Filed 7/21/14 P. v. Pettress CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056585

v.                                                                       (Super.Ct.No. FBA1100128)

DUREE PETTRESS et al.,                                                   OPINION

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. John B. Gibson,

Judge. Affirmed.

         Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for

Defendant and Appellant Duree Pettress.

         Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant

and Appellant Lafayette Pettress.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

                                                             1
       In 1995, T.G., age three, one of five children placed in the defendants’ home by

child welfare authorities, disobeyed his aunt, defendant Duree Pettress, by eating a piece

of pizza, and was stomped to death, while defendant Lafayette Pettress did nothing. T.’s

nine-year-old sister Evelyn took the blame for the death, after defendants said they would

harm her and her siblings if she implicated them. Evelyn recanted her confession six

months later, reporting that Duree had stomped the child to death, but no further

investigation took place. In 2011, Evelyn’s younger sister J., who had witnessed the

stomping, came forward to reopen the case. Charges of murder were filed against each

defendant. Following a jury trial, Duree was convicted of second degree murder, while

Lafayette was convicted of involuntary manslaughter as a lesser included offense. Duree

was sentenced to 15 years to life in prison, while Lafayette was sentenced to serve a term

of four years, and both defendants appealed.

       On appeal, Duree argues for reversal of the conviction because (1) the

prosecution’s extraordinary delay in bringing the charges violated her right to due process

of law; (2) the admission of Lafayette’s statements implicating Duree in the death

constituted Aranda-Bruton1 error; (3) admission of evidence of prior child abuse

incidents infringed on her fundamental rights; and (4) the cumulative effect of the

combined errors resulted in prejudice requiring reversal. Lafayette argues that his

conviction should be reversed because the statute of limitations had run on the lesser



       1 Referring to People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United
States (1968) 391 U.S. 123.


                                               2
included offense, and he joins Duree’s arguments relating to the pre-charging delay and

admission of other child abuse incidents. We affirm.

                                      BACKGROUND

       Evelyn G. (age 9), and her younger siblings J. (age 6), O. (age 5), T. (age 3), his

twin Ja. (age 3), and baby Od., were dependents of the juvenile court. They were

removed from their parents’ custody and were placed in the home of Duree and Lafayette

Pettress2 in March 1995, under oversight by Child Protective Services (CPS). Duree is

the biological aunt of the children, the sister of their father.

       On the evening of December 6, 1005, Duree and Lafayette ordered pizza. T. and

O. had gotten into trouble so they had to stand in the corner of the room on one foot, with

their hands in the air, and they were not allowed to have pizza. This was a typical

punishment for the two boys, who were treated more harshly than the girls.

       On December 7, 1995, the next morning, T. got up and ate a piece of pizza. Duree

jumped up and grabbed him, and then dragged him into the bathroom. J. followed Duree

to the bathroom. Duree told T. to spit up the pizza. Evelyn, who was ironing clothes to

wear to school, heard Duree yell about the pizza being eaten and that it should not have

been eaten.

       T. did not spit up the pizza, so Duree commenced “stomping” him in the stomach,

while telling T. to spit it up. After hearing Duree yell, and hearing the sounds of

“stomping” in the bathroom, Evelyn went towards the door to the connecting bathroom


       2   To avoid confusion, we will refer to the defendants by their first names.


                                                3
that opened up to the girls’ bedroom, while J. was near the bathroom door on the other

side.3 Evelyn saw Duree stomp T. several times, then put him over the toilet and told

him to spit up the pizza, and then repeating the process two additional times, until T.

went limp. During the incident, Lafayette was laying down in a room. J. turned back at

one point and saw Lafayette looking, with a clear view of what was happening in the

bathroom, but instead of doing something to stop Duree, he lay back down as if he were

sleeping.

       After being stomped by Duree, T. defecated on himself and lay lifeless on the

bathroom floor. Duree grabbed a black bag and put T.’s soiled clothing inside, then put

the bag into a black plastic bag, which she took out to the trash. Evelyn went into the

bathroom where T. lay limp; he felt cold, so she wrapped him in a blanket and rocked

him in front of a heater. Duree then told the children to get ready for school and told

Lafayette to take them to school.

       On the way to school, Lafayette told the children that if any of the children told

anyone what he or Duree had done, they (the Pettresses) would come and kill them all.

Lafayette told Evelyn that she should not blame his wife, and that if anyone asked

anything, Evelyn was to say that she (Evelyn) had done it.

       After Lafayette had taken the children to school, Duree called 911 to report that

her three-year-old nephew was just lying there, not moving, with his eyes rolled back.

Emergency personnel and Officer Espinoza responded to the residence where T. appeared

       3 The testimony is not entirely clear, but a diagram of the residence was admitted
into evidence, showing that the bathroom connected the two bedrooms.


                                             4
to be already dead. Officer Espinoza observed that T.’s abdomen and stomach were

distinctively distended, large, and bloated, and that he had many bruises on his arms,

legs, back and sides.

