Filed 8/15/14 P. v. Ugalde CA2/8
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                         B248999

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. TA124730)
         v.

VICTOR HUGO UGALDE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Paul A.
Bacigalupo, Judge. Affirmed.


         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
                                _________________________________
       A jury found defendant Victor Ugalde guilty on two counts of committing a lewd
or lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) On
appeal, defendant contends: (1) the trial court erred in denying his motion for a mistrial
and motion for new trial, both of which contended the court should not have admitted
certain evidence; (2) he was denied the effective assistance of counsel because his
attorney failed to move to suppress his confession to police; and (3) the trial court erred
in sustaining objections to portions of a defense expert’s testimony. We affirm the
judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       We summarize the facts in accordance with the usual rules on appeal. (People v.
Virgil (2011) 51 Cal.4th 1210, 1263.) In the summer of 2007, Michelle C. was 13 years
old and best friends with defendant’s daughter, C.U. One night, when Michelle was
sleeping over at C.’s house, Michelle was sitting alone at a computer in the living room;
C. was in her bedroom. Defendant approached Michelle from behind and gave her a
lollipop. She took the lollipop and stood; defendant reached from behind her and put his
hands on her chest. Defendant then pushed his right hand down Michelle’s pants above
her underwear. He moved his hand underneath her underwear and touched her vagina.
Defendant moved his other hand under Michelle’s shirt and touched her breast. Michelle
heard defendant breathing heavily and she felt his erect penis pressed against her lower
back. Defendant then removed his hands and Michelle walked away.
       Michelle was shocked. She did not tell anyone what had happened because she
was afraid of losing C.’s friendship. The next time she spent the night at C.’s house, she
tried not to be alone. When C. went to the bathroom, Michelle stood outside in the
hallway. Defendant again approached Michelle from behind, put one hand under her
shirt and touched her breast and he touched her vagina with the other hand. When C.
came out of the bathroom, defendant immediately took his hands out of Michelle ’s
clothes and walked away.
       When Michelle’s mother, Y.S., picked Michelle up from C.’s house, Y.S. either
mentioned she saw a guilty “look” on defendant’s face, or asked why Michelle no longer

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wanted to play at C.’s house as she had previously. Y.S. asked if defendant had done
anything to Michelle. Michelle told Y.S. that defendant had touched her more than once.
Michelle did not want Y.S. to go to the police. She had only a few friends at the time and
did not want to lose C.’s friendship. Y.S. did not call the police, but she told C.’s mother.
From that point on, before allowing Michelle to go to C.’s house, Y.S. spoke with C.’s
mother and ensured defendant would not be there.
       In 2012, Michelle and Y.S. took C. to a medical appointment. C.’s mother was
working. C. had become ill and was very thin. Y.S. mentioned that the sickness seemed
to coincide with defendant visiting C. Y.S. convinced Michelle it was time to talk to the
police about defendant. Y.S. told the doctor that defendant had touched Michelle. The
doctor indicated Y.S. had to tell a social worker, and the social worker informed Y.S. the
matter had to be reported to the police.
       Police interviewed defendant while he was in custody. Defendant at first denied
doing anything wrong and said he had only hugged Michelle. Eventually, however,
defendant said he put his hand in Michelle’s pants but his hand did not “go all the way
down”; on the second occasion he told himself, “What am I doing? . . . It’s not right.”
       The jury found defendant guilty of two counts of committing a lewd or lascivious
act upon Michelle, a child under 14 years old. (§ 288, subd. (a).) The trial court denied
defendant’s motion for new trial. The court sentenced defendant to a total prison term of
eight years. This appeal followed.
                                       DISCUSSION
I.     Defendant’s Constitutional Rights Were Not Violated by the Trial Court’s
       Rulings Denying the Motion for Mistrial and the New Trial Motion
       On appeal, defendant contends his Constitutional right to due process was violated
when the trial court erroneously admitted evidence that Michelle and her mother were
concerned defendant may have molested C., and when the court allowed the prosecutor to
introduce a photograph showing C. and Michelle together. We find no abuse of
discretion.



