Filed 7/21/15 P. v. Jackson CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073958

         v.                                                                      (Super. Ct. No. 11F05445)

MICHAEL JACKSON,

                   Defendant and Appellant.


         In a bifurcated trial, a jury convicted defendant Michael Jackson of battery causing
serious bodily injury (Pen. Code, § 243, subd. (d)),1 and the trial court found defendant’s
current offense is a serious felony as are his prior two convictions. The trial court
sentenced defendant to serve an indeterminate term of 25 years to life in addition to a
determinate term of 5 years.
         On appeal, defendant contends (1) his right to a jury trial was denied by the trial
court’s finding his current offense is a serious felony, (2) the trial court erred in admitting


1        Undesignated statutory references are to the Penal Code.

                                                             1
lay opinion testimony by an eyewitness to the attack, (3) the jury should have been
instructed about which of two charged counts was the lesser offense, (4) he received
ineffective assistance of counsel because his trial attorney did not object to admission of
the 911 call that was placed immediately after the attack, and (5) CALCRIM No. 330
misinstructed the jury by bolstering a child witness’s testimony.
       We conclude defendant’s waiver of a jury trial on the issue of his prior convictions
alleviated the need for the jury to find whether the current conviction constitutes a serious
felony. The trial court did not err in admitting the lay opinion testimony of an
eyewitness. Defendant was not entitled to have the jury instructed on a sentencing issue
in order to afford him leniency. Defendant’s trial attorney was not ineffective for not
objecting to admission of the 911 call, a piece of evidence counsel used effectively to
secure defendant’s acquittal on other counts. Finally, we conclude CALCRIM No. 330
does not bolster the testimony of child witnesses. Accordingly, we affirm.
                      FACTUAL AND PROCEDURAL HISTORY
                                  Prosecution Evidence
       In August 2011, Lavar Daniel and Michelle Warmsley were in a dating
relationship.2 They had two daughters together and a stepson, Deshawn, from Michelle’s
prior relationship. Michelle’s sisters, Diana and Tasha, had concerns about whether
Daniel was abusive to Michelle and other family members. Tasha and defendant had a
daughter together named Jailanie Jackson. At the time, Tasha and defendant were not
dating but “maintained some sort of a relationship.” In response to questioning by Diana
and Tasha, Michelle denied any abuse by Daniel.
       During the day on August 4, 2011, Michelle spent time with her family in South
Sacramento while Michelle styled Jailanie’s hair. At 10:00 p.m., Daniel picked up



2     Due to shared surname, we refer to members of the Warmsley family by their first
names.

                                             2
Michelle and their children. As soon as Daniel began pulling the car away from the curb,
Michelle’s brother, Terrell, drove in front of Daniel’s and blocked him in. Terrell
approached Daniel and told him to get out of the car so they could talk. Daniel rolled
down his window slightly but refused to get out because Terrell seemed ready to fight.
Daniel and Terrell had argued for about five minutes when defendant pulled his car
behind Daniel’s. Terrell appeared surprised at defendant’s arrival.
       Defendant went up to Daniel’s window and told him to get out. Daniel remained
in the car, but Michelle got out. Defendant went around the car, knocked Michelle over,
and got into the front passenger seat. Michelle testified she saw defendant hiding a gun
behind his back. Daniel does not remember anything that happened afterward.
       Michelle and Deshawn testified Daniel asked defendant, “[W]hat are you doing?”
Daniel tried to take off his seatbelt and get away when defendant began hitting him in the
face. Michelle tried to help Daniel but was restrained by Tasha. Michelle eventually
broke free and attempted to pull defendant out of the car. However, she managed to grab
only defendant’s shirt. As defendant was punching Daniel, the car started moving. The
children were screaming in the backseat. Michelle saw the car crash and estimated it was
going 25 to 30 miles an hour at impact.
       Michelle ran over to find Daniel unconscious. Blood streamed from Daniel’s
mouth and he had difficulty breathing. Michelle tried to wake Daniel up while she dialed
911 for help.
       A recording of the 911 call was played for the jury. During the call, Michelle
reported Daniel was bleeding profusely and needed urgent help. She also stated Daniel
had been attacked by an unknown assailant. In the background, Michelle argued with
family members and accused them of spreading the lie that Daniel was abusive. Tasha
responded she “didn’t tell [defendant] to come over here.” But Tasha also said Daniel
was “putting his hands on” one of the boys in the family. At trial, Michelle stated Tasha
told her: “I don’t give a fuck, whoopty whoop whoop, [Daniel] got what he deserved.”

