Filed 4/2/15 P. v. Reed CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135971
v.
RICKEY THOMAS REED,                                                  (Contra Costa County
                                                                     Super. Ct. No. 5-090749-3)
         Defendant and Appellant.


         Defendant Rickey Thomas Reed was convicted by a jury of 13 felony counts for
repeatedly sexually assaulting his 13-year-old niece, including five counts of committing
a lewd act upon a child, aggravated sexual assault of a child by oral copulation and a
foreign object, kidnapping to commit a lewd act, false imprisonment, and providing
methamphetamine to a minor. Reed raises 10 issues on appeal. He contends the trial
court erred by admitting evidence of two prior sexual offenses pursuant to Evidence Code
sections 1101 and 11081 and that section 1108 is unconstitutional on its face and as
applied. He raises issues with several jury instructions: CALCRIM Nos. 220, 371, 375,
and 1191 (as it relates to 224). He contends the court improperly excluded portions of his
prison letters under section 356. He asserts the trial court erred in allowing a police
officer to testify about his experience interviewing child victims. Lastly, he objects to his
sentence as improper under Penal Code section 654 and as cruel and unusual punishment.
We modify the sentence on count four but otherwise affirm the judgment.

         1
       Further statutory references are to the Evidence Code unless otherwise
designated.

                                                             1
                                     BACKGROUND
       Jane Doe was sexually molested by her uncle, defendant Rickey Reed, on two
separate dates in 2008. The first incident occurred at Reed’s father’s home on Bonnie
Lane when Jane was 13 years old. Reed told Jane’s grandmother (his mother) that he
was taking Jane to visit her cousin, but instead took her to Bonnie Lane. When they got
to the house, Reed asked Jane if she had ever consumed alcohol and she said no. Reed
gave her a wine cooler and had her try another alcoholic “ice” beverage. They were
watching TV and Reed put in a DVD that Jane described as a “porno.” Reed then put a
sheet down on the floor in front of the couch and asked Jane if she wanted a massage.
Jane lied down on the sheet on her stomach and Reed began to massage her. Jane began
to feel uncomfortable and she was dizzy from the wine coolers. Reed then put his hands
under Jane’s bra on the front of her chest causing Jane to “jump” and get up. Reed said
he was sorry and it would never happen again. Jane told him that she wanted to go home.
Jane did not tell her grandmother about the incident because she was afraid her
grandmother would be mad at her.
       The second incident occurred several weeks later. Jane’s dog had puppies and
Reed had found homes for two of them. Jane went with him to deliver the puppies, and
Reed later took Jane to his house. He told her that he needed to use the bathroom or
wanted to get a glass of water. Jane said she would wait in the car, but ultimately went
into the house with Reed and he pulled out a bag of methamphetamine. He told her it
was better than marijuana and it would make her feel good. Reed had a candle and foil
and put the meth on the foil. He gave Jane a rolled up bill and told her to inhale the
smoke. The meth made Jane feel dizzy, tingly, and off balance. Jane lay down on the
couch because she was not feeling well and the next thing she remembered her pants
were off. Reed was in the kitchen naked.
       Reed approached Jane and began licking Jane’s genital area. Reed then put a
sheet down on the floor and tried to have intercourse with Jane. He put his hands on both
her knees and tried to push his penis inside her and she tried to push him away. Jane
crawled away and Reed put her in the bathtub. Reed grabbed a razor and began to


                                             2
painfully shave Jane’s pubic area. Reed rubbed Vaseline on Jane and again tried to insert
his penis into her vagina. Reed also tried to put Jane’s mouth on his penis. Reed put the
shower head against Jane’s body with the water “going inside” her. Reed then
masturbated and ejaculated on Jane.
       At some point during the attack, Reed put a latex glove over a broom handle and
inserted it into Jane’s vagina multiple times, hurting her. Jane saw blood and was scared.
       Jane went to the front door to leave the house, but she was naked and did not know
where her clothes were. Jane’s grandmother called the house and was yelling because
Reed had not brought Jane home on time. Reed instructed Jane to “rinse off” and took
Jane home. When she got there, Jane’s grandmother began yelling at her and hitting her,
and Jane told her grandmother what happened. Jane’s grandmother took her to her
cousin Marisa’s house. The next day Marisa’s mother took Jane to the hospital.
       A nurse and emergency room doctor gave Jane a sexual assault examination. The
nurse noted bruises on Jane’s shins, arms and the inner part of her knee. Jane had a razor
rash and shaved patches in her pubic area and she had redness, tearing on her vaginal
wall and swelling on her labia. Jane had “very traumatic” injuries running the length of
her vagina that were consistent with penetration with a foreign object. The doctor
testified that she does not recall ever seeing similar injuries in another patient. The
sexual assault nurse similarly testified that she had rarely seen internal vaginal injuries of
the kind on Jane Doe.
       During the police search of the house, the officers found a razor consistent with
Jane Doe’s description and pubic hair in the tub drain. They found a mop or broom
handle on the floor of the rear bedroom and two packages of latex gloves. One glove was
missing from the one opened package of gloves. They found a damp towel in the
washing machine that appeared to have blood on it. A DNA Analyst confirmed the stains
on the towel were Jane Doe’s blood and sperm that matched Reed’s DNA. From Jane
Doe’s sexual assault kit, the analyst found male DNA on the swab from her nipple.
Given the nature of the sample, he could not “match” the DNA, but concluded that the
odds of it not being Reed were roughly 1 in 1.2 billion Caucasians.


