Filed 6/24/16 P. v. Martinez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H041273
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1114225)

             v.

RICKY MARTINEZ,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         An information charged defendant Ricky Martinez with one count of oral
copulation or sexual penetration with a child 10 years of age or younger (Pen. Code,
§ 288.7, subd. (b); count 1) and two counts of lewd or lascivious conduct on a child under
the age of 14 by force, violence, duress, menace, or fear (Pen. § 288, subd. (b)(1); count 2
and count 3.) A jury convicted defendant on counts 1 and 2 and acquitted him on
count 3. The trial court sentenced defendant to a prison term of 15 years to life
consecutive to six years.
         Defendant now appeals from the judgment of conviction. Defendant makes four
arguments in favor of reversal: 1) the trial court erred in admitting opinion testimony
regarding his guilt and the victim’s credibility; 2) the trial court erred in failing to give a
limiting instruction pertaining to that opinion testimony; 3) defense counsel rendered
ineffective assistance in failing to ensure that the trial court gave a limiting instruction
regarding the opinion testimony; and 4) cumulative error warrants reversal. As set forth
below, we affirm.
                               STATEMENT OF THE FACTS
       The victim named in the information was Cessaria Doe.1 Defendant is a cousin of
Cessaria’s father, and Cessaria has known defendant her whole life. Cessaria’s mother
frequently left Cessaria in defendant’s care while she went out.
       Cessaria was 14 years old at the time of trial, and defendant was 45 years old at
the time of trial. Cessaria testified regarding two separate incidents that occurred when
she was 10 years old.
The First Incident: Counts 1 and 2
       Cessaria testified that she was at defendant’s San Jose home, and defendant told
her to go into a bedroom, place a phone call to her mother, and ask her mother “where
she was at.” Cessaria went into the bedroom and used a “[h]ouse phone” with a cord to
call her mother. Cessaria’s mother did not answer.
       There was a television in the bedroom, and defendant put on a video of a couple
having sex on a plane. Defendant closed the bedroom door, and he placed a knife in the
doorjamb to keep the door closed. Defendant sat Cessaria on his lap, and he rubbed her
vagina. Cessaria tried to push away from defendant. Defendant rolled Cessaria onto the
bed, and he pulled down her skirt and underwear. Defendant touched Cessaria’s vagina
with his hand, and he licked her vagina. Cessaria tried to push defendant away and get
up, but defendant had his hand on her stomach and was holding her down. Cessaria told
defendant that she needed to use the restroom, but defendant would not let her get up.
Defendant touched and licked Cessaria’s vagina “for a while.” Defendant stopped when



       1
         At trial, several of the witnesses were identified by the last name Doe. In order
to avoid confusion, this opinion will refer to witnesses by their first names.
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someone walked through the home’s front door. Cessaria ran out of the bedroom and
went into the bathroom.
       Later that day, defendant asked Cessaria if she was mad at him. Defendant told
Cessaria not to tell anyone what had happened.
The Second Incident: Count 3
       Cessaria testified that defendant touched her again when he moved to a new
apartment in San Jose. Cessaria testified that she and defendant’s children were sleeping
in a room at the apartment, and she woke up and discovered that defendant was rubbing
her lower back. Defendant told Cessaria to be quiet. Defendant was rubbing Cessaria’s
back near her pants, and Cessaria testified that it felt like defendant was trying to take her
pants off. Cessaria stood up, pulled her shirt down, and ran out of the room to her
mother.
Cessaria Discloses to her Parents and a Friend
       Cessaria did not immediately tell anyone that defendant had touched her. Cessaria
testified that the secret was “bothering” her as she “got older,” and she eventually told her
mother. Cessaria’s mother, Lydia, testified that one day Cessaria appeared to be “feeling
down,” and Cessaria said that defendant “used to touch” her. Lydia testified that Cessaria
said the touching occurred on more than one occasion. Lydia became “very upset” when
Cessaria told her about the touching, so Lydia did not ask about the “specifics” of the
touching. Lydia told Cessaria not to tell anyone about the touching because Lydia feared
that Cessaria could be taken away from her.
       Sometime after she told her mother, Cessaria told her friend, Alyssa, what
defendant had done. Alyssa testified that one day Cessaria “seemed bothered,” and
Cessaria said she was “raped” by her uncle.
       After she told Alyssa and a “couple months” after she told her mother, Cessaria
told her father, Cesar, that defendant had touched her. Cesar testified that Cessaria