       The officer interviewed Duree at the scene and was informed that she, T., Ja., and

baby Od. were at home when she called 911, and that her husband (defendant Lafayette)

had left already. Duree told the officer she did not know what was wrong with T. While

Officer Espinoza was at the home, Lafayette and the three older children arrived.

Lafayette informed the officer that Evelyn was always hitting T. Duree also reported that

Evelyn often hit T. and that she had been reprimanded frequently for doing so.

       T. was transported to Barstow Community Hospital where, at some point, he was

declared dead.4 An autopsy was performed on December 12, 1995 by Dr. Duazo.            The

external examination of T.’s body revealed he weighed 25 pounds, placing him below the

third percentile, the lowest measured percentile for his age. Dr. Duazo observed bruising

on the front of T.’s forehead close to his hairline, along the right side. She also observed

linear scars on his forehead, as well as a round scar. There was a pinkish contusion

above his left eyebrow and, after his scalp was shaved, bruising was found on the right

side of his head. There were several bruises on T.’s extremities, torso and his back, in the

lumbar-sacral area. On the top of T.’s foot, there were scars. Although the age of the

bruises could not be established, they were inflicted at different times.

       4  There was no actual witness who testified that T. was declared dead, or when he
was declared dead. However, Officer Espinoza testified that T. appeared to be dead, and
Dr. Duazo testified that she performed an autopsy on his body. He was obviously dead at
that point.


                                              5
       Additionally, the external examination revealed brownish fecal material on T.’s

buttocks, evidence that he had defecated on himself. The defecation might signify that

the person was in agony, or that the person had died, since the sphincter muscles relax at

death. The pathologist identified five categories of injuries: (1) blunt force head injury;

(2) blunt chest injury; (3) blunt abdominal injury; (4) multiple cutaneous contusions; and

(5) healed and healing abrasions and contusions to the upper and lower extremities.

       The internal examination revealed a small piece of soft, white material, that

appeared to be cheese, in T.’s stomach. T.’s liver was lacerated to the point of near

detachment. Even without the head trauma, the laceration of T.’s liver could cause death.

The injury to the liver was caused by either a single substantial blow, or a relatively high

number of blows. The examination of T.’s head revealed hemorrhage underneath the

scalp as well as subdural hematoma. Over time, the head injury could have caused death

by itself. There was also evidence of an older brain injury. The cause of death was due

to a combination of both the head and abdominal injuries: blunt force injuries to the

abdominal area and head.

       Detective Griego interviewed Evelyn at the hospital following T.’s death. Prior to

the interview with Detective Griego, Duree had told Evelyn that she (Evelyn) should say

that she (Evelyn) did it, if asked by anyone, and that if Duree found out Evelyn had said

anything about her (Duree), Duree would do to Evelyn what she had done to her brother.

Evelyn told the detective that she had stomped her brother because he would not get up

for school in the morning. She described kicking T. in the head and hitting him in the




                                              6
head with her shoe, causing his head to bleed. She also told the detective that T. had

“stinked up” his breeches so she put his soiled clothing in a plastic bag to wash.

       Detective Griego interviewed Evelyn twice between December 7, 1995 and

December 8, 1995. During these interviews, Evelyn stated she was the person who

struck and kicked T. During the December 8, 1995 interview, Griego observed Evelyn

was wearing flats, the same shoes she had worn the previous day.

       Detective Griego also talked to O., observing a healed scar on O.’s chest,

forehead, and feet. A year earlier, in November 1994, Detective Griego had been aware

of activity in the home of O.’s parents and had photographed O.’s hands and feet at that

time. The injuries to O.’s hands and feet were not present in November 1994.5

       On December 8, 1995, Detective Griego visited the home where defendants lived

with the G. children. In the garage, he found a bag containing child’s clothing that had

been soiled with feces.

       After T.’s death, the surviving G. children were removed from the defendants’

home and placed in separate foster homes. Six months after she had been placed in a new

foster home, Evelyn told her foster mother the truth about T.’s death. Richard McEwan,


       5  The prosecutor asked numerous questions about photographs of scars on O.’s
feet, but did not elicit from the detective a verbal description of the injuries, or the
detective’s opinion as to whether the injuries were consistent with injuries that might be
inflicted by a child wearing flats, as opposed to a person wearing high heels. J. identified
the scars on O.’s and T.’s hands and feet from the photographs and testified the marks
were the result of Duree bashing them with the heel of her shoe, but did not state whether
the shoes were high heels or not. We can speculate that the photographic evidence was
intended to show that Duree, not Evelyn, used her heel on the two boys, but the point was
not made, and we do not speculate.


                                             7
a marriage, family and child therapist, began counseling the children to ascertain what

stage of grieving they were in, and, as to Evelyn, to ascertain the degree of harm suffered

as a result of having killed her little brother. With Evelyn, the therapist noticed a

pronounced sadness, but he did not find evidence of anger towards T. for misbehaving, or

feelings of guilt for hurting him, as expected.

