Filed 3/18/14 P. v. Gutierrez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B241823

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA118815)
         v.

RICO R. GUTIERREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Raul Anthony Sahagun, Judge. Reversed in part, affirmed in part as modified, and
remanded with directions.


         Danalynn Pritz, 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, Mary Sanchez and Taylor
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury found defendant Rico Roque Gutierrez guilty of four counts of lewd and
lascivious acts on a child (Pen. Code, § 288, subd. (a))1 (counts 1, 4, 5 & 6) and two
counts of oral copulation with a child under 14 (§ 288a, subd. (c)(1)) (counts 2 & 3). The
jury found true in counts 2 and 3 the allegation that the victim was under the age of 14
years and the defendant had substantial sexual conduct with the victim pursuant to
section 1203.066, subdivision (a)(8).2
       The trial court denied probation and sentenced defendant to state prison for five
years. The sentence consisted of the low term of three years in count 2 and two
consecutive years in count 3 (one-third the midterm of six years). The court imposed
concurrent low terms of three years on the remaining counts.
       Defendant appeals on the grounds that: (1) he was denied his Sixth Amendment
right to effective counsel because trial counsel should have objected to the admission of
the victim’s hearsay statements through the testimony of two sheriff’s deputies who
interviewed her, and reversal is required; (2) he was denied his Sixth Amendment right to
effective counsel when trial counsel did not object to numerous instances of prosecutorial
misconduct that denied defendant due process and a fair trial requiring reversal; and (3)
the probation ineligibility allegation must be stricken and the matter remanded for
resentencing, since the allegation does not apply to counts 2 and 3.
                                          FACTS
Prosecution Evidence
       Madalyn C. was 13 years old in December 2010, and she would turn 14 on
January 16, 2011. In late November 2010, Madalyn began taking boxing lessons at a
gym in Whittier to train for her first fight on January 9, 2011. She and a girlfriend,
Bobbie U, sparred together at the gym. Madalyn trained with defendant every day that he

1      All statutory references are to the Penal Code unless otherwise indicated.

2       Defendant was convicted after his second trial. The first jury deadlocked, and the
trial court declared a mistrial.


                                             2
was at the gym. At one point, defendant asked Madalyn how old she was, and she told
him she was 13.
       Madalyn testified that she had a “small crush” on defendant and obtained his
telephone number from Bobbie. Madalyn texted defendant, and he responded. He
telephoned her later the same night. They at first talked about sparring and Christmas.
At one point, defendant asked her if she wanted to get him something for Christmas.
Madalyn said she did not know and then defendant asked if she wanted to have sex.
Madalyn had not had sex up to that time. In phone conversations defendant said other
sexual things, such as asking her if she wanted to give him a blow job and if she wanted
him to finger her.
       Defendant asked Madalyn if she would like to go jogging with him so they could
have “alone time.” In December 2010 and January 2011, defendant took Madalyn
jogging at Pioneer High School. During a jog before the Christmas holidays in
December, defendant took Madalyn to a tunnel under the bleachers where they hugged
and kissed. That was the first incident she remembered.
       The second incident occurred a week later, also before Christmas. They went into
the tunnel at Pioneer High School and defendant asked her if she wanted to give him a
blow job. Defendant sat Madalyn down on some stairs and took out his penis. He told
her to “put [her] mouth on it,” and she complied. When she stopped, he said, “Keep
going.” He told her to stop when he said he saw someone or something.
       In December 2010, Madalyn sent Bobbie a text message saying that, “I gave Rico
head.” Bobbie recalled a text massage saying “that she had blown him.” Bobbie stayed
overnight at Madalyn’s home on Christmas Eve that year. According to Madalyn,
defendant texted her that night and asked her if she wanted to go over to his house. He
offered to pick her up. He wanted to know if she wanted to have sex with him, and she
said, “No.”
       A week after the second incident, Madalyn and defendant went jogging and
hugged and kissed again. When she expressed a reluctance to leave, defendant asked her