                                            3
       Police officers and paramedics responded to the scene. Michelle told Police
Officer Daniel Swafford that defendant attacked Daniel. To Officer Swafford, Daniel’s
injuries appeared consistent with assault. Daniel was transported to the hospital where he
was admitted into the intensive care unit and placed on a ventilator. Tests showed he had
multiple fractures in his jaw and damage to his submental nerve. Daniel underwent
surgery and remained in the hospital for approximately two weeks.
                                    Defense Argument
       The defense did not introduce evidence. During closing arguments, the defense
urged the jury to conclude Daniel’s injuries were caused by the airbag exploding on his
car’s impact.
                                      DISCUSSION
                                              I
  Lack of Jury Finding Regarding Whether the Current Offense is a Serious Felony
       Defendant contends the trial court violated his Sixth Amendment right to a jury
trial by determining his current conviction involved personal infliction of great bodily
injury. He argues he was entitled to have the jury, rather than the trial court, make the
finding of personal infliction of great bodily injury. We reject the argument.
                                             A.
                                     Bifurcated Trial
       Count one of the information charged defendant with violating section 243,
subdivision (d), by committing a battery on Daniel that resulted “in the infliction of
serious bodily injury on such person.” Count one further charged Daniel was not an
accomplice and defendant personally inflicted great bodily injury. The information gave
notice the “offense is a serious felony within the meaning of . . . Section 1192.7(c).”
Subdivision (c)(8) of section 1192.7 includes among serious felonies “any felony in
which the defendant personally inflicts great bodily injury on any person, other than an
accomplice, or any felony in which the defendant personally uses a firearm.”

                                             4
       The jury found defendant violated section 243, subdivision (d), by committing a
“battery causing serious bodily injury upon Lavar Daniel.” However, the jury was not
asked to find defendant personally inflicted the injury.
       While the jury was deliberating, defendant waived his right to a jury trial on his
prior convictions during the following colloquy:
       “THE COURT: All right. [Defendant], I have to take a personal waiver from you.
You understand you have the right to have this jury make the decision about your priors;
you understand that?
       “THE DEFENDANT: Yes, Your Honor, I understand that.”
       Thus, the trial court “enter[ed] a waiver of the jury trial on priors should it become
necessary.”
       After the jury convicted defendant of battery causing serious bodily injury, the
trial court discharged the jury and conducted a bench trial that culminated in finding true
the allegation of two prior strikes.
       At sentencing, defendant’s trial attorney stated he “would like to make a record
that there was no finding of serious bodily injury by the jury.” Defendant’s attorney
further stated, “I believe that my client would be constitutionally entitled to an actual
finding of serious bodily injury. [¶] I bring that up because that affects not only the
nature of the current conviction, but it also affects the credit situations that would arise
from his sentence.” The People responded that “there is no evidence that there was an
accomplice” or any evidence “that anyone committed the injuries on Lavar Daniel aside
from the defendant.”
       The trial court explained: “We did talk about this at our prior meeting. And while
I agree, and in the future will change this procedure, but it would have been helpful to
have a special finding on the verdict form. We did not do that. [¶] But for clarity’s sake,
the defendant was charged as having personally inflicted injury, not as an aider or abettor
or co-conspirator. It was clear on the charging document. Notice was given. There’s no

