter their bedroom. When they lived in Madera, he would not enter11

Elsa ’ s bed room. Later, Elsa brought her daughters to their home and Maria babysat
them

. When it rained, Larios did not go to work an d he stayed home with Elsa ’ s children.
Larios learned about Elsa ’ s accusations from Maria. Maria told Larios that
her mother said Elsa reported that once when Larios was intoxicated he grabbed her inappropriately. Larios denied this

. Larios wanted to g o to Elsa ’ s house and talk to her, but Maria said she would go first. When Maria called Elsa , Elsa said that if they came, the police would be there, so they did not go. Later, Maria met Elsa and spoke with her.
Larios told Maria that Elsa ’ s accusation were untrue. Maria told Larios to leave , and he
lived elsewhere for a while

.

Larios went to his church to speak with a priest for counseling. He asked to speak with a Spanish

- speaking priest. In Splain ’ s office, they had a 15

- minute
conversation entir ely in Spanish. Larios understood about 80 percent of Splain ’ s “ broken Spanish. ” Larios explained to Splain that he had been accused of inappropriately touching his wife ’ s sister. Larios denied he touched her sexually. Larios denied telling Splain that he kissed Elsa passionately. He told Splain that he embraced Elsa like a daughter and kissed her on the cheek. Larios denied he told Splain that Elsa made sexual
advances toward him. Splain agreed to meet with Larios and Maria

.

At that meeting, Larios again denied Elsa ’ s accusations. Larios did not
remember whether Elsa ’ s age was mentioned. Splain suggested they take a lie detector test, and Larios agreed. Larios did not think Splain understood them that well. At various points, Splain spoke to Mar ia i n English. About one week later, Maria told
Larios he could return home. Larios denied he ever sexually molested Elsa in any way.

Maria testified concerning Larios and the circumstances under which Elsa
came to live with her and Larios. She and Larios agreed they would raise Elsa like she was their own daughter. They treated her like they treated their children. Larios did not
tell her what to wear. Elsa and M .L. would sleep in the living room. Maria was “ a very12

light sleeper ” and would know if Larios got up during the night. She never saw Larios near where the girls were sleeping, and she did not see him enter their bedroom. She

never saw Elsa sleeping underneath the sofa bed. Maria denied Elsa ever made the
statement, “ ‘ [Larios] wants me for himself. ’ ” Maria babysat Elsa ’ s children , and when it
rained Larios w as home. She trusted Larios with her daughters and Elsa

. Elsa never left
her children in Larios ’ s sole care.

Maria learned about Elsa ’ s accusation during a telephone conversation with
her mother. She confronted Larios, who denied the accusations and said he wanted to speak with Elsa

. Maria said to wait because she “ wanted to see his reaction. ” A couple days later, Maria told Larios to leave.

A few days later, Elsa called Maria. When Elsa told Maria that Larios had touched her inappropriately, Maria said, “‘ I believe you. ’” She told Elsa that she
believed her “ because [she] wanted to investigate more deeply what she had said. ”

Maria told Elsa they were going to her house because Larios wanted to speak with her. Elsa said he could come , but the police would be there. Maria and Elsa agreed to meet to talk. Larios wanted to go , but Maria would not let him. At the meeting, Maria again t old Elsa that she believe d her.

Maria agreed to talk to Splain with Larios because she thought Larios would tell a priest the truth

. Speaking Spanish, Larios told Splain the accusations. Maria did not think Splain understood and in English told him that her sister accused Larios of

tou ching her when she was 12 years old. Splain suggested Larios take a lie detector test. When Splain asked if the accusation was true, Larios said, “‘ No, F ather. ’” Larios seemed honest, and Maria eventually let him return home.

