California Court of Appeal Apr 13, 2021 No. E073199Unpublished
Filed 4/13/21 P. v. Cordova CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073199
v. (Super.Ct.Nos. SWF1600673 & SWF1807161) ERIK MICHAEL CORDOVA, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Darryl L. Exum for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.
Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant and appellant Erik Michael Cordova fathered nine children with two
women. For many years, he molested four of his six daughters. On May 6, 2019, a jury
convicted him of 15 counts of lewd acts on a child under 14 years old (Pen. Code, § 288,
subd. (a)) and six counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)).
The jury also found that defendant committed these offenses against more than one
former § 667.61, subd. (e)(5).) He was sentenced to an indeterminate term of 315 years
to life.
On appeal, defendant raises various challenges to the trial court’s evidentiary
rulings and his counsel’s assistance. We reject his challenges and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
A. Background.
Defendant was in the business of “mining and marketing gemstones.” He has nine
children from two different wives, J. and S. In 1989, defendant began a relationship with
J. In 1993, he began a relationship with S. In 1994, J. gave birth to Sa. and defendant
told J. about his relationship with S. The families lived in two separate, but adjacent,
houses in Torrance. Defendant and J. have five children: three sons, including M., and
two daughters, including Jane Doe 2 (L.C., born Oct. 1996). Defendant and S. have four
daughters: Jane Doe 1 (R.A., born Feb. 1995), Jane Doe 4 (C.C., born Dec. 1999), Jane
Doe 3 (M.C., born Oct 2001) and A. Defendant married J. in 1997. By 2002, the
families moved to Murrieta and lived in the same house. Shortly thereafter, in 2004, J.
and her children moved out.
2
In 2009, defendant, S. and their children moved to Temecula. By 2013, defendant
and J.’s divorce had become final, and defendant married S. Three years later, defendant
was arrested, and S. divorced him.
B. The Prosecution’s Case.
1. Molestation involving L.C. (Jane Doe 2).
Defendant began molesting L.C. when she was eight or nine years old, shortly
after they moved to Murrieta, and continued until she was 16 years old. Sometimes he
gave her alcohol and showed her pornography. He touched and massaged her breasts and
genitals, made her touch and rub his penis and, sometimes, he ejaculated in her hand. He
also made her orally copulate him, and he digitally penetrated her vagina while rubbing
his penis. Defendant threatened that she would not be able to see her half sisters again if
she did not comply. She did not tell anyone about the abuse because she was afraid she
would be taken away from her mom and family.
L.C.’s brother, M., testified that one time, in the middle of the night, he saw
defendant kneeling by L.C., who was on the couch, with his hand near her. Defendant
yelled at M. to go to sleep.
2. Molestation involving R.A. (Jane Doe 1).
In 2000, defendant began molesting R.A. when she was five years old. He began
by massaging her back, buttocks, and genitals, and later progressed to having her
masturbate or orally copulate him. The abuse continued until she moved out of the house
when she was 17. The abuse made R.A. angry, and she and defendant would argue a lot.
She did not tell anyone about it because she was afraid. Defendant told her that if she
3
told anyone about the abuse, her “siblings would be put into foster care and [her] mom
would be deported[1] and [she] would never see [her] family again.”
3. Molestation involving C.C. (Jane Doe 4).
Defendant began molesting C.C. when she was eight or nine years old, and the
family was living in Temecula. He massaged her back down to her buttocks. When she
was in the sixth grade, defendant, who was wearing boxers, grabbed her and pushed her
body against his body, and rubbed her chest and stomach. She did not tell anyone
because she was afraid she and her siblings would be placed in foster care since her
mother could not support them, and C.C. did not think her mother was eligible for social
services as “she was here undocumented.” Less than a year later, M.C. told C.C. and M.
that she (M.C.) had been abused. M. did not believe it, but C.C. also disclosed that she
had been abused. They agreed to keep it a secret so they would not be separated.
In 2015, C.C. told her mother that defendant had molested her. S. told C.C. not to
tell anyone, and S. did not file a report with the authorities. Also in 2015 or 2016, C.C.
told her boyfriend that defendant had touched her inappropriately. He told his aunt, a
therapist, who spoke to C.C. and pressured her to call child protective services (CPS).