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started to tell him the details of the touching, but he stopped her because he “didn’t want
to hear the details.” Cesar called the police immediately after Cessaria told him about the
touching.
       Police interviewed Cessaria, and she described the two incidents in which
defendant touched her. In an interview, in contrast to her trial testimony, Cessaria said
that the second incident occurred during a party at the home of defendant’s sister.
Evidence of Past Sexual Offenses
       Veronica Doe is defendant’s cousin and Cessaria’s aunt. Veronica was 35 years
old at the time of trial.
       Veronica testified that defendant “touched” her when she was a child. She
remembered two occasions on which defendant touched her. Veronica testified that
when she was about 10 years old, defendant made her “touch his penis” and “jack him
off” until he ejaculated. Veronica testified that when she was “a little older” and “barely
growing” breasts, defendant touched her right breast.
       Veronica testified that she learned of Cessaria’s molestation when she overheard
her mother speaking on the telephone. Veronica testified that she immediately thought,
“It’s true because he did it to me.” She also thought, “I know he’s capable of this.”
       After she learned about Cessaria’s allegation against defendant, Veronica
informed police that defendant had molested her as a child. Veronica testified that if
Cessaria “had not come forward,” she would have kept her own molestation a “secret to
the grave.”
Child Sexual Abuse Accommodation Syndrome
       An expert witness testified regarding Child Sexual Abuse Accommodation
Syndrome (CSAAS). The expert explained that CSAAS is a term that describes “patterns
of behavior” in sexually-abused children that are “very counter-intuitive to what adults
would often expect from children who had experienced that kind of situation.” Children

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who have been sexually abused often delay in reporting the abuse, and many sexually-
abused children keep the abuse a “secret into adulthood.” When sexually-abused
children do report the abuse, they frequently disclose in an “unconvincing” fashion.
Sexually-abused children often disclose the abuse “in small bits and pieces,” do not “tell
the whole thing all at once,” do not “include all of the details” when they report the
abuse, and provide “details” of the abuse that “differ across interviews.”
Defense Evidence
       Defendant testified on his own behalf. He denied molesting Cessaria, and he
denied molesting Veronica. He testified that Cessaria “made it up” when she accused
him of molesting her.
       Defendant called many family members to impeach some of the details of
Cessaria’s testimony. Cessaria testified that she “probably” told police that defendant
was wearing sweatpants during the first incident, but several of defendant’s family
members testified that defendant always wore jeans and never wore sweatpants.
Defendant’s family members testified that they had never seen any pornographic videos
at defendant’s home. Defendant’s family members testified that there was never a
landline telephone with a cord in a bedroom at defendant’s home.
       Defendant also presented evidence to impeach Veronica’s testimony. Defendant’s
mother, Mary, testified that she saw Veronica at the hospital three months before the trial,
Veronica hugged and kissed her, and Veronica said she had “made a mistake” and
“couldn’t take it back.” Mary testified that she saw Veronica again two weeks later, and
Veronica said it was her uncle, not defendant, who had molested her. Veronica denied
telling Mary that it was her uncle who had molested her, and she denied telling Mary that
she had made a mistake.
       Defendant’s sister, Maria, described Veronica’s allegations against defendant as
“lies.” Maria and Veronica “used to hang out together,” Maria knew “all” of Veronica’s

