Filed 7/29/15 P. v. Luna CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040191
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS122246A)

         v.

JOSE JUAN LUNA,

         Defendant and Appellant.


         Defendant Jose Juan Luna was sentenced to 79 years in prison after a jury found
him guilty of five counts of committing lewd and lascivious acts upon a child under the
age of 14 (Pen. Code, § 288, subd. (a)),1 eight counts of committing forcible oral
copulation (§ 288a, subd. (c)(2)(A)), two counts of committing lewd and lascivious acts
upon a child between the ages of 14 and 15 (§ 288, subd. (c)(1)), six counts of
committing unlawful sexual intercourse with a minor more than three years younger than
him (§ 261.5, subd. (c)), and one count of attempted unlawful sexual intercourse with a
minor more than three years younger than him (§§ 664, 261.5, subd. (c)). All of the acts
were perpetrated against his stepdaughter (victim).
         On appeal, defendant argues that the trial court’s answer to the jury’s question
about an interview victim had with a female employee at the Bates-Eldredge Clinic
(hereafter referred to as the “Bates interview”) was prejudicially misleading. Defendant
also claims that the court abused its discretion when it denied his motion for a new trial
         1
             Unspecified statutory references are to the Penal Code.
after victim recanted her testimony following the jury’s verdict. Defendant also insists
that the evidence is insufficient to support one of his convictions for committing forcible
oral copulation. We reject defendant’s claims of error with the exception that we agree
that one of his convictions for forcible oral copulation (count 7) is supported by
insufficient evidence. We reverse the judgment and remand to the trial court to strike
defendant’s conviction for count 7 and resentence defendant on the remaining counts.
                        FACTUAL AND PROCEDURAL BACKGROUND
       The Information
       On January 28, 2013, the Monterey County district attorney’s office filed an
information charging defendant with five counts of committing lewd and lascivious acts
upon a child under the age of 14 (§ 288, subd. (a)), eight counts of committing forcible
oral copulation (§ 288a, subd. (c)(2)(A)), two counts of committing lewd and lascivious
acts upon a child between the ages of 14 and 15 (§ 288, subd. (c)(1)), six counts of
committing unlawful sexual intercourse with a minor more than three years younger than
defendant (§ 261.5, subd. (c)), one count of attempted unlawful sexual intercourse with a
minor more than three years younger than defendant (§§ 664, 261.5, subd. (c)), and one
misdemeanor count of child molestation (§ 647.6, subd. (a)(1)). It was further alleged
that defendant had a prior serious felony and a prior strike conviction under sections
1170.12, subdivision (c)(1) and 667, subdivision (a)(1).
       Defendant pleaded not guilty to all of the charges. On July 8, 2013, the trial court
dismissed the misdemeanor count of child molestation. Jury trial commenced that same
day.
       The Jury Trial
       Victim’s Testimony
       Victim (born December 1994) had lived with her mother (mother) and her
stepfather (defendant) since she was eight years old. When victim was 13 years old, she

                                             2
moved with her family to a trailer where she had her own room. After the move, victim’s
relationship with defendant changed. Defendant became physical with victim, touching
her breasts and kissing her on the lips. These incidents started between the summer of
2008 and December of 2008. Victim said that defendant would make advances toward
her either in the living room or in the kitchen. Mother was oftentimes in the house, but
would be preoccupied with other things in another room, or would be taking a shower.
Victim testified that sometimes when mother took showers with defendant, he would
finish his shower earlier than mother and would then come out and make advances
toward victim.
       Victim said she was 13 years old the first time defendant had intercourse with her.
Defendant entered victim’s room and undressed her. Victim resisted at first, but she
eventually relented to defendant’s advances. Victim said she was not sure why she
stopped resisting.
       Afterwards, victim did not tell mother about the incident, because she was not sure
how mother would react. Victim said she hated herself for a while, because she had been
with mother’s husband.
       After the first incident, victim did not have intercourse with defendant again until
she was 14 years old. Victim said that defendant would have intercourse with her three
or four times in a month. However, they did not have intercourse every month. She
estimated that over the course of a year, defendant had intercourse with her
approximately 10 to 11 times between 2008 and 2009 (when victim was in eighth grade)
and between “fall 2009 to May 2010” (when victim was in ninth grade). She could not
recall the specific months the incidents occurred, only that they occurred somewhat
regularly.