1 R.A.’s mother, S., is from Austria. She came to the United States in 1993 as a nanny. She briefly returned to Austria but reentered the United States in 1999 on a tourist visa. She stayed past the expiration of her visa and became undocumented. In 2016, R.A. sponsored S. and initiated an application for her to get a green card, which was issued to her in June 2017.
4
4. Molestation involving M.C. (Jane Doe 3).
When M.C. was eight years old and living in Temecula, defendant rubbed her
chest under her shirt while they watched a movie. When she tried to get away, defendant
said, “‘No. Be quiet. Stay here.’” When she was in the fourth or fifth grade, he walked
into her bedroom and wanted her to touch his penis. She refused, and he told her to lay
on the bed. He grabbed her chest under her shirt for about 10 minutes. M.C. wrote about
the incident in her journal. About one year later, she disclosed the incident to M. and
C.C. In 2012, S. found M.C.’s note in her journal, and they discussed it. M.C. had
written, “This is about the time when Dad asked me to touch his thingy. I told [C.C.] and
[M.] about it [¶] . . . [¶] [b]ut no one believes me.” When S. confronted defendant, he
said that it was “a one-time thing” and “nothing happened.” S. discarded the note and did
not tell anyone because she was in the country illegally and had no money or a driver’s
license.
5. The 2012 investigation.
In 2012, during defendant and J.’s divorce, J. and L.C. were not living with
defendant. L.C. was not doing well and at one point tried to kill herself because of her
father’s abuse. In November 2012, she disclosed the sexual abuse to her mother, who
called the police. L.C. was referred for a sexual assault response team (SART) exam but
did not take it. L.C spoke with a social worker but was not able to discuss all of the
abuse. She was able to write that defendant raped her three times. C.C., M.C., and A.
were also interviewed and denied any sexual abuse. C.C., M.C., and M. discussed not
disclosing the abuse because they were afraid of their family being “torn apart.”
5
On December 6, 2012, J. notified Detective Franchville that her son, M., had told
her about an incident involving C.C., M.C., and defendant.
6. The 2016 investigation.
On April 25, 2016, when C.C. was 16 years old, she and her father got into an
argument while driving. When they returned home, C.C. called her boyfriend and told
him to have his aunt call CPS. CPS contacted C.C. By reporting the abuse, C.C. hoped
defendant would be punished for what he had done, and she would prevent him from
abusing her younger sister, A. The following day, CPS spoke with M.C., who also
disclosed that she had been abused. M.C. wrote down her account in a letter, which was
entered into evidence. CPS then contacted the sheriff’s department. A detective
interviewed both C.C. and M.C. The detective also interviewed defendant, who denied
the allegations. R.A. continued to deny that she had been sexually abused until
Christmas 2017.
7. Expert testimony regarding child sexual abuse accommodation
syndrome (CSAAS).
Dr. Jody Ward, a clinical and forensic psychologist, testified regarding CSAAS,
which describes a “pattern of behaviors that many children exhibit who have been
sexually abused.” She explained that children abused by a family member in an ongoing
relationship tend not to report the abuse right away and, since they tend not to be
believed, they suffer more consequences from the abuse. Dr. Ward described five stages
“The independent or de novo standard of review is applicable in assessing whether
instructions correctly state the law.” (People v. Posey (2004) 32 Cal.4th 193, 218.) “‘It
is well established in California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ [Citations.] [¶] ‘We credit jurors with
intelligence and common sense [citation] and do not assume that these virtues will
abandon them when presented with a court’s instructions. [Citations.]’ [Citation.]
[¶] We ask whether a ‘reasonable juror would apply the instruction in the manner
suggested by defendant.’” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396.)
In challenging CALCRIM No. 1193, defendant asserts the instruction is “worded
entirely in terms of the purposes for which the jury can use CSAAS testimony; it does not
say that there is any purpose for which they cannot use it.” He therefore claims that using
Dr. Ward’s testimony “as evidence the alleged victims were ‘believable,’ . . . is
indistinguishable from using it as evidence [he] committed the crimes charged against
him.” Since CALCRIM No. 1193 “misled the jury into relying on the expert’s testimony
to bolster the witnesses’ credibility, [defendant argues] it lessened the prosecution’s
burden of proving guilt beyond a reasonable doubt[, and] it violated [his] rights to due
process under the federal constitution.”