                                            3
if she wanted to give him head. She said she did not know. He kept asking, so she
eventually gave in. This time defendant ejaculated in her mouth.
       That same week, defendant tried to take Madalyn under the bleachers again.
Madalyn thought that was when he asked to finger her and she refused.
       The next incident occurred shortly after the January 9 fight. Defendant took her to
the stairs in the bleachers and sat her on his lap. He put his hand under her shorts but on
top of her leggings. Madalyn did not let him touch her vagina and defendant asked,
“Why do you keep saying no to everything?”
       Before her 14th birthday they went jogging again and hugged and kissed.
Defendant touched her buttocks under her leggings and she pulled away because she had
her period. Defendant said, “You don’t bleed back there.”
       Madalyn did not fight on January 9. The gym owner put Bobbie, who was 16, in
the fight because she was closer in age to the opponent. Madalyn was “kind of”
disappointed.
       During this time period, Madalyn’s grades went down a lot and she stopped going
to the gym because she did not want to see or deal with defendant. She stopped going to
the gym at the end of January or the beginning of February. She and defendant did not
have a fight, and they were on good terms.
       According to Madalyn’s father, during the months of December 2010 and January
2011, Madalyn became secluded. She stayed in her room more, her grades dropped, and
she stopped talking to her father even though they were close. She began slicing herself
on her thigh with a needle. Madalyn’s father decided to confront her and began by
talking about her grades. When he said, “I know it’s a boy,” Madalyn began to cry.
Madalyn’s father asked her if she would rather tell his girlfriend, Tracy R., whom
Madalyn thought of as her stepmother, and Madalyn called Tracy.
       On February 21, 2011, Madalyn’s father went with her to report the incidents to
the police. Los Angeles Deputy Sheriff Michelle Valdez interviewed Madalyn at the
sheriff’s station. Madalyn said that two of the incidents occurred before her 14th
birthday, but a third incident occurred on January 19, and a fourth on January 26.

                                             4
Madalyn related five incidents of molestation to Deputy Valdez. Madalyn described the
first incident as hugging and kissing. The second and third incidents consisted of
Madalyn orally copulating defendant. The fourth incident occurred when they hugged
and kissed and defendant put his hand between her shorts and her leggings. The fifth
incident occurred when defendant put his hand on Madalyn’s buttocks inside her
clothing.
       Madalyn testified that she did not remember the dates exactly when she spoke
with Deputy Valdez and “wanted to get out of there.” She was much more comfortable
when she spoke later with Detective Paul Valle. Deputy Valdez was more intense.
       Madalyn related six incidents of molestation to Detective Valle on February 23,
2011. She described the same incidents that she described to Deputy Valdez, but added
an incident of hugging and kissing during their jog, which occurred in between the oral
copulations and the incident where defendant put his hand between Madalyn’s shorts and
her leggings. She told Detective Valle that all of the incidents occurred before her 14th
birthday on January 16, 2011.
       At the direction of Detective Valle, Madalyn made two pretext calls to defendant.
In the first call, Madalyn told defendant that her father had read a couple of text messages
and suspected that “something was going on between [them].” Defendant asked Madalyn
if he should be scared, and she replied, “A little bit.” Defendant said, “But we didn’t do
anything though. Okay?” When Madalyn said her father really wanted to know what
they did, defendant said, “Nothing. Tell him the truth . . . tell him we didn’t do
anything. . . . Don’t say anything, please, God, please don’t say anything. Please don’t.
Okay?”
       In the second call, Madalyn told defendant that her father “almost found out
everything.” Defendant asked, “But he didn’t?” and Madalyn responded, “Not yet. He
doesn’t know about the—the BJ or nothing.” Defendant replied, “Okay. Well, he can’t
prove it or anything.” He told Madalyn that they didn’t do anything and he wanted her to
start thinking like that so that was what she believed and would be believable when she
said it to her father. When Madalyn stated that she thought her father already knew about

                                             5
“the BJ” defendant said, “I’m really scared right now. Like I threw up last night. I’m
really scared. I don’t want to get in trouble.” He later repeated, “I’m like really scared;
like you don’t understand. Like I don’t feel we did anything bad and it’s not, I mean, it’s
not that really big of a deal and like there’s nothing that your dad can prove as long as
you deny everything we—everything that happened, you know, and then I just don’t want
you admitting anything to your dad. I want you just to say nothing happened and, you
know, nothing happened. It would be, you know, nothing happened. I really want you to
do that for me. Please, Mady, you don’t understand like I don’t want to get in any
trouble. Defendant stated that he was scared and could not sleep the night before.
Defendant repeated that Madalyn must “deny everything.” Madalyn told defendant that
if her dad found out about everything, he would probably want to kill defendant.
Defendant replied, “Oh, my God, I’m so worried. I just don’t want him to overreact. I
want him to believe you. I want you to—I want him to just believe you when you say
that you didn’t do anything; you know?”
Defense Evidence
       Defendant testified that from July 2008 through February 2011, he was a full-time
physical education teacher at a middle school. There had never been a complaint made
about his conduct with the students.
       Defendant said he met Madalyn through the Valdez Muay Thai gym. He did not
officially work there but he assisted in training both boy and girl fighters. He went on
runs with the students to Pioneer High School where there were always people around.
He went on runs with Madalyn on a few occasions, but primarily he worked with her in
the ring. There was never a time during any of the runs with Madalyn that he had any
type of physical contact with her in a sexual way. He never hugged or kissed her,
although Madalyn attempted to kiss him on one occasion.
       After Madalyn first contacted him by text message, they had text conversations
back and forth, sometimes on a daily basis. They spoke on the phone three to four times
a week. Madalyn told him he was cute. The majority of the text messages were just
friendly but some were sexual. In hindsight, he believed the texting was inappropriate.

