Filed 2/17/15 P. v. Mendoza CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039101
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1093346)

         v.

DIOSSEL RIOS MENDOZA,

         Defendant and Appellant.


In re DIOSSEL RIOS MENDOZA,                                          H041324

         on Habeas Corpus.


         Defendant Diossel Rios Mendoza appeals from his conviction for sexual
penetration of a child under the age of 10 years in violation of Penal Code section 288.7,
subdivision (b).1 On appeal, defendant raises four claims of instructional error. He also
argues that his trial counsel was constitutionally ineffective. In a petition for a writ of
habeas corpus, which we have ordered considered together with the appeal, defendant
asserts that his trial counsel rendered ineffective assistance of counsel and that this court
deprived him of due process by denying his request for funds to hire two experts in
connection with the writ proceeding.




         1
             Further unspecified statutory references are to the Penal Code.
       Finding no prejudicial error, we shall affirm the judgment and deny the petition for
writ of habeas corpus.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     Defendant Is Charged With Molesting Victim
       On March 30, 2011, the Santa Clara County District Attorney filed an information
charging defendant with sexual penetration of a child 10 years of age or younger (§
288.7, subd. (b)). The information alleged that between September 25, 2010 and
November 26, 2010, defendant had sexually penetrated the victim, a four-year-old girl
(victim).
       B.     Evidence Adduced at Trial
       Defendant was tried on the charged offense before a jury over the course of four
days in September 2012.
              1.        Victim’s Mother
       Victim’s mother (hereafter victim’s mother) testified for the prosecution. She
testified that, in the fall of 2010, she rented a room in her home to defendant, his wife,
and their baby. Victim’s mother’s husband and their daughter, victim, also lived in the
home, as did several other families who also rented rooms.
       Victim’s mother had a dream that someone touched victim inappropriately. When
she asked victim if anyone had touched her, victim told her defendant had touched her
privates multiple times, had masturbated in front of her, and once put his finger in her
anus. Victim’s mother took victim to the hospital to be examined. The hospital
contacted the police.
       On cross-examination, victim’s mother denied having an affair with defendant.
              2.        Victim
       Victim, who was almost seven years old at the time of trial, also testified for the
prosecution. On the stand, she stated that she did not remember defendant or anyone else
touching her. She recalled seeing defendant’s penis with what she described as “milk” on
                                              2
it. Victim testified that a vagina is called a “palomita” and buttocks are called “fushu.”
       Victim’s preliminary hearing testimony was admitted as prior consistent and
inconsistent statements and was read into the record. At the preliminary hearing, victim
testified that a vagina is called a “colita” and buttocks are called “fushu.” She testified
that defendant had put his finger inside her vagina. She initially stated that he only
touched her once, but later testified that he put his finger in her four times. She further
testified that she saw milk come out of defendant’s penis and had seen naked people on
the television in defendant’s room on two occasions.
              3.     Detective Sanchez
       Omar Sanchez, a detective with the San Jose Police Department, testified that he
investigated the accusations against defendant. In connection with the investigation,
Detective Sanchez interviewed victim. Videos of Detective Sanchez’s interview with
victim were played at trial. In the interview, victim stated that defendant put his fingers
in her vagina (which she called “fushu”) and her buttocks (which she referred to as both
“cola” and “fushu”). Her recollection as to how many times he had touched her varied
between two and four times. She also stated that defendant touched his penis while
touching her. Victim recalled seeing defendant’s penis with what she described as white
milk coming out of it.
       Detective Sanchez also interviewed defendant, who was handcuffed to the table
during the interview. An audio recording of the interrogation, which was conducted in
Spanish, was played for the jury. Transcripts of the interrogation translated into English
also were distributed to jurors.
       In the interrogation, after eliciting some biographical information from defendant,
Detective Sanchez read defendant his Miranda rights (Miranda v. Arizona (1966) 384
U.S. 436). Detective Sanchez asked defendant general questions about victim’s mother’s
children, including victim, as well as some of the house’s other occupants. With respect
to victim, defendant said the girl often came into his room to play with his infant son.
                                              3
Defendant explained victim hugs him when he gets home from work and he picks her up
and carries her. At that point, Detective Sanchez suggested defendant was not being
entirely honest about his relationship with victim. Detective Sanchez stated: “I am also
Mexican . . . that is why I am here talking with you . . . So that we can both understand
each other . . . and so that I can help you, but you can also help me by being honest.”
       Detective Sanchez began questioning defendant directly about touching victim.
Defendant repeatedly denied doing so, saying at one point “I am incapable of touching a
(inaudible) a girl.” Detective Sanchez falsely told defendant they found his DNA on
victim. Detective Sanchez went on to say: “if you touched her, you touched her. That’s
fine. There isn’t--you didn’t rape her, okay. You--you didn’t have sex, nothing like that
with her. If you touched her, you touched her. That’s fine, okay. . . . Like I told you, if
you touched her, you touched her, that’s fine. . . . I think you touched her. And if you
touched her, that’s fine. Just tell me what--what you did to her because if it happened, it
happened.”
       Thereafter, defendant said he had touched victim once to lift her off his bed.
Defendant explained that he was watching television in his room and victim came in to
play with his son. When she got up on the bed defendant noticed her feet were dirty so
he picked her up and put her on the floor. Defendant denied touching victim’s vagina or
buttocks in the process. He said sometimes when he picks victim up she says “ ‘Hey
don’t touch my--my,’ what does she say? [‘]My--my fufu.[’] ” But defendant stated that
he never intentionally touched the girl’s vagina.
       Detective Sanchez said he thought defendant was lying and explained, “I
understand [whatever happened with victim] is something bad, okay. But like I told you
it’s not so serious.” Defendant continued to deny touching victim inappropriately.
Eventually, the conversation returned to the incident in which defendant lifted victim off
his bed. Defendant explained that the girl was wearing very short shorts and no
underwear and he saw her vagina. Detective Sanchez suggested that maybe defendant
                                             4
had touched the girl’s vagina as he lifted her off the bed. Defendant responded,
“[p]erhaps.” Detective Sanchez then asked defendant what victim’s vagina felt like.
Defendant responded “I didn’t touch. No well because it was very quick I just . . . put her
on the bed like this.” Detective Sanchez asked whether defendant could have put his
fingers in victim’s vagina by accident when he lifted her off the bed, saying three times
“if it was an accident, it was an accident.” Defendant denied touching victim’s vagina at
least seven additional times.
       Detective Sanchez changed topics, asking defendant whether victim had ever seen
his penis. Defendant stated that, on one occasion, he had urinated in the backyard
because the bathroom was occupied and that victim had seen him. Defendant also