                                               5
question from the evidence and the arguments and the instructions that were given and
the charging document that the defendant, if guilty at all, was the perpetrator and not an
aider and abettor. [¶] And, therefore, it certainly falls under 1192.7(c)(8).”
                                              B.
                    Whether the Current Offense is a Serious Felony
       Defendant contends his jury trial right was denied for lack of a jury finding he
personally inflicted great bodily injury on a non-accomplice. This court rejected a similar
contention in People v. Arnett (2006) 139 Cal.App.4th 1609 (Arnett). Arnett involved the
imposition of a sentence enhancement for the commission of a serious felony under
section 1192.7, subdivision (c)(8), based on personal infliction of great bodily injury on a
person other than an accomplice. (Id. at p. 1613.) As Arnett notes, it is well established
the terms “serious bodily injury” and “great bodily injury” are essentially synonymous.
(Ibid. [collecting authority].) The defendant in Arnett waived the right to a jury trial on
the issue of his prior convictions, “agreeing that the court would be the trier of fact
concerning the prior allegations.” (Id. at p. 1614.) Although the jury convicted
defendant of battery causing great bodily injury, it did not specifically find he personally
inflicted the great bodily injury even though this fact was necessary to impose the
sentence enhancement. (Ibid.) On appeal, the defendant in Arnett argued his right to a
jury trial was violated for lack of the finding on this necessary element for purposes of
sentence enhancement. (Ibid.)
       This court rejected the contention, explaining that “[c]ontrary to defendant’s claim
on appeal, the waiver of his right to a jury trial on his prior conviction encompassed his
right to a jury determination of whether his current offense was a serious felony for
purposes of section 667, subdivision (a). (People v. Yarbrough (1997) 57 Cal.App.4th
469, 477–478 (Yarbrough) [waiver of right to jury trial on ‘ “prior conviction” ’ includes
issue of whether or not current offense is a serious felony], citing People v. Equarte
(1986) 42 Cal.3d 456, 467; cf. [People v.] Taylor [(2004)] 118 Cal.App.4th [11,] 27, fn.

                                              6
6, [jury trial on whether current offense is serious felony held not waived when defendant
waived jury trial on ‘prior conviction’ while jury deliberating on charged offenses,
including great bodily injury enhancement].) Defendant’s reliance on Apprendi v. New
Jersey (2000) 530 U.S. 466, 147 L.Ed.2d 435 (Apprendi) and Blakely v. Washington
(2004) 542 U.S. 296, 159 L.Ed.2d 403 (Blakely) is misplaced, as the right established by
those cases—to have a jury determine ‘ “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum” ’ (Blakely, at p. 301, at p. 412, quoting
Apprendi, at p. 490)—was waived by defendant as to his prior conviction. There is
nothing in the language of Apprendi or Blakely to prevent a defendant from waiving this
right.” (Arnett, supra, 139 Cal.App.4th at p. 1614.)
       Based on this reasoning, Arnett concluded that “in light of defendant’s waiver of a
jury trial on the prior allegations, the trial court properly assumed the responsibility of
determining whether defendant’s current offense was a serious felony. Thus, the court
was warranted in concluding that defendant’s violation of section 243, subdivision (d),
was such a felony.” (Id. at p. 1616.) The reasoning and conclusion of Arnett apply and
lead us to reject defendant’s claim of a Sixth Amendment violation.
       Defendant argues Arnett was wrongly decided because it relied on two cases
decided before Apprendi, namely People v. Yarbrough (1997) 57 Cal.App.4th 469
(Yarbrough) and People v. Equarte (1986) 42 Cal.3d 456 (Equarte). We disagree. In
Equarte, the California Supreme Court held a defendant’s agreement to a bifurcated trial
in which the trial court found the truth of allegations regarding prior convictions waived
the right to have the jury determine whether the current offense was a serious felony. (42
Cal.3d at p. 467.) The Yarbrough court applied the Equarte holding, noting it was bound
by the California Supreme Court’s decision. (Yarbrough, at p. 478; Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We agree with Yarbrough that we are
bound to follow Equarte and see no reason to depart from the California Supreme Court’s
guidance in that case even after Apprendi and Blakely. Equarte’s holding does not