                                             3
       Victim said defendant had intercourse with her at the same frequency (10 or 11
times a year) when she was in the tenth grade, but the frequency decreased when she was
in the eleventh grade after she had a pregnancy scare.
       Victim said defendant would sometimes have her orally copulate him before they
had intercourse. However, she also said there were times when she would orally copulate
him even when they did not have intercourse. Victim said she orally copulated defendant
the first time they had intercourse in 2008, when she was 13 years old. Between the ages
of 14 and 15, victim said she orally copulated defendant approximately seven to eight
times. Between 2010 and 2011 and 2011 and 2012, victim said she orally copulated
defendant with the same frequency. Victim said she would resist defendant’s advances
by pulling her head back, but he would pull her head down toward his penis.
       Defendant was arrested following an incident that occurred on the evening of
November 19, 2012. Earlier that day, victim had gone out with her family, including
defendant, to a local restaurant. After dinner, victim returned home with defendant and
mother. She went to her room and noticed defendant was outside, looking at her through
her window. Victim opened the window, and defendant leaned in. Victim said defendant
began kissing her. After a few minutes, defendant climbed into victim’s room.
Defendant undressed victim, removing all of her clothes, and began taking off his pants.
       Shortly thereafter, victim heard a door open. She turned around and saw mother.
Victim heard mother say to defendant, “How could you?” Victim said that she heard
defendant go out the window, and she heard the sound of defendant’s belt buckle hitting
against the glass as he exited. Mother then turned to victim, asking her, “How could
you?” Defendant reentered the house through the door next to the carport, and mother
again confronted him. Victim got dressed, and she overheard mother and defendant
yelling at each other.



                                            4
         Victim eventually left the house with mother, grandmother, and uncle, to go to her
grandmother’s house. There, she was interviewed by several police officers. She also
spoke to officers at the police station. The officers were male, and victim said she felt
uncomfortable speaking to them. She told one of the officers that she had sex with
defendant a total of three times. Victim explained that she was scared and was still in
shock.
         Following the November 2012 incident, victim moved out of mother’s home. She
did not believe mother wanted to live with her. Victim said she had only spoken with
mother three or four times after that incident.
         Victim testified about an interview she had with a female employee at the Bates-
Eldredge Clinic about her relationship with defendant. She could not recall if, during the
interview, she told the employee that she had sex with defendant in the living room of the
home. However, she recalled telling the employee at the Bates clinic about her
pregnancy scare. She could not recall if she told the employee at the Bates clinic that
defendant would come out of the shower and have sex with her.
         Mother’s Testimony
         Mother had been married to defendant for about 10 years and had known him for
about 20 years. Victim was not defendant’s biological daughter. Mother had four other
children with defendant.
         Mother recalled the incident that occurred in November 2012. She remembered
that defendant had stepped outside that night after they returned from the restaurant.
Mother went to look for defendant. She opened the door to victim’s room and saw her
half-naked. Mother said victim was wearing shorts but was not wearing a top or a bra.
Mother said she went to the window and saw defendant standing on the ladder.




                                              5
       This testimony contradicted mother’s earlier statements. In a prior interview with
detectives, mother had initially told officers that defendant was standing in victim’s room
and that victim was naked. She had also told the 911 operator that victim was naked.
       Mother said that her daughter appeared “fine” afterwards. Victim also told mother
that the situation was not what it appeared and that nothing had transpired between
herself and defendant.
       At trial, mother insisted that defendant had little time alone with her children. She
and defendant always took showers together, except when defendant was not at home,
and defendant never left the shower early.
       Defendant’s Testimony
       Defendant testified on his own behalf and explained what happened the night of
November 19, 2012. Defendant said he watched a football game at a restaurant with his
family earlier that day. Victim had become angry with him that night.
       After the family returned home, defendant stepped outside and smoked a cigarette.
Defendant said that he had previously situated a ladder underneath victim’s room,
because the family had been locked out of the trailer and needed a way to enter the house.
While outside, he saw victim’s bedroom light turn on, so he went up on the ladder and
knocked on her window. Defendant said he wanted to apologize to victim for upsetting
her earlier that evening. Defendant said he opened the window and went up a few steps
so he could be eye level with victim. Defendant was unable to see anything other than
victim’s face, since she was close to the window. Defendant did not know if victim was
dressed or undressed. Defendant said he talked to victim for a few minutes, until mother
walked in and began shouting. Defendant said his belt buckle might have hit the ladder
at some point, because the ladder was old and unstable.