explained that victim had once opened the door to his room while he was watching
pornography and masturbating. When Detective Sanchez accused defendant of touching
victim during that incident defendant said “No, no . . . it’s impossible that I touch a girl
like that at that age.” The following exchange ensued:
       “[Detective Sanchez]: We know that you did touch her. Yes, right?
       “[Defendant]: Yes well when I moved her. [¶] . . . [¶]
       “[Detective Sanchez]: Okay. And you grabbed her in that area, your hand went
inside the shorts, so your hand also touched her vagina right?
       “[Defendant]: It could be that I touched her.
       “[Detective Sanchez]: Yes?
       “[Defendant]: It could be.
       “[Detective Sanchez]: How did it feel? Was it--was it a little uh how do you say
uh hot? Like you know--you know what it feel[s] like right? You’ve touched a vagina
before? (Inaudible)
       “[Defendant]: Yes.
       “[Detective Sanchez]: What does it feel like?
       “[Defendant]: No well it isn’t, that was quick. No, no.
                                              5
        “[Detective Sanchez]: What does it feel like when you touch a vagina? It is
warm? Or is it?
        “[Defendant]: Well when well when you touch a vagina well the (inaudible) well
a vagina is hot. [¶] . . . [¶]
        “[Detective Sanchez]: Okay. So your fingers are going to feel well. They’re
going to feel if it’s cold or if--if it’s hot. It’s going--it’s going to feel that it’s smooth,
right? Yes or no?
        “[Defendant]: Yeah.
        “[Detective Sanchez]: How did it feel? That’s what I’m asking.
        “[Defendant]: No I just felt smooth when I--when I released her.
        “[Detective Sanchez]: It--it felt smooth?
        “[Defendant]: Yeah. [¶] . . . [¶]
        “[Detective Sanchez]: [W]hen you grabbed her and (inaudible) her vagina, did
your--your fingers (inaudible) went inside a little, right?
        “[Defendant]: It could be, yes. [¶] . . . [¶]
        “[Detective Sanchez]: When you touched her like this, did your fingers go inside
her vagina a little?
        “[Defendant]: Well I don’t know if it was her vagina or if it was in her butt. [¶] . .
. [¶]
        “[Detective Sanchez]: And how did it feel?
        “[Defendant]: Well the same. I just [went] to--when I grabbed her like this I
even--I went like this. I (inaudible) Eee . . . I grabbed her butt.”
        Detective Sanchez testified that, at that point, defendant put his hand to his nose,
prompting Detective Sanchez to ask: “And what did your fingers smell like?” Defendant
responded: “And they didn’t--didn’t smell of anything.” The interrogation took place at
about 7:00 p.m., approximately two hours after defendant was arrested, and lasted about
one hour. During that time defendant did not ask to stop the interview, nor did he request
                                                 6
food or water.
       Following the interview, defendant wrote a letter to victim’s parents, which was
read aloud by Detective Sanchez at trial. In the letter, defendant explained that victim
had seen his penis when he was urinating outside and again when she walked in on him
masturbating. He also wrote that “[s]he got on the bed with dirty feet and upon picking
her up I touched her part, but it was without wanting to.” He asked for their forgiveness
and explained he would never hurt their children.
              4.     Carl Lewis
       Carl Lewis, a consultant on child abuse issues and a former deputy sheriff,
testified for the prosecution as an expert in child sexual abuse accommodation syndrome.
Lewis testified that children who are sexually abused may exhibit unexpected or
counterintuitive behavior, including minimizing or retracting their allegations.
              5.     Defendant’s Wife
       Defendant’s wife, Mayra, testified for the defense. She testified that defendant
told her that he urinated outside and that victim saw him. She further testified that
defendant told her victim had opened the door to their room while he was masturbating.
Mayra said that, about six months after defendant’s arrest, he wrote her a letter admitting
to an affair with victim’s mother.
              6.     Defendant
       Defendant testified in his own defense. He testified that he and victim’s mother
began a sexual relationship three or four months before his arrest in November 2010.
Defendant attempted to break off the relationship in late October and again in mid-
November. He testified that victim’s mother threatened to do something to make him
sorry if he ended the relationship.
       With regard to victim, defendant testified that she once witnessed him urinate in
the backyard. He testified that, on another occasion, victim walked in on him while he
was watching pornography and masturbating. At the time, defendant thought he had
                                             7
covered himself up in time to prevent victim from observing him. Lastly, defendant
testified about the incident in which he lifted victim off his bed because she was dirty.
Defendant denied penetrating victim’s vagina or buttocks as he lifted her off the bed.
When asked whether he may have done so by accident defendant responded “No.”
Defendant acknowledged that he told Detective Sanchez he may have touched her
buttocks “since it had all happened so quickly, I told him that maybe I just hadn’t
noticed.”
       C.     Jury Instructions
       Defendant requested the court instruct the jury with CALCRIM No. 225, which
concerns the use of circumstantial evidence to prove intent. The court declined to give
the instruction for two reasons. First, the court stated “this is a general intent crime, and
there is just no question about it. It is a general intent crime. I do not think [CALCRIM
No.] 225 is appropriate.” Second, the court reasoned that the case largely involved direct
evidence and that circumstantial evidence did not play “a major role.”
       The court also refused defendant’s request to instruct the jury with CALCRIM No.
251, which must be given if the crime requires a specific mental state. Again, the court
reasoned, “[i]t’s not a specific intent crime and I’m not going to give an instruction that
says it is.” Instead, the court instructed the jury with CALCRIM No. 250, a general
intent instruction.
       D.     Verdict, Sentencing, and Appeal
       After deliberating for less than a full day, the jury returned a guilty verdict. On
November 2, 2012, the court imposed a sentence of 15 years to life in prison.
       Defendant timely appealed.
       E.     Motion for Expert Funds
       Defendant moved this court for funding for an expert on false confessions and an
expert psychologist to evaluate defendant and determine whether his character is
consistent with that of a typical child molester. This court denied that motion.
                                              8
II.    DISCUSSION
       A.     Instructional Error
       Defendant contends the trial court made four errors in its jury instructions. We
address each challenge in turn.
              1.     CALCRIM No. 251
       First, defendant argues the trial court erred in failing to instruct the jury with
CALCRIM No. 251, which provides a defendant may be found guilty of the crime only if
he or she intentionally committed the prohibited act with the required intent or mental
state, as explained in the instruction for the crime.2 The People agree that jurors should
have been instructed with CALCRIM No. 251 because sexual penetration of a child
under the age of 10 includes as an element that defendant penetrated the victim for the
purpose of sexual arousal, gratification, or abuse. However, the People maintain that the
omission of CALCRIM No. 251 rendered the jury instructions as a whole merely
ambiguous, not erroneous. For that argument, the People rely on the fact that the trial
court instructed the jury with CALCRIM No. 1128, which defines sexual penetration, for
purposes of the charged crime, as penetration “for the purpose of sexual abuse, arousal,
or gratification.” Defendant responds that the instructions were unambiguously
erroneous because they included CALCRIM No. 250, which relates to general intent


