Filed 1/29/15




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G048139

        v.                                            (Super. Ct. No. 10WF0041)

ANTHONY WYATT CANNATA,                                OPINION

    Defendant and Appellant.


                  Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Affirmed.
                  Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
                  Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff
and Respondent.


                                  *            *             *
              Anthony Wyatt Cannata appeals from the judgment following his
conviction on one count of continuous sexual abuse of a child (Pen. Code, § 288.5,
subd. (a); all further statutory references are to this code unless otherwise specified). He
was sentenced to 12 years in prison.
              Defendant’s conviction came in his second trial, after his first trial ended in
a hung jury. He claims the trial court erred in the second trial by ruling that, if he elected
to testify on his own behalf, his statements to a staff member at a psychiatric hospital
could be used by the prosecutor for impeachment. According to defendant, this ruling
improperly forced him to choose between testifying on his own behalf and maintaining
the confidentiality of his privileged psychotherapy communications. We conclude the
asserted privilege does not apply and therefore reject this contention.
              Defendant also contends the judgment must be reversed because the trial
court instructed the jury with CALCRIM Nos. 1110 and 1120, which, he argues, omit a
required element of the charged crimes, i.e., that the lewd or lascivious acts were
committed “in a lewd or sexual manner.” We conclude the omission, if it was one, was
harmless. Given the nature of the acts described by the victim, and the jury’s express
finding he had engaged in masturbation with her, there is no reasonable possibility the
jury believed his conduct with the victim was innocuous.
              The judgment is affirmed.


                   FACTUAL AND PROCEDURAL BACKGROUND


              Defendant’s stepdaughter, A., told her mother, defendant’s wife, he had
been sexually abusing her over an extended period of time. A’s mother reported the
alleged abuse to the Cypress Police Department, located in Orange County, and contacted
defendant by telephone. Defendant, who had just learned of A’s disclosure to both



                                              2
neighbors and to his wife, told her he was on his way to his brother’s house in Long
Beach and was contemplating committing suicide. Defendant’s wife then reported this
information to a member of the Cypress Police Department. Long Beach police
thereafter arrested defendant at his brother’s home. Because of defendant’s suicidal
threats, the police transported him to College Hospital in Los Angeles County.
              Defendant was admitted to the hospital on a 72-hour involuntary hold in
accordance with Welfare and Institutions Code section 5150. According to Christal
Verduzco, a hospital nurse, when a patient is brought to College Hospital on an
involuntary hold, a psychiatrist evaluates the patient, to confirm the basis for the hold and
to assess the patient’s condition. In this case, defendant was seen by Dr. Fidel. In the
course of this meeting, defendant mentioned having engaged in child sexual abuse. Fidel
thereupon suspended the evaluation, to locate a nurse to witness defendant’s statements.
              Verduzco accompanied Fidel back into the evaluation room, and joined the
discussion with defendant. Fidel then told defendant he wanted him to tell the nurse what
he had already disclosed. Defendant then told Verduzco he had been brought to the
hospital because he was feeling suicidal. He had fought with his wife because she found
out he had been sexually abusing her daughter. Verduzco “asked questions for
specifics,” so that she could prepare a mandated report about the abuse. She asked
defendant about the types of sexual acts they had engaged in, how often, how long it had
been going on, and whether it was consensual. He disclosed that the two of them had
engaged in oral sex, had engaged in touching each other, and he had penetrated her
vaginally with a finger; but he denied they engaged in intercourse. He claimed the acts
were consensual. After defendant had disclosed the information, Verduzco informed him
she would have to report it to the Los Angeles Department of Children and Family
Services (DCFS).