                                             6
         Afterwards, defendant said he tried to calm the situation down, but failed. Mother
called defendant’s mother, and he went home with her. Defendant was arrested the
following morning.
         Defendant insisted that he never had intercourse with victim and denied ever
engaging in inappropriate behavior with her. Defendant maintained that he treated victim
like she was his own daughter. Defendant said he always took showers with mother, and
never got out of the shower earlier than she did. Defendant denied ever being alone with
victim.
         Defendant said he had problems with victim. Prior to the November 2012
incident, victim had found her biological father on Facebook. Victim went to defendant
and mother and asked if she could develop a relationship with her biological father.
Defendant and mother both said no, and victim became upset. Victim said she wanted to
move in with her grandmother, but defendant and mother refused to let her do so.
         The Jury Deliberations
         Following closing arguments, the court gave the jury instructions and the jury
began its deliberations. At one point, the jury asked the court in a written question, “The
Bates Interview--its [sic] referenced several times but we were not provided any
information--would this interview be relative [sic]?”
         The court discussed the question with counsel. Thereafter, the court answered the
jury’s question, explaining: “That question was asked, probably, by you early on, and
both the attorneys felt there wasn’t anything relevant in there, or they would have brought
it before us. So it’s not in evidence, and you can’t consider that or speculate what’s in
that.”
         The Verdict, Motion for New Trial, and Sentencing
         On July 16, 2013, the jury returned its verdict, finding defendant guilty of all 22
counts as charged.

                                               7
       The following month, defendant’s trial counsel submitted a motion for a new trial.
Victim had come forward with a letter recanting her accusations against defendant. The
one-page handwritten letter stated that victim had “lied in open court,” she never had
intercourse with defendant, and defendant never touched her inappropriately. Victim
explained that she had lied because she was angry at defendant and mother because they
would not let her see or talk to her biological father.
       On September 12, 2013, the court held a hearing on the new trial motion. Victim
was present at the hearing but was not called to testify. Based on its evaluation of the
recantation letter, the court asserted that it did not find the letter credible and denied the
motion for a new trial.
       Thereafter, the court sentenced defendant to a total term of 79 years in prison.2
The trial court imposed a $6,020 restitution fund fine under section 1202.4, subdivision
(b), a $1,230 fine under section 290.3, a $900 court operations assessment fee under
section 1465.8, subdivision (a)(1), and a $660 court facilities assessment under
Government Code section 70373. The trial court also ordered defendant to pay $1,950 to
the Victim Compensation and Government Claims Board. Defendant was awarded 369
days of custody credit, consisting of 247 days actual days and 122 days conduct credit.
                                         DISCUSSION
       Defendant raises three arguments on appeal: (1) count 7, forcible oral copulation
(§ 288a, subd. (c)(2)(A)) committed between August 1, 2008 and May 30, 2009, is not
supported by sufficient evidence, (2) the trial court misled the jury in its response to its

       2
         The sentence consisted of: the mid-term of six years for count 6, plus a lower
term of three years each for counts 7, 10, 11, 14, 15, 18, and 19; and one-third the mid-
term of two years for counts 1, 2, 3, 4, and 5. The total sentence was then doubled,
because defendant had a prior strike conviction. An additional five years was added for
defendant’s prior serious felony conviction. A concurrent three-year term was imposed
for the remaining counts (counts 8, 9, 12, 13, 16, 17, 20, 21, and 22).


                                               8
question about the Bates interview, and (3) the trial court abused its discretion when it
denied defendant’s new trial motion without hearing testimony from victim.
   1. Count 7: Forcible Oral Copulation Between August 1, 2008 and May 30, 2009
       Defendant was convicted of count 7, forcible oral copulation between August 1,
2008 and May 30, 2009. He argues insufficient evidence supports this conviction. As we
explain below, we agree.
              a. Legal Framework and Standard of Review
       Section 288a, subdivision (c)(2)(A) provides that: “Any person who commits an
act of oral copulation when the act is accomplished against the victim’s will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the state prison for three,
six, or eight years.” Oral copulation is “the act of copulating the mouth of one person
with the sexual organ or anus of another person.” (§ 288a, subd. (a).)
       The applicable standard of review to determine whether sufficient evidence
supports the juvenile court’s findings is well settled. “In reviewing a challenge to the
sufficiency of the evidence, we do not determine the facts ourselves. Rather, we
‘examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence--evidence that is reasonable, credible and of
solid value--such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same
standard of review applies to cases in which the prosecution relies primarily on
circumstantial evidence.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129; see also
People v. Meza (1995) 38 Cal.App.4th 1741, 1745.)
       In child molestation cases, “generic testimony” is sometimes presented, in which a
victim describes multiple incidents that are not differentiated by dates, times, or places.