                                              3
       Reed was wearing a GPS tracking device on the day of the second assault. A
representative from Satellite Tracking of People testified that Reed was at the Bonnie
Lane house from 4:20 p.m. to 8:50 p.m. that day. She also testified that Reed tried to
tamper with or remove the device multiple times during that time period.
       Reed was charged with 13 felony counts: five counts of committing a lewd act on
a child in violation of Penal Code section 288, subdivision (a); kidnapping to commit a
lewd act upon a child in violation of Penal Code section 207, subdivision (b); assault with
the intent to commit a lewd act upon a child in violation of Penal Code section 220,
subdivision (a); oral copulation of a child in violation of Penal Code section 288a,
subdivision (c)(1); aggravated sexual assault of a child by forcible oral copulation in
violation of Penal Code section 269, subdivision (a)(4); aggravated sexual assault of a
child by penetration with a foreign object in violation of Penal Code section 269,
subdivision (a)(5); sexual penetration of a drugged person in violation of Penal Code
section 289, subdivision (e); false imprisonment by violence in violation of Penal Code
section 236 and 237, subdivision (a); and furnishing methamphetamine to a minor in
violation of Health and Safety Code section 11380, subdivision (a).
       The jury convicted Reed of all charges. The court found true Reed’s prior
convictions for sex offenses and sentenced Reed to an indeterminate term of 495 years to
life plus a consecutive determinate term of 19 years and four months.
                                      DISCUSSION
A.     The Decision to Admit Evidence of Reed’s Prior Sex Offenses
       The prosecution filed a pretrial motion to introduce evidence of Reed’s prior
sexual offenses under section 1108. The prosecution sought to introduce five prior
instances: (1) a 1989 misdemeanor indecent exposure conviction; (2) a 1989 felony
indecent exposure conviction (Celia M. incident); (3) a 1995 felony conviction for lewd
acts upon a child (Alexis L. incident); (4) a 1999 investigation for molestation of a 10-
year-old girl; and (5) a 2000 felony indecent exposure conviction. The prosecution
argued that these prior acts demonstrated Reed was an “opportunistic sexual offender
who preys on young, vulnerable female victims.” Reed opposed on the grounds that


                                             4
Evidence Code section 1108 violated the due process clause of the Constitution and that
the evidence must be excluded as too inflammatory and prejudicial.
       After evaluating the relevant factors, including the nature of the current offense,
remoteness in time, degree of certainty in the commission of the prior offenses,
similarity, the burden on Reed to defend against the prior offense, and possible confusion
or distraction, only two of the five incidents were ruled admissible.
       At trial, Celia M. testified that in 1989 she saw Reed parked on the side of the
road. He was naked, blowing kisses and masturbating. She flagged down a police officer
and provided a detailed statement. Detective Willett testified that after Reed was taken
into custody for indecent exposure, he stated that when he used methamphetamine, he
had “the urge to exhibit himself sexually.” Reed said he liked to expose his penis and
masturbate in public in front of women. Reed also stood up during the police interview
and displayed an erection and bragged about the size of his penis.
       Alexis L. was Reed’s niece and would have sleepovers at his house. She testified
that when she was seven or eight years old, Reed molested her three to five times. The
first time Reed molested her, he pulled down Alexis L.’s underwear and put his mouth on
her genital area. Reed would put Vaseline or baby oil on himself and masturbated in
front of her and touched her with his penis. He also put his fingers into her vagina. Reed
instructed her not to tell anyone and would put money under her pillow.
       The court found that the Alexis L. incident was “the most like the current charge”
because the crime occurred in Reed’s home, with his seven year old niece, and there was
touching, masturbating then digital penetration. Further, Reed moved Alexis L. from
room to room. The court also noted the process of grooming a younger relative that was
similar to the present case.
       The Celia M. incident, while different in kind, was considered by the court to be
“highly probative” of Reed’s use of methamphetamine and the connection of its use to his
sexual urges. This case too involved Reed’s use of methamphetamine and it’s
administration to Jane Doe before the abuse. In the Celia M. case, Reed admitted that



                                             5
when he used methamphetamine, he got the urge to expose himself. The court
considered this incident evidence of Reed’s intent and motive.
         The court found that the Alexis L. and Celia M. offenses would also be admissible
under section 1101, subdivision (b) for Alexis L. as to intent and absence of mistake and
for Celia M. as to motive and absence of mistake.
         The court did not believe the prior incidents were unduly prejudicial because they
were “not anything near the severity of what the defendant is facing” in this case. “And
the thing about the remoteness here is that [it] would probably seem old, 1989, but for the
fact that the defendant has spent most of his intervening time in custody.” The court
found that both incidents had resulted in convictions.
         Section 1101, subdivision (a) provides: “Except as provided in this section and in
Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or
her character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” Subdivision (b) allows evidence of a crime, civil
wrong, or other act to prove a fact other than predisposition to commit crimes, such as
motive, intent, common plan, or identity.
         Section 1108, subdivision (a) provides: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant's commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” Section 352 provides: “The court
in its discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.”
         Reed makes three arguments about the evidence of the incidents involving
Celia M. and Alexis L.: (1) section 1108 is unconstitutional on its face and as applied; (2)
the trial court erred in admitting the evidence under sections 1108 and 352; and (3) the
error was so prejudicial that it requires reversal of his conviction.