                                              3
              Verduzco did not know defendant’s conduct had already been reported to
the police in Cypress. She explained that, if an incident of child sexual abuse had been
reported to authorities, she would not be required to make a second report. After
Verduzco’s interview with defendant concluded, she made a telephonic report to DCFS.
She asked whether DCFS had already received a report about it, and was told they had no
such record. Verduzco then followed up her telephonic report with a written report.
              When defendant was first tried, he moved to exclude from evidence any
statements he had made to Verduzco. His motion was based on his contention those
statements were protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.)
The court took testimony from Verduzco, outside the presence of the jury, and then
granted the motion to exclude the evidence based on the psychotherapist-patient
privilege. Defendant then testified on his own behalf. The jury was unable to reach a
unanimous verdict and the court declared a mistrial.
              Before defendant’s second trial, the prosecutor filed a brief, arguing that, if
defendant elected to testify, his statements to Verduzco would be admissible to impeach
him. The prosecutor relied on People v. Macias (1997) 16 Cal. 471, 739, 752 for the
proposition that, in the wake of the voters enactment of the “Right to Truth–in–Evidence”
provision (Cal. Const., art I, § 28, subd. (f), par. (2)), as part of Proposition 8, statements
obtained from a defendant in violation of his right to remain silent – what the prosecutor
referred to as “Miranda defective statements” (see Miranda v. Arizona (1966) 384 U.S.
436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda)) – were nonetheless admissible for
impeachment purposes if the defendant elected to testify.
              Defendant responded to the prosecutor’s brief by filing a motion to once
again exclude his statements to Verduzco, even for impeachment purposes. Defendant
again argued the statements were protected by the psychotherapist-patient privilege, and
claimed the prosecutor was in effect asking the court to “judicially create an



                                               4
impeachment exception to the psychotherapist-patient privilege.” The trial court again
concluded the statements were covered by the psychotherapist-patient privilege, and
initially concluded they would be inadmissible at trial for any purpose, even if defendant
testified on his own behalf.
              But the court later changed its ruling. The court explained it had reviewed
a federal district court case, United States v. Nicholas (C.D. Cal. 2008) 594 F.Supp.2d
1116 (Nicholas), and found persuasive its explanation why a marital communication
between a defendant and his wife might be admissible to impeach defendant if he
testified, even though it would not be admissible if he did not. Based on Nicholas, the
court concluded that, if defendant testified in his own defense, his statements to Verduzco
could be admitted. Because of the ruling, defendant elected not to testify. His lawyer
made it clear to the court that, but for the change in ruling on the impeachment issue,
defendant would have testified again at the second trial. The court accepted the
representation and assured counsel “[y]our issue is preserved.”
              A. testified defendant had lived with her and her mother for as long as she
could remember. The first incident of sexualized conduct between A. and defendant took
place when she was approximately 10 years old. She was sitting beside him on the
couch, and she reached over and touched his penis over his clothes. She did not know
why she did so. Defendant responded by putting his hand on her chest and touching her
over her clothes. Over the next couple of years, other things happened, but she had
limited recollection of specifics.
              A. did remember an incident that took place when she was approximately
12 years old. She sat on defendant’s lap, and he was touching her over her clothes. She
turned toward him and he began kissing her on the lips. She stated it “freaked” her out.
During this same incident, defendant also touched her vagina and her breasts. She




                                             5
disclosed the incident to a friend, but mentioned only the kiss. She told her friend it
might have been an accident.
              A.’s friend, in turn, told A.’s mother about the reported kiss, and the mother
confronted defendant. In the upheaval that followed, A. decided to downplay the incident
and described it as probably just an accident. Thereafter, defendant apologized to A.
privately and assured her it would not happen again.
              Defendant complied with that assurance for a few months. Thereafter,
when A. was 13 years old, defendant began touching her again, and escalated to putting
his mouth on her vagina. This occurred with increasing frequency, from a few times per
month, to a few times per week, and then to perhaps every day. A. also touched
defendant’s bare penis, and he touched her bare breasts. A. testified that in one instance,
defendant came into the room where she was watching television and started touching
her. She took off her shorts and he took his penis out of his pants. She put her hand on
his penis and rubbed it. He orally copulated her.
              A. testified she felt dirty when defendant touched her or kissed her, but she
also liked the attention, and believed that, allowing him to do these things was a way to
get him to say “yes” to things she wanted.
              The abuse came to light in December 2009, when A. burst into tears in
front of some friends, after defendant had driven them home from a soccer game. When
another of A.’s friends asked A. whether defendant had hit her or touched her, A. told her
of the sexual abuse. A.’s friends advised her she needed to leave the house, so they all
went to the neighbor’s house. The neighbor telephoned A.’s mother, and A. told her
mother of the sexual abuse.
              Defendant learned of A.’s accusation at about the same time she had spoken
with her mother. He arrived at the neighbor’s house to ask A. what was the matter, and




                                             6
she accused him of touching her. He denied it. Later the same day, defendant left for his
brother’s house in Long Beach, and expressed the intent to commit suicide.
              Defendant made statements to others from which his guilt could be
inferred. For example, when one friend asked him “[w]hy did you do this,” he reportedly
hung his head and said “I don’t know.” When the same friend asked him “[h]ow could
you do this,” he replied A. would sometimes come up to him and grind against him, and
he would try to stop her.