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secrets, Veronica never told Maria that defendant had molested her, and Veronica would
have told Maria if defendant had molested her.
       Defendant’s niece, Esmerelda, was 16 years old at the time of trial, and she
testified that she lived with defendant when she was six or seven years old. She testified
that defendant never touched her inappropriately and never made her feel uncomfortable.
Another niece of defendant, Maribel, was 16 years old at the time of trial, and she
testified that she stayed with defendant for “days at a time” when she was eight or nine
years old. She testified that defendant never touched her in any inappropriate places and
never made her feel uncomfortable.
                                         DISCUSSION
       All of defendant’s arguments on appeal pertain to Veronica’s testimony that
defendant was “capable of this” and Veronica’s testimony that Cessaria’s allegation
against defendant was “true.” Defendant makes the following arguments regarding that
testimony: the trial court erred in admitting the testimony because it constituted improper
opinion regarding his guilt and the victim’s credibility; the trial court erred in failing to
give a limiting instruction specifying that the testimony could not be used to determine
that he was guilty of the charged crimes; counsel rendered ineffective assistance in failing
to ensure that the trial court gave a limiting instruction regarding the testimony; and the
cumulative effect of the claimed errors warrants reversal.
Background
       The defense filed a motion in limine seeking exclusion of opinion testimony
regarding defendant’s guilt. At a hearing on the motion, defense counsel expressed
concern that Veronica might testify that she believed defendant to be guilty and that she
believed Cessaria to be telling the truth: “My concern is Veronica because she tells
officers when she says, oh, well, I know he did it because he did it to me, I want to make
sure that she’s carefully instructed that she can’t say that. She can say this is what

                                               6
happened to me but not that I know he did it to [Cessaria] or I know [Cessaria is] telling
the truth because he did it to me. And that’s my concern.” The trial court responded to
defense counsel’s argument: “I guess the witness’s perspective of whether [defendant]
did this incident is probably irrelevant.” The trial court then invited the prosecutor to
respond to defense counsel’s argument.
       The prosecutor argued that Veronica’s opinion was relevant to show her state of
mind when she disclosed to police that she had been molested by defendant. The
prosecutor explained that Veronica learned of Cessaria’s allegation against defendant
when Veronica overheard a telephone conversation, and Veronica immediately thought
Cessaria was “telling the truth” because “this happened to me too.” The prosecutor
asserted that Veronica’s “thought process” when she overheard the telephone
conversation explained “why she ultimately decide[d] to come forward and give a
statement to the police, . . . which is part of what [Evidence Code section] 1108 is.”
       The trial court noted that Veronica’s “state of mind can be relevant for why she
disclosed.” The trial court then ruled on the defense motion as follows: “So I guess to
the extent she’s explaining her subsequent actions I believe it—and I felt I needed to
disclose because of what happened to me, it can come in for that limited purpose. But
certainly [she] shouldn’t be testifying—and I will give any instruction to the jury, and I
guess you know to the extent you’re speaking to your witnesses ahead of time, certainly
they cannot—I mean, you should admonish them they can’t speak to issues of guilty. I
agree that is for the jury to decide. So I guess granted with modification. [¶] I mean,
there is going to be some limited purpose if it goes to showing her subsequent actions,
her reasons for—that witness’s reasons for revealing were because she overheard this and
thought—that’s why she disclosed. That evidence is going to come in. But everything
else you described I think is an accurate statement of the law. People cannot testify as to
the guilt or innocence of the defendant.”

                                              7
       During the direct examination of Veronica, the prosecutor asked: “So, Veronica,
I’d like to ask you when you—when did you first find out about Cessaria’s molestation?”
Veronica responded to the question as follows: “I went to visit my mom, and, umm, she
was on the phone. And I kind of overheard the conversation, and we were in the
backyard. [¶] And I followed her because I was like what is she talking about. And,
umm, I heard Cessaria’s name and the lawyer—I don’t know. I guess the lawyer or
somebody was talking to my mom, investigator. And I was all ‘It’s true because he did it
to me.’ I just overheard my mom, and then I go ‘Mom, what’s going on? What’s going
on?’ And then she was telling me what happened.”
       Following Veronica’s response, the prosecutor asked Veronica if “that was really
the first time” that she had heard about Cessaria’s “allegation against” defendant, and
Veronica responded, “Yes.” The prosecutor then asked Veronica, “And your instant
reaction was ‘I know he’s capable of this’?” Veronica responded, “Yes. I didn’t think—
I didn’t think he would do that again.”
       Defense counsel did not object to Veronica’s testimony. Nor did defense counsel
request a limiting instruction pertaining to Veronica’s testimony. The trial court never
gave a limiting instruction regarding Veronica’s testimony.
The Trial Court’s Admission of the Testimony and Failure to Give a Limiting
Instruction
       We begin our analysis by addressing defendant’s claims that the trial court erred in
admitting Veronica’s testimony and erred in failing to give a limiting instruction
pertaining to Veronica’s testimony.
       “A consistent line of authority in California as well as other jurisdictions holds a
witness cannot express an opinion concerning the guilt or innocence of the defendant.”
(People v. Torres (1995) 33 Cal.App.4th 37, 46.) “[O]pinions on guilt or innocence are
inadmissible because they are of no assistance to the trier of fact.” (Id. at p. 47.)