                                              6
He was flattered but not turned on. He had no intention of following through with
anything sexual. He had deleted the text messages because they were inappropriate.
         With regard to the pretext calls, defendant testified that everything he said, such as
his statements about being “worried,” “sick,” or that Madalyn’s father “can’t prove
anything” were related to the sexual text messages, not any sex acts between defendant
and Madalyn.
         Several character witnesses, including defendant’s girlfriend, testified that
defendant acted appropriately with children, and he was an honest and truthful person.
George Valdez, the gym owner, testified that defendant sometimes gave more attention to
Madalyn, but that was because she was one of those who wanted to compete and needed
more time. Valdez did not notice anything unusual between them. It was strictly
training. Valdez testified that the gym was not open between Christmas and the New
Year’s holiday. He believed defendant worked at the gym leading up to Christmastime.
He then testified that it was possible defendant worked between Christmas and the New
Year.3
         Dr. Veronica Thomas performed a psychosexual analysis of defendant. According
to Dr. Thomas, defendant did not fit the profile of a sexual predator, and he had no sexual
deviant behaviors or interests. Defendant displayed a normal heterosexual pattern, which
included an objective sexual interest in adolescent and adult females. Dr. Thomas
explained that it is biologically determined that males are sexually attracted to females
who are likely to produce children, and adolescent females fit into that category.
                                        DISCUSSION
I. Failure to Object to Deputies’ Testimony
         A. Defendant’s Argument
         Defendant contends that trial counsel failed to object to the admission of
Madalyn’s hearsay statements through the testimony of Deputy Valdez and Detective

3       Defendant had testified that he was out of town for Christmas Eve and then for the
rest of December. He stated that he spent from December 26 through January 30 in
Redlands because his grandfather died on December 26, 2010.

                                               7
Valle. Their testimony was consistent with Madalyn’s trial testimony, but no foundation
was laid to admit Madalyn’s statements to the deputies as prior consistent statements in
accordance with Evidence Code sections 1236 and 791.
       B. Relevant Authority
       Evidence Code section 1236 provides: “Evidence of a statement previously made
by a witness is not made inadmissible by the hearsay rule if the statement is consistent
with his testimony at the hearing and is offered in compliance with Section 791.”
       Evidence Code section 791 provides: “Evidence of a statement previously made
by a witness that is consistent with his testimony at the hearing is inadmissible to support
his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that
is inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for fabrication, or other
improper motive is alleged to have arisen.”
       Absent an express or implied charge that a witness’s trial testimony is recently
fabricated or influenced by bias or improper motive, evidence of a prior consistent
statement is not admissible. (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. 6;
People v. Frye (1985) 166 Cal.App.3d 941, 950.) “[A] prior consistent statement is
admissible if it was made before the existence of any one or more of the biases or
motives that, according to the opposing party’s express or implied charge, may have
influenced the witness’s testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609.)
       A claim that counsel was ineffective requires a showing, by a preponderance of
the evidence, that counsel’s performance fell below an objective standard of
reasonableness, and there is a reasonable probability that, but for counsel’s
unprofessional errors, defendant would have obtained a more favorable result. (In re
Jones (1996) 13 Cal.4th 552, 561.) In order to prevail on an ineffective assistance of
counsel claim on appeal, the record must affirmatively disclose the lack of a rational

                                              8
tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th
385, 403.) Defendant must overcome presumptions that counsel was effective and that
the challenged action might be considered sound trial strategy. (In re Jones, supra, 13
Cal.4th at p. 561.) We consider counsel’s overall performance throughout the case,
evaluating it from counsel’s perspective at the time of the challenged act or omission and
in light of all the circumstances. (People v. Bolin (1998) 18 Cal.4th 297, 335.) “To the
extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation . . . .’ [Citation.]” (Id. at p. 333.)
       C. No Ineffective Assistance
       The gist of defendant’s ineffective assistance claim is that Madalyn’s statements to
Deputy Valdez and Detective Valle did not qualify as prior consistent statements under
the statute, and, therefore, counsel should have raised an objection to them. For example,
he asserts that her statements to the deputies were not made before the motive to fabricate
was alleged to have arisen, since her motive to fabricate already existed at the time of her
interviews. Therefore, these statements did not meet the temporal requirement of
Evidence Code section 791, subdivision (b). (See People v. Bolin, supra, 18 Cal.4th at
pp. 320-321.) Defendant also contends “there is no conceivable, reasonable tactical basis
for not objecting to the admission of Madalyn’s prior consistent statements.”
       Respondent argues that the evidence was admissible under the “negative
evidence” exception. Respondent notes that prior consistent statements may be admitted
under Evidence Code section 791, subdivision (b) when there is a charge that the
witness’s testimony at the hearing is recently fabricated, and recent fabrication ‘“may be
inferred when it is shown that a witness did not speak about an important matter at a time
when it would have been natural for him to do so.”’ (People v. Riccardi (2012) 54
Cal.4th 758, 803.) This situation is an exception to Evidence Code section 791’s
requirement that the consistent statement be made before an improper motive is alleged