Lario s offered the testim ony of numerous witnesses , family and friends
who testified generally to his good character and they had never seen hi m exhibit a sexual
interest in Elsa or any other child.13

IV. Prosecution Rebuttal

Elsa testified Larios committed all of the offenses when the y lived in the
House. Elsa explained Larios would get up during the night to use the bathroom and he
would touch her. Larios would touch her at night before Maria returned home from
work. On on e occasion, Maria got up early and saw her sleeping under the sofa bed and asked her what she was doing. Elsa did not respond. As to their telephone call, Elsa stated Maria called her, and she denied stating the police would be there because she had not called the police yet. She said they never came over, and when she called Maria, she said they had to work. Elsa confirmed Maria told her a few times she believed her. Elsa promised Maria she would not report the molestations for the sake of her nieces , but she
felt she had to “ stand up for [her self] ” when family members told her she “‘ should have just stay[ed] quiet. ’” Elsa maintained contact with Maria because she wanted to be there
for her nieces. Elsa repeated she did not make the accusations to improve her immigration status. When the pro secutor asked Elsa why she testifying, she said “ if I

can ’ t stand up for myself . . . , how can I tell [my daughters], ‘ stand up for yourself. ’”

The trial court asked Elsa a number of questions the jurors submitted. As relevant here, the court asked Elsa about her statements sometimes she wore jeans to bed. When the court asked whether she wore anything under or over them, Elsa said she wore jeans and sometimes she would put pajamas on top of them. V. Verdicts, New Trial Motion & Sentencing

The jur y c onvicted Larios of the remaining counts

— counts 1, 2, 6, 7, and 8.
After the trial court denied Larios ’ s motion for a new trial, the co urt sentenced Larios to prison for 27 years to life as follows: count 6

- six years; count 7

- three years; count 8

- three years; and count 1

- 15 years to life. The court imposed a 15

- year concurrent sentence on count 2.14 DISCUSSION I. Admission of Evidence

Larios contends the trial court prejudicially erred by admitting Splain’s testimony because it failed to perfo rm the required Evidence Code section 352 weighing , and his testimony was inadmissible hearsay, character evidence, and lay opinion. We agree with his first claim, and thus need not address the others. A. Background

At the hearing on the in limine mot ions, the prosecutor argue d Splain ’ s testimony was “ highly relevant ” because it was Larios and Maria “ confessing to the
crime. ” Larios ’ s trial counsel asserted Splain ’ s testimony was unreliable because it was
based on “ impressions, assumptions, and presumptions. ” Counsel added his testimony was unreliable because Splain ’ s memory of the meetings was poor and there was a language barrier. Counsel conclude d Splain’s test imony was cumulative to Elsa ’s testimony. The court inquired whether Larios’s statements, via Splain, corroborated
Elsa ’s testimony. Counsel repeated Splain’s testimony was unreliable and Splai n’s testimony was cumulative to Elsa ’s testimony. The prosec utor responded those issues were “fodder for cross

- examination” and went to the “ weight ” of the evidence and “ not admissibility. ”

The trial court ruled as follows: “ I ’ m going to deny the [m]otion to exclude the testimony of . . . Splain. I do think that the issues that are raised certainly go to the weight of the testimony, not its admissibility. [¶] So the jury will be in a position to determine what he heard and whether he can remember and give us anything that ’ s probative. So I ’ m going to allow his testimony. ”15

B. Law & Analysis
1. Was there Error? 7

“‘No evidence is admissible except relevant evidence.’ (Evid. Code, § 350.) ‘Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”’ [Citation.] ” ( People v. Hardy (2018) 5 Cal.5th 56, 87 ( Hardy ).) Relevant evidence includes “‘evidence relevant to the credibility of a witness or hearsay declarant.’ [Citation.] ” ( People v. Miles (2 020) 9 Cal.5th 513, 587 ( Miles ).)

“‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger o f undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.) ‘In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its pro bative value. Its rulings will not be overturned on appeal absent an abuse of that discretion.’ [Citations.] ” ( Hardy, supra, 5 Cal.5th at p. 87.) An abuse of discretion means the trial court acted in an arbitrary, capricious, or
absurd manner that resu lted in a manifest miscarriage of justice. ( Miles, supra, 9 Cal.5th at pp. 587

- 588.)

“ ‘ When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence ’ s probative value against the dangers of pre judice, confusion, and undue time consumption. Unless these dangers

“ substantially outweigh ” probative value, the objection must be overruled. ’ [Citation.] ”

7 We invited the parties to submit supplemental letter briefing on this and other issues regarding the preservation of issues on appeal. The parties agree Larios preserved appellate review of this issue because before tria l he moved to exclude Splain’s testimony on this ground

.16

( People v. Coddington (2000) 23 Cal.4th 529, 618 , overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 106 9, fn. 13 .)