As defendant concedes, this same argument was rejected in Gonzales, supra,
16 Cal.App.5th at p. 504. However, he argues that “Gonzales was wrongly decided and
18
the court’s explanation of how the jury would understand the instruction is why the
instruction is problematic.” We are not persuaded. While CALCRIM No. 1193 does not
say that “there is any purpose for which [jurors] cannot use it,” it does contain language
that clearly conveyed that point. Specifically, the instruction told the jurors that Dr.
Ward’s testimony was “not evidence that the defendant committed any of the crimes
charged against him.” Defendant acknowledges this language and that it is “mentioned in
CALCRIM No. 303[2] (which the court also gave [without] specify[ing] that [it] applies
specifically to the CSAAS testimony . . .),” but he contends “for the jury to understand”
the limited use of CSAAS testimony, they “first need to understand . . . that there is a
difference between ‘the complaining witness is believable’ (one of the purposes
authorized by the instruction) and ‘the victim’s molestation claim is true’ (the purpose
forbidden by Housley).” We disagree.
CALCRIM No. 1193 does not allow the jury to conclude that defendant molested
his daughters based solely on Dr. Ward’s testimony. Rather, it allows the use of the
expert’s testimony as one factor in assessing the victims’ credibility. Defendant’s
argument confuses two types of evidence: (1) evidence relevant to a victim’s credibility;
and (2) evidence that the defendant committed the charged offenses. However, the two
types of evidence are different, and case law recognizes this difference. (See Housley,
supra, 6 Cal.App.4th at p. 956 [CSAAS evidence is properly admitted “to rehabilitate
[the victim’s] credibility and to explain the pressures that sometimes cause molestation
2 “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” (CALCRIM No. 303.)
19
victims to falsely recant their claims of abuse.”]; People v. Bowker (1988)
203 Cal.App.3d 385, 394 [Although CSAAS evidence may not be “used to determine
whether the victim’s molestation claim is true,” it may be used “to rebut defense attacks
on the [victim’s] credibility.”]; McAlpin, supra, 53 Cal.3d at p. 1300 [Although CSAAS
evidence is “not admissible to prove that the complaining witness has in fact been
sexually abused,” “it is admissible to rehabilitate such witness’s credibility.”].)
Here, CALCRIM No. 1193 did not require the jury to accept the CSAAS evidence
or infer that L.C., R.A., C.C., or M.C. were sexually abused. Rather, it expressly told the
jury not to use Dr. Ward’s testimony as “evidence that the defendant committed any of
the crimes charged against him” and advised that jurors could consider the evidence
“only” for the limited purpose of “deciding whether or not [L.C.’s, R.A.’s, C.C.’s and
M.C.’s] conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of their testimony.” In separate instructions,
the jury was also informed of the presumption of innocence and the People’s burden to
prove defendant guilty beyond a reasonable doubt. Taken together, these instructions are
clear, a reasonable juror would have understood them, and they did not create any risk
that jurors would believe they could rely on the expert testimony to convict defendant
even if guilt had not been proven beyond a reasonable doubt based on other evidence.
(Accord, Gonzales, supra, 16 Cal.App.5th at pp. 503-504 [rejecting defendant’s argument
that “it is impossible to use the CSAAS testimony to evaluate the believability of [the
victim’s] testimony without using it as proof that [defendant] committed the charged
20
crimes,” and holding that CALCRIM No. 1193 “was proper and did not violate due
process”].)
Because we find no instructional error, we need not, and do not, consider the
People’s harmless error argument.
C. Ineffective Assistance of Counsel.
Defendant asserts his trial counsel was ineffective by not presenting expert
evidence that he did not fit the profile of a child molester and by failing to object to the
prosecutor’s cross-examination concerning whether the victims were lying and
conspiring against him.
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a
claim of ineffective assistance of counsel, a defendant must establish that his counsel’s
performance was deficient and that he suffered prejudice. (Strickland v. Washington
(1984) 466 U.S. 668, 687.) Deficient performance requires a showing that “counsel’s
representation fell below an objective standard of reasonableness” “under prevailing
professional norms.” (Id. at p. 688.) With respect to prejudice, a defendant must show
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.” (Id. at p. 697.)
21
1. Failure to present a Stoll3 expert.
a. Further background information.