                                              9
Such testimony may be presented in cases where the molester has resided in the victim’s
home and molested the victim repeatedly, so that “[a] young victim . . . may have no
practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific
incidents or dates’ all or even any such incidents.” (People v. Jones (1990) 51 Cal.3d
294, 305 (Jones).) This can create certain issues of proof in molestation cases. In Jones,
the court reconciled the tensions between a defendant’s due process rights with society’s
need “to assure that the resident child molester is not immunized from substantial
criminal liability merely because he has repeatedly molested his victim over an extended
period of time.” (Ibid.) It held that generic testimony can support a conviction if certain
minimum requirements are met.
       “The victim, of course, must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has occurred and to
differentiate between the various types of proscribed conduct (e.g., lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the victim must describe the number
of acts committed with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’).
Finally, the victim must be able to describe the general time period in which these acts
occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning
after he came to live with us’), to assure the acts were committed within the applicable
limitation period.” (Jones, supra, 51 Cal.3d at p. 316.)
              b. Defendant’s Conviction
       Defendant argues there is insufficient evidence to support his conviction for count
7, which alleged a count of forcible oral copulation in violation of section 288a,
subdivision (c)(2)(A) occurred between August 1, 2008 and May 30, 2009.3
       3
        The date range for the offense alleged in count 7 corresponded with victim’s
grade in school, not her age. However, at trial, victim testified about incidents that
(continued)
                                             10
       Victim was born in December 1994 and turned 14 years old in December 2008.
Count 6 alleged a violation of section 288a, subdivision (c)(2)(A) occurred when victim
was 13 years old. Accordingly, the time period alleged in count 6 overlaps slightly with
the time period alleged in count 7, since victim would have been 13 years old between
August 1, 2008, and her birthday in December 2008.
       Victim provided specific testimony regarding only one incident of forcible oral
copulation. Pertinent here, victim testified that she was 13 years old when she first had
intercourse with defendant and that she orally copulated him at that time.
       Defendant argues that the evidence establishing that victim was forced to orally
copulate him when she was 13 years old can only support his conviction for count 6.
Because this one act cannot support two convictions, in order for the conviction for count
7 to stand, there must be sufficient evidence that defendant also forced victim to orally
copulate him at least once between December 2008 and May 2009.4 We agree with
defendant that no such evidence exists in the record.
       Victim testified that she orally copulated defendant approximately seven to eight
times between the ages of 14 and 15. However, she did not identify which month each
act occurred. Furthermore, unlike the victim in Jones, victim did not specifically testify
that forcible oral copulation occurred at regular intervals, such as once or twice a month.
Victim asserted that she would sometimes orally copulate defendant before intercourse
but acknowledged there were, at times, gaps of several months when she did not have
intercourse with defendant.


occurred when she was a certain age. Since victim’s birthday is in December, her age
(i.e., when she was going from age 13 to 14) does not neatly correspond with her grade in
school (i.e., when she was going from eighth to ninth grade).
        4
          This date range would take out of consideration the time period that alleged
during which victim was 13 years old. At trial, victim asserted that she only had sex with
defendant and orally copulated him one time when she was 13 years old.


                                            11
       Victim’s generic testimony regarding the forcible oral copulation is not sufficient
evidence to support count 7, because count 7 represents a specific time period of August
1, 2008 through May 30, 2009. Under Jones, victim’s testimony would be sufficient to
support a conviction for forcible oral copulation when victim was between 14 and 15
years old, roughly between December 2008 and December 2009. However, without
evidence that an additional act of forcible oral copulation occurred between the distinct
time period charged, a determination that at least one act took place during that specified
period would be based purely on speculation.5 Speculation is not sufficient evidence.
(People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) All of the aforementioned acts could
have occurred after May 2009.
       Victim’s testimony did not describe with sufficient certainty that forcible oral
copulation occurred during the time frame alleged in count 7. Therefore, this conviction
cannot stand.
   2. Bates Interview
       Next, defendant claims the court prejudicially erred when it told the jury that the
Bates interview was not relevant in response to the jury’s question on the matter.
                a. Legal framework and standard of review
       “When a jury asks a question after retiring for deliberation, ‘[s]ection 1138
imposes upon the court a duty to provide the jury with information the jury desires on
points of law.’ ” (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) We review the
trial court’s failure to adequately answer a jury inquiry for an abuse of discretion.
(People v. Hodges (2013) 213 Cal.App.4th 531, 539.)



