FEUER, J.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA118512, Bruce F. Marrs, Judge. Reversed in part; affirmed in part.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stephanie A. Miyoshi and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Eduardo Rios Blancarte appeals from a judgment entered after a jury convicted him of three counts of sexual intercourse or sodomy of his niece Careli R., beginning when she was seven years old. Blancarte contends the prosecutor engaged in misconduct by implying Blancarte confessed to the crimes during her cross-examination of Blancarte's mother. Alternatively, Blancarte asserts defense counsel's failure to object to the prosecutorial misconduct was ineffective assistance of counsel. Blancarte also argues the trial court committed prejudicial error by not compelling a police officer who interviewed Careli to testify about Careli's disclosure of sexual abuse, instead finding the testimony was cumulative to that of the other interviewing police officer. Further, Blancarte claims the trial court prejudicially erred by instructing the jury regarding Blancarte's family's efforts to fabricate evidence given the absence of evidence Blancarte participated in family meetings about Careli's allegations or encouraged the fabrication. We conclude the trial court abused its discretion in precluding Blancarte from calling the second police officer to testify, which error was prejudicial, and we reverse one of Blancarte's three convictions for sexual intercourse or sodomy. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution Case
1. The sexual abuse incidents
Fourteen-year-old Careli testified about sexual abuse that occurred starting in 2012 when she was seven years old. From 2009 to 2012 Careli lived in Torrance with her father, Francisco;her mother, Isabel Hermoso; her older brother, Francisco, Jr.; her younger sister, Kimberly; Kimberly's godfather, Ernesto; and Careli's paternal uncle, Blancarte. According to Careli, Blancarte babysat her and her siblings while Careli's parents were at work, including on the weekends and during the summer, when the children were not in school. On two occasions during the day in 2012, Blancarte took Careli to a room and laid her down on the bed on her side. While Careli played a game on Blancarte's cell phone, Blancarte lay down on the bed behind her, pulled down Careli's pants, and put his penis in her vagina.
We identify the paternal relatives by their first names to avoid confusion.
Hermoso confirmed Blancarte babysat the children when Hermoso and Francisco were at work. However, Hermoso never saw Blancarte alone with Careli. Hermoso worked at a factory from 6:00 a.m. to 2:30 p.m. on weekdays and some weekends. Francisco worked as a gardener from 7:00 a.m. to 5:00 p.m. from Monday to Saturday.
After Careli's parents separated, Francisco moved to the house of Careli's paternal grandmother, Isabel, who lived in Los Angeles (the Los Angeles house). According to Hermoso, she and Francisco were separated from August 2013 to April 2014.During this period Blancarte lived in the Los Angeles house. According to Careli and Hermoso, Careli visited the house every weekend. The house had three bedrooms. Careli testified that during her visits she slept in one of the bedrooms with seven family members: Careli slept in the bottom bunk bed with Blancarte; Francisco, Jr., slept on the top bunk bed; Francisco and Kimberly slept on a trundle bed; and Isabel, Javier, and her paternal uncle (Jose Luis) slept on another bed. Another paternal uncle (Daniel), his wife (Miriam), and their two children slept in another bedroom.
Hermoso and Francisco reunited from April 2014 until August 2017, then separated for the final time.
Careli testified that when everyone else was asleep at night, Blancarte would take off her pants and put his penis in Careli's "butt" or vagina. Afterward, Blancarte would go to the bathroom, then return to the bunk bed and clean himself with tissue paper. At the time of her testimony, Careli recalled the sexual abuse happening when she was seven years old. She acknowledged she had previously said the abuse also happened when she was eight years old, but she now only remembered what happened when she was seven. Careli did not like to think about the incidents because they made her sad and want to cry.
We use the word "butt," as used by Careli, to refer to the area between Careli's buttocks.
When Careli was in third grade, she disclosed to her best friend, Daisy, and another girl that she had been sexually abused. Daisy testified Careli looked frightened and was crying when she told Daisy that her uncle had inappropriately touched her. Careli and Daisy then told Daisy's mother about what had happened. Careli told Daisy and her other friend not to tell anyone because she was scared Blancarte and his family would say she was lying. The next day the principal, Tracy Joseph, called Careli into the office and asked her if she was sure her statements about the abuse were true. Careli responded, "[Y]es, I am sure."
Careli testified she did not tell Daisy's mother about the incidents.
2. Careli's 2015 interview with her principal
Joseph testified that on March 24, 2015 she interviewed then-nine-year-old Careli after receiving a call from a parent of one of Careli's friends. Careli confirmed she had confided in her friend that she thought she was pregnant. Joseph testified Careli "said that she was in the bed, and that her uncle pulled her pants down and then pulled her underwear down and put his thing in her butt." Careli told Joseph that Blancarte started doing this to her two years earlier in a house where she was not living at the time. Careli said she told her mother what had happened, and her mother was going to take her to see a doctor. Joseph observed Careli's face looked worried and upset. After the interview, Joseph contacted the Los Angeles Police Department.
Careli similarly testified she told Joseph that Blancarte had "put his thing" in her "private part" and "butt."