                                              3
       A. Background
       On direct examination, Michelle testified she and her mother took C. to a doctor
because C. “was getting very sick.” The court sustained a defense objection to the
question: “When you say ‘sick,’ what do you mean by ‘sick?’” In a colloquy outside the
presence of the jury, defense counsel objected to any questioning that might elicit
inferences that something was wrong with C., or that defendant may have molested her.
In the same discussion, defense counsel objected to the admission of a photograph that
depicted Michelle and C. in 2007. Defense counsel argued the photograph was more
prejudicial than probative and would be used to imply something was wrong with C. and
defendant may also have molested her. The court concluded there was no sexual
inference connected to admission of the photograph and it was otherwise probative.
Michelle testified she and C. were depicted in the photograph from 2007, with their arms
around each other and their pinky fingers linked.
       On cross-examination, defense counsel asked Michelle a question about the
photograph,1 and about the events precipitating Michelle’s report to police. When
defense counsel asked how Y.S. secured Michelle’s permission to initiate the process that
eventually involved police, Michelle answered: “She was mentioning to me about how C.
was getting sick ever since—”; defense counsel interrupted Michelle and the prosecutor
objected. When the court indicated Michelle could finish her answer, defense counsel
requested a sidebar. Defense counsel again argued Michelle should not be allowed to
speculate that C.’s illness was related to defendant or that defendant had touched C.
inappropriately. The court pointed out defense counsel had asked a question and
Michelle answered; the court further stated it did not find there was an inference of
sexual impropriety in Michelle’s answer. The court denied the defense motion to strike



1      Defense counsel and Michelle had the following colloquy: “Q: So you guys are
close? A: Yes. Q: Just like in that picture, you guys are like interwoven? A: Yes.
Q: And you’re doing your – your pinkies are locked? A: Yes. Q: Did the pinkies mean
something special? A: We always thought of it as, you know, the two of us are best
friends.”

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the testimony. Defense counsel moved for a mistrial. The court denied the motion,
concluding there was no testimony or court ruling that would “rise to the level of breach
of a fair trial.”
        Defense counsel then asked the court to preclude any further testimony regarding
C.’s health. After hearing additional argument, the court responded: “You know what,
we’re in the middle of your examination, and you’re asking me for a motion of
preclusion. At this point I’m not going to preclude you from asking what you want . . . .
You asked her a question, and she was entitled to explain her answer, so how you want to
follow up on that is your choice.” When testimony resumed, Michelle testified: “[C.]
was getting sick, and when she [Y.S.] told me that it was around the time that [defendant]
had come to visit her at her apartment, I thought, isn’t that kind of a coincidence? So it
was then that my mom had somewhat convinced me that maybe it was time that I spoke
out to the police.”
        When Y.S. testified on direct examination, she indicated she took C. to a doctor
and said: “[C.] was so sick because the doctors couldn’t figure out what was wrong with
her. I said maybe the reason why is because she’s being affected by similar behavior he
got with my daughter. Maybe it was happening with their daughter.” On cross-
examination, Y.S. testified that C. was very thin at that time and Y.S. was worried about
C. being so thin.
        In closing, the prosecutor argued: “[Y.S.] and Michelle . . . couldn’t explain why
she was getting weak, and so that’s why [Y.S.] . . . tells the doctor, you know, ‘this
happened to my daughter, so it could be what’s happening here,’ hoping to give an
explanation. Not accusing him of doing it, but hoping to get an explanation.” Following
the jury verdict, defendant moved for a new trial, arguing in part that the trial court erred
by admitting speculative statements regarding C.’s health. Defendant asserted Michelle
“alleged that [C.]’s health drastically declined after [C.] residing with the defendant for a
brief period of time in 2011. . . . These statements were highly prejudicial as they
strongly suggested to the jury that the defendant’s daughter was unhealthy and unhealthy
due to contact with the defendant.” The court denied the motion.