       5
        The People note that “[t]he precise time of a crime need not be declared in the
accusatory pleading.” (People v. Wrigley (1968) 69 Cal.2d 149, 155.) However, here the
prosecutor charged defendant for crimes committed during specified time periods.


                                             12
              b. The Bates Interview and the Jury’s Question
       Victim testified that she was interviewed by a female employee at the Bates-
Eldredge Clinic about the incidents with defendant. However, there were some
discrepancies between the Bates interview and her testimony at trial, and she was unable
to recall some of the details of what she had told the interviewer. On cross-examination
she was unable to recall if she told the interviewer about her pregnancy scare or that she
had sex with defendant in the living room and dining room of the house. Victim later
said she told the employee at the Bates clinic that her pregnancy scare was due to her
having sex with defendant. Victim testified that she felt more comfortable during the
interview at the Bates clinic. Neither a transcript nor a report of the Bates interview was
ever introduced into evidence by either the People or by the defendant.
       However, presumably because the interview was discussed during victim’s
testimony, the jury asked the court about the Bates interview twice, once during the trial
and once during its deliberations. The first time, the jury sent a note to the court during
victim’s testimony asking, “Will the Report from the BATES Clinic be part of the
evidence? If not, can we know why not?” The court answered, “We received a note
from one of the jurors about the Bates clinic report, and I’ve shown this to the attorneys,
and if the attorneys conclude that there’s anything relevant in that Bates report, they’ll
make sure that evidence gets before the jury. But I did share the note with both counsel.”
       The second time, the jury submitted a written question to the court during
deliberations, asking, “The Bates Interview--its [sic] referenced several times but we
were not provided any information--would this interview be relative [sic]?”
       This time, the court conferred with counsel outside the presence of the jury about
the question regarding the Bates interview. The court explained that it believed it “would
be best to bring [the jury] in to tell them that it [the Bates interview] wasn’t placed in
evidence and not to speculate about it, whatsoever.” Counsel agreed.

                                              13
       When the jury was brought in, the court stated: “We received a note. The Bates
interview, it’s referenced several times, but we will not provide any information with the
interview be relative [sic]. That question was asked, probably, by you early on, and both
the attorneys felt there wasn’t anything relevant in there, or they would have brought it
before us. So it’s not in evidence, and you can’t consider that or speculate what’s in that.
And so I wanted to directly tell you that.”
       Defendant now argues that the trial court’s answer misled the jury by asserting
that the interview was not relevant.
              c. Forfeiture
       First, the People argue that defendant has forfeited this argument, because his
defense counsel tacitly approved the trial court’s answer to the jury.
       “A defendant may forfeit an objection to the court’s response to a jury inquiry
through counsel’s consent, or invitation or tacit approval of, that response. [Citations.]
But this rule obviously cannot apply unless it appears that counsel was aware of the
court’s response at before the time it was effected. ‘Tacit approval’ of the court’s
response, or lack of response, may be found or where the court makes clear its intended
response and defense counsel, with ample opportunity to object, fails to do so. [Citation.]
At its furthest reach the rule has been held to justify a forfeiture where defense counsel
sat mute while the court provided a response later challenged on appeal.” (People v. Ross
(2007) 155 Cal.App.4th 1033, 1048.)
       Here, the court informed defendant’s counsel that it was going to instruct the jury
that the Bates interview was not placed into evidence and to not speculate about its
contents. However, in responding to the jury’s question, the court stated that there was
nothing “relevant” in the interview. Defense counsel did not tacitly or expressly approve
of the court’s explanation to the jury about the relevancy of the Bates interview. Nor did



                                              14
defense counsel have advance notice of the court’s statement. Accordingly, no forfeiture
occurred.6
              d. The Court’s Answer
       In this context, the trial court’s answer to the jury’s query regarding whether the
Bates interview was “relative” was twofold. First, it told the jury that there was nothing
relevant in the interview, otherwise the attorneys would have introduced it into evidence.
Second, it told the jury that it should not speculate as to the contents of the interview.
Defendant takes issue with the first part of the court’s explanation regarding the
interview’s relevance, particularly because he claims that the Bates interview was
especially pertinent to the issue of victim’s credibility. Therefore, defendant insists that
the Bates interview fell squarely within the definition of relevant evidence. (Evid. Code,
§ 210.)
       Preliminarily, we note that the jury’s question is ambiguous. As written, the
question stated: “The Bates Interview--its [sic] referenced several times but we were not
provided any information--would this interview be relative [sic]?” (Italics added.) It is
not particularly clear what the jury meant by asking if the interview was “relative.”
Under defendant’s interpretation, the jury was inquiring as to whether any part of the
Bates interview, including the information the jury had received about the interview
during victim’s testimony and cross-examination, was relevant to the case. However, the
question could also be reasonably interpreted as inquiring into whether the portions of the
Bates interview not discussed at trial were relevant.
       Based on the court’s discussion with counsel, it seems that the court believed the
jury was inquiring into whether the non-admitted portions of the Bates interview were

       6
          Based on this conclusion, we need not address defendant’s alternative argument
that his trial counsel rendered ineffective assistance for failing to ensure the court
properly instructed the jury about the Bates interview.