3. Careli's 2015 interview with police officers
On March 24, in response to Joseph's call, Los Angeles Police Officer Neil Amundson and his partner, Officer Greg Shortle, arrived at Careli's elementary school and met with Joseph and Careli. At Careli's request, Joseph was present while the officers interviewed her. Officer Amundson testified Careli said her parents separated, and sometimes she stayed at her paternal grandmother's house to visit her father. Careli reported she slept in a bed with Blancarte in his room, and he would pull down her pants and put his penis "in her bottom." According to Officer Amundson, Careli said the sexual abuse started when she was seven or eight years old, and it happened over 20 times. Careli said the last incident occurred the prior Sunday (March 22). Officer Amundson wrote in his police report that the incidents occurred between July 1, 2012 and July 31, 2014 because Careli "said it was when she 7, 8, and then 9." Careli told Officer Amundson that she had told her mother what had happened. Further, "[Blancarte] would always tell [Careli] in Spanish not to tell anyone. And then [in] the instance that she slapped his hand away, he said that if she told anybody, that she would be in trouble." Officer Amundson observed Careli was upset and crying during the interview.
After the interview, the police officers spoke with Hermoso and Careli at the school. Careli and Hermoso consented to have a sexual assault response team (SART) nurse examine Careli. Officer Amundson testified Hermoso said Careli had told her about the sexual abuse, and Hermoso "was going to find a doctor and she wanted to know if [Careli] was telling the truth or not."
Careli testified she did not tell her mother about the sexual abuse, but rather, her mother learned about the abuse from the police officers. Hermoso testified she found out something had happened to Careli when on March 24 a police officer called her for consent to take Careli to the hospital. But Hermoso did not learn about the abuse from the police officers; rather, she was informed by a nurse at the hospital. Hermoso did not recall telling police officers that Careli had disclosed the abuse to her and that Hermoso was going to take Careli to the doctor to see if she was telling the truth.
On cross-examination, Officer Amundson acknowledged he wrote in his police report, "[Hermoso] said she didn't contact police because they were trying to find out if Careli was telling the truth or not. I asked [Hermoso] where Eduardo lives, and when was the last time Careli had seen him. [Hermoso] stated that they haven't seen Eduardo in over a year and that he lives in Los Angeles on 91st Street." Officer Amundson testified he interpreted Hermoso's statement that "they haven't seen Eduardo in a year" as meaning Hermoso had not seen Blancarte in over a year, not that Careli had not seen him. On redirect examination, Officer Amundson confirmed Hermoso did not clarify what "they" meant in her statement.
At trial, Careli did not remember telling the principal or the police officers that the last incident occurred the prior Sunday. In her testimony, Hermoso denied telling the police officers that "they haven't seen Eduardo in over a year." To the contrary, after she and Francisco reunified and she later gave birth to a baby in January 2015, Hermoso, Francisco, and their children (including Careli) attended a barbecue at Isabel's house. The barbecue occurred at some time before Careli's March 24, 2015 disclosure of the abuse at her school. Blancarte was present at the barbecue along with other paternal relatives.
4. The SART exam
Jan Hare, a SART nurse, examined Careli on March 24, 2015. Before conducting a physical exam of Careli, Hare obtained oral statements from Officer Shortle and Careli. Hare did not interview Hermoso because Hermoso only spoke Spanish, which Hare could not speak.
Careli recalled that Hare asked her questions, but she did not remember what she told Hare.
Hare testified, "When I arrived and got the information from Officer Shortle, it was stated that the contact was prior to [Careli's] last birthday, her 9th-prior to her 9th birthday, which would have been approximately [seven] months prior to me seeing her." Based on Office Shortle's statement, Hare wrote in her report, "[M]ultiple incidents over time, last incident last year before 9th birthday." Careli told Hare that Blancarte "put his middle part on my butt," and later Careli clarified Blancarte put his penis inside her. Careli told Hare it "'happened a lot of times'" and Blancarte told her "'not to tell no one.'" Hare wrote in her report that Careli was "'friendly, very active/cooperative/cheerful and laughing.'" Hare testified this was typical of children Careli's age. In Hare's experience, "[v]ery few are uncooperative and won't do the exam," and "they're generally playing and talking and laughing and joking around a lot of times."
On redirect examination, Hare indicated Officer Shortle informed her the last sexual event occurred nine months before the examination.
Hare explained with respect to children, if the alleged sexual abuse incident occurs within one to five days before the exam, she would "take a full set of swabs" for semen or other bodily fluids. Hare would not take swabs if the sexual assault occurred more than five days earlier because "[b]iological forensic evidence is usually gone." Hare decided not to take swabs as part of Careli's exam because Officer Shortle informed her the last incident had occurred seven months earlier and there was no vaginal contact. Hare noted in her report, "'Vag/whitish discharge, small amount.'" Hare did not swab the discharge to test it because of the history provided by Officer Shortle. Had Hare been informed that the last incident occurred less than five days before the exam, she "would have swabbed the whole area" and sent it to a laboratory for testing.
Careli's exam was normal with no injury to the external anal or genital areas. Hare wrote in her report, "'[N]ormal exam. Can neither confirm nor negate sexual abuse.'" Hare testified it was not her practice to perform an internal rectal exam using an anoscope on children under the age of 12 regardless of when the anal contact occurred. Hare stated based on her 24 years of experience and having performed over 4, 600 exams that 90 percent of SART exams on children are normal. Further, it was possible to have vaginal or anal penetration without an injury. In Hare's experience, where the sexual assault occurred less than 48 hours before an exam, only "probably 10 percent" of her patients would have symptoms or complaints.
5. Careli's 2016 interview with a child advocate
On February 12, 2016 child advocate Suzie Flores interviewed Careli. Careli said the first incident occurred at her house in Torrance while her parents were at work. Blancarte gave Careli his cell phone and told her to play a game on his phone while she was in bed on her side. She fell asleep and woke up when Blancarte's cell phone rang. When Careli woke up, she noticed her pants were pulled down. Careli saw Blancarte's "thing," and he had put "his thing in my butt." Blancarte stopped when Careli heard her mother's car. Careli hit Blancarte in the stomach before she ran out of the room.