       2
          CALCRIM No. 251 provides in full: “The crime[s] [(and/or) other allegation[s]]
charged in this case require proof of the union, or joint operation, of act and wrongful
intent. [¶] For you to find a person guilty of the crime[s] (in this case/ of <insert name[s]
of alleged offense[s] and count[s], e.g., burglary, as charged in Count 1> [or to find the
allegation[s] of <insert name[s] of enhancement[s]> true]), that person must not only
intentionally commit the prohibited act [or intentionally fail to do the required act], but
must do so with a specific (intent/ [and/or] mental state). The act and the specific (intent/
[and/or] mental state) required are explained in the instruction for that crime [or
allegation]. [¶] <Repeat next paragraph as needed> [¶] [The specific (intent/ [and/or]
mental state) required for the crime of <insert name[s] of alleged offense[s] e.g.,
burglary> is <insert specific intent>.]”

                                               9
crimes, and not the specific intent instruction in CALCRIM No. 251.3
                     a.     Standard of Review
       “We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review.” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088.) The pertinent inquiry is whether the instructions as a whole fully and fairly
set forth the applicable law. (Ibid.) In making that determination, we assume that jurors
are intelligent persons capable of understanding and correlating all jury instructions
which are given and, where reasonably possible, we interpret the instructions to support
the judgment. (Ibid.)
       Where an instruction is erroneous, we must determine whether the error was
prejudicial. There are two standards for assessing prejudice--the harmless-beyond-a-
reasonable-doubt test (Chapman v. California (1967) 386 U.S. 18, 24) that applies to
errors violative of the United States Constitution, or the reasonable-probability test
(People v. Watson (1956) 46 Cal.2d 818, 836-837) that applies to error under California
law. Where the error is the omission of “an element of [the] offense,” such as the
requisite mental state, it “is subject to harmless error analysis under Chapman.” (People
v. Gonzalez (2012) 54 Cal.4th 643, 663.)
       Where jury instructions are ambiguous or internally inconsistent, and therefore
subject to an erroneous interpretation, we assess whether there is a “ ‘reasonable
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) If there is such a reasonable

       3
         CALCRIM No. 250, as given to the jury in this case, provides in full: “The
crime charged in this case and the lesser offense of battery require proof of the union, or
joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime
or lesser offense in this case, that person must not only commit the prohibited act, but
must do so with wrongful intent. A person acts with wrongful intent when he
intentionally does a prohibited act; however, it is not required that he intend to break the
law. The act required is explained in the instruction for that crime.”

                                             10
likelihood, then we consider whether the instructional ambiguity was prejudicial.
(People v. Williams (2000) 79 Cal.App.4th 1157, 1171.) If the ambiguous or conflicting
instructions relate to “the mental state element of an alleged offense [and] can act to
remove that element from the jury’s consideration, the instructions constitute a denial of
federal due process and invoke the Chapman ‘beyond a reasonable doubt’ standard for
assessing prejudice.” (People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; see also
People v. Larsen (2012) 205 Cal.App.4th 810, 829-830; People v. Lee (1987) 43 Cal.3d
666, 676 [applying Chapman in an attempted murder case where “the jury was originally
told that a specific intent to kill was required, and then erroneously instructed that proof
of such intent was unnecessary if implied malice was demonstrated”].)
                      b.     Analysis
       As the parties acknowledge, “sexual penetration of a child under 10 is a specific
intent crime, requiring the jury to find the defendant penetrated the victim ‘for the
purpose of sexual arousal, gratification, or abuse.’ ” (People v. Ngo (2014) 225
Cal.App.4th 126, 161 (Ngo), quoting § 289, subd. (k)(1); People v. McCoy (2013) 215
Cal.App.4th 1510, 1538.) Accordingly, the trial court should have instructed the jury
with CALCRIM No. 251, which the Judicial Council bench notes explain “ ‘must be
given if the crime requires a specific mental state . . . .’ ” (Ngo, supra, at p. 162.) And,
as the parties further acknowledge, the court should not have instructed the jury with
CALCRIM No. 250, which the Judicial Council bench notes explain “ ‘must not be used
if the crime requires a specific mental state . . . .’ ” (Ngo, supra, at p. 162.)
       The first dispute on appeal is whether the omission of CALCRIM No. 251 and the
inclusion of CALCRIM No. 250 rendered the jury instructions erroneous or merely
ambiguous. That determination, in turn, dictates the proper standard of review. This
court addressed an identical dispute in Ngo. There, as here, the jury in a sexual
penetration of a child prosecution was properly instructed with CALCRIM No. 1128, but
improperly instructed with CALCRIM No. 250 instead of CALCRIM No. 251. In
                                               11
assessing the instructions, this court noted that CALCRIM No. 250 “does not explicitly
tell the jury that no additional level of intent is required for a conviction” and that
CALCRIM No. 1128 properly specifies “the required specific intent.”4 (Ngo, supra, 225
Cal.App.4th at p. 162.) Thus, this court concluded, the trial court “did not give the jury
two directly conflicting instructions” (id. at pp. 162-163), but “ ‘ambiguous [instructions]
. . . subject to an erroneous interpretation.’ ” (Id. at p. 163.)
       Here, as in Ngo, the jury instructions were, at worst, ambiguous as they related to
the requisite intent. The jury was instructed that defendant could be found guilty only if
(1) he acted with wrongful intent in that he intentionally did the prohibited act (i.e.,
sexually penetrated victim) (CALCRIM No. 250) and (2) he performed the prohibited act
for the purpose of sexual abuse, arousal, or gratification (CALCRIM No. 1128). Instead,
the jury should have been instructed per CALCRIM No. 251 that defendant could be
found guilty only if he intentionally committed the prohibited act (i.e., sexually
penetrated victim) with a specific intent to do so for the purpose of sexual arousal,
gratification, or abuse. As this discussion illustrates, the given instructions did not
remove the mental state element from the jury’s consideration. To the contrary, they
properly set forth the requirement that the penetration be for the purpose of sexual abuse,
arousal, or gratification and nothing in CALCRIM No. 250 negated that requirement.
       Because the instructions were ambiguous, we consider whether there is a
reasonable likelihood the jury applied the instructions in an unconstitutional manner. In