                                              7
undermine the right to jury trial, but determines only the scope of a waiver of jury trial on
the issue of prior convictions entered by the defendant at trial. (Equarte, supra, 42
Cal.3d at p. 467.) Consequently, we adhere to the holding of Equarte and reject
defendant’s Sixth Amendment argument on the issue of the seriousness of his current
offense.
                                              II
                          Admission of Lay Opinion Testimony
       Defendant contends the trial court erred in admitting into evidence Michelle’s
opinion her family and defendant planned the attack on Daniel. We are not persuaded.
                                             A.
                                   Michelle’s Testimony
       The jury heard the recording of Michelle’s 911 call in which she summoned help
after Daniel’s attack. In the background, the jury heard Michelle accusing her family
members of telling defendant she was being abused by Daniel. And the jury heard Tasha
deny telling defendant about the abuse. Tasha, however, seemed incredulous about
Michelle’s professed lack of concern for abuse of a child in the family by Daniel.
       At trial, Michelle testified she realized during the attack that her family had “set
up” Daniel. She came to her realization when she remembered no one had mentioned
Daniel all day and then Daniel was suddenly blocked in when he was about to drive
away. Defendant’s trial attorney objected, but the trial court admitted the evidence as lay
opinion testimony.
                                             B.
                                  Lay Opinion Testimony
       Evidence Code section 800 provides: “If a witness is not testifying as an expert,
his [or her] testimony in the form of an opinion is limited to such an opinion as is
permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based
on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his [or

                                              8
her] testimony.” In reviewing a claim of evidentiary error in the admission of testimony
under Evidence Code section 800, the California Supreme Court has explained: “ ‘A lay
witness may express an opinion based on his or her perception, but only where helpful to
a clear understanding of the witness’s testimony (Evid. Code, § 800, subd. (b)), “i.e.,
where the concrete observations on which the opinion is based cannot otherwise be
conveyed.” [Citation.]’ (People v. Hinton (2006) 37 Cal.4th 839, 889.) Such a situation
may arise when a witness’s impression of what he or she observes regarding the
appearance and demeanor of another rests on ‘subtle or complex interactions’ between
them (ibid.) or when it is impossible to otherwise adequately convey to the jury the
witness’s concrete observations. (People v. Melton (1988) 44 Cal.3d 713, 744; People v.
Manoogian (1904) 141 Cal. 592, 595–597.) A lay witness generally may not give an
opinion about another person’s state of mind, but may testify about objective behavior
and describe behavior as being consistent with a state of mind. (People v. Chatman
(2006) 38 Cal.4th 344, 397.)” (People v. DeHoyos (2013) 57 Cal.4th 79, 130-131
(DeHoyos).)
       We review a trial court’s admission of evidence under the deferential abuse of
discretion standard of review. (DeHoyos, supra, 57 Cal.4th at p. 131.) As this court has
previously stated, “abuse of discretion implies arbitrary determination, capricious
disposition or whimsical thinking where the court exceeds all bounds of reason, all of the
circumstances being considered.” (People v. Pitcock (1982) 134 Cal.App.3d 795, 801.)
                                            C.
               Testimony that Daniel was “Set Up” by Michelle’s Family
       The trial court did not err in admitting Michelle’s testimony she believed her
family had “set up” Daniel for the attack. Her opinion that he suffered a planned attack
rested on her observation of subtle signs gleaned that day: her family’s total silence on
the topic of Daniel that day, the timing of Terrell and defendant’s blocking in Daniel’s
car, and her argument with her family immediately after Daniel crashed the car.