                                              6
       The Constitutionality of Evidence Code Section 1108
       The California Supreme Court has held that Evidence Code section 1108 is
constitutional in the face of both due process and equal protection challenges. (People v.
Falsetta (1999) 21 Cal.4th at 907, 916–922 [no due process violation]; see People v.
Fitch (1997) 55 Cal.App.4th 172, 182–184 [no equal protection violation].) “[B]ecause
of the protections written into Evidence Code section 1108, there [is] no undue unfairness
in the statute’s limited exception to the historical rule against the use of propensity
evidence.” (People v. Manning (2008) 165 Cal.App.4th 870, 878.) As we will discuss,
Reed has not shown that the admission of evidence pursuant to section 1108 violated his
due process or equal protection rights, as applied, by making his trial fundamentally
unfair. (See People v. Robertson (2012) 208 Cal.App.4th 965, 995.) Therefore, we reject
the challenge to the constitutionality of section 1108.
       Admissibility of the Prior Sex Convictions at Trial
       Reed argues that the two prior sex crimes were not similar and were used to
unfairly characterize him as a “meth sex maniac.” For Alexis L., Reed concedes that “a
single lewd act offense involving Alexis was admissible for propensity only,” but
multiple acts should not have been admitted. He argues that the testimony should have
been excluded because Alexis L. was a child, but Jane Doe had gone through puberty.
The locations of the offenses were dissimilar, and the charged conduct involving Jane
Doe was substantial sexual contact and not mere touching as it was with Alexis L. Reed
argues the conduct involving Celia M. was dissimilar because she was an adult, the
offense occurred on a public street, and there was no sexual contact.
       Generally, Reed contends that the prior crimes evidence was inflammatory and
made him appear as a wanton predator when he used drugs. He says the events were also
too remote in time. Reed relies on People v. Earle (2009) 172 Cal.App.4th 372 to
support his argument that both crimes are too dissimilar to be admissible. In People v.
Earle, the court held that a prior uncharged indecent exposure did not support an
inference that defendant had committed rape. (Id. at p. 398.) “In order for evidence of
another crime to be relevant under section 1108, it must have some tendency in reason to


                                              7
show that the defendant is predisposed to engage in conduct of the type charged.” (Id. at
p. 397).
       But, both incidents met this test. The Celia M. incident shows Reed was
predisposed to engage in inappropriate sexual conduct after using methamphetamine and
the Alexis L. incident demonstrates Reed’s predisposition to victimize young female
family members.
       The Alexis L. incident is also proof of propensity as well as intent and absence of
mistake. The prosecution showed that Reed had attempted to groom his nieces so he
could commit acts of sexual abuse against them. Both nieces were victimized in Reed’s
“home” when the girls were asleep or unconscious. Both involve Reed touching and
licking their genitals while masturbating and using some form of lubricant. The evidence
was also relevant to Reed’s intent and plan because he victimized his nieces when they
were vulnerable and isolated in his own home.
       On its face, the Celia M. incident does not have a high degree of similarity to the
charged crimes. Reed’s public exposure to an adult woman is not the same type of
conduct charged here. In People v. Escudero, the court held that evidence of a
defendant’s sexual assaults against two adult women was admissible under section 1108
at his trial for committing lewd acts on a seven-year-old child. (People v. Escudero
(2010) 183 Cal.App.4th 302, 306.) “[T]he evidence demonstrated that defendant took
advantage of vulnerable females regardless of their ages, sexually assaulting them when
it was particularly risky to do so.” (Ibid.) Moreover, “[t]he charged and uncharged
crimes need not be sufficiently similar that evidence of the latter would be admissible
under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve
no purpose. It is enough the charged and uncharged offenses are sex offenses as defined
in section 1108.” (Id. at p. 311, quoting People v. Frazier (2001) 89 Cal.App.4th 30, 40–
41.)
           The fact that the Celia M. incident involved different behavior directed at mature
women merely goes to the weight of the evidence rather than its admissibility. The Celia
M. conviction was not admitted simply to show Reed’s prior lewd sexual conduct. It was