Detective Susan Gilpin, the investigating officer, set up
After her parents separated, Careli stayed with her father "every single" Saturday and Sunday at Isabel's house. Careli explained that on several occasions during this period, Blancarte "pulled [her] pants down and put his thing in [her] butt." The incidents happened when Careli "was seven all the way to eight."
6. Careli's 2018 interview with Detective Gilpin
Detective Gilpin testified she conducted a recorded interview with Careli on July 9, 2018. Careli stated the first incident occurred in the Torrance house when Blancarte took her to a bedroom, and they lay down on their sides on the bed with Blancarte lying behind Careli. While Careli played a game on Blancarte's cell phone, Blancarte put his penis in her butt and private part. The incidents at the Torrance home occurred in the afternoons. Blancarte would tell Careli "in a mean yelling voice, to not tell anyone." As to the incidents at Isabel's house, Careli described sleeping on the bottom bunk bed with Blancarte, with other family members in the room. Blancarte would put his penis in her butt or vagina at night when everyone was asleep. Careli told Detective Gilpin the last incident occurred at Isabel's house.
On cross-examination, Detective Gilpin acknowledged the July 2018 interview was the first time Careli disclosed Blancarte had put his penis in her vagina.
B. The Defense Case
1. Jose Luis
Jose Luis testified he is the youngest of Blancarte's four brothers and six sisters. When Jose Luis was between nine and 11 years old, he lived at Francisco's house in Torrance with Francisco's family (including then six or seven-year-old Careli) and Ernesto. His parents, Isabel and Javier, stayed either at Francisco's house or with their other children who lived in the Torrance area. Jose Luis, Isabel, and Javier slept in the living room; Francisco and Hermoso slept in their bedroom; Francisco and Hermoso's children slept in the middle bedroom; and Ernesto slept in the third bedroom. When Francisco injured his arm, Blancarte stayed at the house and slept on the sofa in the living room. Blancarte was at work when Jose, Careli, and Francisco, Jr., came home from school, and Blancarte never babysat the children. Isabel got the children ready for school in the morning and took care of them when they came home from school. Jose Luis never saw Blancarte go into Careli's bedroom.
Jose Luis, Isabel, Javier, and Blancarte later moved into the Los Angeles house with Daniel, Miriam, and their two children. Daniel and his family slept in one bedroom; Jose Luis, Blancarte, Isabel, and Javier slept in a second bedroom. At some point, Francisco lived at the Los Angeles house and slept in the same room as Jose Luis, Blancarte, and their parents. During this time, Careli, Kimberly, and Francisco, Jr., visited on three weekends. When the children visited, Francisco, Jr., slept with Jose Luis on the top bunk bed; Careli slept next to Isabel on the carpeted floor on blankets; Kimberly slept next to Careli; and Francisco slept next to Kimberly. At night, Jose Luis could see the people in the bedroom because the family kept a night light on and the window open. But on cross-examination, Jose Luis admitted he slept through the night and would not know what was going on in the bedroom while he slept. Jose Luis denied Careli ever shared a bed with Blancarte.
Jose Luis learned about the allegations against Blancarte at a family meeting attended by Blancarte's wife, Daniel, Isabel, Javier, and Jose Luis's sisters.
2. Isabel
Isabel corroborated most of Jose Luis's testimony. Isabel, Javier, and Jose Luis lived in the Torrance house with Francisco and his family and Ernesto for one-and-a-half years from late 2010 to early 2012. Isabel, Javier, and Jose Luis slept in the living room on blankets on the wooden floor. Blancarte stayed at the home of his sister Berneice or his sister Adriana, both of whom lived near the Torrance house. Blancarte only stayed at Francisco's house for three weeks in 2010 when Francisco injured his arm. During his stay, Blancarte slept on the sofa in the living room. Isabel helped the children get ready for school, walked them to and from the school bus stop, and cared for them after school. On some days, when Hermoso came home from work, she would take her children out at around 5:00 p.m. and return between 9:00 and 9:30 p.m.
From March 2013 to March 2015 Isabel, Javier, and Jose Luis lived in the Los Angeles house with Daniel, Miriam, their two children, and Miriam's father. Isabel, Javier, Jose Luis, and Blancarte shared a bedroom. Francisco lived in the house from November 2013 to April 2014 during his separation from Hermoso. Careli, Francisco, Jr., and Kimberly spent only three weekends in February 2014 at the house. During the visits, Careli slept on the floor on blankets between Isabel and Kimberly. If Careli had gotten up during the night, Isabel would have noticed because they were lying so close they were touching each other. Jose Luis and Francisco, Jr., shared the top bunk bed, and Blancarte slept by himself in the bottom bunk bed. The family slept with a night light on.
In March 2015 Isabel and Blancarte moved to El Monte to live with Isabel's daughter Lydia. In 2016 Blancarte moved to Los Angeles to live with his wife, Laura. Isabel denied there was a family barbecue in March 2015. Isabel gave conflicting accounts of when she first learned of Careli's allegations of abuse. Isabel initially testified she learned about Careli's disclosure from Francisco in March 2015, after Isabel had moved to Lydia's house. However, Isabel later testified she first learned of Careli's allegations in 2019, when she talked to Blancarte's attorneys. Isabel then clarified that Francisco told her in March 2015 "there were problems" with Careli, but not that Careli had disclosed sexual abuse.