                                                9
to have arisen. (People v. Gentry (1969) 270 Cal.App.2d 462, 473; see also People v.
Williams (2002) 102 Cal.App.4th 995, 1011-1012.)
       Defendant counters that the prosecutor did not offer the evidence for this purpose
and did not obtain a ruling from the trial court that the evidence would be admissible for
this purpose. Therefore, the prosecution forfeited this issue and this court should not
consider respondent’s argument made for the first time on appeal. Furthermore,
defendant argues, he is not alleging that Madalyn was impeachable by her prior silence.
The negative evidence exception does not apply in this case because the claim of
fabrication made here was not based on a claim that Madalyn did not speak of the matter
before, when it would have been natural to speak. It was shown that Madalyn did
speak—to her father, to Deputy Valdez, and to Detective Valle.
       We note that defense counsel did challenge Madalyn on her silence during the
time defendant was alleged to have been committing the charged acts. When questioning
Madalyn about her argument with her father, counsel elicited that the argument was not
about Rico or text messages, but that eventually her father brought up the messages. He
then asked: “And you still at the point you don’t tell him that there’s some kind of
physical relationship with Rico; right?” Defense counsel also noted that Madalyn would
get a ride home from the gym with her grandparents or parents and asked: “And you
never mentioned a thing to them about any kind of physical relationship with Rico; is that
right?” Counsel confirmed Madalyn’s routine with the running and gym training and
asked: “During that entire time in December and January you never indicated to your
parents or your grandparents that you were uncomfortable about going to the gym or
getting there early to go on a run or anything about that; is that correct?” The objection
to these questions as “asked and answered” was sustained.
       Given these challenges, Madalyn’s statements to the deputies were admissible
under the “negative evidence” exception to Evidence Code section 791, subdivision (b).
The defense questions implied that Madalyn fabricated her accusations because she ‘“did
not speak about an important matter at a time when it would have been natural for [her]
to do so.”’ (People v. Riccardi, supra, 54 Cal.4th at p. 893.) As noted, this exception

                                            10
overrides Evidence Code section 791’s requirement that the consistent statement be made
before an improper motive is alleged to have arisen. (People v. Gentry, supra, 270
Cal.App.2d at p. 473; People v. Williams, supra, 102 Cal.App.4th at pp. 1011-1012.)
       Defendant cites People v. Armstead (2002) 102 Cal.App.4th 784 (Armstead) for
the proposition that the People cannot change the scope or basis of admissibility of the
evidence for the first time on appeal. (Id. at p. 787.) In Armstead, the issue was
instructional error in a case where the defendant was charged with several separate
robberies. (Id. at pp. 787-790.) In response to a query from the jury, the court issued a
clarifying instruction that “‘appear[ed] to have had the effect of admitting the evidence of
the other charged crimes as evidence of identity, motive and intent as to all other charged
crimes,’” as permitted by Evidence Code section 1101, subdivision (b). (Armstead, at p.
792; see People v. Ewoldt (1994) 7 Cal.4th 380, 393-407.) The reviewing court was
concerned with “‘whether a court can, consistent with due process, change the basis of
admissibility of evidence after the close of evidence and indeed after closing argument
and the commencement of jury deliberations.’” (Armstead, at p. 792.) The court
concluded that the trial court’s implied change to the basis of admissibility of evidence at
such a late point in the case did not comport with due process and effectively denied
Armstead his right to counsel. (Id. at p. 792.)
       The situation in Armstead is not analogous to that of the instant case. Armstead
was concerned with admitting certain evidence that applied to one charge as evidence
tending to prove one or more other charges (as other crimes evidence) and advising the
jury members that they could consider the evidence this way during deliberations. In the
instant case, assuming the trial court admitted the prior consistent statements for an
incorrect reason, as long as there exists a legitimate reason for admitting these statements,
a reviewing court may affirm the ruling. (People v. Smithey (1999) 20 Cal.4th 936, 972.)
“‘“‘[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory of the law applicable to the
case, it must be sustained regardless of the considerations which may have moved the
trial court to its conclusion.’ [Citation.]” [Citations.]’” (Ibid.) In Smithey itself, a ruling