       4
         CALCRIM No. 1128, as given to the jury in this case, provides: “The defendant
is charged with engaging in sexual penetration with a child 10 years of age or younger.
[¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant engaged in an act of sexual penetration with [victim]; [¶] 2. When the
defendant did so, [victim] was 10 years of age or younger; [¶] 3. At the time of the act,
the defendant was at least 18 years old. [¶] Sexual penetration means penetration,
however slight, of the genital or anal opening of the other person by any foreign object,
substance, instrument, device, or any unknown object for the purpose of sexual abuse,
arousal, or gratification. . . .”

                                               12
our view, there is not. We see little practical difference between the incorrect
formulation given by the trial court and correct CALCRIM No. 251 formulation. The
jury was instructed that defendant must have acted intentionally and for the purpose of
sexual abuse, arousal, or gratification. It simply was provided these parameters in two
separate instructions (CALCRIM No. 250 and CALCRIM No. 1128) as opposed to in a
single instruction (CALCRIM No. 251). “If we assume, as we must, that ‘ “the jurors
[were] intelligent persons and capable of understanding and correlating all jury
instructions . . . given,” ’ ” then we can only conclude that there is no reasonable
likelihood they misapplied the instructions. (People v. Ramos, supra, 163 Cal.App.4th at
p. 1089.) Accordingly, we reject defendant’s first claim of error.
              2.     CALCRIM No. 225
       Second, defendant asserts the trial court erred by refusing to instruct the jury with
CALCRIM No. 225, which provides guidance as to the use of circumstantial evidence in
concluding whether a defendant possessed the required intent or mental state.5 The
People respond that the instruction was not warranted because the case against defendant
was based primarily on direct evidence--namely, victim’s testimony.
       Where criminal knowledge is shown only by circumstantial evidence, the trial
court is required to instruct the jury on the rules of law applicable to circumstantial
evidence. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49-50.) However, a trial court is not
required to so instruct “where the alleged circumstantial evidence is incidental to, and
corroborative of, direct evidence.” (People v. Malbrough (1961) 55 Cal.2d 249, 251.)

       5
         Defendant argues in the alternative that the trial court had a sua sponte duty to
instruct the jury with CALCRIM No. 224, which “provide[s] essentially the same
information on how the jury should consider circumstantial evidence [as does CALCRIM
No. 225],” but does not relate solely to intent or mental state. (People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1172.) Because we agree with defendant that the trial
court should have instructed the jury with CALCRIM No. 225, we need not consider this
alternative argument.


                                             13
“Indeed, where circumstantial inference is not the primary means by which the
prosecution seeks to establish that the defendant engaged in criminal conduct, the
instruction may confuse and mislead, and thus should not be given.” (People v. Anderson
(2001) 25 Cal.4th 543, 582.) Thus, the court erred with respect to CALCRIM No. 225
only if the People relied primarily on circumstantial evidence to prove defendant
penetrated victim for the purpose of sexual arousal, gratification, or abuse.
        Direct evidence is evidence that “can prove a fact by itself.” (CALCRIM No.
223.)6 In the context of intent, direct evidence may take the form of an “admission, [a]
confession, [or the defendant’s] testimony.” (People v. Woods (1991) 226 Cal.App.3d
1037, 1052.) Not surprisingly, such evidence rarely exists, and thus “intent can seldom
be proved by direct evidence.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.) Instead,
it generally must be “established by circumstantial evidence.” (People v. Swearington
(1977) 71 Cal.App.3d 935, 949.) “Circumstantial evidence does not directly prove the
fact to be decided, but is evidence of another fact or group of facts from which you may
logically and reasonably conclude the truth of the fact in question.” (CALCRIM No.
223.)
        At trial, the prosecution’s theory was that defendant penetrated victim for the
purpose of sexual gratification. The prosecutor argued in his closing argument that the
penetration was “sexual” because it “occurred when the defendant was engaging in
sexual conduct. He was touching himself. He was masturbating. He was looking at
porn.” Evidence of that version of events included victim’s testimony and her statements
to Detective Sanchez. That evidence is circumstantial because it may logically and
reasonably support the inference that defendant penetrated victim for the purpose of
sexual gratification. Contrary to the People’s contention on appeal, that evidence does

        6
        The jury was instructed with CALCRIM No. 223, which defines direct and
circumstantial evidence.

                                             14
not itself prove what motivated defendant, and thus is not properly characterized as direct
evidence of his intent.7
       For the foregoing reasons, we agree with defendant that the trial court erred by
failing to instruct the jury with CALCRIM No. 225 regarding circumstantial evidence.
But reversal is required only if that error was prejudicial. To determine whether the
instructional error prejudiced defendant, we apply Watson, asking whether there is a
reasonable probability that defendant would have obtained a better outcome had jurors
been given the circumstantial evidence instruction. (People v. Rogers (2006) 39 Cal.4th
826, 885-886 [applying Watson harmless error standard to erroneous failure to instruct on
the sufficiency of circumstantial evidence].)
       CALCRIM No. 225 provides, in relevant part, “before you may rely on
circumstantial evidence to conclude that the defendant had the required (intent/ [and/or]
mental state), you must be convinced that the only reasonable conclusion supported by
the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental
state). If you can draw two or more reasonable conclusions from the circumstantial
evidence, and one of those reasonable conclusions supports a finding that the defendant
did have the required (intent/ [and/or] mental state) and another reasonable conclusion
supports a finding that the defendant did not, you must conclude that the required (intent/
[and/or] mental state) was not proved by the circumstantial evidence.”


       7
         In their brief, the People state: “The masturbation incident was the child’s
observations of appellant’s conduct, not merely circumstantial evidence of intent.” That
contention belies a fundamental misunderstanding of the distinction between direct and
circumstantial evidence. Not all testimony is direct evidence of every fact. Whether a
particular piece of testimony qualifies as direct evidence depends on the fact to be
proved. For example, victim’s testimony that she saw milk come out of defendant’s
penis is direct evidence of the fact that defendant ejaculated in her presence. But it is
only circumstantial evidence that, when he penetrated victim, he did so to satisfy his
sexual desires.