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        B. Analysis
        “A motion for mistrial should be granted only when a party’s chances of receiving
a fair trial have been irreparably damaged. [Citation.] We review a ruling denying a
motion for mistrial for abuse of discretion. [Citation.]” (People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 1029.) Similarly, we review a trial court’s ruling on a motion for
new trial “ ‘under a deferential abuse-of-discretion standard.’ [Citation.]” (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 127.)
        We find no abuse of discretion in the court’s ruling allowing evidence of
Michelle’s and Y.S.’s reasons for finally reporting defendant’s conduct with Michelle, or
the admission of the 2007 photograph of Michelle and C. We disagree with defendant’s
contention that this evidence was irrelevant or unduly prejudicial. “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.’ (Evid. Code, § 210.)” (People v. Wilson
(2006) 38 Cal.4th 1237, 1245.) The evidence explaining the circumstances of how
Michelle came to report defendant’s conduct to authorities—C.’s unexplained illness, and
Michelle’s and Y.S.’s concerns for her in light of defendant’s conduct with Michelle—
was relevant. The evidence explained why, after several years, Michelle and her mother
finally reported defendant’s conduct. Not only did this evidence complete the account of
defendant’s conduct and how it came to light, it was also relevant to Michelle’s
credibility as a witness.
        Moreover, the evidence was limited and offered only in the context of explaining
Michelle’s testimony. There was no other evidence implying or tending to suggest that
defendant had in fact engaged in any misconduct with C. The trial court did not abuse its
discretion in concluding the evidence was relevant and its probative value was not
outweighed by any prejudice. (People v. Duff (2014) 58 Cal.4th 527, 558 (Duff).) We
thus disagree that the admission of the evidence impaired defendant’s ability to receive a
fair trial.
        Similarly, the trial court did not abuse its discretion in admitting the photograph of
Michelle and C. “ ‘The decision to admit victim photographs falls within the trial court’s

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discretion, and an appellate court will not disturb its ruling unless the prejudicial effect of
the photographs clearly outweighs their probative value. [Citations.]’ ” (People v.
Rogers (2009) 46 Cal.4th 1136, 1163 (Rogers); Evid. Code § 352.) The trial court here
could reasonably conclude the photograph was relevant as documentary evidence of the
relationship between Michelle and C., which helped explain why Michelle did not wish
to report defendant’s conduct in 2007. Further, the trial court acted well within the
bounds of discretion in concluding defendant had not demonstrated any prejudice from
the admission of the photograph. The jury heard other evidence regarding the
relationship between the two girls; there is no indication in the record that the photograph
would have impermissibly caused the jury to surmise defendant must have also molested
C. (See Rogers, supra, 46 Cal.4th at p. 1163 [photographs were not unduly prejudicial
where they were neutral, unremarkable, and “would not have engendered an emotional
reaction capable of influencing the verdict”].) Indeed, aside from Michelle and Y.S.’s
testimony that they were concerned C.’s illness may have been related to defendant, the
other evidence was limited to and focused on the charged allegations which concerned
only Michelle. We find no error, and conclude the trial court did not abuse its discretion
in denying the motion for mistrial and motion for a new trial. Having found no error, we
also reject defendant’s contention that the trial court rulings violated his state and federal
rights to due process of law. (Rogers, supra, 46 Cal.4th at p. 1162; see also People v.
DeHoyos (2013) 57 Cal.4th 79, 120 [violations of state evidentiary rules generally do not
rise to the level of federal constitutional error].)
II.    Defense Counsel’s Failure to Move to Suppress Defendant’s Confession Did
       Not Constitute Ineffective Assistance of Counsel
       Defendant contends his counsel was ineffective for failing to move to suppress his
confession, despite arguing the confession was coerced. We disagree.
       To establish entitlement to relief based upon a claim of ineffective assistance of
counsel, the burden is on the defendant to show “(1) trial counsel failed to act in the
manner to be expected of reasonably competent attorneys acting as diligent advocates and
(2) it is reasonably probable that a more favorable determination would have resulted in