                                              11
allowing certain statements into evidence was affirmed despite being admitted on an
incorrect theory. (Id. at pp. 971-972; see also People v. Zapien (1993) 4 Cal.4th 929,
976.) Accordingly, there was a legitimate basis for admission of Madalyn’s statements to
the two deputies. Therefore, the trial court’s ruling was correct. As a result, defense
counsel cannot be faulted for failing to object.
       Furthermore, we disagree with defendant that “there is no conceivable, reasonable
tactical basis for not objecting to the admission of Madalyn’s prior consistent
statements.” The record indicates that defense counsel wished to employ the testimony
of Deputy Valdez and Detective Valle to discredit Madalyn. As defendant notes, Deputy
Valdez did not testify at defendant’s first trial, but Detective Valle did. At the second
trial, defense counsel told the court that he had intended to use Deputy Valdez’s
interview, where two of the incidents appeared to have occurred after Madalyn’s 14th
birthday, to attack Madalyn’s statement to Detective Valle, where Madalyn stated that all
the incidents occurred before her 14th birthday. In the context of protesting the
prosecution’s attempt to add two more counts to the information, defense counsel stated,
“I could have saved us a lot of time by not going over all the discrepancy and the dates
and time, all of that nature. It was part of my defense at the last trial they were aware of
it.” That defense counsel intended to use Madalyn’s statements to the deputies as a
means of challenging her credibility was borne out by defense counsel’s argument at the
close of trial.
       Although Deputy Valdez did not testify at defendant’s first trial, defense counsel
questioned Madalyn extensively about her interview with the deputy on cross-
examination at that trial. Counsel asked Madalyn about the dates and times of the
incidents that she related to Deputy Valdez, including a fourth and fifth incident that
occurred allegedly on January 19, 2011 and January 26, 2011, respectively (after
Madalyn’s 14th birthday).
       Defendant downplays Detective Valle’s testimony in the first trial by asserting that
it was restricted to the text messages between Madalyn and defendant. The record of the
first trial shows that on direct examination this was largely correct. On cross-

                                             12
examination, however, defense counsel questioned Detective Valle about Deputy Valdez.
Counsel reviewed Deputy Valdez’s report with Detective Valle regarding the dates and
times Madalyn gave the deputy as opposed to what she related to the detective. Counsel
pointed out that one day after her interview with Deputy Valdez, Madalyn’s memory had
improved as to the dates of the sexual incidents.4 Defense counsel also went over many
of Madalyn’s statements to Detective Valle—repeating the statement and asking the
detective if that was what Madalyn had said. Defense counsel asked Detective Valle if it
was not true that Madalyn had described six different incidents to him, but only five to
Deputy Valdez. Given this extensive exposure of Madalyn’s statements to the two
deputies in the first trial, it is mere speculation to state that their testimony at the second
trial was pivotal in the jury’s reaching a guilty verdict.
       Defendant also points to the fact that his attorney filed a motion in limine to
exclude the statements of the alleged victim unless otherwise admissible under the
Evidence Code, but then withdrew that portion of the motion. Counsel did withdraw the
request to exclude any prior statements of witnesses under the prior consistent statement
theory and the prior inconsistent statement theory unless the People demonstrated that the
proposed statements satisfied the statutory requirements. Counsel stated during the
Evidence Code section 402 hearing that this request was “just a statement of the law, so
I’ll withdraw that.” We do not believe that this indicates that counsel “gave the matter
some thought and concluded that an objection would be futile” because he did not
consider it correctly.
       Finally, we do not view as significant the sidebar discussion that leads defendant
to assert that his attorney did not understand the prior consistent statement hearsay
exception. The sidebar occurred during the prosecutor’s direct examination of Detective
Valle. The prosecutor asked Detective Valle about the first incident by repeating what
Madalyn told the detective: “And she told you that Rico took her underneath the north



4      There was actually a lapse of two days between the interviews.


                                               13
bleachers to a walkway tunnel on the west side of the bleachers?” Detective Valle
replied, “Yes.” The prosecutor next asked, “And she explained that the tunnel contained
that staircase?” Defense counsel objected that the prosecutor was leading by reading
from a report as opposed to asking what was said to the officer. At a sidebar, the trial
court stated that “the reason these statements come in is because they’re prior consistent
statements.” Defense counsel stated, “I was going to make it hearsay but I know that I
figure.” The prosecutor said, “I’m able to elicit a prior consistent statement. I said
inconsistent.” The court replied, “Right. But some things are significant. Other things
are not significant.”
       It is not clear what anyone meant during that discussion, and it is rather a meager
basis for finding ineffective assistance. It is obscure what defense counsel meant when
he said “I know that I figure,” and what the prosecutor meant by saying “consistent” and
then “inconsistent.” The trial court appeared to agree with the prosecutor that the
statements were either consistent or inconsistent, but it is not clear which. The court then
appeared to rest its ruling on the significance of the elicited statements. In any event, as
we have stated, we believe defense counsel had a tactical purpose in questioning Deputy
Valdez himself about the statements Madalyn made and then following up by questioning
Detective Valle and contrasting Madalyn’s assertions in the two interviews.
       With respect to prejudice, defendant claims that, by not objecting, defense counsel
allowed the prosecution to present its case-in-chief a second and third time without cross-
examination. He argues that the testimony tended to reinforce in the jurors’ minds the
impression that Madalyn was truthful. Defendant points out that in his first trial, where
the prosecution had admitted evidence of numerous sexually explicit text messages as
exhibits, but no evidence of prior consistent statements, the jury was unable to reach a
verdict on any count. According to defendant, this clearly demonstrates that the prior
consistent statements were of significant evidentiary value to the jury.
       As our prior discussion indicates, we do not find a significant difference in the
information given to the jury in the two trials about Madalyn’s statements to the two
deputies. We believe counsel was not ineffective by employing the strategy he explained