                                            15
       CALCRIM No. 225 could have benefitted defendant “only if there were room for
some ‘rational conclusion’ that” defendant put his finger in victim’s vagina for a
nonsexual purpose. (People v. Green (1964) 228 Cal.App.2d 437, 440.) Put differently,
the pertinent inquiry is could the jury have concluded that the evidence was reasonably
susceptible to an innocent explanation?
       According to defendant, the evidence was reasonably susceptible to the innocent
explanation that he accidentally touched victim’s vagina when he picked her up. But the
evidence supporting that conclusion was quite weak; it consisted of defendant’s letter to
victim’s parents and his statements to Detective Sanchez (depending on how one
perceives them). But the accident theory was weakened by defendant’s trial testimony
that he did not touch victim by accident. And, even if believed, defendant’s theory
explains only a single incident, whereas victim identified at least two incidents to her
mother and Detective Sanchez. Given the weakness of the evidence that defendant
penetrated victim’s vagina for a nonsexual reason, we conclude there is no reasonable
probability of a different result had the jury been given the circumstantial evidence
instruction. (People v. Rogers, supra, 39 Cal.4th at p. 886 [error in failing to instruct on
sufficiency of circumstantial evidence was harmless where “evidence pointing toward
innocence was weak”]; People v. Breverman (1998) 19 Cal.4th 142, 177 [in applying
Watson, “an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.”].)
              3.     Accident Jury Instruction
       Third, defendant maintains the trial court erred by failing to instruct the jury on the
defense of accident. While defendant did not request such an instruction below, the
People do not argue forfeiture. Accordingly, we shall consider the merits of the argument
on appeal. We independently review a claim that a trial court erred in failing to give an
                                             16
instruction. (People v. Booker (2011) 51 Cal.4th 141, 181.)
       Trial courts have a limited duty to instruct, sua sponte, on particular defenses.
(People v. Barton (1995) 12 Cal.4th 186, 195.) That duty arises “ ‘only if it appears that
the defendant is relying on such a defense, or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the defendant’s theory of the
case.’ ” (Ibid.) “When the trial court believes there is substantial evidence supporting a
defense that is inconsistent with that advanced by the defendant, the court should
ascertain from the defendant whether he or she wishes instructions on the alternative
theory.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) “ ‘Substantial
evidence’ in this specific context is defined as evidence which is ‘sufficient to “deserve
consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men
could have concluded’ ” that the particular facts underlying the instruction did exist.’ ”
(People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.)
       An accident defense generally “ ‘amounts to a claim that the defendant acted
without forming the mental state necessary to make his or her actions a crime.’ ” (People
v. Jennings (2010) 50 Cal.4th 616, 674.) Accordingly, our Supreme Court has held that
where “the jury received complete and accurate instructions on the requisite mental
element of the offense, the obligation of the trial court . . . to instruct on accident
extend[s] no further than to provide an appropriate pinpoint instruction upon request by
the defense.” (People v. Anderson (2011) 51 Cal.4th 989, 998.) Here, with regard to the
requisite mental state, the jury instructions were ambiguous. As discussed above, there is
no reasonable probability the jury misapplied the instructions. However, the instructions
were not “complete and accurate.” (Ibid.) Therefore, if defendant relied on an accident
defense or there was substantial evidence supporting such a defense, then the trial court
erred by failing to sua sponte instruct the jury as to accident.
       As discussed above, at trial, defendant denied accidentally penetrating victim.
Nevertheless, defense counsel arguably asserted an accident defense in his closing
                                               17
argument, stating: “if I fell down and, in falling down, . . . there was a child there and . . .
[I] happened to [penetrate] a young girl’s vagina” that is not a crime.8 And defendant’s
letter to victim’s parents and statements to Detective Sanchez may constitute substantial
evidence supporting an accident defense. Accordingly, we assume for purposes of this
appeal that the trial court erred in failing to sua sponte instruct the jury on the defense of
accident.
       That error was harmless under any standard. The jury was instructed that
defendant could be convicted only if any penetration was “for the purpose of sexual
abuse, arousal, or gratification.” That instruction precluded the jury from convicting
defendant if it concluded he penetrated victim accidentally. Moreover, both the
prosecutor and defense counsel acknowledged in their closing arguments that accidental
penetration is insufficient to support a conviction. (See People v. Lee, supra, 43 Cal.3d at
p. 677 [finding instructional error to be harmless based in part on the closing arguments
of counsel]; People v. Hayes (2009) 171 Cal.App.4th 549, 560 [“Closing arguments to
the jury are relevant in assessing prejudice from instructional error.”].) In light of the
instructions as a whole and the closing arguments, we find the court’s failure to instruct
regarding accident to be harmless beyond a reasonable doubt.
              4.      Deliberation Jury Instruction
       Fourth, defendant maintains the trial court erred by instructing the jury that it
could not consider the lesser offense of battery before coming to a consensus on the
greater offense of sexual penetration.



       8
           The prosecutor acknowledged in his closing argument that accidental penetration
is lawful, stating: “[t]his wild, crazy example that the defense suggests, falling down and
. . . inserting your finger into a vagina . . . I suppose that is a lawful penetration because
there was no purpose in it . . . it was a pure one hundred percent accident. . . . [¶] But all
of the actions of the defendant in this case were purposeful.”