                                        DISCUSSION


1. Communications protected under the psychotherapist-patient privilege
              Defendant first argues the trial court erred by ruling that if he testified in his
own defense, the prosecution could introduce privileged statements he made to Verduzco.
Defendant claims this ruling improperly forced him to elect between his constitutional
right to testify on his own behalf, and his right to preserve the confidentiality of his
psychotherapist-patient communications.
              It is well settled that “[o]n appeal we consider the correctness of the trial
court’s ruling itself, not the correctness of the trial court’s reasons for reaching its
decision.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145; People v. Zapien
(1993) 4 Cal.4th 929, 976.) This rule is of particular significance here, because while the
trial court’s reasons for concluding defendant’s statements to Verduzco would be
admissible for impeachment purposes if he testified were incorrect, the ultimate decision
was proper.




                                               7
                1.1 There is no general rule permitting communications protected under
the psychotherapist-patient privilege to be admitted for impeachment purposes.
                In arguing that his communications with Verduzco were inadmissible at
trial, defendant relied on the statutorily created psychotherapist-patient privilege,
contained in Evidence Code section 1010, et. seq. However, neither the prosecutor’s
assertion that defendant would forfeit his right to exclude the communications if he
testified, nor the trial court’s ultimate ruling on that issue, focused on the specific claim
of privilege.
                Instead, the prosecutor argued defendant would waive his privilege to
exclude potentially incriminating evidence under an exception to the Miranda
exclusionary rule if he chose to testify, while the trial court adopted a federal court’s
analysis pertaining to a common law marital privilege (see Trammel v. United States
(1980) 445 U.S. 40 [100 S.Ct. 906, 63 L.Ed.2d 186]) in ruling that defendant’s testimony
could be impeached with the otherwise privileged communication if he did so. But,
while the statutory psychotherapist-patient privilege, the Miranda rule and the federal
common law marital privilege all invoke the concept of a “privilege,” none is governed
by the same analysis under California law.
                The psychotherapist–patient privilege, like the lawyer-client privilege
(Evid. Code, § 954), the physician-patient privilege (Evid. Code, § 994), the marital
communications privilege (Evid. Code, § 970) and the clergy–penitent privilege (Evid.
Code, § 1033), are contained in the California Evidence Code to protect the privacy of
certain confidential relationships. (See People v. Stritzinger (1983) 34 Cal.3d 505, 511.)
By contrast, the Miranda rule, invoked by the prosecutor, is an “exclusionary rule”
(People v. Andreasen (2013) 214 Cal.App.4th 70, 86) designed to protect a criminal
defendant’s “‘full opportunity to exercise the privilege against self-incrimination.’”
(People v. Lessie (2010) 47 Cal.4th 1152, 1162 (Lessie).) The rule under Miranda is



                                               8
remedial, designed to ensure interrogators obtain no advantage from ignoring a
defendant’s invocation of his constitutional right to remain silent. (People v. Andreasen,
supra, 214 Cal.App.4th at p. 86.)
               In 1971, the United States Supreme Court concluded statements obtained in
violation of the Miranda rule would nonetheless be admissible for impeachment purposes
if the defendant elected to testify in his own defense. (Harris v. New York (1971) 401
U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1].) And after the California voters passed
Proposition 8 in 1982, which “amended the state Constitution to limit the court’s power
to exclude relevant evidence from criminal proceedings” (Lessie, supra, 47 Cal.4th at p.
1163.), our Supreme Court held this amendment also forbade our state courts from
excluding self-incriminatory statements made during custodial interrogation if defendant
chose to testify. (People v. May (1988) 44 Cal.3d 309, 318 (May).) Thus, after May, the
rule in both state and federal courts has been that statements obtained in violation of
Miranda – what the prosecutor in this case referred to as “Miranda-defective”
statements – though inadmissible in the prosecution’s main case, are admissible for
impeachment purposes if the defendant chooses to testify.
               Significantly, however, the passage of Proposition 8 did nothing to change
the scope of existing statutory privileges contained in our Evidence Code, including the
psychotherapist-patient privilege defendant relied upon in this case. To the contrary, the
proposition expressly states “[n]othing in this section shall affect any existing statutory
rule of evidence relating to privilege or hearsay . . . .” (Cal. Const., art. I, § 28, subd. (f),
par. (2), italics added.) Our Supreme Court explicitly recognized this distinction in May,
acknowledging “the ‘Truth-in-Evidence’ provision of our Constitution was probably
intended by the California voters as a means of (1) abrogating judicial decisions which
had required the exclusion of relevant evidence solely to deter police misconduct in
violation of a suspect’s constitutional rights under the state Constitution, while (2)