Prior to trial, defense counsel obtained a psychological assessment of defendant
from Laura A. Brodie, Ph.D., who interviewed him on July 28, 2017. She stated that the
results of defendant’s testing “suggested typical, heterosexual, age-appropriate sexual
interests involving adolescent and adult females. There was no indication of sexually
deviant interests involving paraphilic stimuli, such as exhibitionism, voyeurism,
prepubescent children, or sexual violence.” Dr. Brodie opined that the “findings from
[defendant’s] psychosexual evaluation indicates that at the time of assessment, he does
not have a deviant sexual interest in prepubescent children, he does not have a
diagnosable mental illness and he is not predatory.”
On June 14, 2019, after the verdict but before sentencing, the trial court relieved
Mr. Greenberg as defendant’s attorney and appointed Mr. Exum as his counsel. Mr.
Exum filed a motion for new trial on the ground of ineffective assistance by failing to call
Dr. Brodie as an expert witness. The motion was accompanied by Dr. Brodie’s written
report and a declaration from Mr. Greenberg. Mr. Greenberg declared that he did not
“call Dr. Laura A. Brodie as a witness for tactical reasons.” On July 11, 2019, the court
denied defendant’s motion.
3 People v. Stoll (1989) 49 Cal.3d 1136 (Stoll).
22
b. Analysis.
Psychological opinions based upon personal examination and analysis of accepted
psychological tests are admissible as character evidence tending to show that a defendant
was or was not likely to have committed a particular act. (Stoll, supra, 49 Cal.3d at
p. 1153; Evid. Code, § 1102, subd. (a).) In Stoll, a child molestation case, the California
Supreme Court held that the trial court erroneously excluded a psychiatrist’s opinion that
the defendant had a “‘normal personality function,’” that the defendant had not
previously engaged in “‘sexual deviancy of any kind,’” and that it was “‘unlikely . . . she
would be involved in the events she’s been charged with.’” (Stoll, at p. 1149, italics
omitted.)
Defendant insists “competent counsel would have used Dr. Brodie’s testimony to
show that [his] psychological makeup was not consistent with molesting a child.” Not so.
Defendant has not definitively established that Mr. Greenberg lacked a tactical reason for
declining to present Dr. Brodie’s testimony given his declaration to the contrary. At the
hearing on the motion for new trial, defendant did not call Mr. Greenberg to testify to his
tactical reasons. However, there are reasons why he may have decided not to introduce
Dr. Brodie’s testimony.
To begin with, Dr. Brodie’s assessment of defendant was not all positive.
According to the personality assessment inventory, defendant “produced a defensive
profile, attempting to place himself in a more favorable light”; however, “[h]e did not
respond in a manner that would make the inventory invalid.” Trial counsel may have
feared evidence of defendant’s “defensive profile” would cause the jury to conclude that
23
he was lying. As the prosecutor argued, he was “hopeful that the defense would call [Dr.
Brodie] because it would go towards a lack of credibility when the person who’s
evaluating him as to whether or not he has a sexual interest in children found him to be
untruthful at times.” Also, defendant did not need the Stoll evidence to support his
assertion of innocence. The first accusation of sexual molestation was made during
defendant’s divorce from J., when the two were engaged in a heated custody battle over
their sons. Thus, defendant stresses, “[t]he fact that sexual abuse allegations arise from a
divorce/custody situation is a significant circumstance that flags a potential motive to
fabricate.” Through direct- and cross-examination of various witnesses, defense counsel
was able to present this defense without Dr. Brodie’s potentially damaging testimony. A
reasonable juror could understand why children might have a motive to lie about a
parent’s conduct during a divorce.
The above reasons make Mr. Greenberg’s decision not to present the testimony of
Dr. Brodie a reasonable, if not compelling, tactical choice.
2. Failure to object to the prosecutor’s “‘were they lying’” questions.
a. Further background information.
While cross-examining defendant, the prosecutor asked, on numerous occasions,
24
whether C.C., M.C., R.A., or S. were lying and conspiring against him.4 Defense counsel
registered no objection to these questions.
4 Regarding C.C. and M.C., the prosecutor asked: “Q: You heard [C.C.] say in court what she says you did to her, correct? [¶] A: I heard that, yes, sir. “Q: And you are saying your daughter is a liar? [¶] A: I am saying she’s lying when she said that, yes. [¶] . . . [¶] “Q: You heard [M.C.] state in court what you did to her, correct? [¶] A: I heard her accusations in court, yes. “Q: You are calling your daughter [M.C.] a liar, correct? [¶] A: When she made those accusations, she was lying, sir. [¶] . . . [¶] “Q: In every accusation that you’re aware she made, you’re calling her a liar? [¶] A: Yes, I am, sir.”