                                               8
introduced to show Reed’s propensity to commit sexual acts while using
methamphetamine. Reed was charged with providing Jane Doe methamphetamine and
using it himself prior to abusing her. In the Celia M. case, Reed admitted that
methamphetamine fueled his sexual appetite. Detective Willett testified that Reed stated
that when he used methamphetamine, he had “the urge to exhibit himself sexually.”
Under these circumstances, the Celia M. offense was admissible to show Reed’s
propensity to commit sexual offenses while using methamphetamine as well as his
motive and intent in giving methamphetamine to Jane.
        We review the trial court’s choice to admit prior incidents under section 352 for
abuse of discretion. (People v. Harris (1998) 60 Cal.App.4th 727, 736–37.) “ ‘Under the
abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal . . .
is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ ”
(People v. Foster, (2010) 50 Cal.4th 1301, 1328–1329 citing People v. Hovarter (2008) 4
Cal.4th 983, 1004.)
        We look to four factors, balancing the probative value of the evidence against
undue prejudice, delay or confusion. They are: (1) the inflammatory nature of the
uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of
the uncharged offenses; and (4) the amount of time involved in introducing and refuting
the evidence of the uncharged offenses. (People v. Branch (2001) 91 Cal.App.4th 274,
282.)
        First, the trial court found that the prior incidents were “not anything near the
severity of what the defendant is facing” in the current case and thus not more
inflammatory than the charged offenses at trial. It is not likely that the jury would have
been unduly prejudiced by the testimony about the Alexis L. or Celia M. incidents. The
Alexis L. incident was similar in nature, although far less egregious, than the charged
conduct in this case and the Celia M. incident was less severe.
        Second, there is no indication that the prior acts evidence created confusion for the
jury. Both prior acts resulted in felony convictions, rather than uncharged conduct. The


                                               9
jury was not required to determine if the uncharged acts did, in fact, occur. The jury only
needed to evaluate whether the prior acts were relevant to establish propensity. The jury
asked no questions about the prior convictions and did not request any read-back of
testimony regarding those incidents, providing no support for Reed’s argument that this
evidence created confusion.
       Third, the trial court found that “the thing about the remoteness here is that [it]
would probably seem old, 1989, but for the fact that the defendant has spent most of his
intervening time in custody.” There are no specific time limits for determining when an
uncharged offense is so remote as to be inadmissible. (People v. Branch, supra, 91
Cal.App.4th at p. 284, citing People v. Harris, supra, 60 Cal.App.4th at p. 739.) Courts
have found as much as a 30-year gap in time was not too remote when the offenses were
similar. (Ibid. [finding a 30 year gap not too remote where appellant first molested a 12-
year-old stepdaughter, then a 12-year-old step-great-granddaughter by taking advantage
of the fact that each victim was staying in his home].)
       Lastly, the amount of time involved in presenting the evidence to the jury was
limited. The trial in this case lasted from May 21 to June 1, 2012, over the course of
seven court days. There were more than 900 pages of trial transcript. The prior sex
crimes evidence totaled approximately 68 pages of testimony from six witnesses. We do
not consider this substantial trial time devoted to the prior acts. (See People v. Branch,
supra, 91 Cal.App.4th at p. 285–286.)
       Under section 352, evidence should be excluded where the probative value is
“substantially outweighed” by the “probability” that its admission will create a
“substantial” danger of “undue” prejudice. Here, the probative value of the uncharged
offenses was high and the danger of undue prejudice was slight.
       Even If the Court Erred, the Evidence Did Not Deny Reed a Fair Trial
       Even if the court erred in admitting the evidence of the prior sex convictions, any
error was harmless and does not require reversal. Reed contends that we must apply the
harmless-beyond-a-reasonable-doubt test for errors that violate the United States
Constitution (Chapman v. California (1967) 386 U.S. 18, 24), while the People argue for


                                             10
the reasonable-probability test (People v. Watson (1956) 46 Cal.2d 818, 836–837) that
applies to error under California law. (See People v. Jandres (2014) 226 Cal.App.4th
340, 360 [applying the Watson standard to the erroneous admission of unduly prejudicial
sexual offense propensity evidence].) We need not resolve the issue because we
conclude that any error was harmless under either standard.
      The prosecution’s case primarily presented the testimony of Jane Doe. Both
before the jury and in the videotape of her Children’s Interview Center meetings2 her
testimony was detailed and consistent. Jane Doe’s testimony was corroborated by the
emergency room physician and sexual assault nurse who described “very traumatic” and
unusual injuries to her vagina. There was also corroborating physical evidence at the
Bonnie Lane house. The police found a towel with Jane’s blood and Reed’s DNA in the
washing machine, the broom handle, a box of latex gloves missing one glove, and a razor
and pubic hair in the bathtub. Reed’s letters from prison further corroborated Jane Doe’s
testimony that he smoked methamphetamine with her at the time of the crimes.
      Reed argues that this was a credibility case where the jury “needed to decide
whether [Jane] was experimenting with drugs, alcohol, piercing, shaving and her own
meth-induced masturbation” and the introduction of the prior offenses under the
prosecution’s “meth-sex-maniac theory” prevented any fair chance of the jury weighing
the evidence. But there is no reasonable probability the jury would have reached a result
more favorable to Reed even if the court excluded the prior sex acts. The testimony of
the emergency room medical staff disproved the defense theory that Jane’s injuries were
self-inflicted as did the DNA evidence. Finally, as we have stated, the prior convictions
were less serious than the charged offenses and therefore would not likely have inflamed
the jury. (See People v. Foster (2010) 50 Cal.4th 1301, 1332 [finding admission of
defendant’s prior crimes was harmless error].) Therefore, any error in admitting the prior
acts evidence was harmless beyond a reasonable doubt.