                                                9
preserving legislatively created rules of privilege insulating particular communications,
such as the attorney-client or physician-patient privilege.” (May, supra, 44 Cal.3d. at p.
318.)
                And although our Supreme Court also suggested in May that it “seems
reasonable” to stretch the U.S. Supreme Court’s statement in Harris v. New York, supra,
401 U.S. at page 225, that a defendant’s privilege to remain silent “cannot be construed to
include the right to commit perjury” if he later elects to testify, into a conclusion, “that no
privilege, statutory or otherwise, protected defendant from impeachment in this case”
(May, supra, 44 Cal.3d. at p. 319), the suggestion was purely dicta, and unsupported by
any analysis.
                In fact, the scope and effect of statutory privileges, just like other statutory
provisions, cannot be determined by simply applying judicial notions of fairness or public
policy, in the same way the scope of a common-law rule, such as the Miranda rule, might
be shaped. Instead, where our Legislature has enacted rules applicable to a category of
protected communications by codifying a privilege, we are bound by its pronouncement
in the same manner as we are with other statutes. (See, e.g., Coito v. Superior Court
(2012) 54 Cal.4th 480, 488 [treating interpretation of work product privilege as ordinary
matter of “statutory construction”]); La Jolla Group II v. Bruce (2012) 211 Cal.App.4th
461 [applying ordinary rules of statutory construction to the litigation privilege].)
                And as pertains to the psychotherapist-patient privilege, the Legislature has
enacted detailed rules, encompassing 19 statutes in the Evidence Code. (Evid. Code,
§§ 1010–1027.) Several of these statutes set forth exceptions to the psychotherapist-
patient privilege. (See, e.g., Evid. Code, §§ 1016 [patient litigant], 1018 [services sought
in aid of crime or tort], 1023 [proceeding to determine sanity of defendant], 1024 [patient
a danger to self or others].) Moreover, we are bound by the pronouncements of our own
Supreme Court that the psychotherapist-patient privilege must be construed broadly, and



                                                10
any exception to it must be construed narrowly. (People v. Stritzinger, supra, 34 Cal.3d
at pp. 511-513.)
              Consequently, while it would have been appropriate for the trial court to
view a defendant’s decision to testify as a waiver of his right to exclude evidence under
the Miranda rule, defendant never invoked Miranda, and the analysis, which support
admission of those communications for impeachment purposes under that rule, cannot be
automatically applied to defendant’s separate statutory right to exclude evidence under
the psychotherapist-patient privilege. The trial court was correct in its initial refusal to
equate the two.
              But, the trial court then erred when it reversed its initial ruling in reliance
on Nicholas, the federal district court case, which analyzed whether evidence protected
by the federal common law marital privilege would be admissible to impeach a defendant
if he chose to testify. The federal court, which is not bound by the California Evidence
Code, was free to simply analogize the exclusion of evidence under the common law
marital privilege to the exclusion of evidence protected by the Miranda rule, and to
reason that “[t]he marital communications privilege, like all evidentiary privileges, is not
absolute and is construed narrowly because ‘[p]rivileges obstruct the search for the
truth’” (Nicholas, supra, 594 F.Supp.2d at pp. 1123-1124), and to then conclude use of
such privileged communications for impeachment purposes might be appropriate because
“[e]ven the most sacrosanct privileges must give way to the jury’s obligation to find the
truth in some circumstances” (id. at p. 1124). However, the trial court below was not free
to simply employ the same analysis without considering either the specific provisions
governing the scope of the psychotherapist-patient privilege under California law (Evid.
Code, § 1010, et. seq.), or California courts’ decisions interpreting it.
              And, when we consider the statutory scheme ourselves, we can find no
provision that would allow an otherwise privileged communication between a



                                              11
psychotherapist and patient to be admitted into evidence for impeachment purposes
merely because the patient elects to testify at a trial. As the prosecutor argued below,
there is a statutory “patient-litigant” exception to the privilege, which allows admission
of “relevant” communications between the psychotherapist and patient, when a patient
(or his representative) elects to place the patient’s “mental or emotional condition” in
issue at trial. (Evid. Code, § 1016; In re Lifschutz (1970) 2 Cal.3d 415, 421.) But
defendant was not seeking to do this here.
              Nevertheless, as we explain below, the court’s decision to admit the
evidence was appropriate because defendant’s statements were exempt from the
psychotherapist-patient privilege in the first instance.