                                             14
and also that defendant was not unduly prejudiced by these tactics. In addition, we
conclude that the statements were admissible under the “negative evidence” exception to
the requirements of Evidence Code section 791.
       There is one aspect of the evidence that is troubling, however. We note that the
prosecutor failed to elicit with respect to count 4 that Madalyn and defendant engaged in
“hugging and kissing,” which is the lewd act she ascribed to count 4 in closing argument.
Madalyn testified that hugging and kissing occurred in the first incident, and oral
copulation in the second and third. Madalyn next stated that during the same week as the
second oral copulation, defendant tried to take her under the bleachers again, and she
thought this was when he asked to finger her. She refused. Madalyn did not say that she
and defendant hugged and kissed, and the prosecutor moved on without eliciting any
more testimony on the fourth incident. The only evidence that hugging and kissing
occurred during this incident was contained in Detective Valle’s testimony. Although we
believe Madalyn’s statements to Detective Valle were admissible in general, her
statement regarding count 4 to the detective cannot be deemed consistent with her trial
testimony and should not have been admitted. Therefore, we believe defendant’s
conviction in count 4 must be reversed for insufficient evidence.
II. Failure to Object to Prosecutor’s Argument
       A. Defendant’s Argument
       Defendant contends that his trial attorney was ineffective in failing to object when
the prosecutor: (1) used defendant’s exercise of a specific fundamental constitutional
guarantee against him at trial; (2) vouched for Madalyn’s credibility and attempted to
inflame the jury’s passions; and (3) misstated the law in a manner that improperly shifted
the government’s burden of proof to defendant. Defendant argues that, either
individually or cumulatively, these instances of misconduct deprived him of due process
and a reliable jury verdict, and reversal is required.
       B. Relevant Authority
       “We review claims of prosecutorial misconduct pursuant to a settled standard.
‘Under California law, a prosecutor commits reversible misconduct if he or she makes

                                              15
use of “deceptive or reprehensible methods” when attempting to persuade either the trial
court or the jury, and it is reasonably probable that without such misconduct, an outcome
more favorable to the defendant would have resulted. [Citation.] Under the federal
Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s
specific constitutional rights—such as a comment upon the defendant’s invocation of the
right to remain silent—but is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’’’’ [Citations.] In addition, ‘“a
defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety. [Citation.]”’
[Citation.] Objection may be excused if it would have been futile or an admonition
would not have cured the harm.” (People v. Dykes (2009) 46 Cal.4th 731, 760.)
       It is established, that “[a] prosecutor is given wide latitude to vigorously argue his
or her case and to make fair comment upon the evidence, including reasonable inferences
or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39
Cal.4th 641, 726.) “Failure to object rarely constitutes constitutionally ineffective legal
representation . . . .” (People v. Boyette (2002) 29 Cal.4th 381, 424.)
       C. No Misconduct
              1. Reasons for Going to Trial
       Shortly after beginning her closing argument, the prosecutor stated, “You know,
sometimes a person goes to trial because they have the right that they want to vindicate a
right and sometimes they want to roll the dice and see if they can hang you up. And
that’s this case. Well, look at their case, and I’m going to go over each witness one by
one. Believe me, I will.” The prosecutor went on to discuss defendant’s character
witnesses and expert witness.
       In arguing that these words amounted to objectionable misconduct, defendant cites
Burns v. Gammon (8th Cir. 2001) 260 F.3d 892, 896 (Burns), for the proposition that
“The prosecution cannot use the defendant’s exercise of specific fundamental