Isabel initially testified she had only one meeting with Daniel and Lydia after Francisco's call about Careli. Isabel later admitted there were multiple family meetings. When asked how many times Blancarte was present at the family meetings, Isabel answered, "Well, sometimes he wasn't there. He arrived from work." The prosecutor then asked, "And he would join in the meeting, correct?" Isabel responded, "Yes. Well he would arrive home." On redirect examination, Isabel testified the family meetings were only about attorney fees. She denied the family met to talk about the case and their testimony.
3. Miriam
Miriam testified that in February 2013 she, Daniel, and their two children moved into the Los Angeles house with Isabel, Javier, Blancarte, and Jose Luis. Miriam's father slept in one bedroom; Miriam, Daniel, and their children slept in the second bedroom; and Isabel, Javier, Jose Luis, and Blancarte slept in the third bedroom. In early November 2013 Francisco moved in after his separation from Hermoso.
Miriam's sister initially lived in the house, but she moved out in early 2014.
After Francisco moved into the Los Angeles house, Careli, Francisco, Jr., and Kimberly visited three times-on February 16, February 23, and March 16, 2014. On those dates, Francisco brought the children to the house on Saturdays between 5:00 and 7:00 p.m., and he returned them on Sundays around 3:00 p.m. Miriam knew the children visited only three times because she "always took pictures of the weekends that we used to be together at the house or go out." Miriam went through the photographs stored in her cell phone and found photographs she took of Francisco's children on the three dates. Blancarte did not sleep at the Los Angeles house during the February 23 visit because he left on Saturday night with his girlfriend. Careli's last visit to the Los Angeles house was on March 16, 2014. According to Miriam, there was no family gathering on the weekend of March 21 and 22, 2015. Miriam also denied she talked about the case with other family members. But she admitted she attended two family meetings with "[a]ll the family," including Isabel, Javier, Daniel, and her sister-in-law. The first family meeting was in April or May 2015 at Berneice's house. The second family meeting occurred in early 2019 at Isabel's house. When Miriam met with one of Blancarte's trial attorneys in January 2019, she did not tell him that Careli only visited three times because "[h]e didn't ask me those questions." Miriam later told an investigator on October 5, 2019 that Careli visited the Los Angeles house three times.
Although Miriam and other Blancarte family members were asked about the meeting with one of Blancarte's attorneys that occurred six months before trial (in April 2019), counsel later stipulated this meeting with defense counsel occurred in January 2019. We therefore use the January 2019 date.
C. The Prosecution Rebuttal Case
Private investigator Stephen Rotella testified he and his partner John Manwell interviewed six or seven of Blancarte's family members at the family's house on October 5, 2019, at the request of Blancarte's attorneys. Rotella showed Isabel, Jose Luis, and Miriam the statements one of Blancarte's attorneys obtained from them in January 2019, and they confirmed their statements were accurate. Isabel, Jose Luis, and Miriam each told Rotella that Careli only visited the Los Angeles house three times. Rotella did not ask why they did not provide this information to Blancarte's attorney when he met with them in January 2019.
The partner's last name is spelled "Manuel" in the reporter's transcript and "Manwell" in the transcript of the recorded interviews.
The prosecutor played to the jury excerpts of three sets of interviews recorded by Rotella on October 5. Rotella stepped outside the house after Jose Luis's first and second interviews to confer with Blancarte's attorneys about follow-up questions. Rotella acknowledged that Jose Luis initially stated in one of the recorded interviews that Blancarte stayed in the Torrance house about three days a week. It was not until the second or third interview that Jose Luis said Careli only visited the Los Angeles house three times. Rotella acknowledged that in another taped interview with Blancarte's wife they discussed what Berneice had told Rotella. Rotella stated this was not a problem because Blancarte's wife was not a potential witness because she was not on the defense attorneys' list of people to interview. In a third recorded interview, Manwell told Miriam, "I don't know if anybody is going to be called to court or not . . . [, ] but if you end up having to testify or something like that relax." Manwell added, "Yeah I know it's hard to say but just relax and stick to your story." Rotella testified he admonished Miriam to tell the truth before he recorded her interview.
D. The Stipulations
The parties stipulated Blancarte's two trial attorneys interviewed Isabel, Jose Luis, and Miriam in January 2019. During these interviews, Isabel and Jose Luis did not state that Careli only visited the Los Angeles house three times. During her interview, Miriam stated Careli visited the Los Angeles house in the summer of 2014. Miriam did not state that Careli visited three times in February and March of 2014. The parties also stipulated, "Isabel stated during that interview that she talked to defendant regarding Careli's report that she made in March of 2015."
E. The Verdict and Sentencing
The jury found Blancarte guilty of sexual intercourse or sodomy with a child who is ten years old or younger (Pen. Code, §288.7, subd. (a)) between July 18, 2012 and July 17, 2013 (count 1), July 18, 2013 and July 17, 2014 (count 2), and March 22, 2015 (count 3). The trial court sentenced Blancarte to three consecutive terms of 25 years to life for an aggregate term of 75 years to life.
Blancarte timely appealed.
DISCUSSION
A. Blancarte Forfeited His Claim of Prosecutorial Misconduct
1. Cross-examination of Isabel
Before Isabel testified, the trial court granted the prosecutor's motion to exclude any exculpatory statements Blancarte made to her. On cross-examination, the prosecutor asked Isabel whether she talked with Blancarte regarding Careli's abuse allegations:
"Q. How many times did you talk to [Blancarte] about Careli's report?
"A. Only that time that I told my son Daniel.
"Q. Okay. Ma'am, I'm going to ask you a very direct question. If you could please listen to the question and just answer the question that I'm asking you. I'm not getting into statements of what [Blancarte] told you. I just want to know how many times did you speak with [Blancarte] regarding Careli's report?