                                                7
the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288;
Strickland v. Washington (1984) 466 U.S. 668.) A defendant establishes a reasonable
probability of a more favorable determination when he persuades a reviewing court that
the result of his trial was fundamentally unfair or unreliable. (Strickland, supra, 466 U.S.
at p. 694.) “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” [Citation.] Defendant’s burden is difficult to carry on direct appeal, as we
have observed: “ ‘Reviewing courts will reverse convictions [on direct appeal] on the
ground of inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’
[Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 876.)
       We cannot conclude there was no rational tactical basis for defense counsel’s
decision not to move to suppress defendant’s statements to police as involuntary.
“ ‘ “A statement is involuntary if it is not the product of ‘ “a rational intellect and free
will.” ’ [Citation.] The test for determining whether a confession is voluntary is whether
the defendant’s ‘will was overborne at the time he confessed.’ ” ’ [Citation.] In
assessing whether statements were the product of free will or coercion, we consider the
totality of the circumstances, including ‘ “ ‘the crucial element of police coercion,’ ” ’
the length, location, and continuity of the interrogation, and the defendant’s maturity,
education, and physical and mental health. [Citation.]” (Duff, supra, 58 Cal.4th at pp.
555-556.) The record does not reveal circumstances that would suggest an involuntary
confession. During the interview, there were no implied threats or promises. The
interview did not appear to last a notably long time. While defendant told police he felt a
little dizzy, he also said he was “okay,” and able to talk. Further, while defendant made
some admissions, he was also in many respects equivocal, and adamant that he had not
engaged in certain types of touching. This suggested his will was not overborne.
(People v. Williams (2010) 49 Cal.4th 405, 443-444.)



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       Thus, at best, defense counsel may have had a weak argument in support of a
motion to suppress defendant’s statements. Defense counsel could reasonably conclude a
motion to suppress defendant’s statements to police as involuntary was unlikely to
succeed, and she would instead challenge the statements by introducing expert testimony
regarding factors rendering confessions unreliable, and by arguing that such factors were
applicable in this case. As the People point out, this strategy would allow defense
counsel to avoid “previewing” any coercion arguments to the prosecution.
       “ ‘Competent counsel is not required to make all conceivable motions or to leave
an exhaustive paper trail for the sake of the record. Rather, competent counsel should
realistically examine the case, the evidence, and the issues, and pursue those avenues of
defense that, to their best and reasonable professional judgment, seem appropriate under
the circumstances. . . .’ [Citation.]” (People v. Montoya (2007) 149 Cal.App.4th 1139,
1147-1148.) On the record before us, we cannot conclude there was no rational tactical
purpose for defense counsel to forego moving to suppress defendant’s statements to
police. We therefore must reject his ineffective assistance of counsel argument.
III.   The Trial Court Did Not Err in Limiting the Defense Expert’s Testimony
       Finally, defendant asserts the trial court erred in ruling his expert on confessions
could not identify specific examples of “contamination” in defendant’s recorded
interview with police. We find no abuse of discretion. (People v. Son (2000) 79
Cal.App.4th 224, 241.)
       A. Background
       Defendant offered the testimony of an expert on false confessions. The trial court
denied the People’s motion to exclude the testimony, ruling: “He can’t ultimately
conclude things, but he can provide sufficient expert reasons about his – based on his
training and expertise and research relative to the field of false confessions.” The expert
testified about the reasons false confessions occur, and he described and evaluated
interrogation tactics. He also described factors that may make a suspect more likely to
confess falsely, such as low IQ, mental illness, and sleep deprivation. The expert
discussed the concept that interrogators try to get a suspect to offer a post-admission

                                              9
narrative that reveals details of the crime only the perpetrator would know. But the
expert indicated one problem was “contamination,” which he described as “feeding the
information to the suspect during the course of the interrogation before the admission so
that you don’t know when they make a confession whether it came from real knowledge
of the crime, actually committing the crime, or whether it came from what has been told
to them during the course of the interrogation.” He offered hypothetical examples of
contamination.
       However, the prosecutor objected when defense counsel asked the expert if
specific portions of defendant’s recorded interrogation were examples of possible
contamination. The trial court sustained the objection. In closing argument, defense
counsel argued contamination was a factor in the statements defendant made to police.
       B. Discussion
       We find no error in the trial court’s ruling limiting the expert’s testimony.
People v. Page (1991) 2 Cal.App.4th 161 (Page) considered the very issue presented
here, and we are guided by the Page court’s analysis. In Page, as in this case, a defense
expert was allowed to testify regarding factors which may lead to an inaccurate or false
statement during an interrogation, but the court did not allow the expert to specifically
relate those principles to the defendant’s statements. (Id. at p. 183.) The appellate court
rejected the defendant’s arguments that the trial court’s limitations on the expert
testimony prevented him from presenting a complete defense and that the restrictions
were an abuse of discretion under the Evidence Code. As defendant argues here, the
Page defendant contended Crane v. Kentucky (1986) 476 U.S. 683 (Crane), applied and
rendered the trial court’s ruling invalid.