A trial court’s obligations under Evidence Code section 352 are well
settled

. “ ‘ [A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352. ’ [Citation.]” ( People v. Rivera (2019) 7 Cal.5th 306, 344 ; People v. Mickey (1991) 54 Cal.3d 612, 656.)

“ ‘ All questions of law (inc luding but not limited to questions concerning the construction of statutes and other writings, the admissibility of evidence , and other rules of evidence) are to be decided by the court. ’ (§ 310, subd. (a).) ” ( People v. Cottone (2013) 57 Cal.4th 269, 28 2 , italics added.) The court’s legal duty to determine whether to admit or exclude evidence has been described as the “gatekeeper” function, i.e., to attend the gate and control what evidence goes through to the jury. (See People v. Huynh (2021) 65 Cal.A pp.5th 969, 987; People v. Lund (2021) 64 Cal.App.5th 1119, 1153 ( Lund ) .) A common argument concerning the admission of evidence is a trial court did not perform the required Evidence Code section 352 weighing on the record. (See People v. Villatoro (2012) 54 Cal. 4 th 1152, 1168 ( Villatoro ).) Such an argument is generally based on the trial court’s silence, i.e., the court did not expressly weigh the
evidence ’ s probative value against the dangers of prejudice, confusion, and undue time consumption . In such a case, “‘ [W]e are willing to infer an implicit weighing by the trial

co urt on the basis of record indications well short of an express statement. ’ [Citation.]” ( Ibid .) In a case where trial counsel filed written motions arguing Evidence Code section 352 and the trial court considered those submissions and heard argument on the issue at the Evidence Code section 402 hearing, we can infer the court was aware of and17

performed the required weighing under Evidence Code section 352. ( People v. Rivera (2019) 7 Cal.5th 306, 344.)

We have a significantly different issue here

. Rather than silence from the trial court, the record reflects the court made explicit statements indicating the jury would do the weighing. We must decide whether the court’s express statements establish it did not perform the required Evidence Code section 352 weighing

. We conclude the court’s
statements establish it failed to perform its gatekeeper role.

An important requirement of a fair trial is that the trial court only admit
relevant and compete nt evidence. ( People v. Silveri a and Travis (2020) 10 Cal.5th 195, 265.) Competent evidence makes for persuasive evidence. Splain’s testimony concerning what Larios told him could have been relevant, but only if the trial court
would have first establis hed Splain’s testimony was competent. Without first determining the competency of Splain’s testimony, we cannot determine its persuasiveness, i.e., its probative value. The trial court delegated to the jury the competency requirement in two important res pects.

First, the trial court did not determine the foundational facts of Splain’s competency regarding his fluency in the Spanish language. Splain testified he would give his homilies in English and Spanish, but he admitted his Spanish language educat ion
was minimal and remote. Then 80

- year

- old Splain stated that 40 years earlier he studied Spanish for a total of seven months, five of those months in Bolivia, and spoke Spanish for two years while working in Paraguay. He admitted the Spanish spoken in those two countries was different than the Spanish spoken in Mexico. Although not directly related

t o Splain’s competency in the Spanish language, but relevant to his ability to clearly recollect, Splain’s testimony he spoke to Larios in Spanish and English during the first meeting was contradicted by his e

- mail , days or a few weeks later, to Krauss stating he spoke to Larios only in Spanish during that meeting. The foundation al facts of Splain’s competency in the Spanish language were not estab lished. Larios testified that at the first18

meeting he spoke to Splain entirely in Spanish and described Splain’s Spanish as “broken.” Testimony suggested that at the second meeting Splain spoke to Maria in English a t times. Such uncertainly regarding th e language spoken adds to the concerns
with the competency of Splain ’s testimony.

Second, the trial court did not determine the foundational facts of Sp lain’s testimony regarding what Larios told him. Splain was not definitive in what Larios told
him and could not provide quotes. Splain testified as to his “impressions” of what Larios told him. These statements would be relevant, if Larios made them

. But we have no confidence on this record what statements Larios actually made. Splain used language that suggested they were not Larios’s words.