"A. Only that one time.
"Q. So you spoke to [Blancarte] and to Daniel the same day about Careli's report?
"A. Not the same day, because my son was working. But we did talk.
"Q. Okay. Ma'am, I know you have a lot of sons. If you could, just so everyone is on the same page, if you could use their names, please?
"A. Okay.
"Q. I'm not talking about Daniel. What I want to know is when did you speak to [Blancarte] about Careli's report?
"A. When Francisco called me.
"Q. And that was in March of 2015, correct?
"A. Yes.
"Q. So that same day you talked to [Blancarte] about Careli's report, so he was aware of those allegations against him, correct?
"A. Francisco didn't say clearly what [] was happening.
That there had been a problem at school.
"Q. Ma'am, how many times did you speak with [Blancarte] regarding him having sexual intercourse and sodomizing Careli?
"A. Only that time.
"Q. Okay. You did talk to [Blancarte] about Careli saying that he had sexual intercourse with her and that he had sodomized her, correct?
"A. Yes."
Later, the prosecutor asked Isabel:
"Q. You told [Blancarte's attorney] that you had never talked to [Blancarte] about the allegations, correct?
"A. Yes. That is to say I didn't talk about that because
Francisco didn't say what was happening, he only said that there was a problem."
2. Blancarte's claim of prosecutorial misconduct fails
Blancarte contends the prosecutor's questioning of Isabel constituted prosecutorial misconduct because the questions improperly suggested Blancarte confessed to Isabel that he had committed the sexual abuse. "'"A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact."'" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 657; accord, People v. Hoyt (2020) 8 Cal.5th 892, 943.) "'"A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."'" (People v. Young (2019) 7 Cal.5th 905, 932-933; accord, People v. Tully (2012) 54 Cal.4th 952, 1010.)
Blancarte forfeited his claim of prosecutorial misconduct by failing to object. "'"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."'" (People v. Beck and Cruz, supra, 8 Cal.5th at p. 657; accord, People v. Hoyt, supra, 8 Cal.5th at p. 942 [defendant "failed to object to nearly all such instances [of prosecutorial misconduct during his closing argument] and has therefore forfeited these claims on appeal"].) "'The lack of a timely objection and request for admonition will be excused only if either would have been futile or if an admonition would not have cured the harm.'" (Hoyt, at pp. 942-943; accord, People v. Powell (2018) 6 Cal.5th 136, 171.)
Contrary to Blancarte's argument, it would not have been futile for Blancarte's attorney to object to the prosecutor's line of questioning about Isabel's conversations with Blancarte regarding Careli's report. Had Blancarte's attorney objected, the trial court could have sustained an objection to the line of questioning (or held a side bar to discuss the parameters of questioning) before Isabel answered. Even if it was not initially apparent where the prosecutor was heading with her questioning, Blancarte's attorney could have objected to the question, "[H]ow many times did you speak with [Blancarte] regarding him having sexual intercourse and sodomizing Careli?" And to the extent the question suggested Blancarte and Isabel had a conversation about his sexual abuse, the trial court could have struck the question and instructed the jury to disregard it. Further, the court could have remedied any possible prejudice by allowing Isabel to testify that in her conversation with Blancarte, he denied he engaged in any inappropriate sexual conduct with Careli, reversing its prior ruling excluding the testimony.
Blancarte alternatively argues that defense counsel provided ineffective assistance of counsel. "'"To establish ineffective assistance of counsel, a defendant must show that (1)counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2)counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant."'" (People v. Rices (2017) 4 Cal.5th 49, 80; accord, People v. Bell (2019) 7 Cal.5th 70, 125; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
"On direct appeal, if the record '"sheds no light on why counsel acted or failed to act in the manner challenged, "' we must reject the claim '"unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."'" (People v. Caro (2019) 7 Cal.5th 463, 488; accord, People v. Mickel (2016) 2 Cal.5th 181, 198 ["[A] reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '"'no rational tactical purpose'"' for an action or omission."]; see People v. Lopez (2008) 42 Cal.4th 960, 972 ["[E]xcept in those rare instances where there is no conceivable tactical purpose for counsel's actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal."].)
Here, the record does not reflect why Blancarte's attorneys did not object to the prosecutor's line of questioning. They may well have made a tactical decision not to object because an objection would have highlighted Isabel's evasive answers about whether she discussed Careli's allegations with Blancarte and her prior statement to Blancarte's attorney that she did not discuss Careli's allegations with Blancarte. Blancarte therefore has not met his burden to show his attorney had "'"'no rational tactical purpose'"'" for failing to object. (People v. Mickel, supra, 2 Cal.5th at p. 198.)
B. The Trial Court Did Not Err in Instructing the Jury with CALJIC No. 2.05
1. The trial court proceedings
After the close of the defense case, the trial court and counsel discussed jury instructions, including whether the court should instruct the jury with CALJIC No. 2.05 regarding the fabrication of evidence by third parties for the defendant's benefit. The court explained as to the instruction, "There's been some testimony that a group of people got together and the evidence can suggest they were cooking up a story. Indeed, [Jose Luis's] testimony and [Isabel's] testimony seems to point thoroughly in that direction." The court observed that the instruction "warns the jury that they can't hold it against the defendant unless they find he authorized that attempt to fabricate evidence." Defense counsel noted there was evidence Blancarte family members met, but not that they "discussed specific testimony." The prosecutor noted there was evidence Blancarte was present at one or two family meetings.