                                             16
constitutional guarantees against him at trial.” According to defendant, the prosecutor
here improperly told the jury that defendant exercised his constitutional right to a jury
trial, not because he was presumed innocent, but because he wanted to gamble that he
could hang the jury.
       In Burns, with respect to both guilt and sentencing, the prosecutor asked the jury
to consider that the defendant, by exercising his right to a jury trial, had forced the victim
to testify and relive the attack on her. (Burns, supra, 260 F.3d at p. 896.) The
defendant’s counsel did not make a sufficient constitutional objection to this argument,
which was made in rebuttal just prior to jury deliberations. The court held that counsel’s
failure to object prejudiced Burns and infected his trial with constitutional error. (Ibid.;
cf. Darden v. Wainwright (1986) 477 U.S. 168, 182 [prosecutorial misconduct during
closing argument may infect trial with constitutional error when it “implicate[s] . . .
specific rights of the accused”].)
       Although we agree with the principle discussed in Burns, we conclude defendant’s
prosecutor was not guilty of misconduct and counsel was therefore not ineffective. The
prosecutor’s remarks in this case were not on a par with those of the Burns prosecutor.
The remarks at issue here were made at the beginning of closing argument, just after the
conclusion of the defense case. The comment was not an attempt to disparage defendant
for exercising his right to a jury trial by playing on the jury members’ sympathy for the
victim, as occurred in Burns. Rather, the prosecutor made this comment after pointing
out that the defendant appeared to be blaming the victim and saying that she “came on” to
him. She pointed out that Madalyn was 13 and defendant was 28 years old with a college
education and yet defendant wanted the jury to believe it was Madalyn who came up with
all of the suggestions about fingering, blow jobs, and the other sexual things they
discussed. Thus, the prosecutor was commenting on what she considered the
preposterous nature of the defense. The prosecutor is afforded “wide latitude in
describing the factual deficiencies of the defense case.” (People v. Cash (2002) 28
Cal.4th 703, 733.) The prosecutor then went on to express the view that, although
defendant’s defense was preposterous, he nevertheless hoped the jury would believe him.

                                              17
The prosecutor did not criticize defendant for exercising his right to a trial. Her comment
was similar to the oft-heard allegation that the defense was throwing mud at a wall and
hoping that something would stick. We find no misconduct.
              2. Vouching for Madalyn
       Defendant contends that the prosecutor improperly vouched for Madalyn’s
credibility and attempted to inflame the jury’s passions when she said at the beginning of
her argument that she found it “very offensive and I apologize for showing it because as
I’m sitting there and as my blood is boiling as I’m listening to lie after lie after lie after
lie, I think God why do I do this? And then I remember why I went into sex crimes. It
was because in these cases there’s an imbalance of power. In these cases you’re dealing
with someone who has more power, whether it be experience, age, sophistication,
physical strength, you name it, and somebody who’s weaker. And that’s not an insult.
Whether it’s the woman who’s being beaten up by her husband where she doesn’t have a
shred of self-esteem left or the small child that gets molested by her stepdad or it’s the
teacher slash instructor who takes advantage of a teenage 13-year-old virgin’s crush on
him, it is offensive. And we can’t say that we’re here and we want to protect women and
we want to protect our children and turn around and judge them. You can’t do that.
Madalyn was 13. She behaved like a 13-year-old.”
       According to defendant, with these words, the prosecutor was clearly vouching for
Madalyn’s credibility. The prosecutor improperly referred to her experience with other
sex cases and victims of sex crimes in general to suggest that women and children do not
lie and jurors should not judge them. Also, the prosecutor attempted to inflame the
passions of the jury by suggesting that she had been victimized by having to listen to the
defense’s lies, which caused her to ask God why she got into this in the first place.
       The general rule is that improper vouching for the strength of the prosecution’s
case “‘involves an attempt to bolster a witness by reference to facts outside the record.’”
(People v. Williams (1997) 16 Cal.4th 153, 257.) Thus, it is misconduct for prosecutors
to vouch for the strength of their cases by invoking their personal prestige, reputation, or



                                               18
depth of experience, or the prestige or reputation of their office, in support of it. (See,
e.g., People v. Medina (1995) 11 Cal.4th 694, 758.)
       Considering the gist of the defense in this case, we would not characterize these
comments as vouching for Madalyn’s credibility. As noted ante, defendant clearly
wished to portray himself as being drawn into the sexual aspect of his relationship with
Madalyn (which he claimed consisted solely of text messages) by her suggestions.
Defendant testified that he had never hugged or kissed Madalyn, but she had attempted to
hug and kiss him on one occasion. Although he had never given Madalyn his telephone
number, she had obtained it and texted him, to his surprise. Madalyn had told him he was
cute and that she liked him. The prosecutor brought out that defendant previously
testified that Madalyn initiated a conversation in which she said it would be nice for him
to “finger[ ] her.” When asked if he sent Madalyn messages with a sexually explicit
content, defendant replied, “In reply to her text messages, yes.” The prosecutor brought
out that defendant had previously testified similarly, stating that “I was replying to her
initiation of certain topics.” He admitted only that he responded “inappropriate[ly]” to
things that Madalyn wanted to do. When asked again if he engaged Madalyn in sexual
communication, defendant answered, “I replied to her text messages.” He insisted that he
“didn’t initiate.” When defendant denied that he was turned on by the text messages and
was asked why he did not talk about other subjects, defendant replied, “Because she
initiated all those text message conversations.” Given defendant’s testimony in this vein,
the prosecutor clearly wished to establish in the beginning that defendant’s version was
untruthful. These comments thus address defendant’s lack of credibility rather than
bolster Madalyn’s credibility.
       In context, the prosecution’s comment that “we” cannot judge refers to society
and/or the legal system rather than the jury members specifically. It appears that the
prosecutor was pointing out that society and the legal system are supposed to protect
women and children, and it would be wrong to find that an adult who took advantage
sexually of a precocious 13-year-old was without fault because of the 13-year-old’s
apparent consent to engaging in the sexual behavior. This comment was once again a