                                             9
Michelle’s testimony drew a conclusion about planning based on her observations of the
circumstances surrounding the attack rather than speculation about the mental state of
others. Her testimony helped the jury to understand the failure to mention Daniel at all
that day combined with the exact timing of blocking him in indicated a previously
planned attack. Michelle’s lay opinion testimony on this point was properly admitted
under Evidence Code section 800.
                                             III
             Trial Court Response to Jury Question about Lesser Offenses
       Defendant next argues the trial court erred when responding to the jury’s question
about which of two charged offenses was “the lesser” offense. In so arguing, defendant
asserts he was entitled to an answer that would allow the jury to show him leniency. We
reject the argument.
                                             A.
                             Trial Court Response to the Jury
       During deliberations, the jury asked the trial court: “Clarify which is the lesser of
counts 1 & 2?” Count one charged defendant with battery causing great bodily injury (§
243, subd. (d)), and count two charged defendant with assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(1)).
       The trial court responded, “There are no lesser crimes on Counts 1 and 2.” The
trial court later made a record that the jury asked “to clarify which is the lesser of Counts
1 and 2, and the response was there are no lessers on Counts 1 and 2. I’m imagining they
thought one was the lesser of the other, but in any event that was the response.”
                                             B.
                              Whether the Issue is Forfeited
       The People contend defendant forfeited the issue for lack of objection to the trial
court’s response to the jury question. This contention rests on the general rule that a
defendant may not raise a claim on appeal without first presenting a timely objection in

                                             10
the trial court. (In re Seaton (2004) 34 Cal.4th 193, 199.) However, forfeiture does not
apply when the defendant had no opportunity to object. (People v. Gonzalez (2003) 31
Cal.4th 745, 752.) Here, the reporter’s transcript does not include the proceedings when
the jury submitted its question regarding the lesser of counts one and two. Instead, the
trial court made a record after it had given its response. The record does not indicate
whether counsel were present when the trial court formulated its written response to the
jury. Thus, the record does not show defendant’s trial attorney had the opportunity to
lodge a timely objection before the trial court responded to the jury. In the absence of an
indication demonstrating such opportunity, we will not deem the issue forfeited.
Consequently, we consider defendant’s argument on the merits.
                                              C.
          Sentencing Considerations are not Properly Considered by the Jury
       Defendant does not argue the trial court failed to instruct on lesser included
offenses of the charges in counts one and two. Instead, defendant’s argument is premised
on the proposition the trial court erred “specifically by not allowing the jury to exercise
leniency toward [him] in deciding which counts to convict him of.” We reject the
proposition. As the California Supreme Court has held, “in cases not involving the death
penalty, it is settled that punishment should not enter into the jury’s deliberations.”
(People v. Engelman (2002) 28 Cal.4th 436, 442.) For this reason, a criminal defendant
is not entitled to have the court instruct the jury about potential penalties. (People v.
Nichols (1997) 54 Cal.App.4th 21, 24.) Thus, it follows defendant was not entitled to
have the jury instructed about potential penalties for counts one and two so the jury could
exercise leniency based on possible sentences.




                                              11
                                             IV

Ineffective Assistance of Counsel for Failure to Object to Introduction of the 911 Call
       Defendant contends he received ineffective assistance of counsel when his trial
attorney failed to object to the admission of the 911 call or to request that portions of the
call be redacted. He argues much of the 911 call -- especially Michelle’s argument in the
background with her family -- was irrelevant and thus inadmissible. We reject the
argument.
                                              A.
                         Right to Effective Assistance of Counsel
       The federal and state constitutions guarantee to a criminal defendant the right to
the assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 80
L.Ed.2d 674 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).)
This right “entitles the defendant not to some bare assistance but rather to effective
assistance.” (Ledesma, at p. 215.) “To establish entitlement to relief for ineffective
assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act
in the manner to be expected of reasonably competent attorneys acting as diligent
advocates and (2) it is reasonably probable that a more favorable determination would
have resulted in the absence of counsel’s failings. [Citations.] ‘[W]here the record
shows that counsel’s omissions resulted from an informed tactical choice within the range
of reasonable competence, the conviction must be affirmed.’ ” (People v. Lewis (1990)
50 Cal.3d 262, 288, quoting People v. Pope (1979) 23 Cal.3d 412, 425.)
       In reviewing whether counsel’s performance was deficient, we “view and assess
the reasonableness of counsel’s acts or omissions . . . under the circumstances as they
stood at the time that counsel acted or failed to act.” (Ledesma, supra, 43 Cal.3d at p.
216.) “As the Strickland court stated, ‘it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular act or omission of