                                              15
relevant. Therefore, in responding to the jury’s question, the court asserted that the
interview was not “relevant.” We do not believe the court meant to erroneously instruct
the jury that the references victim made to the Bates interview during her testimony were
irrelevant to the case. However, we agree with defendant that the court’s answer to the
jury could be open for misinterpretation by the jury. (See People v. Thompkins (1987)
195 Cal.App.3d 244 [finding that trial court failed to consider what motivated the jury’s
question].)
       Nonetheless, even if the court’s answer to the jury was an abuse of discretion,
reversal is not warranted unless the error was prejudicial. In order to ascertain if the
court’s answer was prejudicial, we must first decide whether it is appropriate to review
the purported error under the standard set forth under Watson, meaning that, absent the
error, there was a reasonable probability that defendant would have obtained a more
favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.) Or, if we should apply
the standard of review set forth to claims of federal constitutional error under Chapman v.
California (1967) 386 U.S. 18, 24. Under the Chapman standard, reversal is required
unless the error was harmless beyond a reasonable doubt.
       Typically, “[s]ection 1138 error due to the trial court’s failure to adequately
answer the jury’s question is subject to the prejudice standard of People v. Watson (1956)
46 Cal.2d 818, 836, i.e., ‘whether the error resulted in a reasonable probability of a less
favorable outcome. [Citation.] In this context, “reasonable probability” means “ ‘merely
a reasonable chance, more than an abstract possibility,’ of an effect of this kind.” ’ ”
(People v. Hodges, supra, 213 Cal.App.4th at p. 539.)
       Defendant, however, argues the more stringent Chapman standard applies,
because the court’s answer to the jury inquiry effectively negated a crucial element of his
defense. This is because criminal defendants must be afforded, as set forth by the Sixth
Amendment and the Due Process Clause of the federal Constitution, a meaningful

                                             16
opportunity to present a complete defense. (California v. Trombetta (1984) 467 U.S.
479, 485.)
       We disagree with defendant’s assertion that Chapman’s harmless beyond a
reasonable doubt standard should be applied. Even if we were to disregard any mention
of the Bates interview, defendant was able to contest victim’s credibility at trial through
other means. The defense’s argument to the jury during closing focused on discrepancies
between victim’s trial testimony and the information she initially gave to the
investigating officers following the incident. In fact, the Bates interview was never
specifically mentioned by defense counsel in its closing argument and was not relied on
by defense counsel during his argument about victim’s credibility. Further, victim’s
testimony regarding the Bates interview is not entirely probative of her credibility. At
trial, victim asserted she could not remember if she told the employee at the Bates clinic
about certain aspects of her relationship with defendant. She was not impeached in any
way with the contents of the Bates interview during her testimony. Accordingly, we do
not believe that the trial court’s statement eviscerated or undermined defendant’s case to
the extent it gave rise to an error of federal constitutional magnitude. Victim’s credibility
was still an issue that the jury was required to consider.
       Therefore, we apply the Watson standard of review to defendant’s claim, and
conclude that there is no reasonable probability that without the purported error,
defendant would have received a more favorable outcome. The jury was already
presented with evidence that would tend to undermine victim’s credibility, such as the
inconsistencies between the statements she provided to the officers and her testimony at
trial. Furthermore, as we previously stated, the Bates interview itself was not particularly
probative of victim’s credibility. Though there were slight discrepancies between her
trial testimony and the statements she made to the interviewer at the Bates clinic, which