      2
        On May 9, 2008 and May 20, 2008, Jane met with a counselor at the Children’s
Interview Center and these videotaped meetings were played for the jury.

                                            11
B.     CALCRIM No. 375
       Reed contends that the trial court erred in instructing the jury about section 1101
pursuant to CALCRIM No. 375 because the instruction included reference to a common
plan or scheme. As outlined above, the prior acts evidence was admitted to show
propensity under section 1108 and to establish intent, motive or absence of mistake under
section 1101. The court did not specifically address plan or scheme when it ruled those
acts admissible.
       The court instructed the jury to consider the evidence regarding Celia M. and
Alexis L. for the limited purpose of deciding whether or not:
       The defendant acted with intent to commit a lewd and lascivious act on a
       child in this case; or
       The defendant had a motive to commit the offense alleged in this case; or
       The defendant’s alleged actions were the result of mistake or accident; or
       The defendant had a plan or scheme to commit the offenses alleged in this
       case.

       Reed argues this instruction was error because there was no evidence the prior sex
crimes demonstrated a plan or scheme.
       Reed’s failure to object to this instruction forfeits his claim on appeal. (People v.
Valdez (2004) 32 Cal.4th 73, 113.) Nevertheless, we will address the issue on the merits
as it relates to Reed’s ineffective assistance of counsel claim. We conclude that the jury
instruction was proper because there was sufficient evidence of a plan or scheme before
the jury.
       “[E]vidence that the defendant has committed uncharged criminal acts that are
similar to the charged offense may be relevant if these acts demonstrate circumstantially
that the defendant committed the charged offense pursuant to the same design or plan he
or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to
prove identity, the plan need not be unusual or distinctive; it need only exist to support
the inference that the defendant employed that plan in committing the charged offense.”
(People v. Ewoldt (1994) 7 Cal.4th 380, 403.) In People v. Ewoldt, the court found that
prior, uncharged lewd acts upon the victim’s sister were admissible pursuant to section


                                             12
1101 to show that the charged offenses were committed according to a similar design or
plan. (Ibid.) The victim’s sister, Natalie, testified that when she was 10 or 11 years old
she awoke on three occasions to find the defendant beside her bed touching her breasts
and genitals. (Id. at p. 389.) The victim testified that the defendant molested her from
the time she was six or seven years old until she was 14 years old. The defendant twice
forced her onto the bed and attempted to force her legs apart. The defendant also twice
entered her room in the middle of the night, touched her and asked her to touch his penis.
(Id. at pp. 388–389.) The court found both Natalie and the victim were the defendant’s
step-daughters, they both lived in the defendant’s home, and the acts occurred when they
were of similar age. (Id. at p. 403.) The court held that the uncharged acts and the
current offense shared sufficient common features to support a common design or plan.
(Ibid.)
          The Alexis L. incident shares sufficient common features with Reed’s abuse of
Jane Doe to be admissible as a common scheme or plan. Both victims were Reed’s
nieces; both were victimized when they were vulnerable: Alexis L. at night while others
were sleeping and Jane Doe while she was alone with Reed. Both were initially
victimized while asleep or unconscious, both were in Reed’s “home,” and both girls were
children. The Alexis L. incident supports the inference that Reed had a plan when he
brought Jane Doe, alone, to the Bonnie Lane house. The “ ‘common scheme or plan’
exception thus contemplates a recurring criminal pattern, such as a repeated strategy or
modus operandi, by which the defendant perpetrates multiple distinct crimes.” (People v.
Whitmer (2014) 59 Cal.4th 733, 760.)
          Finally, the evidence was relevant at trial because Reed argued that Jane Doe was
experimenting with drugs and caused her injuries through her own masturbation. The
fact that Reed had used a similar design or plan with Alexis L. supports an inference that
this version of events was not true.
          Ineffective Assistance of Counsel
          Defense counsel’s failure to object to the inclusion of the scheme or plan language
in the jury instruction does not constitute ineffective assistance of counsel.


                                               13
       To establish ineffective assistance of counsel, a “defendant must demonstrate that:
(1) his attorney’s performance fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been more favorable to the defendant.” (People v. Stanley
(2006) 39 Cal.4th 913, 954 citing Strickland v. Washington (1984) 466 U.S. 668, 688,
694.) A reasonable probability is a probability sufficient to undermine confidence in the
outcome. (People v. Stanley, supra, at p. 954.)
       “ ‘ “Reviewing courts defer to counsel's reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a “ ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” ’ ” (People v. Stanley, supra, 39 Cal.4th at p. 954 citing People v. Weaver
(2001) 26 Cal.4th 876, 925–926.) Tactical errors are generally not deemed reversible,
and counsel's decision-making must be evaluated in the context of the available facts.
(People v. Stanley, supra, at p. 954.)
       Here, counsel could have made a reasonable tactical decision that the evidence
was coming in under section 1108 for propensity and section 1101 for motive, intent and
absence of mistake. In the circumstances counsel could conclude there was no benefit to
raising an additional objection to the plan or scheme language in the jury instruction.
“Whether to object to arguably inadmissible evidence is a tactical decision; because trial
counsel’s tactical decisions are accorded substantial deference, failure to object seldom
establishes counsel’s incompetence.” (People v. Maury (2003) 30 Cal.4th 342, 415–416
citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1121.)
       On this record, we do not know why counsel acted or failed to act. “To the extent
the record on appeal fails to disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation.”
(People v. Maury, supra, 30 Cal.4th at p. 389.) Further, Reed cannot show prejudice
because the evidence was properly admitted on other grounds, had a bearing upon a plan