                                             12
counsel was unreasonable.’ (Ledesma, at p. 216, citing Strickland, supra, 466 U.S. at
p. 689.) Moreover, ‘where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’”
(People v. Weaver (2001) 26 Cal.4th 876, 926.)
                                               B.

  Defendant’s Trial Attorney Engaged in a Reasonable Tactical Approach to the 911
                                  Call Recording
          In defendant’s view, his trial attorney should have moved to exclude or redact the
911 call recording to eliminate any of the background argument Michelle had with her
family. However, as defendant elsewhere notes, he was acquitted of assault using a
firearm (§ 245, subd. (a)(2)) and being a felon in possession of a firearm (§ 12021, subd.
(a)(1)). Also, the jury was unable to reach a unanimous verdict on the charges of assault
by means likely to inflict great bodily injury (§ 245, subd. (a)(1)) and felony child
endangerment (§ 273a, subd. (a)) -- charges that were dismissed on motion of the
prosecutor.
          The lynchpin of defense counsel’s effectiveness in securing acquittals and lack of
convictions on several charged counts was in convincing at least some jurors defendant
did not employ a firearm. Because the defense produced no witnesses or evidence,
defendant’s trial attorney addressed the issue of firearm use during closing arguments
where he told the jury: “There’s kind of a law that allows 9-1-1 tapes to come in. It’s
because people are like excited and they’re just blurting out how they feel and they’re
blurting out what they see, and that’s just wow, I saw it, I just saw it. [¶] I told you in
opening, review that 9-1-1 tape. Not one mention of a gun, a firearm, a weapon, a brick,
a hunk of metal, nothing.” With this argument, defendant’s counsel demonstrated his
strategy to rely on the 911 call recording to disprove defendant’s use of a firearm in the
attack.


                                               13
          Defendant suggests the 911 call could simply have been redacted to keep out the
irrelevant portions of the recording. We reject the suggestion as incompatible with
defense counsel’s effective strategy to have the jury hear the entirety of the tape for the
value of hearing no reference to any weapon use. Defense counsel’s reasonable tactical
decision to rely on, rather than object to, the admission of the entirety of the 911 call
recording did not constitute ineffective assistance of counsel.
                                               V
                                      CALCRIM No. 330
          Defendant contends CALCRIM No. 330 violated his right to a fair jury trial by
bolstering the testimony of child witness, Deshawn. We reject the contention.
          The trial court instructed defendant’s jury with CALCRIM No. 330 as follows:
“You have heard testimony from a child who is age 10 or younger. As with any witness,
you must decide whether the child gave truthful and accurate testimony. [¶] In
evaluating the child’s testimony, you should consider all of the factors surrounding that
testimony, including the child’s age and level of cognitive development. [¶] When you
evaluate the child’s cognitive development, consider the child’s ability to perceive,
understand, remember, and communicate. [¶] While a child and an adult witness may
behave differently, that difference does not mean that one is any more or less believable
than the other. You should not discount or distrust the testimony of a witness just
because he is a child.”
          Although defendant did not object to the instruction, we consider the claim
because he contends the instruction violated his substantial rights by bolstering the
testimony of Deshawn. (§§ 1176, 1259; People v. Hillhouse (2002) 27 Cal.4th 469,
503 [instructional error undermining the substantial rights of a criminal defendant
requires no objection for appellate review].) Accordingly, we consider the claim on the
merits.