       While working with O. individually, the therapist noticed the child was really

angry at his aunt, and made comments about hurting her, but O. harbored no anger

towards Evelyn. During an individual session with J., McEwan was informed that

Evelyn did not hurt T., that her aunt had stomped him; Evelyn had merely covered T.

with a blanket and held his hand as he lay on the floor. Prior to this session, there had

been no discussions between the two girls about what had happened on the day of T.’s

death. Approximately six months after T.’s death, J. also told her father, who had been

trying to reunify with his children, that Duree, not Evelyn, had caused T.’s death.

       After that, McEwan talked to Evelyn. Evelyn had told the true story to her foster

mother, and her foster mother believed that Evelyn did not hurt her brother. Based on

what he learned, McEwan wrote a letter to Detective Griego, as well as to CPS, and

spoke to Detective Griego by telephone, to report his findings. In subsequent interviews

with Evelyn, she told McEwan that Duree had kicked T. on the day of his death.

Detective Griego re-interviewed Evelyn in April 1996, from which point, and going

forward, Evelyn stated that Duree had beaten T.

       On April 30, 2012, an amended information was filed charging one count each of

murder (§ 187, subd. (a)) against Duree and Lafayette. They were tried by a jury which


                                              8
found Duree guilty of second degree murder (§ 187, subd. (a)), and found Lafayette

guilty of involuntary manslaughter. (§192, subd. (b).) After his verdict was read,

Lafayette made a motion to be discharged from the conviction because the statute of

limitations had expired on the crime of manslaughter. That motion was denied without

prejudice to give counsel time to conduct research.

       At the subsequent sentencing hearing, Lafayette’s counsel cited the statute of

limitations as the legal cause why judgment should not be pronounced, without further

argument. The court indicated it had already dealt with that argument and proceeded

with sentencing. Duree was sentenced to an indeterminate term of 15 years to life, while

Lafayette was sentenced to the upper term of 4 years for the involuntary manslaughter.

Both defendants appealed.

                                            DISCUSSION

       1. Defendants Forfeited Any Claim of Prejudice Arising from Pre-Charging
           Delay.

       Duree, joined by Lafayette, argues that the delay in filing charges violated due

process and requires reversal of the conviction. Tacitly acknowledging that no motion to

dismiss was made in the trial court, Duree argues that the challenge may be raised for the

first time on appeal because it involves an important issue of constitutional law or a

fundamental right. We have discretion to consider the issue, but the record does not

establish prejudice resulting from delay.

       The due process clauses of the Fifth and Fourteenth Amendments to the United

States Constitution, and article I, section 15, of the California Constitution, protect a



                                              9
defendant against the prejudicial effects of lengthy and unjustified delay between the

commission of a crime and the defendant’s arrest and charging. (People v. Cowan (2010)

50 Cal.4th 401, 430, and cases cited.) However, pre-charging delay does not implicate

speedy trial rights, although a defendant is not without recourse if the delay is unjustified

and prejudicial. (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).) The federal

right to a speedy trial attaches only after an arrest or the filing of an indictment or

information, although California extends the right by holding that it attaches after a

complaint has been filed. (United States v. Marion (1971) 404 U.S. 307, 320 [30 L.Ed.

2d 468, 92 S.Ct. 455]; People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327.)

       A defendant may seek to dismiss a charge on the ground of precharging delay,

although he or she must demonstrate prejudice arising from the delay. (Nelson, supra, 43

Cal.4th at p. 1250.) Prejudice to a defendant from precharging delay is not presumed.

(People v. Jones (2013) 57 Cal.4th 899, 921 (Jones), citing Nelson, supra, 43 Cal.4th at

p. 1250; see also, People v. Abel (2012) 53 Cal.4th 891, 908-909 (Abel).) Prejudice to the

defense caused by the passage of time (prior to the filing of charges) is primarily

protected by due process considerations and statutes of limitations. (United States v.

MacDonald (1982) 456 U.S. 1, 8 [102 S.Ct. 1497, 1502, 71 L.Ed.2d 704]; People v.

Butler (1995) 36 Cal.App.4th 455, 463.) The burden is on the defendant to show

prejudice. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.)




                                              10
       All of the authorities cited by defendant6 involve situations in which the defendant

made a motion to dismiss in the trial court, asserting prejudice from precharging delay.

The defendants here did not. A constitutional right, like any other right, may be forfeited

by the failure to make a timely assertion of the right before a tribunal having jurisdiction

to determine it. (People v. Harrison (2013) 57 Cal.4th 1211, 1229; In re Sheena K.

(2007) 40 Cal.4th 875, 880-881.) The right to a speedy trial, whether constitutional or

statutory, may be waived. (People v. Wilson (1963) 60 Cal.2d 139, 146 (Wilson).) The

right must be asserted prior to the commencement of trial. (Ibid.)