                                              19
response to the defense tactic of characterizing Madalyn as the initiator of all sexual
suggestions. It is not misconduct to ask the jury to believe the prosecution’s version of
events as drawn from the evidence. (People v. Huggins (2006) 38 Cal.4th 175, 207.)
       As for inflaming the jury’s passions, although the prosecutor may have become
somewhat dramatic in her monologue, it does not appear that she actually asked God the
rhetorical question regarding why she prosecuted sex crimes. She used the word “god”
as a mild, “profane” interjection as people commonly do. Even though the prosecutor
referred to her reasons for choosing her area of law, it was a mere passing reference. We
are not persuaded that the jury drew the damaging inference suggested by defendant.
Even if some aspects of this argument were inappropriate, they were of no real
importance in the context of the entire argument.
              3. Shifting of Burden of Proof
       Defendant contends the prosecutor committed misconduct when, after discussing
the reasonable doubt standard, she argued: “In this case there has not been any
reasonable arguments by the defense as to why this defendant is not guilty. He is guilty
of lewd act on a child under the age of 14 and receiving oral copulation from a child
under the age of 14. Thank you.”
       Again, we disagree that these remarks constituted prosecutorial misconduct. The
prosecutor was not attempting to shift the burden of proof to defendant. This remark
occurred in the prosecutor’s rebuttal argument, after defense counsel had argued his case.
The prosecutor was clearly referring to the defense argument and not the burden of proof.
The prosecutor discussed the difference between what was merely a possible explanation
for a fact and what was a reasonable one. The prosecutor was reminding the jury that the
verdict must be reasonable. The argument “did little more than urge the jury not to be
influenced by [defense] counsel’s arguments, and to instead focus on the testimony and
evidence in the case.” (People v. Stanley (2006) 39 Cal.4th 913, 952.)
       Having found no prosecutorial misconduct, we conclude there was no ineffective
assistance of counsel for failing to object to the remarks of which defendant complains.
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the

                                             20
defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.” (People v.
Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) If any comments bordered on misconduct, the effect
was de minimis and harmless under any standard. (Chapman v. California (1967) 386
U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
       Moreover, any possible prejudice resulting from any of these remarks was
mitigated by the trial court’s instruction to the jury that the attorneys’ statements during
the trial were not evidence (CALCRIM No. 222), and that the jurors were not to let
sympathy or prejudice influence their decision (CALCRIM No. 200).
       Since we have found no pattern of prosecutorial misconduct, we conclude that no
cumulative reversible and prejudicial error resulted from the prosecutor’s argument.
Given that defendant’s arguments lack merit, he was not denied the effective assistance
of counsel.
III. Probation Eligibility
       A. Defendant’s Argument
       Defendant contends that the allegation under section 1203.066, subdivision (a)(8),
which states that defendant is statutorily ineligible for probation in counts 2 and 3, must
be stricken, and the matter must be remanded for resentencing. He asserts that section
1203.066, subdivision (a)(8) does not apply to a violation of section 288a as charged in
these counts. Respondent concedes that section 1203.066, subdivision (a)(8) does not
apply to the convictions in counts 2 and 3 but contends that remand for resentencing is
not necessary.
       B. Relevant Authority
       Section 1203.066 provides: (a) “Notwithstanding Section 1203 or any other law,
probation shall not be granted to, nor shall the execution or imposition of sentence be
suspended for, nor shall a finding bringing the defendant within the provisions of this

                                             21
section be stricken pursuant to Section 1385 for, any of the following persons: [¶] . . . [¶]
(8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with
a victim who is under 14 years of age.”
       C. Allegation Incorrectly Applied
       In counts 2 and 3, defendant was convicted of the crime of oral copulation of a
person under 14 in violation of section 288a, subdivision (c)(1). Each count carried the
allegation that the victim was under the age of 14 and the defendant had substantial
sexual conduct with the victim pursuant to section 1203.066, subdivision (a)(8). The jury
found true the allegations.
       Defendant is correct that section 1203.066, subdivision (a)(8) does not apply to a
violation of section 288a. Therefore, the allegation of probation ineligibility must be
stricken. We decline respondent’s suggestion that we extrapolate from the trial court’s
imposition of consecutive terms the conclusion that the court would not have granted
probation in any event. Although the trial court granted more than the minimum sentence
it could lawfully impose, we remand so that the trial court may once again exercise its
discretion.
                                      DISPOSITION
       The conviction in count 4 is reversed. The judgment is modified to strike the
probation ineligibility findings in counts 2 and 3. In all other respects, the judgment is
affirmed. The matter is remanded to the trial court for resentencing.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.



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