              1.2 Defendant’s statements to Verduzco were not covered by the
psychotherapist-patient privilege.
              Generally, a patient’s communications with a psychotherapist are
privileged, and the patient may refuse to disclose them and can prevent others from doing
so. (Evid. Code, § 1010, et seq.) The privilege covers not only communications made
exclusively to the psychotherapist, but also those communications disclosed to third
parties who, as far as the patient is aware, are present to further the interest of the patient
in the consultation. (Evid. Code, § 1012.)
              But one of the exceptions to the psychotherapist-patient privilege involves
“mandated” reports of child sexual abuse pursuant to the Child Abuse and Neglect
Reporting Act. (§ 11164, et seq; CANRA.) CANRA requires certain “mandated
reporters,” including psychiatrists and nurses, to report instances of suspected child
abuse, including child sexual abuse, to authorities. Section 11164 provides, with two
exceptions not relevant here, “a mandated reporter shall make a report to an agency
specified in Section 11165.9 whenever the mandated reporter, in his or her professional



                                              12
capacity or within the scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects has been the victim of
child abuse or neglect. The mandated reporter shall make an initial report by telephone
to the agency immediately or as soon as is practicably possible, and shall prepare and
send, fax, or electronically transmit a written follow up report within 36 hours of
receiving the information concerning the incident.” (Italics added.) Information reported
to authorities pursuant to CANRA by physicians or psychotherapists is expressly
exempted from the physician-patient or psychotherapist-patient privilege for purposes of
“any court proceeding or administrative hearing.” (§ 11171.2, subd. (b).)
              Defendant argues that, notwithstanding this exemption, his statements to
Verduzco remained privileged because at the time he spoke with her, his alleged abuse of
A. had already been reported to the police in Cypress – and thus Verduzco had been
relieved of any obligation to report the same abuse under CANRA. Defendant bases this
argument on People v. Stritzinger, supra, 34 Cal.3d 505 (Stritzinger), in which our
Supreme Court concluded that, a psychotherapist, who had already reported potential
child sexual abuse to the police, had no obligation to report the abuse a second time,
based on the defendant’s subsequent revelation of the same information. Thus, the
Stritzinger defendant’s own statements to the therapist fell outside of CANRA’s reporting
requirements and remained privileged.
              This case is distinguishable. In Stritzinger, the Supreme Court merely
concluded that, once a psychotherapist had reported an incident of suspected child abuse
in accordance with CANRA, he was not required to report the same details of the same
abuse again. But the Supreme Court made clear that if the therapist “had first learned of
the fondling incidents from defendant himself, he would have been bound to report that
information as provided in the act.” (Stritzinger, supra, 34 Cal.3d at p. 513, italics
added.) This is what happened here. Verduzco, a mandated reporter, first learned of



                                             13
defendant’s abuse of A. from defendant himself. Moreover, Stritzinger also states if the
therapist had “learned from defendant of possible further child abuse — whether
additional incidents involving Sarah, or other incidents with another child — he would,
of course, have been required to report these new suspicions.” (Ibid.) And of course, if
the therapist had not made the first report himself, he would have no idea whether the
incidents he learned of from the patient were the same incidents which may have already
been reported by someone else — even if he did have reason to believe someone else
might have already made a report. Thus, Stritzinger does nothing to relieve a therapist
from the initial obligation to report under CANRA.
              And because the information reported to authorities pursuant to CANRA is
expressly exempted from the psychotherapist-patient privilege for purposes of “any court
proceeding or administrative hearing” (§ 11171.2, subd. (b)), the information in
Verduzco’s report was not covered by that privilege.
              Therefore, the trial court did not err by ruling that, if defendant chose to
testify, the prosecutor could introduce the statements he made to Verduzco for
impeachment purposes. Because the statements Verduzco reported to DCFS were
excluded from the psychotherapist-patient privilege in the first instance, the privilege
would not have prevented the statements from being introduced into evidence.