During the prosecution's rebuttal case, the issue of fabrication of evidence came up in discussing the playing of Rotella's recorded interviews of the Blancarte family members for the jury. The trial court observed outside the presence of the jury, "One of the things that struck me was that all three witnesses said . . . we didn't talk about it. We didn't talk about the case. We talked about getting to the bottom of things and finding out what's what. So you can infer it. But when you layer all the voices talking about the same things, you're getting different forms of impeachment, which would be far over and above the one liner how come you didn't mention it was only three days or three visits. Now you've got active collusion, which supports the argument not only were they colluding, they were fabricating the evidence, and the evidence isn't worth a damn."
After the close of evidence, including the reading of the stipulation, the trial court again raised whether it should give CALJIC No. 2.05. The court reasoned, "[I]t does appear from the mob scene and the individuals who all suddenly instantly remember that Careli was there only three times after having talked to other people, and the mob scene where everybody seemed to be talking about what's going on, and Jose Luis's comment at the general family meeting to get to the bottom of things seems to clearly show that they were busily working for [Blancarte's] benefit. We also have to tell [the jury] . . . that they cannot consider this information as tending to show the defendant's consciousness of guilt unless they find [Blancarte] authorized that effort. We can [sic] give it unless there is some testimony that the defendant actually was present at the family meetings about him. So I think there's sufficient evidence to give the precautionary instruction." Blancarte's attorney submitted on the instruction.
The People do not argue on appeal that Blancarte forfeited his challenge to the instruction by failing to object.
The trial court later instructed the jury with CALJIC No. 2.05: "If you find that an effort to procure false or fabricated evidence was made by another person for the defendant's benefit, you may not consider that effort as tending to show the defendant's consciousness of guilt unless you also find that the defendant authorized that effort. If you find the defendant authorized the effort, that conduct is not sufficient by itself to prove guilt; and its weight and significance, if any, are for you to decide."
The prosecutor stated in her rebuttal argument, "[Y]ou were given jury instruction 2.05, efforts other than by the defendant to fabricate evidence. You heard from defense witnesses, how they got together, had their family meetings. That jury instruction tells you if you find that an effort to procure false or fabricated evidence was made by another person for the defendant's benefit, you may not consider that effort as tending to show the defendant's consciousness of guilt, unless you also find that the defendant authorized that effort. [¶] Well, we know from the evidence before you that the defendant was at least at one of those meetings, right as soon as Careli made that report. [¶] Now, the reason why that is important is because I spent some time talking about defense witnesses and their lack of credibility. Between the family meetings when the defendant was there and then their lies that they told here on the stand."
2. Sufficient evidence supported the trial court instructing the jury with CALJIC No. 2.05
"'"'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference."'" (People v. Gomez (2018) 6 Cal.5th 243, 287-288; accord, People v. Clark (2016) 63 Cal.4th 522, 605.) "'[T]here need only be some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference.'" (People v. Alexander (2010) 49 Cal.4th 846, 921; accord, People v. Byers (2021) 61 Cal.App.5th 447, 456-457.) With respect to CALJIC No. 2.05, "[a] defendant's authorization of a third party to procure false or fabricated evidence may be established by circumstantial evidence." (Clark, at p. 605; see People v. Terry (1962) 57 Cal.2d 538, 566 [agreeing with People's position that "defendant's authorization of the third person's conduct in attempting to influence a witness may be proved by circumstantial evidence"]. However, a third party's personal relationship with the defendant alone is not proof of authorization. (Terry, at p. 566.)
Blancarte contends the trial court erred in giving CALJIC No. 2.05 because there was no evidence he authorized any family member to procure false evidence or fabricate evidence. Rather, the prosecutor relied on Blancarte's mere opportunity to fabricate evidence created by his going home after work to support an inference he authorized efforts to fabricate evidence. Although there was no direct evidence Blancarte authorized his family members' efforts to fabricate evidence, there was evidence Blancarte was present for at least one family meeting. When asked how many times Blancarte was present at the family meetings, Isabel answered, "Well, sometimes he wasn't there. He arrived from work." The prosecutor then asked, "And he would join in the meeting, correct?" Isabel responded, "Yes. Well he would arrive home." Blancarte's presence at one or more family meetings where his family discussed Careli's allegations was sufficient to support a reasonable inference Blancarte was involved in his family's efforts to fabricate evidence favorable to him.
Even if there was not sufficient evidence to support the trial court's instruction with CALJIC No. 2.05, any error in instructing the jury was harmless. (See People v. Beltran (2013) 56 Cal.4th 935, 955 [harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836 applies to instructional error that does not amount to federal constitutional error]; People v. Larsen (2012) 205 Cal.App.4th 810, 830 [same].) CALJIC No. 2.05 is designed to protect, not incriminate a defendant. It instructs the jury that it may not consider a witness's effort to fabricate evidence as tending to show a defendant's consciousness of guilt unless there is evidence the defendant authorized the effort, and even if there is evidence of authorization, it is not sufficient by itself to prove guilt. (People v. Crew (2003) 31 Cal.4th 822, 849 [even if evidence did not support giving CALJIC No. 2.05, "[a]t most, the instruction was superfluous"]; People v. Gutierrez (1978) 80 Cal.App.3d 829, 836-837 [CALJIC No. 2.05 "protected defendant from the devastating effect" of rebuttal witness's testimony "that before [the alibi] witnesses gave their testimony he overheard them in the hallway discussing the details of their testimony in an effort to fashion stories consistent in their sequence of events, time, place and persons present"].)