                                              14
       On the merits, we reject defendant’s argument. A nearly identical argument that
CALCRIM No. 330 improperly bolsters a child witness’s testimony was rejected in
People v. Fernandez (2013) 216 Cal.App.4th 540 (Fernandez). The defendant in
Fernandez, as in this case, argued the instruction precluded impeachment of the child
witness based on the child’s inability to perceive, understand, remember, and
communicate. (Id. at pp. 558-559.) The Fernandez court disagreed, noting such
“contentions have been uniformly rejected in published decisions rejecting the same
argument with respect to CALJIC No. 2.20.1, the predecessor to CALCRIM No. 330.
(People v. McCoy (2005) 133 Cal.App.4th 974, 979–980; People v. Harlan (1990) 222
Cal.App.3d 439, 455–457; People v. Jones (1992) 10 Cal.App.4th 1566, 1572–1574;
People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393.)” (Fernandez, at p. 559.)
       Fernandez explained it is well settled CALJIC No. 2.20.1 “ ‘neither excessively
inflates a child’s testimony nor impermissibly usurps the jury’s role as arbiter of witness
credibility nor violates the accused’s right to confront a child witness nor “require[s] the
jury to draw any particular inferences from a child’s cognitive ability, age and
performance as a witness. Rather, it instructs the jury to consider such factors in
evaluating a child’s testimony.” [Citation.] In . . . People v. Jones[, supra,] 10
Cal.App.4th 1566, the court held that the instruction “presupposes that the jury must
make a determination of credibility, but only after considering all the factors related to a
child’s testimony, including his [or her] demeanor, i.e., how he or she testifies on the
stand,” all without ‘ “foreclos[ing] independent jury consideration of the credibility of a
child witness.” ’ [Citation.] [People v. Gilbert, supra, 5 Cal.App.4th 1372] held that
CALJIC No. 2.20.1 neither ‘ “lessen[s] the government’s burden of proof” ’ nor ‘
“instructs the jury to unduly inflate the testimony of a child witness” ’ [citation]: “The
instruction tells the jury not to make its credibility determinations solely on the basis of
the child’s ‘age and level of cognitive development,’ but at the same time invites the jury
to take these and all other factors surrounding the child’s testimony into account. The

                                              15
instruction provides sound and rational guidance to the jury in assessing the credibility of
a class of witnesses as to whom ‘ “traditional assumptions” ’ may previously have biased
the factfinding process. Obviously a criminal defendant is entitled to fairness, but just as
obviously he or she cannot complain of an instruction the necessary effect of which is to
increase the likelihood of a fair result.” [Citation.]’ (McCoy, at p. 979.)
       “These holdings apply with equal force to CALCRIM No. 330, for the reasons
explained in McCoy. CALCRIM No. 330 simply instructs the jury to take into account a
child’s ability to perceive, understand, remember and communicate when making a
credibility determination. It does not instruct the jury to subject a child’s testimony to a
less rigorous credibility determination, nor does it excessively inflate a child witness’s
credibility.” (Fernandez, supra, 216 Cal.App.4th at pp. 559-560.) We agree with this
reasoning.
       Defendant contends Fernandez (and by extension the cases cited therein) employs
faulty reasoning because CALCRIM No. 330 “effectively gave the jury permission to
ignore or excuse problems with [Deshawn’s] recollection of the events” for which
defendant was convicted. We disagree. CALCRIM No. 330 clearly advised the jury it
could accept or reject Deshawn’s testimony based on “all of the factors surrounding that
testimony.” Nothing in CALCRIM No. 330 bolstered Deshawn’s testimony or placed his
credibility beyond impeachment.
       We also reject defendant’s reliance on CALJIC No. 2.20.1’s statement that child
witnesses may “perform differently” than adult witnesses. (See Harlan, supra, 222
Cal.App.3d at p. 455, quoting CALJIC No. 2.20.1.) Although defendant contends this
phrase is different from and superior to CALCRIM No. 330’s use of the phrase “behave
differently” than adult witnesses, there is no meaningful difference. Accordingly, the
trial court did not err in giving CALCRIM No. 330.




                                             16
                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



     BUTZ       , Acting P. J.



     DUARTE     , J.




                                     17