                                              18
                       a.     Pertinent Facts
       With respect to deliberations, the court instructed the jury as follows: “If all of
you find that the defendant is not guilty of the greater charged crime, you may find him
guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant
is guilty of that lesser crime. . . . [¶] Battery . . . is a lesser crime of sexual penetration
with a child 10 years of age or younger. [¶] It is up to you to decide the order in which
you consider the crime and the relevant evidence, but I can accept a verdict of guilty of a
lesser crime only if you have found the defendant not guilty of the corresponding greater
crime.” That instruction parallels CALCRIM No. 3517. However, in CALCRIM No.
3517, the final sentence in the instruction reads “It is up to you to decide the order in
which you consider each crime and the relevant evidence,” as opposed to “the crime.”
       Following closing arguments, the court further informed the jury “there is a lesser-
included offense in this case. And you can talk about the matters any way you want, but
to vote you first must vote on the charged offense. And if you find the defendant guilty
of that, then that’s the end of it. If you can’t reach a decision on that, that’s also the end
of it. [¶] If you find the defendant not guilty, then you would vote on the misdemeanor
lesser-included offense of battery. [¶] . . . [¶] So you would only get to [the portion of the
verdict form related to battery] if you found him not guilty of the charged offense.”
       Defendant did not object to the instruction or the additional remarks.
                       b.     Forfeiture
       The People argue defendant forfeited any objection to the court’s instruction and
remarks by failing to object below. Defendant counters that the instruction and
comments constituted instructional errors affecting his substantial rights, such that his
complaints are cognizable on appeal.
       “ ‘Generally, a party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ [Citation.] But that rule does
                                                19
not apply when . . . the trial court gives an instruction that is an incorrect statement of the
law.” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1112.) Defendant contends the
instruction misstated the law. Accordingly, we may reach the merits of his contention.
                      c.     Merits
       Under People v. Kurtzman (1988) 46 Cal.3d 322, 332, a jury “may consider
charges in any order it wishes to facilitate ultimate agreement on a conviction or
acquittal,” but “may not return a verdict on lesser offenses unless it has unanimously
agreed on a disposition of the greater [offense].” A trial court correctly guides a jury
when it instructs the jury that it can deliberate in any order it wishes but must determine
guilt in a certain order, specifically it must acquit of the greater offense before returning a
verdict on a lesser included offense. (People v. Wharton (1991) 53 Cal.3d 522, 573.)
       Defendant complains that the instruction was incorrect because it stated jurors
could consider “the crime” as opposed to “the crimes” (sexual penetration and battery) in
any order. He contends the jurors would have understood “the crime” as referring to the
greater offense of sexual penetration and would not have understood that they could
consider both battery and sexual penetration in any order. Defendant maintains that the
court’s later comments compounded the error by requiring a “vote” on the charged
offense before any “vote” on the lesser-included offense of battery. According to
defendant, that comment improperly precluded the jury from taking tentative votes during
deliberations. The People’s position appears to be that the court’s use of the word “vote”
was shorthand for “return a verdict.”
       In our view, the instruction and comments were ambiguous, at worst. With
respect to the order in which deliberations could proceed, the instruction itself should
have told jurors they could consider “the crimes”--plural--in any order. While the
instruction referred only to “the crime,” later in the same sentence it correctly referenced
the “lesser crime” and “the corresponding greater crime.” Moreover, the court’s later
comment clarified that “you can talk about the matters any way you want.” Reasonable
                                              20
jurors would have considered the instruction and comment together and understood that
they could consider the greater and lesser crimes in any order. With respect to voting, we
agree with defendant that jurors may vote as a part of their deliberations. (People v. Allen
and Johnson (2011) 53 Cal.4th 60, 75 [“[i]t is certainly not unheard of that a foreperson
may actually take a vote as deliberations begin to acquire an early sense of how jurors are
leaning.”].) Accordingly, jurors cannot properly be precluded from taking informal votes
as to a lesser included offense before acquitting the defendant of the greater offense.
However, the full context of the court’s comment indicates it was referring, not to
informal votes taken during deliberation, but to the manner in which the jury was to
return its verdicts after completing its deliberations. We believe a reasonable juror would
have understood the comment in that fashion. For the foregoing reasons, “[n]o
reasonable likelihood exists the jury construed the challenged instruction in a manner
contrary to the rule of People v. Kurtzman, supra, 46 Cal.3d 322.” (People v. Dennis
(1998) 17 Cal.4th 468, 537.) “Consequently, we find no merit to defendant’s contention
the jury’s deliberations were channeled improperly toward a . . . conviction [on the
greater crime] to the exclusion of [the] lesser offense[].” (Ibid.)
       E.     Cumulative Error
       Defendant contends the cumulative effect of the trial court’s asserted errors was to
deprive him of his right to due process under the federal Constitution. Under the
“cumulative error” doctrine, we reverse the judgment if there is a “reasonable possibility”
that the jury would have reached a result more favorable to the defendant absent a
combination of errors. (See People v. Williams (2009) 170 Cal.App.4th 587, 646; In re
Avena (1996) 12 Cal.4th 694, 772, fn. 32 [“Under the ‘cumulative error’ doctrine, errors
that are individually harmless may nevertheless have a cumulative effect that is
prejudicial.”].) “The ‘litmus test’ for cumulative error ‘is whether defendant received due
process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)


                                             21
       Taking all of defendant’s claims into account, we are satisfied that he received a
fair adjudication. Defendant was “entitled to a fair trial but not a perfect one.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1009.) While instructional error did occur, we are
convinced his trial was fair.
III.   WRIT PETITION
       In his petition for a writ of habeas corpus, defendant contends his trial counsel’s
representation fell below the standards for effective assistance because counsel (1) did
not attempt to suppress defendant’s interrogation statements on involuntariness grounds,
and (2) did not argue that those statements were false. Defendant further maintains this
court deprived him of due process by denying his request for expert funding.
       A.     Ineffective Assistance of Counsel
              1.     Legal Principles
       “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish both that
his counsel’s performance was deficient and that he suffered prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687.) The deficient performance component of an
ineffective assistance of counsel claim requires a showing that “counsel’s representation
fell below an objective standard of reasonableness” “under prevailing professional
norms.” (Id. at p. 688.) With respect to prejudice, a defendant must show “there is a
reasonable probability”--meaning “a probability sufficient to undermine confidence in the
outcome”--“that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Id. at p. 694.)
              2.     Failure to Move to Suppress Statements to Detective Sanchez
       Defendant first contends his counsel rendered ineffective assistance by failing to
move to suppress his statements to the investigating officer and failing to retain an expert
                                               22
on false confessions to support such a motion.9 Defendant asserts his concessions that
“[p]erhaps” and “[i]t could be” he touched victim’s vagina when he lifted her off his bed
were the involuntary product of coercive interrogation tactics and should not have been
admitted at trial. To prevail on that claim, defendant must show that reasonably
competent counsel would have moved to suppress those admissions, the motion would
have been successful, and an outcome more favorable to him was reasonably probable
had his statements been excluded. (People v. Grant (1988) 45 Cal.3d 829, 864-865.)
       “A confession or admission is involuntary, and thus subject to exclusion at trial,
only if it is the product of coercive police activity.” (People v. Williams (1997) 16
Cal.4th 635, 659 (Williams).) In other words, “involuntariness requires coercive activity
on the part of the state or its agents[] and [that] such activity [was] the ‘proximate cause’
of the statement in question, and not merely a cause in fact.” (People v. Mickey (1991)
54 Cal.3d 612, 647.) In deciding the question of voluntariness, we apply a “ ‘totality of
[the] circumstances’ ” test. (Williams, supra, at p. 660.) Among the relevant
circumstances are “the characteristics of the accused” (e.g., age and education) and “the
details of the interrogation” (e.g., “the length of detention,” “the repeated and prolonged
nature of the questioning,” and “the use of physical punishment such as the deprivation of
food or sleep”). (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226.)