C. The Trial Court Abused its Discretion in Precluding Blancarte from Calling Officer Shortle as a Witness
1. The trial court proceedings
When Blancarte's attorney told the trial court he intended to call Officer Shortle as a witness in his defense case, the prosecutor indicated Officer Shortle was not available that afternoon. The trial court suggested counsel attempt to reach a stipulation as to portions of the police report that could be read into the record in lieu of Officer Shortle's testimony. The prosecutor responded that Officer Shortle's testimony would be cumulative because "Officer Amundson was already questioned at length regarding Careli's statements." Blancarte's attorney argued Officer Shortle's testimony was necessary because there were ambiguities in the police report and Hare attributed statements to Officer Shortle. Blancarte's attorney made an offer of proof he would ask Officer Shortle about Careli's statement reflected in Officer Shortle's police report that "she spent this past weekend at her grandma's house, and it happened on Sunday (3-22-15)"; Hermoso's statement "they haven't seen [Blancarte] in over a year" (which contradicted Careli's statement the last incident occurred during the weekend of March 21 and 22, 2015); and Officer Shortle's statement in the police report that "[d]uring the interview, Careli stated to the nurse that the last time her uncle did this to her was last year sometime. She stated it only happened to her when she was 7 and 8 years old, and never since she had been 9 . . . which is different from what she originally told us." Further, Blancarte's attorney wanted to ask Officer Shortle "if Careli said the last incident happened to her . . . two or three days ago, sometime over the weekend, why didn't he relay that to the nurse?" Blancarte's attorney argued Officer Shortle's testimony was highly relevant to count 3 of the information, in which Blancarte was charged with sexually abusing Careli on March 22, 2015.
The trial court stated in response to the offer of proof, "Right now, I'm not seeing a single thing that you've talked about that wasn't testified to." The court noted the conflicting evidence as to the date of the last incident being one year or two days earlier "was covered amply" and Hermoso's inconsistent statements had also been "covered." The court told Blancarte's attorney, "Over your objection, we're not calling Shortle unless you can come up with a better reason to call him."
After the prosecutor presented her rebuttal evidence, the trial court inquired about Officer Shortle's availability, noting that Officer Shortle had been in the hospital. The court stated, "My indication is I think it's cumulative, but if he's here, we will hear from him. If he is not here, that will probably take care of that." The prosecutor later informed the court that Officer Shortle "indicated he was on medication" and could not drive, "[b]ut if he's absolutely needed, he could try to schedule a ride." The court responded, "I think we discussed cumulative, the other day before we broke." The court did not order the prosecution to produce Officer Shortle.
The People contend Blancarte forfeited his claim of error because his attorneys did not request a definitive ruling. But the trial court repeatedly indicated it would not allow Blancarte's attorneys to call Officer Shortle because his testimony was cumulative. Blancarte did not forfeit his claim of error.
In his motion for new trial, Blancarte argued the exclusion of Officer Shortle's testimony violated his federal constitutional rights to confrontation and to present a defense. The court denied the motion, finding Officer Shortle's testimony was cumulative.
2. Governing law and standard of review
"The United States Constitution guarantees criminal defendants a meaningful opportunity to present a defense. [Citation.] Evidence that falls short of exonerating a defendant may still be critical to a defense." (People v. Cash (2002) 28 Cal.4th 703, 727.) "'A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence . . . generally does not infringe upon this right.'" (People v. O'Malley (2016) 62 Cal.4th 944, 995; accord, People v. Steskal (2021) 11 Cal.5th 332, 348; People v. Fuiava (2012) 53 Cal.4th 622, 665-666.) "'[T]he Constitution leaves to [state trial court] judges . . . "wide latitude" to exclude evidence that is "repetitive . . ., only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues."'" (O'Malley, at pp. 995-996, quoting Crane v. Kentucky (1986) 476 U.S. 683, 689-690.)
Under Evidence Code section 352, "'[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Hardy (2018) 5 Cal.5th 56, 87; accord, People v. Bell, supra, 7 Cal.5th at p. 105.) Evidence Code section 352 "'permits the exclusion of evidence on the ground that it is cumulative.'" (People v. Trujeque (2015) 61 Cal.4th 227, 269; accord, People v. Pride (1992) 3 Cal.4th 195, 235 ["[A] trial court has broad discretion to exclude evidence it deems irrelevant, cumulative, or unduly prejudicial or time-consuming."].) "'"Although we recognize that a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in [her] favor [citations], '… the proffered evidence must have more than "slight-relevancy" to the issues presented.'"'" (People v. Nieves (2021) 11 Cal.5th 404, 445; accord, People v. Homick (2012) 55 Cal.4th 816, 865.)
"'In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal absent an abuse of that discretion.'" (People v. Hardy, supra, 5 Cal.5th at p. 87; accord, People v. Steskal, supra, 11 Cal.5th at p. 357 ["'"We will not disturb a trial court's exercise of discretion under Evidence Code section 352 '"except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."'"'"].)
3. The trial court abused its discretion in excluding Officer Shortle's testimony
Contrary to the trial court's ruling, Officer Shortle's testimony was not cumulative. The statement in Officer Shortle's report that Careli told Hare the last sexual abuse incident happened a year earlier was inconsistent with what Careli told Officers Amundson and Shortle. Although Officer Amundson testified as to what Careli told him and Officer Shortle, he was not present during Careli's meeting with Hare and could not testify to what Careli said. Blancarte's attorney also could have asked Officer Shortle whether he informed Hare about Careli's statement to the police officers about the March 22, 2015 incident (and if not, why not). Further, Blancarte's attorney could have questioned Officer Shortle on whether he had any information that showed whether Hermoso meant to include Careli in stating "they haven't seen [Blancarte] in over a year." Although Officer Amundson testified he interpreted this statement not to include Careli, Officer Shortle may have had reason to believe Hermoso was referring to herself and Careli when she said "they" did not see Blancarte for over a year. The trial court therefore abused its discretion in excluding Officer Shortle's testimony as cumulative.