We are in no way criticizing Larios. But he testified he had a sixth grade education and worked in construction. Splain attributed to Larios sophisticated words a person of that educational level a nd employment history would not typically use. For example, Splain testified Larios told him his sister

- in

- law made “advances” towards him. Additionally, Krauss testified Splain told him that Larios admitted to Splain he touched the victim’s “breasts and genital ia .” These words are illustrative of a more advanced vocabulary, of a person who benefitted from a complete education, and clearly suggests
these were Splain’s words, not Larios’s. Additionally, then 80

- year

- old Splain could not remember portions of what Larios and Maria told him, particularly about the v ictim ’s
age

. He admitted confusion as to who told him what, including what he may have
learned from Krauss rather than from Larios or Maria.

In light of his failure to remember which language he and Larios spoke, his reliance on assumptions, impressions, and implication, his failure to remember portions
of the conversation and who said what , an examination o f whether then 80

- year

- old Splain was suffering from declining mental acumen was approp riate before testifying. Because the trial court failed to determine the foundational facts of Splain’s ability to speak Spanish and his ability to recite what Larios actually said, and clarify some rather19

glaring inconsistencies , Splain’s testimony was n ot competent and lacked persuasiveness. Thus, his testimony had little, if any, probative value.

Assuming for the sake of argument Sp lain ’s testimony was competent evidence the trial court failed to perform the required Evidence Code section 352

we ighing of prejudice against probative value. The court’s comments demonstrate it abdicated its gatekeeper role. After stating the issue was one of weight and not admissibility, the court continued : “So the jury will be in a position to determine what he
heard and whether he can remember and give us anything that’s probative .” (Italics added.) It was not the jury’s duty to determine what Splain heard or remembered. It was the court’s duty to determine in the first instance whether what Splain heard and remembered was competent and probative evidence. If it was, it was the jury’s duty to
consider that evidence in determ in ing whether the prosecution carried its burden to prove the charges beyond a reasonable doubt. (CALCRIM No. 220.) When the court stated the jury could determine what Splain heard and what he could remember and then determine the probative value, it demonstrated its confusion in the role of a trial judge. The court was obligated to ensure the jury only received competent evide nce, and only after that
initial trial court determination was it for the jury to determine the weight to give to the
evidence. The prosecutor bore the burden of establishing the admissibility of Splain’s testimony. Rather than bear that burden , the pros ecutor added to the confusion by making comments regarding the foundational facts being “fodder for cross

- examination” and advancing the idea foundational facts were issues of weight , not admissibility

.

The trial court’s comments establish it not only failed to determine whether Splain’s testimony was competent and probative, but it also failed to weigh what ever20

probative value the evidence had against its prejudicial effect. 8 “‘ [U]ndue prejudice is
that which “ uniquely tends to evoke an emotional bia s against a party as an individual, while having only slight probative value with regard to the issues. ” [Citations.] ’ [Citation.] ‘ Evidence is not “ unduly prejudicial ” under the Evidence Code merely because it strongly implicates a defendant and casts him or her in a bad light, or merely
because the defendant contests that evidence and points to allegedly contrary evidence. ’ [Citation.]” ( People v. Jones (2012) 54 Cal.4th 1, 61

- 62 .)

Here, Splain’s testimony was unduly prejudicial because it would evoke an emotional bias against Larios while having slight, if any, probative value because of its lack of competence. It can reasonably be inferred Splain’s testimony would evoke an emotional bias premised in part on the fact he was the prosecution ’s first witness. The prosecution did not call Elsa to describe what happened. Instead, the prosecution called the trustworthy priest , complete with clerical garb and Roman collar, to tell the jury Larios essentially first confessed to some sexual contac t with a family member and later
Larios or Maria disclosed the sexual contact was with a minor.

This was the stuff of movies. The honest clergyman ascending the witness stand cloaked in the trustworthiness of clerical garb to deliver a parishioner’s os tensible
confession. We can think of no more damning evidence. Based on this record, this testimony was of questionable probative value, it most likely inflamed the jurors’ emotions to punish Larios for his offense , and it was unduly prejudicial. ( Peopl e v. Dalton (2019) 7 Cal.5th 166, 220.) This is one of the rare cases where the prejudicial effect of the admitted evidence clearly outweighed its probative value because the evidence’s competency was suspect.