       Application of the forfeiture rule is not automatic. (People v. McCullough (2013)

56 Cal.4th 589, 593 [failure to contest a jail booking fee]; In re S.B. (2004) 32 Cal.4th

1287, 1293.) Appellate courts have engaged in discretionary review when a forfeited

claim involves an important issue of constitutional law or a substantial right. (In re

Sheena K., supra, 40 Cal.4th at p. 887, fn.7.) A reviewing court may address the merits

of constitutional challenges that present a pure question of law based on undisputed facts,

and involves important questions of public policy. (Id. at p. 888; Hale v. Morgan (1978)

22 Cal.3d 388, 394; People v. Brown (1996) 42 Cal.App.4th 461, 471.)

       However, a claim of prejudice due to precharging delay does not involve a pure

question of law because a defendant is required to first demonstrate resulting prejudice,

such as by showing the loss of a material witness or other missing evidence, or fading


       6  We note that in the case of Abel, there is no mention of a motion to dismiss
being made in the trial court, but defendant does not rely on that authority, and the issue
of forfeiture was not discussed there.


                                             11
memory caused by the lapse of time. (Jones, supra, 57 Cal.4th at p. 921.) Only then

must the prosecution offer justification for the delay, and the trial court then considers the

motion by balancing the harm to the defendant against the justification for the delay.

(Nelson, supra, 43 Cal.4th at p. 1250, citing People v. Catlin (2001) 26 Cal.4th 81, 107.)

       Proof of actual prejudice makes a due process claim concrete and ripe for

adjudication, although it does not make the claim automatically valid. (United States v.

Lovasco (1977) 431 U.S. 783, 789 [97 S.Ct. 2044, 52 L.Ed.2d 752].) The trial court is

only required to engage in the balancing process if the defendant has shown actual

prejudice. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327.) Because the

defendants did not offer evidence of or show prejudice, the prosecution was not required

to show justification for the delay, and the trial court had no obligation to balance the

harm from the delay against the justification. (Jones, supra, 57 Cal.4th at p. 921; Abel,

supra, 53 Cal.4th at pp. 910-911.) If the defendant fails to show actual prejudice, the

court need not inquire into the justification for the delay since there is nothing to weigh.

(Mirenda, supra, at p. 1328.)

       The analysis of prejudice requires a trial court to consider factual matters which

may be disputed, such as the materiality of the witness, the unintentional or willful nature

of the delay, whether the faded memories helped or hurt the defense, and the existence of

justification, which are fact dependent. Defendants only claim of prejudice is based on

the death of a witness, but there were no findings by the trial court as to the materiality of

that witness, which is essential to defendants’ showing of prejudice.




                                             12
       To allow such a fact-dependent claim to be raised for the first time on appeal

would be both unfair and inefficient, where the claim, if timely brought to the attention of

the trial court, could have been easily corrected or avoided. (See People v. Vera (1997)

15 Cal.4th 269, 275-276, citing In re Saunders (1993) 5 Cal.4th 580, 589-590; In re S.C.

(2006) 138 Cal.App.4th 396, 406.) This is a matter of fairness to the trial court and to the

prosecution, because the failure to raise the issue in the trial court deprived the People of

an opportunity to present evidence of justification. It is unfair to the trial court, because it

was not afforded an opportunity to make findings or resolve the question prior to trial.

       Additionally, where the delay is due to the prosecutor’s lack of probable cause or

proof of a suspect’s guilt, there is no strong policy reason that requires appellate review

in the first instance. The statute of limitations, which provides predictable, legislatively

enacted limits on prosecutorial delay, provides the primary guarantee against bringing

overly stale criminal charges. (United States v. Lovasco, supra, 431 U.S. at p. 789.)

Prosecutors do not deviate from “fundamental conceptions of justice” when they defer

seeking indictments (or file other accusatory pleadings) until they have probable cause to

believe an accused is guilty. (Id. at pp. 790-791.) A court may not find negligence by

second-guessing how the state allocates its resources or how law enforcement agencies

could have investigated a given case. (Abel, supra, 53 Cal.4th at p. 911.)

       Although courts must consider whether the prosecution had probable cause to

believe an accused is guilty in evaluating whether precharging delay is justified,

prosecutors are under no duty to file charges as soon as probable cause exists, if they are

not satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.


                                              13
(United States v. Lovasco, supra, 431 U.S. at p. 791.) Such a policy would increase the

likelihood of unwarranted charges being filed and would add to the time during which

defendants stand accused but untried. (Ibid.)

       Instead, a prosecutor abides by elementary standards of “fair play and decency” if

he or she refuses to seek indictments until he or she is completely satisfied that he or she

should prosecute and will be able promptly to establish guilt beyond a reasonable doubt.

(United States v. Lovasco, supra, 431 U.S. at p. 795.) Therefore, to prosecute a

defendant following investigative delay does not necessarily deprive him or her of due

process, even if his defense might have been somewhat prejudiced by the lapse of time.