                                              8
Similarly, “a lay witness may not express an opinion about the veracity of another
person’s statement.” (People v. Houston (2012) 54 Cal.4th 1186, 1221.)
       We review the trial court’s admission of evidence for abuse of discretion. (People
v. Cowan (2010) 50 Cal.4th 401, 462; People v. Brown (2003) 31 Cal.4th 518, 534.)
“[A]ssertions of instructional error are reviewed de novo.” (People v. Shaw (2002) 97
Cal.App.4th 833, 838.)
       Here, during motions in limine, the trial court ruled that Veronica’s testimony
regarding her “state of mind” when she learned of Cessaria’s allegation could be admitted
for the “limited purpose” of explaining why Veronica disclosed her own molestation.
The trial court further ruled that “[p]eople cannot testify as to the guilt or innocence of
the defendant,” and it explained that it would “give any instruction to the jury” in
connection with Veronica’s testimony.
       The trial court, however, did not abide by its own ruling. During her testimony,
Veronica provided an opinion regarding defendant’s guilt and the credibility of
Cessaria’s allegation when she testified that Cessaria’s allegation was “true” and testified
that defendant was “capable of this.” The trial court did not strike any of Veronica’s
opinion testimony. The trial court did not give a limiting instruction pertaining to
Veronica’s opinion testimony. The jury was thus free to consider Veronica’s opinion
testimony for unlimited purposes, including the issue of defendant’s guilt of the charged
crimes. The trial court erred in admitting Veronica’s opinion testimony and in failing to
give a limiting instruction pertaining to Veronica’s opinion testimony.
       The issue is whether defendant suffered prejudice. Defendant contends that the
trial court’s admission of Veronica’s opinion testimony and failure to give a limiting
instruction should be reviewed under the prejudice standard for federal constitutional
error articulated in People v. Chapman (1967) 386 U.S. 18 (Chapman). The Attorney
General asserts that we should apply the prejudice standard for state law error articulated

                                              9
in People v. Watson (1956) 46 Cal.2d 818. We need not determine which of the two
standards applies here. Even under the more stringent Chapman standard, defendant did
not suffer prejudice necessitating reversal.
       Under the Chapman standard, error requires reversal “unless it can be shown
‘beyond a reasonable doubt’ that the error did not contribute to the jury’s verdict.”
(People v. Sengpadychith (2001) 26 Cal.4th 316, 324, citing Chapman, supra, 386 U.S. at
p. 24.) “ ‘To say that an error did not contribute to the ensuing verdict is . . . to find that
error unimportant in relation to everything else the jury considered on the issue in
question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually
decided and whether the error might have tainted its decision. That is to say, the issue is
‘whether the . . . verdict actually rendered in this trial was surely unattributable to the
error.’ [Citation.]” (People v. Neal (2003) 31 Cal.4th 63, 86, italics omitted.) As
explained below, the verdict here surely was not attributable to the admission of
Veronica’s opinion testimony without a limiting instruction. Several reasons support this
conclusion.
       First, Veronica’s opinion testimony revealed very little information pertaining to
defendant’s guilt and Cessaria’s credibility. Veronica provided her opinion testimony in
connection with a telephone conversation that she overheard, but she did not describe the
substance of that conversation—she testified only that she “overheard the conversation”
and “heard Cessaria’s name.” Veronica testified that when she overheard the telephone
conversation, “I was all ‘It’s true because he did it to me.’ ” She also testified that, upon
hearing the telephone conversation, her reaction was “I know he’s capable of this.”
Given that Veronica never described what she overheard in the telephone conversation, it
was unknown what Veronica believed to be “true,” and it was unclear what she believed
defendant was “capable” of doing. Because Veronica’s opinion testimony revealed so
little, we do not believe that her opinion testimony tainted the verdict.