                                             17
were alluded to during cross examination, for the most part victim simply asserted that
she could not recall the exact details of what she said during the Bates interview.
       Furthermore, there was strong evidence of defendant’s guilt. The People
introduced into evidence the tape recording of the 911 call made by mother, where she
described that she had found victim naked in the room with defendant. Victim herself
testified at length regarding the crimes committed by defendant throughout the years.
       Additionally, there was evidence that undermined defendant and mother’s
credibility. Although defendant resided with victim for years, he denied ever being alone
in the house with her. He also testified at trial that he and mother never showered alone
and always showered together. These assertions strain credulity. Further, mother
initially asserted in her 911 call and her statements to detectives that she had found victim
naked in the room with defendant, who was also standing in victim’s room. Later, at
trial, she contradicted her earlier statements and testified that she had found victim
partially dressed, and defendant was not in victim’s room but was standing on the ladder
outside victim’s window.
       For the foregoing reasons, we find that even if the court’s statement to the jury
was made in error, the error does not warrant reversal of defendant’s convictions.
   3. The New Trial Motion
       Finally, defendant argues the court abused its discretion when it denied his motion
for a new trial without hearing testimony from victim, who had submitted a one-page
letter recanting her allegations following the jury’s verdict.
              a. Legal Framework and Standard of Review
       Under section 1181, a trial court may grant a new trial upon newly discovered
evidence. “In ruling on a motion for new trial based on newly discovered evidence, the
trial court considers the following factors: ‘ “1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidenced be not cumulative merely; 3.

                                             18
That it be such as to render a different result probable on a retrial of the cause; 4. That
the party could not with reasonable diligence have discovered and produced it at the trial;
and 5. That these facts be shown by the best evidence of which the case admits.” ’ ”
(People v. Turner (1994) 8 Cal.4th 137, 212.)
       The determination of a motion for a new trial rests so completely within the trial
court’s discretion that its decision will not be disturbed on appeal unless a manifest and
unmistakable abuse of discretion appears. (People v. Davis (1995) 10 Cal.4th 463, 524.)
       The credibility of the newly discovered evidence supporting a motion for new trial
is relevant to the trial court’s determination. (People v. Delgado (1993) 5 Cal.4th 312,
329.) “In this state, it is settled that the offer of a witness, after trial, to retract his sworn
testimony is to be viewed with suspicion.” (In re Weber (1974) 11 Cal.3d 703, 722.)
               b. Application to Defendant’s Case
       Here, defendant argues that the trial court abused its discretion when it denied his
new trial motion without eliciting testimony from victim. We disagree.
       First, “[i]t has long been recognized that ‘the offer of a witness, after trial, to
retract his sworn testimony is to be viewed with suspicion.’ ” (In re Roberts (2003) 29
Cal.4th 726, 742.) “The role of the trial court in deciding a motion for new trial based
upon a witness’s recantation is to determine whether the new evidence is credible, i.e.,
worthy of belief by the jury. That determination is made after a consideration of all the
facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or
falsity of the new evidence. [¶] Once the trial court has found the recantation to be
believable, it must then decide whether consideration of the recantation would render a
different result on retrial reasonably probable.” (People v. Minnick (1989) 214
Cal.App.3d 1478, 1482.) Therefore, the trial court’s first step is to evaluate the
recantation to determine whether it is believable.



                                                19
       This evaluation need not be based on oral testimony. In fact, on a motion for a
new trial, a trial court has the discretion to refuse oral testimony altogether. (People v.
Ferguson (1932) 124 Cal.App. 221, 229-230.) This is because a new trial is “a
reexamination of the issue in the same court, before another jury, after a verdict has been
given.” (§ 1179.) Therefore, for the most part a motion for a new trial will proceed on
affidavits submitted by witnesses “by whom [newly discovered] evidence is expected to
be given.” (§ 1181, subd. 8.) However, a court does have the discretion to allow oral
testimony, which this court declined to exercise based on its determination that victim’s
letter lacked credibility.
       There have been cases where trial courts have been found to have abused their
discretion by declining to hear live testimony during a hearing on a motion for a new
trial. For example, in People v. Hairgrove (1971) 18 Cal.App.3d 606, 610, a defendant
brought a new trial motion based on a witness’ written declaration claiming to be the
perpetrator of the crime of which defendant was convicted. At the hearing on the new
trial motion, the witness was present in court and willing to testify regarding the contents
of his declaration. However, the trial court dissuaded him from testifying and denied the
motion for the new trial on the ground that defendant had not shown reasonable diligence
in attempting to produce the witness at trial. (Ibid.) The appellate court reversed and
remanded for the trial court to hear the witness’ testimony prior to ruling on the motion,
finding that the court should have taken advantage of “what purported to be critical new
evidence.” (Ibid.) After hearing the witness’ testimony, the trial court would have “all
available information before it in ruling on the motion for a new trial.” (Id. at p. 611.)
       In another somewhat analogous situation, the California Supreme Court has held
that if a defendant moves for a new trial on the basis of allegations of juror misconduct,
“the trial court has discretion to conduct an evidentiary hearing to determine the truth of
the allegations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 415 (Hedgecock).)