(Id. at p. 796.)

       The failure to make a motion to dismiss in the trial court means no findings were

preserved for review. In the related context of speedy trial rights, a defendant’s failure to

timely object to the delay and thereafter move for dismissal of the charges is normally

deemed a waiver of the right. (People v. Harrison (2005) 35 Cal.4th 208, 225; People v.

Wright (1990) 52 Cal.3d 367, 389 [disapproved on a different point in People v. Williams

(2010) 49 Cal.4th 405, 459].) Although we have found no cases precisely on point, the

same need for objection applies to precharging delay. Just as the right to a speedy trial

must be asserted in the trial court where the matter is pending, prior to the

commencement of the trial (Wilson, supra, 60 Cal.2d at p. 146), a defendant asserting

prejudice due to precharging delay must make a timely motion to dismiss the charges in

the trial court. In that way, the court can make factual findings on the question of




                                             14
prejudice, and the prosecution will be required to present its justification for the delay,

providing the reviewing court an adequate record.

        We acknowledge that 16 years is a substantial delay, but it appears that Duree and

Lafayette contributed to the delay by threatening to harm the children if the children

implicated either of them.7 The only actual prejudice defendants can attribute to the

delay is the unavailability of the social worker who was assigned to the G.’ children at

the time of their placement with the Pettresses. Defendants have not established that the

testimony of the original social worker was “material” to their defense, a necessary

element of a due process claim arising from precharge delay. Duree argues that the social

worker could have testified that he had visited the Pettress home in his official capacity

multiple times during the children’s placement there and that there were no signs of abuse

of neglect. However, witness Patrick Aronson, another CPS worker, testified that he was

familiar with CPS file for the G. children, and that nothing in the file indicated any signs

of abuse or neglect in the home during the period of the placement. The inability to call

the original social worker did not affect defendants’ ability to prepare or present a

defense.

        On this record, while the prosecutor may have had probable cause to initiate a

prosecution against Duree and Lafayette six months after the homicide when the

detective was contacted by the therapist about Evelyn’s recantation, it cannot be said this

was sufficient to satisfy the prosecution that it would be able to establish the Pettresses’

        7   Additionally, it appears that Duree and Lafayette lived out of state for part of the
time.


                                                15
guilt beyond a reasonable doubt given Evelyn’s inconsistent statements. That situation

remained static until J. re-contacted the Detective Griego in 2011. The failure to make a

motion to dismiss in the trial court leaves us no record defendants’ showing of prejudice

in the trial court, no findings or ruling to review, and no evidence to evaluate, in order to

determine if the delay was prejudicial or not, or if the delay was justified or not.

       Acknowledging the lack of objection or motion to dismiss in the trial court, Duree

(joined by Lafayette) argues the claim is reviewable under the ineffective assistance of

counsel doctrine. To demonstrate ineffective assistance of counsel, defendants must

demonstrate that their attorneys’ failures to object fell below an objective standard of

reasonableness under prevailing professional norms, and that there is a reasonable

probability that, but for counsel’s failings, the result would have been more favorable to

the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 694.) We cannot find

that the attorneys’ failure to make a motion to dismiss fell below an objective standard of

reasonableness where (a) there is no statute of limitations for murder; (b) the defendants’

own conduct in coercing Evelyn to take the blame for the crime, and threatening the

children with harm if they implicated either defendant, led to the cessation of the

investigation; and (c) the only purported prejudice related to the death of a witness who

was not shown to be material.

       Because the issue is not a pure question of law, the failure to present evidence of

actual prejudice in the trial court by way of a timely motion to dismiss, precludes our

review of defendants’ due process challenge for the first time on appeal.




                                              16
      2. The Admission of Lafayette’s Alleged Statements Did Not Violate Aranda-
Bruton Principles or Duree’s Due Process Rights.

       When Lafayette drove the children to school after the fatal beating of T., he told

Evelyn that she “better not bring anything on his wife,” “better not blame anything on his

wife,” and that Evelyn should say that she (Evelyn) “did it.” He also told all the children

that, “If you tell anybody what Duree or I did, we will come back and kill all of you.” On

appeal, Duree argues that the admission of this evidence violated Aranda-Bruton rules,

and thus violated her due process rights. We disagree.

       The admission into evidence of an admission or confession by one defendant in a

joint trial, which implicates both defendants, may result in a denial of due process to the

other defendant, even where a limiting instruction is given. (Aranda, supra, 63 Cal.2d at

pp. 528-529.) In such situations, the trial court can permit a joint trial if all parts of the

extrajudicial statement implicating any codefendants can be redacted, or it can grant a

severance of trials, or it must exclude the statement if effective deletions are not possible.

(Id. at pp. 530-531.)