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       Second, although defendant characterizes Veronica’s opinion testimony as “a
crucial, critical, highly significant factor in the trial,” we do not believe that her opinion
testimony can be characterized in such a fashion. Veronica’s opinion constituted a very
brief portion of her testimony, and her opinion testimony was just a fraction of the
evidence presented by the prosecution. Indeed, Veronica’s opinion testimony was of
such little significance that the prosecutor did not mention it during closing argument.
Moreover, the defense presented evidence that impeached Veronica’s veracity.
Defendant’s sister, who knew “all” of Veronica’s secrets, described Veronica’s testimony
against defendant as “lies.” Defendant’s mother’s testimony suggested that Veronica’s
testimony against defendant was false. Given the brevity of Veronica’s opinion
testimony and the evidence impeaching Veronica’s veracity, Veronica’s opinion
testimony was of little import.
       Finally, the circumstance that the jury acquitted defendant on count 3 shows that
the guilty verdicts on counts 1 and 2 were not attributable to Veronica’s opinion
testimony. If Veronica’s opinion testimony were as powerful as defendant claims it was,
it would have swayed the jury to convict on count 3. We thus must conclude that
Veronica’s opinion testimony did not improperly influence the jury. The circumstance
that the jury acquitted defendant on count 3 logically demonstrates that the jury’s guilty
verdicts on counts 1 and 2 were not a product of Veronica’s opinion testimony.
       In sum, for the foregoing reasons, we are satisfied beyond a reasonable doubt that
the admission of Veronica’s opinion testimony without a limiting instruction did not
contribute to the jury’s verdict. Defendant therefore did not suffer prejudice under the
Chapman standard, and the trial court’s error in admitting the opinion testimony and in
failing to give a limiting instruction is not grounds for reversal.




                                              11
Ineffective Assistance of Counsel
       Defendant contends that defense counsel rendered ineffective assistance in failing
to ensure that the trial court gave a limiting instruction pertaining to Veronica’s opinion
testimony. Specifically, defendant asserts that defense counsel should have requested a
limiting instruction specifying that the jury could not consider Veronica’s opinion
testimony “to determine that [defendant] was guilty.” As explained below, defendant
cannot establish ineffective assistance of counsel.
       The defendant bears the burden of proving ineffective assistance of counsel.
(People v. Carter (2003) 30 Cal.4th 1166, 1211.) “To prevail on an ineffective assistance
of counsel claim, appellant must prove two elements: (1) trial counsel’s deficient
performance and (2) prejudice as a result of that performance.” (People v. Martinez
(2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).)
       Prejudice is established if “there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham).) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466
U.S. at p. 694.)
       “The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
(Strickland, supra, 466 U.S. at p. 697.)
       Defendant cannot establish the requisite prejudice for his ineffective assistance of
counsel claim. As we explained above, we are satisfied beyond a reasonable doubt that
the admission of Veronica’s opinion testimony without a limiting instruction did not
contribute to the jury’s verdict. As we explained, the jury’s verdict surely was not

                                             12
attributable to the admission of Veronica’s opinion testimony without a limiting
instruction. There thus is not a reasonable probability that defendant would have
obtained a more favorable result if defense counsel had procured a limiting instruction
pertaining to Veronica’s opinion testimony. Because defendant cannot show prejudice,
his claim of ineffective assistance fails.
Cumulative Error
       Defendant finally contends that the cumulative effect of the alleged errors
warrants reversal. This claim also fails.
       In assessing a claim of cumulative error, the critical question is “whether
defendant received due process and a fair trial.” (People v. Kronemyer (1987) 189
Cal.App.3d 314, 349, overruled on another point in People v. Whitmer (2014) 59 Cal.4th
733, 742.) Here, we have found no substantial error that could have affected the jury’s
verdict. (See People v. Butler (2009) 46 Cal.4th 847, 885 [claim of cumulative error
failed where reviewing court “found no substantial error in any respect”].) “Defendant
was entitled to a fair trial but not a perfect one.” (Cunningham, supra, 25 Cal.4th at p.
1009.) We are satisfied that defendant received due process and a fair trial, and his claim
of cumulative error fails.
                                        DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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