2. Any Error in the Jury Instructions was Harmless.
              Defendant also contends his conviction must be overturned because the trial
court improperly relied on CALCRIM Nos. 1110 (“Lewd or Lascivious Act: Child under
14 years (Pen. Code, § 288(a))”) and 1120 (“Continuous Sexual Abuse (Pen. Code,
§ 288.5(a))”) in its instructions to the jury. Defendant argues these form instructions are
flawed because while both specify the improper touching of the child must be done by




                                             14
the defendant “willfully” and “with the intent of arousing, appealing to or gratifying the
lust, passions or sexual desires of [himself] or the child” (CALCRIM No. 1110;
CALCRIM No. 1120 [same effect]), they both also state the touching “need not be done
in a lewd or sexual manner.”
              According to defendant, the problem with these instructions is that they
omit one required element of the charged crimes; i.e., that the defendant “willfully and
lewdly” commits a “lewd and lascivious act . . . upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.”
(§ 288, subd.(a), italics added.) Defendant points out that, while one court has already
rejected this argument (People v. Sigala (2011) 191 Cal.App.4th 695, 700 (Sigala)
[finding that “[r]ead as a whole” this part of the instruction is consistent with the
Supreme Court’s earlier holding lewdness is inherent in the requirement that “‘the
touching must be accompanied by the intent for ‘sexual gratification’”]), another court
explicitly questioned this conclusion. In People v. Cuellar (2012) 208 Cal.App.4th 1067,
1071 (Cuellar), the court pointed out that, while “[i]t may be that, ‘read as a whole’ the
sentence does no harm, . . . we think that is subject to question. It certainly does no
good.” (Id. at p. 1071.)
              But the Cuellar court does not actually disagree with Sigala. Instead, the
opinion merely “urge[s] that the Judicial Council’s Advisory Committee on Criminal
Jury Instructions reconsider the language of this sentence and propose new language that
simply states that the touching need not be made to an intimate part of the victim’s body,
so long as it is done with the required intent. If that revision is made, the two sentences
would complement each other and any arguable inconsistency would be removed.”
(Cuellar, supra, 208 Cal.App.4th at pp. 1071-1072, italics added.)




                                              15
              Cuellar ultimately finds it unnecessary to resolve the arguable
inconsistency, because it concludes that, in light of the evidence presented, the
instructions, taken as a whole, would not have confused the jury. The court noted
“virtually all of the touching described in the testimony was sexual, rather than
incidental, in nature.” The same is true here as well. Although defendant argues there
were incidents of innocuous, or incidental, touching described in the testimony, and
suggests the jury might have been focusing on those incidents when it voted to convict,
the argument is not persuasive. The incidents defendant relies upon include (1) the
testimony of a third party, who related A. had originally told him defendant had once
“inadvertently” kissed her when both were reaching for the television remote control, and
(2) the testimony of a different third party, who related defendant had described incidents
where A. would sit on his lap and “grind him” and he would “push her off.”
              But neither of those incidents of innocuous touching could have been the
basis for defendant’s conviction. As for the “inadvertent” kiss while reaching for the
remote, A. acknowledged that, while she had once described the incident as such,
because she initially wanted to avoid getting either defendant or herself into trouble, in
reality the kiss had been quite intentional on defendant’s part. It freaked her out.
Moreover, if the jury had nonetheless believed the kiss had actually been inadvertent, it
could not have relied on this incident as the basis of a conviction. Whether or not the
jury understood the alleged touching was required to be distinctly “lewd,” there was no
question they were clearly instructed it was required to be “willful[].” We presume the
jury complied with this very clear aspect of the instructions, and thus it would not have
convicted based on an “inadvertent” kiss. “[T]he jury is presumed to follow the trial
court’s instructions.” (People v. Fuiava (2012) 53 Cal.4th 622, 669; People v. Cline
(1998) 60 Cal.App.4th 1327, 1336.)




                                             16
              The supposed incidents of “grinding” are similarly insufficient as a basis
for conviction. According to what was described, A. was the aggressor in these incidents,
and defendant pushed her off his lap when she began acting inappropriately. Thus, these
incidents include neither “willfulness” on defendant’s part, nor reflect he had any “intent
of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [himself] or
the child.” (CALCRIM No. 1110.)
              Finally, the fact the jury expressly found true defendant had engaged in
“masturbation” with A. belies the notion the jury might have actually believed his
touching of her was somehow innocuous. Based on the evidence as well as the jury’s
verdict, we find no basis for concluding the jury might have been misled into convicting
defendant of the charged crimes based on incidents of innocuous or incidental touching.


                                       DISPOSITION


              The judgment is affirmed.


CERTIFIED FOR PUBLICATION




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.



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