       9
          Defendant refers to his statements to Detective Sanchez as both “admissions”
and as a “confession.” CALJIC No. 2.70 explains the distinction between confessions
and admissions: “A confession is a statement made by a defendant in which [he] [she]
has acknowledged [his] [her] guilt of the crime[s] for which [he] [she] is on trial. In
order to constitute a confession, the statement must acknowledge participation in the
crime[s] as well as the required [criminal intent] [state of mind]. [¶] An admission is a
statement made by [a] [the] defendant which does not by itself acknowledge [his] [her]
guilt of the crime[s] for which the defendant is on trial, but which statement tends to
prove [his] [her] guilt when considered with the rest of the evidence.” Here, defendant
never acknowledged touching victim “for the purpose of sexual abuse, arousal, or
gratification.” Accordingly, we will refer to his pretrial statements as admissions.

                                             23
       Defendant contends Detective Sanchez employed two coercive tactics to extract
involuntary admissions--deception and promises of leniency. It is undisputed that
Detective Sanchez deceived defendant by falsely telling him that DNA evidence showed
he had touched victim’s vagina. “Lies told by the police to a suspect under questioning
can affect the voluntariness of an ensuing confession, but they are not per se sufficient to
make it involuntary.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) “Where
the deception is not of a type reasonably likely to procure an untrue statement, a finding
of involuntariness is unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182.)
Courts have deemed lies similar to Detective Sanchez’s DNA ruse to be insufficiently
coercive to be likely to prompt a false confession. (Ibid. [deception concerning
defendant’s fingerprints]; People v. Thompson (1990) 50 Cal.3d 134, 167 [officers
repeatedly lied regarding physical evidence linking defendant to the crime]; People v.
Smith (2007) 40 Cal.4th 483, 506 [police falsely told suspect a gun residue test produced
a positive result].) We follow suit.
       The second type of coercion raised by defendant is promises of leniency. “[A]
statement is involuntary and inadmissible when the motivating cause of the decision to
speak was an express or clearly implied promise of leniency or advantage.” (People v.
McCurdy (2014) 59 Cal.4th 1063, 1088.) “ ‘Mere advice or exhortation by the police that
it would be better for the accused to tell the truth, when unaccompanied by either a threat
or a promise[] does not . . . make a subsequent confession involuntary.’ ” (People v.
Dowdell (2014) 227 Cal.App.4th 1388, 1401.) The police may point out benefits that
“flow[] naturally from a truthful and honest course of conduct,” but if they suggest that
the defendant “might reasonably expect benefits in the nature of more lenient treatment at
the hands of the police, prosecution or court in consideration of making a statement, even
a truthful one, such motivation is deemed to render the statement involuntary and
inadmissible.” (People v. Hill (1967) 66 Cal.2d 536, 549.)


                                             24
       Defendant contends Detective Sanchez implicitly promised leniency in exchange
for incriminating statements on multiple occasions. Defendant relies, first, on Detective
Sanchez’s statement: “I am also Mexican [like you] . . . . And that is why I am here
talking with you so that I can communicate better with you . . . . And so that I can help
you, but you can also help me by being honest.” Defendant argues the clear implication
of that statement was that Detective Sanchez would help defendant avoid punishment if
he confessed because they were both Mexican. We disagree. Detective Sanchez’s
suggestion that he could “help” defendant was too vague to be considered a promise of
any tangible benefit for telling the truth. (People v. Vance (2010) 188 Cal.App.4th 1182,
1212 (Vance) [no “implied promise of leniency” in “statement that ‘[w]e are here to listen
and then to help you out’ ”].) And his remark about being Mexican--an obvious attempt
to build rapport with defendant--was not “inherently coercive.” (People v. Williams
(2010) 49 Cal.4th 405, 447.) That these remarks were not coercive here is evidenced by
the fact that they were made well before defendant conceded that he may have touched
victim’s privates in the process of removing her from the bed. Thus, even assuming the
comments above constituted an implicit promise of leniency, the record indicates they did
not motivate defendant to make any admissions. (People v. Tully (2012) 54 Cal.4th 952,
986 [statements deemed involuntary only when proximately caused by a promise of
leniency].)
       The second comment defendant points to is Detective Sanchez’s statement “it
could be that by telling me everything completely about what happened (inaudible) better
for you.” Defendant takes that comment out of context. Detective Sanchez stated, in
full: “I don’t have any power uh over what is going to happen . . . I don’t control that,
but you . . . being a responsible adult, it could be that by telling me everything completely
about what happened (inaudible) better for you.” The surrounding context reveals that
Detective Sanchez made no promise and was referring only to the “peace of mind
defendant and others would have after he did the right thing and gave his side of the
                                             25
story. That is not coercion.” (Vance, supra, 188 Cal.App.4th at p. 1212.)
       The third set of comments defendant complains of, in which Detective Sanchez
repeatedly minimized the seriousness of defendant’s alleged conduct, is closer to the “
‘fine’ ” line between permissible and impermissible interrogation tactics. (People v.
Holloway (2004) 33 Cal.4th 96, 117.) Detective Sanchez downplayed the allegations by
telling defendant “[w]e’re not saying that you are a bad person, okay. We’re not saying
that you raped her or that you hit her very badly and that you’re a criminal. The only
thing that we’re saying is that something happened.” Detective Sanchez also told
defendant “if you touched her” that’s “fine” and “if you touched her” “[t]here is no
problem.” In diminishing the seriousness of the alleged crime, Detective Sanchez did not
make any express or implicit promises or threats. For example, he did not indicate it
would be “fine” or there would be “no problem” only if defendant admitted to touching
victim. In short, nothing in his statements constitutes a quid pro quo promise to
defendant in exchange for a confession.
       Finding no implicit promise of leniency, the question remains whether Detective
Sanchez’s minimization techniques were sufficiently coercive to induce defendant into
admitting that he may have touched victim’s vagina when he lifted her off his bed. The
totality of the circumstances convince us that, in this particular case, Detective Sanchez’s
tactics did not cause in defendant a level of mental coercion sufficient to render his
statements involuntary. The interrogation lasted just one hour and occurred in the early
evening, just a couple of hours after defendant was arrested. There is little in the record
about the relevant characteristics of the defendant, leaving us with no basis for
concluding he was especially susceptible to potentially coercive interrogation techniques.
       For the foregoing reasons, we conclude that defendant’s statements during the
police interview were voluntary, such that a motion to suppress those statements--
whether or not supported by expert testimony--would have been futile. Thus, we find no