8 The Attorney General asserts Larios did not argue Splain’s testimony was unduly prejudicial. To the contrary, he asserted as much in his in limine motion. And we think he adequately preserved it when he cited to Evidence Code section 352. We agree though with the Attorney General that Larios’s written submissions on appeal and below are not the model of clarity.21 Unlike our Supreme Court in Villatoro , supra , 54 Cal.4th at page 1168, w e

are not willing to infer an implicit weighing by the trial court because the court’s comments establish it delegated its gatekeeper role to the jury. The court’s statements establish its ruling was not informed but was instead “‘“a shot in the dark.”’” ( Lun d,

supra, 64 Cal.App.5th at p. 1154 [nature of discretion req uires court’s decision be informed and not ‘“a shot in the dark”’].)

The record here does not demonstrate the trial court understood and fulfilled its responsibilities under E vidence Code section 352 , and thus the court failed to conduct its required gate keeper role . ( People v. Williams (1997) 16 Cal.4th 153, 213.) Thus, we must determine whether Larios was prejudiced.
2

. Was the Error Prejudicial?

“ It is also well settled that the erroneous admission or exclusion of evidence does not require revers al except where the error or errors caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) ‘ [A] “ miscarriage of justice ” should be declared only when the court, “ after an examination of the entire cause, including the evidence, ” is
of the “ opinio n” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ’ ( People v. Watson (1956) 46 Cal.2d 818, 836

. . . .) ” ( People v. Richardson (2008) 43 Cal.4th 959, 1001 , abrogated on other grounds by statutory repeal as stated in People v. Nieves (2021) 11 Cal.5th 404, 5 09 .)

Here, it is reasonably probable that had the trial court excluded Sp lai n’s testimony, Larios would have received a mo re favorable result. As the A ttorney General concedes, the case was a credibility contest between Elsa and Larios. There was no physical evidence implicating Larios. Additionally, Elsa did not report alleged inappropriate sexual touching to the police u ntil 15 years later, although she told various people Larios molested her in the intervening years. During that time, Elsa continued to associate with Larios, her brother

- in

- law, and on various occasions left her children in his22

home, with her sister. Mo reover, the defense elicited testimony Elsa was a DACA

rec ipient whose immigration status may have improved if she were a victim of a crime.

The importance of Sp lai n’s testimony in this she said/he said delayed reporting case cannot be overestimated. The Attorney General recognizes, indeed
concedes , the devastating nature of Splain’s testimony. The Attorney General states the following: “ The matter might have remained a somewhat close credibility contest
betwee n [Larios] and Elsa

. Ho wever, shortly after reports surfaced of [Larios’s] offenses, he, first alone, and then with his wife Maria, went for counseling to

. . . Splain, a priest at [Larios’s] church. [Larios’s] credibility at trial was destroyed, and Elsa ’s vindicated, by

. . . Splain’s testimony about the interviews, and even more forcefully by [Splain’s] contemporaneous written memorialization of his interviews with [Larios].” We couldn’t have said it better ourselves. In giving his testimony, Splain struck the
mortal blow a nd decimated Larios’s defense efforts.

There was little, if any corroboration, near the time of the alleged molestations. Although Elsa testified she reported the molestations to a school “ aid e named Rosa” who offered her no help , this was in no way corr oborated ; it was likely Rosa was also a mandated reporter

. The other children who were sleeping in the same
room with Elsa , one who had slept in the same bed with Elsa , all disputed Elsa ’s claim
Larios came into the bedroom during the night. The signific ant delay in reporting the
molestation and Elsa ’s willingness to leave her children with Maria in the home she shared with Larios and other factors could have created a reasonable doubt as to Larios’s guilt. But none of this evidence could overcome the wo rds from a priest’s mouth relaying the defendant’s confession.

Splain was the only neutral witness, who did not have a material interest in
the case. Additionally, h ad the trial court excluded Splain’s testimony, Krauss would not
have been able to testif

y to the contents of Splain’s e

- mail or his interview with Splain.
With the introduction of the contents of the e

- mail, t he jury essentially heard the honest23

and trustworthy clergyman’s deliver Larios’s ostensible confession twice. Had the trial

court ex cluded the honest and upright priest’s testimony , it was reasonably probable
Larios would have received a better result. The judgment must be reversed and the matter remanded for the trial court to perform its duties pursuant to the Evidence Code.
DISPOSITION The judgment is reversed

.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

ZELON, J.*

* Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.