       Three years after the decision in Aranda, the United States Supreme Court held

that the admission of a nontestifying codefendant’s confession during a joint trial violated

the defendant’s Sixth Amendment right to cross-examine witnesses against him. (Bruton,

supra, 391 U.S. at pp. 136-137.) In both cases, limiting instructions were deemed

inadequate, and the cases were presented for review on the question of whether the trial

courts erred in denying pretrial motions for severance of the trials of the defendants.




                                               17
       Subsequent decisions held that the admission of a redacted confession or

admission—eliminating not only the defendant’s name, but any reference to his or her

existence—by a non-testifying codefendant fall outside Bruton’s scope and are

admissible, with appropriate limiting instructions, in a joint trial. (Richardson v. Marsh

(1987) 481 U.S. 200, 211.) Other decisions have addressed the nature of redactions

which do or do not resolve Aranda-Bruton problems. (See, Gray v. Maryland (1997) 523

U.S. 185, 193 [deletions indicated by a blank, or the word “delete,” held to be tantamount

to an unredacted statement].)

       The problem with the procedural posture of the present case is that neither

defendant ever made a motion to sever trials or to redact the statements under Aranda-

Bruton. Instead, during Evelyn’s testimony regarding what Lafayette told her during the

drive to school on the day of T.’s death, both Duree’s and Lafayette’s counsel objected

on the ground of hearsay. The prosecutor made an offer of proof that the statement was

admissible as a statement by a party opponent (admission), but the trial court determined

that it was hearsay, and gave both defense counsel an opportunity to “flesh out” their

objections. At that point, Duree’s counsel stated, “[ . . . ] I believe this is going to be an

Aranda Bruton issue as to my client.” Subsequently, when Evelyn was asked if Lafayette

said anything else to her in the car, Duree’s counsel objected on “Aranda-Bruton

grounds,” but the court overruled the objection.

       We agree with the statement that Aranda and Bruton stand for the proposition that

a nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates

the other defendant is generally unreliable and hence inadmissible as violative of that


                                              18
defendant’s right of confrontation and cross-examination, even if a limiting instruction is

given. (People v. Jennings (2010) 50 Cal.4th 616, 652; People v. Ardoin (2011) 196

Cal.App.4th 102, 135.) But the evidence was relevant and admissible as to Lafayette and

Duree did not seek to redact the statement. As pointed out in Aranda, supra, 63 Cal.2d at

pages 530-531, exclusion of the statement is available where effective deletions are not

possible, but Duree did not request any redaction or deletions, so we cannot tell if

redaction was possible.8

       Under these circumstances, the instruction limiting the jury’s consideration of the

statement to Lafayette must be viewed as an appropriate means of addressing the

evidentiary issue. It would be “wholly inappropriate to reverse a superior court’s

judgment for error it did not commit and that was never called to its attention.” (People

v. Lilienthal (1978) 22 Cal.3d 891, 896; see also, People v. Gbadebo-Soda (1995) 38

Cal.App.4th 160, 171 [failure to make a motion for change of venue in superior court

results in forfeiture]; In re Jose C. (2010) 188 Cal.App.4th 147, 161, citing In re Cheryl




       8  Respondent argues that the statements were admissible because Aranda-Bruton
does not apply to nontestimonial statements such as those made by Lafayette, referring to
Crawford v. Washington (2004) 541 U.S. 36, and its progeny. Some recent decisions
have suggested that in the wake of the Crawford rule, Aranda-Bruton applies only to
testimonial hearsay. (See People v. Arceo (2011) 195 Cal.App.4th 556, 575.) However,
other cases have applied Aranda-Bruton to non-testimonial hearsay. (See People v.
Garcia (2008) 168 Cal.App.4th 261, 283, fn. 12, citing United States v. Mussare (3d Cir.
2005) 405 F.3d 161, 168.) Because the trial court instructed the jury not to consider
Lafayette’s statements as to Duree, and because Crawford was not raised in the trial court
as a justification for admitting Lafayette’s statements against both defendants, we do not
need to weigh in on this debate.


                                             19
E. (1984) 161 Cal.App.3d 587, 603 [a party cannot complain because the trial court failed

to do something which it was not asked to do].)

       Even if the admission of Lafayette’s statements could be considered a violation of

Aranda-Bruton, any error was harmless beyond a reasonable doubt. The jury heard the

testimony of Evelyn, J., and O., regarding the events leading to T.’s death. The jury also

heard the testimony of the children’s therapist, who alerted Detective Griego in 1996 to

Evelyn’s recantation of responsibility for T.’s death. Further, the jury heard Evelyn’s

testimony that Duree threatened her in the hospital, coercing Evelyn into claiming she

caused T.’s death. Duree’s counsel did not object to this evidence.

       Even without Lafayette’s statement, the jury still had Duree’s own statement to

consider. Under these circumstances, any error was harmless beyond a reasonable doubt.

(Chapman v. California (1967) 386 U.S. 18, 24.)