4. The exclusion of Officer Shortle's testimony was prejudicial as to count 3
The improper admission or exclusion of evidence is reviewed for harmless error "under the standard articulated in either Chapman v. California (1967) 386 U.S. 18, 36 (Chapman) (error is prejudicial unless it appears beyond a reasonable doubt that the error did not contribute to the verdict) or People v. Watson (1956) 46 Cal.2d 818, 836 . . . (error is prejudicial if it is reasonably probable the defendant would have obtained a more favorable result absent the error)." (People v. Schultz (2020) 10 Cal.5th 623, 656.) "'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense, "'" and is therefore subject to review for harmless error under People v. Watson, 46 Cal.2d at page 836. (People v. McNeal (2009) 46 Cal.4th 1183, 1203; accord, People v. Boyette (2002) 29 Cal.4th 381, 427-428.) As the Supreme Court explained in McNeal in reviewing under the Watson harmless error standard the erroneous exclusion of evidence of variability in the partition ratio (conversion factor to derive blood-alcohol percentage) with respect to a driving under the influence conviction, "Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836." (McNeal, at p. 1203; see People v. Watson (2008) 43 Cal.4th 652, 686 ["'Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test.'"]; accord, People v. DeHoyos (2013) 57 Cal.4th 79, 119-120, People v. Partida (2005) 37 Cal.4th 428, 439.)
We apply the Watson harmless error standard because Blancarte was able to mount a defense by calling Blancarte's family members as witnesses and highlighting the inconsistencies between the testimony of Officer Amundson and Hare as to Careli's account of when the last abuse occurred. We conclude the exclusion of Officer Shortle's testimony was prejudicial under this standard as to count 3 because it is reasonably probable the verdict would have been more favorable to Blancarte absent the error. (People v. Watson, supra, 46 Cal.2d at p. 836.) The proffered testimony was of significant probative value, and its exclusion prevented Blancarte from challenging Careli's credibility as to count 3 by presenting evidence Careli told Hare the last incident was a year earlier. The only evidence of the March 22, 2015 incident charged in count 3 was Careli's statement to the police officers at the March 24 interview that the last incident occurred the prior Sunday, March 22. Careli testified she did not recall telling the police officers the last incident occurred on March 22. Hermoso testified she and Careli attended a barbecue at the Los Angeles house in 2015, but she could not identify the precise date, instead only narrowing the timeframe to sometime between January and March 2015. Had Blancarte been allowed to call Officer Shortle, his attorneys could have elicited testimony about Careli's statement to Hare that the incident occurred over a year earlier, which was inconsistent with her statement to Officers Amundson and Shortle that the last incident was on March 22. And, as discussed, Officer Shortle may have presented information to buttress an interpretation of Hermoso's statement that "they" had not seen Blancarte in over a year to mean she and Careli had not seen Blancarte, which would be inconsistent with the interpretation given by Officer Amundson. We therefore reverse Blancarte's conviction on count 3.
However, Blancarte's argument that the exclusion of Officer Shortle's testimony impacted his ability to challenge Careli's credibility as to counts 1 and 2 is not persuasive. The information charged Blancarte with sexual intercourse or sodomy with Careli between July 18, 2012 and July 17, 2013 (count 1) and July 18, 2013 and July 17, 2014 (count 2). Careli's testimony that Blancarte abused her in 2012 at the Torrance house (count 1) and later at the Los Angeles house during weekend visits (count 2) is consistent with her disclosure of the abuse to the police officers, child advocate Flores, and Detective Gilpin. Careli consistently reported that the first incident occurred at the Torrance house, and Hermoso confirmed her family (including Careli and Blancarte) lived at the Torrance house in 2012. Likewise, Careli's testimony that she spent weekends at the Los Angeles house during her parents' separation was corroborated by Hermoso's testimony that Careli visited Francisco on weekends at the Los Angeles house from August 2013 to April 2014. Blancarte's offer of proof as to Officer Shortle's testimony does not show Careli made any inconsistent statements to the officers concerning the abuse in 2012 (count 1) or the abuse during the period from 2013 to 2014 (count 2). Even if the jury would have believed Officer Shortle's likely testimony that he heard Careli tell Hare that the last incident of abuse was over a year earlier, this testimony would not impeach Careli any more than what the jury heard-that Careli told Officer Shortle (who told Hare) that the last abuse occurred seven to nine months earlier.
Blancarte contends the cumulative errors based on prosecutorial misconduct and the exclusion of Officer Shortle's testimony warrant reversal. Because we reverse the conviction on count 3, we do not reach whether cumulative error warrants reversal of that count. As to counts 1 and 2, there was no cumulative prejudice because we find no error. (People v. Powell, supra, 6 Cal.5th at p. 194 [no cumulative prejudice where "[a]ny errors, actual or arguable, were minor"]; People v. Edwards (2013) 57 Cal.4th 658, 746 [no cumulative prejudice because there was no error, and where court assumed error, there was no prejudice].)
DISPOSITION
The judgment is reversed on count 3. In all other respects the judgment is affirmed.
We concur: PERLUSS, P. J. IBARRA, J. [*]
Flores's interview of Careli and watched the interview through a monitor from another room. The interview was videotaped and played for the jury.
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.