                                             26
merit in defendant’s claim of ineffective assistance of counsel based upon defense
counsel’s failure to bring a motion to suppress.
              3.     Failure to Retain an Expert and Argue False Confession
       Defendant’s second claim of ineffective assistance of counsel is based on his
counsel’s failure to argue that he falsely confessed and to retain an expert on false
confessions to support that argument.
       In fact, defense counsel did attempt to cast doubt on the reliability of defendant’s
interview statements during cross-examination of Detective Sanchez. Specifically,
defense counsel questioned Detective Sanchez extensively about the various interrogation
tactics defendant now challenges as coercive. In doing so, he portrayed the tactics as
improper trickery.
       As to counsel’s failure to retain an expert, the United States Supreme Court has
recognized “a defendant’s case may stand or fall on his ability to convince the jury that
the manner in which the confession was obtained casts doubt on its credibility.” (Crane
v. Kentucky (1986) 476 U.S. 683, 689.) Crane held the reliability of a confession and its
voluntariness are two separate questions, reliability being a factual issue for the jury and
voluntariness being a legal issue for the court. (Id. at p. 688.) Nevertheless, the record
shows a rational tactical basis for trial counsel’s decision not to call an expert on coercive
interrogation techniques.10 Unlike in Crane, where the exclusion of evidence precluded

       10
          Defendant has not submitted a declaration from his trial counsel as part of his
petition for writ of habeas corpus. Rather, he submits a declaration from his appellate
counsel, which recounts a conversation with defendant’s trial counsel. According to
appellate counsel’s declaration, defendant’s trial counsel stated he “did not pursue
consultation with a false confession expert both because (1) the video of the complaining
witness was extremely persuasive to the jurors, and (2) because [defendant’s] statements
were not a ‘confession’ per se.” That declaration is inadmissible hearsay that cannot
support a prima facie case for habeas relief. (People v. Madaris (1981) 122 Cal.App.3d
234, 242, disapproved on other grounds in People v. Barrick (1982) 33 Cal.3d 115, 127,
superseded by statute as stated in People v. Collins (1986) 42 Cal.3d 378, 393 [appellate
(continued)
                                             27
the defendant from presenting any evidence regarding the circumstances surrounding the
taking of his statement, here, the jury heard an audio recording of the entire interrogation
and had the opportunity to review a transcript of that recording. (Id. at p. 692.)
Moreover, as noted, defense counsel cross-examined Detective Sanchez extensively
regarding his interrogation techniques. Defense counsel could reasonably have
concluded the court would not admit expert testimony on coercive interrogation
techniques on the theory that lay jurors “could understand and evaluate all the evidence . .
. without the assistance of an expert on police interrogation.” (People v. Ramos (2004)
121 Cal.App.4th 1194, 1207 [court did not err in excluding expert testimony about false
confessions where defendant claimed false confession induced by purportedly improper
promises of leniency].) Put differently, defense counsel may reasonably have concluded
the trial court would consider the proposition that, faced with lies about the existence of
DNA evidence, an innocent person might offer a speculative or untrue explanation for
such evidence to be a matter within the ken of lay jurors. (People v. Son (2000) 79
Cal.App.4th 224, 241 [court did not err in excluding expert testimony about false
confessions where defendant testified he falsely confessed because police promised he
would “serve no more than one year in custody--a matter easily understood by a
layperson without expertise”].) Accordingly, we conclude defendant has not carried his
burden of demonstrating that counsel’s failure to call an expert witness fell below an
objective standard of reasonableness.
       B.     Due Process Claim
       Finally, defendant contends this court deprived him of due process by denying his
request for funds to hire two experts in connection with his writ petition. The basis for

attorney’s sworn statement conveying an unsworn statement by trial counsel offered to
prove the truth of the matter stated cannot support a prima facie case for habeas relief].)
We therefore disregard it. (People v. McCarthy (1986) 176 Cal.App.3d 593, 597
[allegations in the petition based on hearsay must be disregarded].)

                                             28
defendant’s request is Corenevsky v. Superior Court (1984) 36 Cal.3d 307, in which our
Supreme Court held that the right to counsel includes the right to effective counsel and
thus the right to ancillary defense services such as expert witnesses that are shown to be
reasonably necessary in preparation of a defense. (Id. at p. 319.) The court further held
that, accordingly, indigent defendants are entitled to public funds for those reasonably
necessary ancillary defense services. (Id. at p. 320.)
       Defendant has not shown the experts are reasonably necessary. Defendant has not
demonstrated that an expert on false confessions is reasonably necessary for the reasons
discussed above in part III.A.3. Defendant also sought funds for an expert psychologist.
Under People v. Stoll (1989) 49 Cal.3d 1136, 1161, “[e]xpert opinion that [a] defendant[]
show[s] no obvious psychological or sexual problem is circumstantial evidence which
bears upon whether [he or she] committed sexual acts upon children, and is admissible
‘character’ evidence.” Defendant contends expert opinion testimony that he is not a
sexual deviant is reasonably necessary to his habeas petition because it will enable him to
show his trial counsel provided ineffective assistance by not retaining a Stoll expert. But
even if we assume that not hiring such an expert constituted deficient performance,
defendant does not even argue that the presentation of expert testimony that he is not a
sexual deviant would have resulted in a better outcome at trial. In other words, he does
not contend trial counsel’s supposed deficient performance was prejudicial, as is required
to establish an ineffective assistance of counsel claim.
       We cannot conclude funds to hire a Stoll expert are reasonably necessary to
defendant’s habeas corpus petition, where defendant merely contends those funds will
allow him to establish deficient performance (i.e., half an ineffective assistance of
counsel claim).
IV.    DISPOSITION
       The judgment is affirmed. The petition for writ of habeas corpus is denied.


                                             29
                 Premo, Acting P.J.




WE CONCUR:




    Elia, J.




    Mihara, J.