       3. Admission of Evidence of Prior Child Abuse Was Proper.

       Duree, joined by Lafayette, argues that the prosecution obtained an unfair

advantage at trial by way of the admission of “a plethora” of evidence showing that

Duree and Lafayette previously engaged in various acts of abuse, mistreatment, and

neglect of the children. We disagree.

       a.     Procedural Posture

       No in limine motions were made by any party addressing the admissibility of other

uncharged acts of abuse. During trial, Evelyn testified about the type of punishment

administered to O. and T. by Duree and Lafayette, without objection. Specifically,

Evelyn described how the two boys would be required to stand on one foot, with hands


                                            20
up in the air, and their heads back in the corner. If the boys let their foot down, they

would be beaten.

       The prosecutor asked Evelyn if she had any prior experience with Duree as it

related to punishment. Lafayette’s counsel objected on the ground the evidence was

irrelevant as to his client, while Duree’s counsel objected on the ground the evidence was

irrelevant because the information did not pertain to a charged offense. The court

overruled the objection and Evelyn explained she was not beaten, but that Duree had

attempted to kill Evelyn. Evelyn then described some incidents in which Duree tried to

suffocate Evelyn with a pillow, and hit Evelyn on the head with a liquor bottle. There

was no further discussion during Evelyn’s testimony.

       When O. testified, the prosecutor asked him about scars on his hands, as depicted

in photographs, and asked him how he received the wounds. Lafayette’s counsel

objected on the ground the evidence was irrelevant, and Duree’s counsel joined in the

objection. Without seeking an offer of proof from the prosecutor, the court overruled the

objections but invited counsel to make a record outside the presence of the jury. No

bench or chambers conference occurred at that time, however, O. proceeded to show his

hands to the jury. O. described receiving one wound when Duree threw a knife at him,

piercing his hand. O. also described being punished the night before T.’s death by

standing in the corner with one foot raised and their hands held above their heads,

without objection.

       During a recess, the court put on the record that it had allowed a lot of testimony

about past prior bad acts, and explained the rationale for admitting that evidence. The


                                             21
rationale was that there were several witnesses who had remained silent for a number of

years, that there was torture, and that there was fear of the defendants. The court

admitted the evidence to explain the conduct of the witnesses, because of the age of the

case, and the age of the witnesses at the time of the events.

         Lafayette’s counsel indicated he would “Probably offer an 1101.” However, when

the court indicated it would “strike it all from the record,” Lafayette’s counsel indicated

he was not requesting that; instead, counsel indicated that the defendants would be

entitled to “some explanatory limiting instruction, when we get there, as to the prior bad

acts.”

         Duree’s counsel then put on the record that he understood the court’s analysis, but

that the defense position was that as a result of that evidence, the jury would be more

likely to think the defendants committed the charged offense, and “we feel it comes down

on the side of 352 argument.” [sic] The court acknowledged the issue, but felt the

evidence was more probative than prejudicial.

         b.     Standard of Review

         The trial court’s evidentiary rulings are reviewed for abuse of discretion. (People

v. Geier (2007) 41 Cal.4th 555, 586, citing People v. Jablonski (2006) 37 Cal.4th 774,

821; People v. Rowland (1992) 4 Cal.4th 238, 264.) The same standard applies to review

of a trial court’s ruling on whether evidence is relevant, and not unduly prejudicial, for

purposes of admissibility. (People v. McKinnon (2011) 52 Cal.4th 610, 655.) Where a

discretionary power is statutorily vested in the trial court, its exercise of that discretion

must not be disturbed on appeal except on a showing that the court exercised its


                                              22
discretion in an arbitrary, capricious or patently absurd matter that resulted in a manifest

miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, citing

People v. Jordan (1986) 42 Cal.3d 308, 316; see also, People v. Ogle (2010) 185

Cal.App.4th 1138, 1145 [determination of whether probative value of evidence is

outweighed by prejudice].)

       c.     Analysis

       Evidence that a witness is afraid to testify or fears retaliation for testifying is

relevant to the credibility of that witness and is therefore admissible. (People v. Burgener

(2003) 29 Cal.4th 833, 869-870 (Burgener); People v. Feagin (1995) 34 Cal.App.4th

1427, 1433.) An explanation of the basis for the witness’s fear is likewise relevant to his

or her credibility and is well within the discretion of the trial court. (Burgener, at p. 869.)

       In Burgener, the Supreme Court explained that the threats of retaliation explain

why the witness’s testimony in 1981 differed in certain respect from her current

testimony. (Burgener, supra, 29 Cal.4th at p. 869.) Evidence of threats or fear is

relevant to explain a witness’s initial reluctance to discuss a crime with investigating

officers. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 289.)

       Evidence of prior acts of physical abuse which created a “climate of fear” in the

household was relevant to explain why Evelyn initially confessed to killing her brother

and later recanted. It also explains why all the children remained silent for so long.