In reference to the victims’ mother, S., the prosecutor asked: “Q: You heard [S.] testify in court that she found a note from [M.C.] and confronted you with it, correct? [¶] A: I heard that testimony, yes, sir. “Q: And as you sit here today, you’re saying she’s lying? [¶] A: I’m saying those statements were lies, yes.”
Regarding R.A., the prosecutor asked: “Q: You heard what she said you did to her during those years, correct? [¶] A: I heard her accusations, yes, sir. “Q: And you are saying that she is a liar? [¶] A: I’m saying those accusations were a lie, yes. “Q: So from this photograph of the five women sitting on the opposite side of the table from you, four are lying about you during these court proceedings? [¶] A: Yes, they were, sir.”
After the prosecutor asked defendant about crying on the witness stand when he was shown cards from his family, the following exchange occurred: “A: It’s my family, sir, yes. [¶] Q: Family that you’re saying are liars? [¶] A: Yes, they are.”
Finally, the following exchange occurred regarding the victims conspiring against defendant: “Q: . . . April 26, 2016, your mental state, you didn’t have any reason to believe that your wife, at the time, [S.] was conspiring with your daughters to make something up, correct? [¶] A: When Franchville was interviewing me in April of 2016, I thought they must be conspiring to do something because they were lying about me. “Q: You thought that? [¶] A: That’s what I thought. There must be some kind of problem going on with them. They’re obviously up to something. I was very confused, and I was shocked. [¶] Q: Okay. So that’s what you would have said. You would have said, Hey, they’re conspiring against me. You would have told the investigator that? [¶] A: Probably not.”
25
b. Analysis.
Defendant contends the trial court erred in permitting the prosecutor to ask him a
series of “‘were they lying’” and conspiring questions. (People v. Zambrano (2004)
124 Cal.App.4th 228, 242 (Zambrano)].) [trial courts should consider “‘were they lying’”
questions in context].) Since defense counsel registered no objections to these questions,
the claim is forfeited. (See People v. Dykes (2009) 46 Cal.4th 731, 763.) Anticipating
our application of forfeiture, defendant contends his counsel was ineffective.
In Zambrano, two police officers testified that they purchased cocaine from
defendant via a woman at a truck stop parking lot. (Zambrano, supra, 124 Cal.App.4th at
p. 233.) At trial, the defendant admitted that he worked at the truck stop parking lot but
denied engaging in any drug transaction. (Ibid.) On cross-examination, the prosecutor
repeatedly asked him if the officers were lying when they testified. (Id. at pp. 234-235.)
The prosecutor also asked if defendant wanted the jury to believe that the officers were
going to risk their jobs by lying at his trial. (Id. at p. 234.) Defense counsel’s objection
was overruled. (Ibid.) The defendant answered that he did not know whether the officers
would lose their jobs for lying, but he did not have drugs that day and did not use drugs.
(Ibid.) On appeal, the defendant asserted the “‘were they lying’” questions constituted
prosecutorial misconduct. (Id. at pp. 239-240.) The Zambrano court agreed. (Id. at
pp. 240-242.)
Zambrano does not bar all “‘were they lying’” questions. (People v. Chatman
(2006) 38 Cal.4th 344 (Chatman).) In Chatman, the California Supreme Court observed
that “[i]f a defendant has no relevant personal knowledge of the events, or of a reason
26
that a witness may be lying or mistaken, he might have no relevant testimony to provide”
because testimony cannot be based on conjecture or speculation. (Id. at p. 382; see Evid.
Code, § 702.) Thus, this type of evidence would be inadmissible. (Evid. Code, § 210.)
Conversely, “[a] defendant who is a percipient witness to the events at issue has personal
knowledge whether other witnesses who describe those events are testifying truthfully
and accurately. As a result, he might also be able to provide insight on whether witnesses
whose testimony differs from his own are intentionally lying or merely mistaken.