                                              14
or scheme and he cannot demonstrate the result of the trial would have been different but
for counsel’s failure to object to the plan or scheme portion of the jury instruction.
C.     CALCRIM Nos. 1191 and 224
       The court instructed the jury with the following modified version of CALCRIM
No. 1191:
              The People presented evidence that the defendant committed the crimes of
     indecent exposure and lewd and lascivious acts upon a child under the age of 14
     that were not charged in this case. These crimes are defined for you in these
     instructions.

             You may consider this evidence only if the People have proved by a
     preponderance of the evidence that the defendant in fact committed the uncharged
     offenses. Proof by a preponderance of the evidence is a different burden of proof
     from proof beyond a reasonable doubt. A fact is proved by a preponderance of the
     evidence if you conclude that it is more likely than not that the fact is true.

            If the People have not met this burden of proof, you must disregard this
     evidence entirely.

              If you decide that the defendant committed the uncharged offenses, you
     may, but are not required to, conclude from that evidence that the defendant was
     disposed or inclined to commit sexual offenses, and based on that decision, also
     conclude that the defendant was likely to commit and did commit . . . . [the charged
     offenses]. If you conclude that the defendant committed the uncharged offenses,
     that conclusion is only one factor to consider along with all the other evidence. It is
     not sufficient by itself to prove that the defendant is guilty of the offenses listed
     above. The People still must prove each charge and allegation beyond a reasonable
     doubt.

             Do not consider this evidence for any other purpose except for the limited
     purpose of determining the defendant’s credibility.

       The trial court also instructed the jury pursuant to CALCRIM No. 224: “Before
you may rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People have proved
each fact essential to that conclusion beyond a reasonable doubt.”




                                             15
       Here, Reed contends that instructing the jury under CALCRIM 1191 that it could
find he committed the prior uncharged offenses by a preponderance of the evidence
conflicted with the requirement in CALCRIM 224 that facts supporting a conclusion
based upon circumstantial evidence must be proved beyond a reasonable doubt. He says
that the two instructions given together permit the jury to have convicted him on a
reduced burden of proof. We disagree.
       Reed’s counsel did not object to either instruction. Counsel’s failure to object to
the jury instruction at trial has forfeited the claim, (See People v. Valdez, supra, 32
Cal.4th at p.113.), but the claim also fails on its merits.
       In People v. Reliford (2003) 29 Cal.4th 1007, our Supreme Court held that a prior
version of CALCRIM 1191 did not mislead jurors on the limited consideration they could
give other crimes evidence or the prosecution’s burden to prove the elements of a crime
beyond a reasonable doubt. “Although the instruction considered in Reliford was the
older CALJIC No. 2.50.01, there is no material difference in the manner in which each of
the instructions allows the jury to conclude from the prior conduct evidence that the
defendant was disposed to commit sexual offenses and, therefore, likely committed the
current offenses.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Wilson,
(2008) 166 Cal.App.4th 1034, 1049 quoting People v. Schnabel (2007) 150 Cal.App.4th
83, 87 [“ ‘The version of CALJIC No. 2.50.01 considered in Reliford is similar in all
material respects to . . . CALCRIM No. 1191 . . . in its explanation of the law on
permissive inferences and the burden of proof.’ ” ]; see People v. Anderson (2012) 208
Cal.App.4th 851, 895–896 [reaching the same conclusion concerning the 2008 version of
CALCRIM No. 1191].)
       People v. Reliford addressed each of the arguments Reed makes here, holding that
“no juror could reasonably interpret the instructions to authorize conviction of a charged
offense based solely on proof of an uncharged sexual offense.” (People v. Reliford,




                                              16
supra, 29 Cal.4th 1007 at p. 1015.)3 The court specifically rejected the notion that
instruction requiring different burdens of proof be applied to different matter presented
for the jury’s consideration was too complicated. “This is not the first time jurors have
been asked to apply a different standard of proof to a predicate fact or finding in a
criminal trial.” (Id. at p. 1016; see also People v. Virgil (2011) 51 Cal.4th 1210, 1259–
1260 [rejecting a similar challenge to CALJIC 2.50 which allowed the jury to consider
evidence of uncharged conduct to establish identity or intent once they found the other
crimes evidence was proved by a preponderance of the evidence].)
D.     Reed’s Letters From County Jail
       Section 356 provides: “Where part of an act, declaration, conversation, or writing
is given in evidence by one party, the whole on the same subject may be inquired into by
an adverse party; when a letter is read, the answer may be given; and when a detached
act, declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence.” (Evid. Code § 356.)
       The purpose of section 356 is to avoid creating a misleading impression. (People
v. Arias (1996) 13 Cal.4th 92, 156.) “It applies only to statements that have some bearing
upon, or connection with, the portion of the conversation originally introduced.” (People