Apparently, Evelyn was the only child interviewed in 1995; the other children were not

interviewed near the time of the incident. The testimony by Evelyn, J. and O. regarding

the harsh punishment practiced in the defendants’ household corroborates Evelyn’s


                                              23
testimony about those abusive practices, as well as her explanation for why she accepted

responsibility for committing the acts that caused T.’s death.

       The court weighed the probative value of the evidence against the potential for

prejudice, and, after balancing, determined it was more probative than prejudicial. The

trial court properly exercised its discretion in admitting the evidence. We find no abuse

of discretion or any violation of the defendants’ due process rights.

       4. There Was No Cumulative Error.

       Duree argues that even if the evidentiary errors are not sufficiently prejudicial to

warrant reversal, their cumulative prejudicial effect compels that result.

       A series of trial errors, though independently harmless, may in some

circumstances rise by accretion to the level of reversible and prejudicial error. (People v.

Cunningham (2001) 25 Cal.4th 926, 1009; People v. Hill (1998) 17 Cal.4th 800, 844.)

However, we have found no errors. Reversal is not compelled.

       5. Lafayette Waived the Statute of Limitations Bar to His Conviction for the
Lesser Offense of Involuntary Manslaughter.

       Lafayette argues that his conviction for involuntary manslaughter, as a lesser

included offense, must be reversed because it was barred by the statute of limitations.

The offense was committed in 1995, and the charges were brought in 2011, more than 15

years later. Lafayette did not raise the statute of limitations until after the verdict was

read. The question to be resolved here is whether Lafayette requested or acquiesced to

the instruction on the lesser included offense so as to have waived the statute of

limitations defense. We conclude he did.



                                              24
       As Lafayette points out, historically, the statute of limitations was viewed as a

matter of subject matter jurisdiction, and a defendant’s conviction of a time-barred

offense was void, even if he failed to assert the statute of limitations as a defense in trial

court. (People v. Morris (1988) 46 Cal.3d 1, 13, fn.4 [disapproved on a different point in

In re Sassouman (1995) 9 Cal.4th 535, 545, fn.5]; People v. Brice (1988) 206 Cal.App.3d

111, 114 (Brice).)

       In Brice, two defendants were charged with murder in a prosecution that was

brought to trial more than three years later. The defendants requested instructions on

accessory liability (Pen. Code, § 32) as a lesser related offense, and they were convicted

of the lesser related crime. Because neither defendant waived the statute of limitations

which barred their convictions for the lesser crime the reviewing court found the lesser

crime time-barred. (Brice, supra, 206 Cal.App.3d at pp. 115-116.) However, Brice was

subsequently disapproved by the holding of Cowan v. Superior Court (1996) 14 Cal.4th

367, 375. In Cowan, the Supreme Court held that the statute of limitations was not a

matter of fundamental subject matter jurisdiction. (Id. p. 374.)

       In the wake of Cowan, courts have held that a defendant forfeits the right to

complain on appeal of a conviction of a time-barred lesser included offense, where the

charged offense was not time-barred and the defendant either requested or acquiesced in

the giving of instructions on the lesser offense. (People v. Stanfill (1999) 76 Cal.App.4th

1137, 1150; People v. Beasley (2003) 105 Cal.App.4th 1078, 1089-1090.) The forfeiture

rule of Stanfill does not apply where the record does not indicate whether the defendant

requested or acquiesced in the giving of instructions on the lesser charge. (Beasley, at p.


                                              25
1090.) Further, a defendant may not inadvertently forfeit the statute of limitations and be

convicted of a time-barred offense. (People v. Williams (1999) 21 Cal.4th 335, 337-338.)

       In the present case, the record is not silent. Although the record does not include

the form request for instructions normally submitted to indicate the instructions requested

by the respective parties, it does include the oral proceedings. During the discussion

pertaining to instructions, Lafayette’s counsel indicated that he had submitted some

special instruction instructions, although the prosecutor had covered most of them. After

a pause, the court stated, “On we go to the defense instructions.” At that point,

Lafayette’s counsel asked Duree’s counsel, “Did they put your involuntary in here?”

Duree’s counsel responded, “Did you include the invol?” Lafayette’s counsel replied,

“Yeah, the invol’s here, too.”9

       Unlike the situation in Beasley, the record in this case is not silent as to whether

the defendant requested or acquiesced in the giving of instructions on involuntary

manslaughter: both defendants intended to have the jury instructed on the lesser offense,

so at a minimum Lafayette acquiesced in the giving of the instruction. Because the

charged offense was not time-barred, and because defendant requested or acquiesced in

the giving of instructions on the time-barred lesser offense, he had forfeited the statute of

limitations claim.

                                          DISPOSITION

       9During his summation, Duree’s counsel argued that the jury should consider
CALCRIM No. 580, the instruction on involuntary manslaughter as a lesser included
offense within the charge of murder, although Lafayette’s counsel did not mention it.



                                             26
     The judgments are affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.


We concur:

RICHLI
                       J.

MILLER
                       J.




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