                                             20
However, a “defendant is not entitled to such a hearing as a matter of right. Rather, such
a hearing should be held only when the trial court, in its discretion, concludes that an
evidentiary hearing is necessary to resolve material, disputed issues of fact.” (Ibid.) In
Hedgecock, the Supreme Court remanded the matter to the trial court to exercise its
discretion to determine whether an evidentiary hearing was necessary to resolve the
disputed facts regarding the purported juror misconduct. (Id. at p. 421.)
       The situation outlined in Hairgrove is distinguishable in two respects. First, the
trial court in Hairgrove dissuaded the witness from testifying at the new trial motion.
Here, the court did not persuade victim not to testify. Second, the witness seeking to
attest to the new material evidence did not testify at trial; therefore, the trial court had no
information before it that would assist it in determining the witness’ credibility.
       Similarly, Hedgecock is also dissimilar to this present situation. Although the
Supreme Court remanded the matter back to the trial court, this decision was made
because the Supreme Court concluded the trial court mistakenly believed it had no
authority to hold an evidentiary hearing. (Hedgecock, supra, 51 Cal.3d at p. 420.)
Additionally, the evidence of purported juror misconduct there was not subject to
evaluation by the court during the trial itself. Further, Hedgecock acknowledged that it
was ultimately still within the court’s discretion to determine whether an evidentiary
hearing is necessary in the first place. (Id. at p. 415.) Hedgecock did not conclude that a
full evidentiary hearing is warranted in every hearing on a new trial motion alleging juror
misconduct.
       Even without oral testimony at the new trial hearing, the court was able to judge
the credibility of victim’s recantation. The court had presided over the entirety of the
trial and had the opportunity to observe and evaluate victim’s credibility based on the
contents of her testimony and her demeanor during the trial. Based on its observations,
the court noted that victim was obviously “embarrassed” about being a victim of a crime

                                              21
perpetrated by an individual she trusted, her stepfather. Furthermore, the court believed
that it was clear from her behavior at trial that she had a difficult time testifying about
what transpired during the years of abuse. Based on victim’s demeanor during the trial,
the court found her testimony to be “completely credible.” The court also noted that it
believed it was apparent that victim had received pressure from her family after the
verdict, since she had been “kicked out of the house.” Furthermore, the court found that
the letter did not provide additional new information, only that it echoed defendant’s
testimony at trial that victim was mad at him, giving her a reason to lie about the crimes.
       The court concluded it was able to determine the credibility of victim’s recantation
based on her written letter without first having to hear her testify at the hearing on the
motion, because it had found her trial testimony to be completely believable. We cannot
conclude that the court’s decision not to require victim’s oral testimony at the hearing
was so irrational, arbitrary, or capricious to be an abuse of discretion.
              c.      Ineffective Assistance of Counsel
       Alternatively, defendant argues that if we do not find the court abused its
discretion, his trial counsel rendered ineffective assistance when he failed to call victim
as a witness during the hearing.
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland
v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) However, “ ‘[if] the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . .
. unless counsel was asked for an explanation and failed to provide one, or unless there



                                              22
simply could be no satisfactory explanation,’ the claim on appeal must be rejected.”
(People v. Wilson (1992) 3 Cal.4th 926, 936.)
       Defendant argues his trial counsel’s failure to call victim as a witness during the
hearing on the new trial motion fell below an objective standard of reasonableness,
because there could be no satisfactory explanation for his behavior. We disagree. Trial
counsel could have had a reasonable tactical reason for declining to call victim as a
witness at the new trial motion. For example, defendant’s trial counsel may have
believed that victim would not appear credible on the stand when questioned by the
attorneys, or that victim would perhaps reverse her position and deny the contents of the
recantation letter.
       Defendant has failed to satisfy his burden to show that his trial counsel’s
performance was deficient. The “record contains no explanation for the challenged
behavior” and counsel was not “ ‘asked for an explanation and failed to provide one.’ ”
(People v. Kipp (1998) 18 Cal.4th 349, 367.) We must therefore reject defendant’s claim
of ineffective assistance of counsel.
                                        DISPOSITION
       The judgment is reversed. On remand, the court shall strike defendant’s
conviction for count 7 due to insufficiency of the evidence and resentence defendant on
the remaining counts.




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                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P. J.




             Elia, J.




People v. Luna
H040191

      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