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       In Crane, the case against the defendant rested almost entirely on the defendant’s
confession. (Crane, supra, at p. 685.) The defendant sought to introduce evidence
regarding the circumstances of the confession, such as the length of the interrogation and
the manner in which it was conducted, to show that the confession was not credible.
(Id. at pp. 685-686.) The trial court excluded this evidence. (Id. at p. 686.) The Supreme
Court concluded the ruling violated the defendant’s Constitutional rights. The court
explained the lower courts erred in foreclosing the defendant’s “efforts to introduce
testimony about the environment in which the police secured his confession . . . .
[E]vidence about the manner in which a confession was obtained is often highly relevant
to its reliability and credibility.” (Id. at p. 691.) The court further noted the respondent
had not “advanced any rational justification for the wholesale exclusion of this body of
potentially exculpatory evidence,” and the decision had to be reversed. (Ibid.)
       The Page court distinguished Crane because, unlike the defendant in Crane, the
Page defendant was not subject to a blanket exclusion of proffered testimony about the
circumstances of the defendant’s confession. (Page, supra, at p. 185.) In Page, the
defendant was allowed to present evidence regarding the “physical and psychological
environment in which the confession was obtained.” (Id. at pp. 185-186.) Likewise, in
this case, defendant was not prevented from exploring the circumstances of his
interrogation. Crane does not assist his arguments on appeal.
       Further, in Page, the court found the trial court did not abuse its discretion in
limiting the expert’s testimony to general factors relating to false confessions. Referring
to People v. McDonald (1984) 37 Cal.3d 351, overruled on another ground by People v.
Mendoza (2000) 23 Cal.4th 896, 914, which concerned expert testimony on the accuracy
of eyewitness identifications, the Page court noted the California Supreme Court “did not
hold that a court must permit the expert to discuss the particular evidence in the case or
give his opinion on the reliability of particular eyewitness testimony . . . . Moreover, the
court seemed to indicate the expert would usually be limited to discussing general factors
bearing on the accuracy of eyewitness testimony in a ‘typical case.’ ” (Page, supra, 2
Cal.4th at p. 188.) The Page court explained that, consistent with McDonald, the trial

                                              11
court had limited the expert’s testimony to “a discussion of ‘certain factors that may
affect [the reliability of a confession] in a typical case.’ [Citation.] In our view, nothing
in McDonald or the Evidence Code required the court to permit [the expert] to discuss the
particular evidence in this case or to give his opinion regarding the overall reliability of
the confession.” (Page, supra, at p. 188.)
       The Page court additionally explained that “an expert’s thorough description of
the general principles to be applied in a given case may make additional (and more
specific) expert testimony superfluous . . . . In such a case, ‘ “[t]here is no necessity for
[additional expert] evidence, and to receive it would tend to suggest that the judge and
jury may shift responsibility for decision to the witness[ ].” ’ [Citation.]” (Page, supra,
at pp. 188-189.) The court thus concluded the expert “outlined the factors which might
influence a person to give a false statement or confession during an interrogation.
Having been educated concerning those factors, the jurors were as qualified as the
professor to determine if those factors played a role in [the defendant’s] confession, and
whether, given those factors, his confession was false.” (Id. at p. 189.)
       The above reasoning is equally applicable in this case. The trial court was not
required to allow the defense expert to opine on specific portions of defendant’s recorded
interview. The expert outlined the general principles to be applied when considering the
reliability of a confession. The jurors were equally qualified to determine if the factors
identified played a role in defendant’s statements to police. The court did not abuse its
discretion in limiting the expert testimony. We reject defendant’s claim that the ruling
violated his right to due process.2




2      We have concluded the court did not err in its rulings. Thus, we reject defendant’s
contention that cumulative error mandates reversal. (People v. Williams (2013) 56
Cal.4th 165, 201.)

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                                    DISPOSITION
      The trial court judgment is affirmed.




                                                   BIGELOW, P.J.
We concur:


                    RUBIN, J.




                    GRIMES, J.




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