       3
        Reed argues that People v. Reliford and subsequent cases did not address the
specific language in CALCRIM No. 1191 that if you “decide that the defendant
committed the uncharged offenses . . . you may, but are not required to, conclude from
that evidence that the defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely to commit and did
commit . . . .[the charged offenses].” Yet, the instructions in Reliford, Wilson, and Cromp
all contain similar “did commit” language as used here. (People v. Reliford , supra, 29
Cal.4th 1007 at p. 1012; People v. Cromp, supra, 153 Cal.App.4th at p. 480; People v.
Wilson, supra, 166 Cal.App.4th at p. 1049.) Reed relies on the bench notes to CALCRIM
No. 1191 which identify one decision that criticizes the “did commit” language in a
footnote, (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8), and advises a court
to review the commentary section. People v. James, however, involved the 1997 version
of CALJIC No. 2.50 and not the revised language approved in later cases.

                                             17
v. Samuels (2005) 36 Cal.4th 96, 130.) Statements about other matters may be properly
excluded. (Ibid. citing People v. Williams (1975) 13 Cal.3d 559, 565.)
       In anticipation that the prosecution would seek to introduce evidence from Reed’s
letters written from county jail, he moved in limine before trial to introduce all evidence
necessary to make the letters “fully understood.” The prosecution also had a general
motion before the court to preclude admission of any evidence regarding penalty,
punishment, custodial status or time in custody. When the motions were heard, the court
advised defense counsel that Reed could address the content of the letters if he testified
and that counsel could ask the court to revisit the issue at that time. The court instructed
counsel that if he felt there were additional sections of the letters that he wanted to admit
under section 356, to bring it to the court’s attention.
       Parts of two such letters written by Reed from county jail were admitted into
evidence. The first letter, addressed to “Pops,” was to Reed’s stepfather. Reed begins
by stating he is “sitting in county jail.” He goes on to explain that nobody is responding
to his attempts to contact them. Reed then requests that Pops take Jane Doe away, and
that “The only reason were [sic] even going through this is cause my fuckin mom beat
her for getting high with me.” He then explains that he needs help because they are
trying to “3 strike me and give me 25 years.” Reed says: “I know I fucked up and should
have been a more responsible adult. It was like me and you sitting around getting high.
We just got told on by my fuckin mom.” The letter concludes by saying that if Jane Doe
was at Pop’s house and nobody knew it, the prosecutor would have to strike a deal.
       The second letter is to Reed’s former girlfriend, Theresa. Reed starts off saying he
is unsure if he should write because the district attorney could get the letter and “twist[]
my words around to make me look even worse.” He states that he did not mean for Jane
Doe to get so high, and that he did not make her do anything and is facing 25 years. He
asks Theresa: “So would you please talk to her (Jane Doe) and tell her to tell these people
all we did was get high and I pierced her belly button for her birthday on her request.”
Reed speculates that maybe the district attorney will understand how weak the case is and
offer him five years. He states that “it would be better yet if [Jane Doe] refuses to come


                                              18
to court.” Reed then talks about his daughters and their past relationship. He also talks
about being in a cell 22 hours per day, and ends with “Please help me!!”
       When Reed testified, he said that he never smoked methamphetamine with Jane
Doe. The prosecution confronted him with his statement in the letter sent to his step-
father. At that point, the court conducted a hearing in chambers. When testimony
resumed, the prosecution asked Reed to review the letter to Pops to refresh his
recollection. The prosecutor asked Reed whether he wrote: “My fucking mom beat her
for getting high with me.” Reed responded: “I wrote that, but I didn’t write it as to—in
the sense that she got high with me. I covered for her.” The prosecution then quoted the
portion of the letter that says: “I know I fucked up and should have been a more
responsible adult. It was like me and you sitting around getting high. We just got told on
by my fucking mom.” Reed admitted that he wrote it but said it was not true. Again, he
said: “I did not get high with her. I covered for her.”
       Later in his testimony, Reed denied piercing Jane Doe’s belly button. The
prosecutor introduced the statement from his letter to Theresa that states: “All we did was
get high and I pierced her belly button for her birthday at her request.” Reed responded:
“That’s what it says, but that’s not what my mind was when I wrote that.” On redirect,
defense counsel did not ask Reed about the letters.
       At the end of the day, the court memorialized the chambers discussion for the
record. Defense counsel requested that the entire letter to Pops be read to the jury.
Counsel argued that Reed’s statements needed to be put in context and that the portions
of the letter where he stated his concerns about his potential sentence could help do that.
The court ruled that the two statements read from the letters were proper impeachment
and probative of Reed’s credibility. But Reed’s request that his step-dad take Jane Doe to
Florida so she could not testify was highly prejudicial and the court did not want it to be
before the jury. In the letter to Reed’s ex-wife, apart from the statement regarding belly
button piercing, the letter “dealt with his sentence” and his request that Theresa try to get
Jane Doe not to testify. The court found that the statement about the piercing was for
specific impeachment and “you don’t need the rest of the letter to explain that.”