When . . . the defendant knows the other witnesses well, he might know of reasons those
witnesses might lie. Any of this testimony could be relevant to the credibility of both the
defendant and the other witnesses.” (Chatman, at p. 382.) As a result, the Chatman court
stated, “courts should carefully scrutinize ‘were they lying’ questions in context. They
should not be permitted when argumentative, or when designed to elicit testimony that is
irrelevant or speculative. However, in its discretion, a court may permit such questions if
the witness to whom they are addressed has personal knowledge that allows him to
provide competent testimony that may legitimately assist the trier of fact in resolving
credibility questions.” (Id. at p. 384.)
Here, the prosecutor’s “‘were they lying’” questions were similar to the questions
deemed proper in Chatman. By choosing to testify, defendant placed his credibility in
dispute. And, like in Chatman, he had personal knowledge of his interactions with C.C.,
M.C., R.A., and S. and of the events that they testified about. He thus had insight into
their alleged “bias, interest, or motive to be untruthful.” (Chatman, supra, 38 Cal.4th at
p. 381.) Consequently, the prosecutor’s questions elicited testimony that could assist the
27
jurors in resolving key credibility questions, and defense counsel was not ineffective for
failing to object. (Id. at p. 384.)
We reach a different conclusion on the prosecutor’s decision to ask defendant
whether he believed the witnesses were conspiring together against him. That question
was argumentative in nature and called for a speculative answer. (Chatman, supra,
38 Cal.4th at p. 381; Zambrano, supra, 124 Cal.App.4th at p. 242.) As such, we can
conceive of no tactical reason why defense counsel chose not to object on these grounds.
However, a reversal for ineffective assistance of counsel is required only if defendant can
demonstrate prejudice, which he has failed to do. The prosecutor’s conspiracy question
was brief and was not particularly prejudicial. Defendant had already testified that he
believed that the witnesses were not being truthful and, earlier, he testified of his belief
that their allegations stemmed from the custody dispute in his divorce with J. Thus, it is
not reasonably probable that he would have received a more favorable result had his
counsel objected. (Strickland, supra, 466 U.S. at p. 694.)
D. Cross-examination of Defense Character Witnesses.
Finally, defendant argues the trial court improperly allowed the prosecutor to
question character witnesses with hypothetical questions that assumed he was guilty of
the charged crimes.
1. Further background information.
Several character witnesses testified on defendant’s behalf. When cross-
examining these witnesses, the prosecutor asked each of them whether their opinion of
defendant’s character would change, assuming he was guilty of the crimes charged in the
28
case. R.R., defendant’s uncle, testified that defendant is an honest, trustworthy, and
upstanding citizen. On cross-examination, the prosecutor asked, “Would it change your
opinion if you heard that he asked his daughter, [M.C.], to have her touch his penis?”
R.R. replied, “I wouldn’t believe that.” The prosecutor followed up, “Well, would it
change your opinion? If you learned that, would it change your opinion as to truthfulness
as you described it?” R.R. answered, “Wouldn’t change my opinion.”
Defendant’s cousin, J.C., testified that defendant is an honest, lawful, nonviolent
person. During cross-examination, the prosecutor asked, “As far as your opinion of his
character, would it change your opinion if you heard him admit that he asked his
daughter, [M.C.], for her to touch his penis? Would that change your opinion if you
heard that?” She replied, “If that was true. [¶] . . . [¶] Yes.”
Defense counsel raised no objection to any of these guilt assuming hypotheticals.
2. Analysis.
Defendant acknowledges that his trial counsel did not object to the questions but
insists that because they violate his due process rights, his arguments may be raised for
the first time on appeal. He also argues that given the constitutional implications of the
questioning, this court should exercise its discretion to review his claims notwithstanding
forfeiture. We decline to exercise our discretion to examine the merits of defendant’s
claims. The failure to object to the admission of evidence on constitutional grounds
forfeits the issue on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; People v.
Benson (1990) 52 Cal.3d 754, 786, fn. 7.)
29
Alternatively, defendant argues that defense counsel rendered ineffective
assistance by failing to object to the prosecutor’s guilt assuming hypotheticals. We
disagree. Even if we assume defense counsel was deficient, defendant has failed to
demonstrate prejudice. (Strickland, supra, 466 U.S. at pp. 688, 694.)
As defendant points out, federal courts have found that it is improper for a
prosecutor to ask defense character witnesses guilt assuming hypotheticals. (See U.S. v.