                                             19
       The People argue that Reed’s claim has been forfeited for failure to make a timely
objection because counsel did not seek to admit the letters until the close of Reed’s case.
But the issue is properly preserved for appellate review. Trial counsel filed a motion in
limine prior to trial and sought to have the letters admitted during trial and at the close of
the defense case.
       “[A] trial court has broad discretion to exclude evidence it deems irrelevant,
cumulative, or unduly prejudicial or time-consuming.” (People v. Pride (1992) 3 Cal. 4th
195, 235, citing Evid. Code, § 352.) In People v. Pride, the defendant argued for
admission of entire taped conversations of the interviews before his arrest. The trial court
denied defendant’s motion to play the tapes based on defendant’s assertion that the tapes
were necessary to illustrate his “state of mind.” (Ibid.) The Supreme Court held that it
was a reasonable inference that the court exercised its discretion and concluded the tapes
would not materially assist the defense. (Ibid.)
       Here Reed similarly argues that the complete letters show his state of mind and
were necessary to the jury’s understanding of the admitted statements. We disagree.
Other than the portions introduced during trial, Reed’s letter to his step-father is focused
on his anticipated punishment saying the prosecution is going to “3 strike me and give me
25 years” and his request that his step-father secretly take Jane Doe out of state. The
letter to Theresa similarly talks about facing 25 years in custody and the conditions of his
confinement. He again states his desire that Jane Doe not testify, saying “it would be
better if [Jane Doe] refuses to come to court.” He seeks Theresa’s help and requests she
talk to Jane Doe and “tell her to tell these people all we did was get high and I pierced her
belly button for her birthday [at] her request.”
       None of the other statements in the letters are necessary or relevant to the admitted
statements and the court found the balance of the letters to be “highly prejudicial”
because Reed wanted Jane Doe to be prevented from testifying. The trial court has the
discretion to exclude evidence pursuant to section 356 if the evidence “does not serve to
clarify or explain that which was admitted on direct testimony, or if the proponent of the
evidence will not be seriously prejudiced by its exclusion.” (People v. Von Villas (1992)


                                              20
10 Cal.App.4th 201, 272.) Further, statements in both letters discuss Reed’s anticipated
punishment and the fact he is in custody. “A defendant’s possible punishment is not a
proper matter for jury consideration.” (People v. Holt (1984) 37 Cal. 3d 436, 458.)
       Reed argues that the entirety of the letters were important to allow the jury to
understand the desperate nature of his pleas for help, and thereby understand that in
context he was begging and scheming for help. It is not at all clear to us how the
excluded statements materially help Reed’s cause in light of his testimony at trial.
Nevertheless, if Reed wanted to demonstrate his desperation and willingness to say
anything in the letters to avoid conviction, his counsel was free to make such an
argument. Reed was on trial for five counts of committing a lewd act upon a child,
aggravated sexual assault of a child by oral copulation and a foreign object, kidnapping to
commit a lewd act, false imprisonment and providing methamphetamine to a minor. It
seems illogical that he needed the excluded statements from his letters to convince the
jury of his desperation and willingness to say anything to avoid conviction.
       The trial court did not abuse its discretion in barring admission of the entire
content of the letters. The admitted content was independently comprehensible and the
full content of the letters did not materially assist the defense.
E.     Officer Genest’s Expert Testimony
       Reed argues that the trial court erred in allowing the police officer who originally
interviewed Alexis L. to testify that child victims often delay reporting. Reed contends
this was improperly admitted Child Sexual Abuse Accommodation Syndrome (CSAAS)
testimony that required the court to give a limiting instruction. The officer’s testimony
was not CSAAS testimony or, at most, was a limited version of CSAAS testimony and
was restricted to his experience when interviewing child victims generally. The court did
not abuse its discretion in admitting the testimony.
       Prior to trial, Reed moved in limine to exclude CSAAS evidence. The prosecution
stated that it might present testimony from officers if there was an “insinuation by cross-
examination” that a victim did not behave as she was “supposed to.” The court
instructed the prosecution to provide defense counsel with information about an officer’s


                                              21
training and experience before he or she would be allowed to testify to CSAAS. The
court found that the testimony was “fair game” in these types of cases.
       Officer Genest testified that in 1995 he was a patrol officer for the Ceres Police
Department, and conducted the initial interview of Alexis L. about the molestation. In
the initial interview, Alexis L. only discussed one incident: when Reed woke her in the
night and masturbated while rubbing her hair. Officer Genest testified that in his 16 years
of experience, it would often take several interviews for children to provide complete
information. He stated that kids can be reserved and scared and may not recall all the
information at first. Defense counsel objected that the testimony called for an opinion
and was irrelevant. The court permitted the prosecution to establish a foundation. At that
point, Officer Genest stated that he had been involved in 10 to 12 cases involving
inappropriate touching of children. He took a week-long seminar about children’s
reaction to trauma and child sex crimes. The court ruled that Officer Genest had
sufficient training and experience to answer questions about how children report trauma.
Genest testified that it was not unusual for children to come forward years later to
disclose abuse that they had never reported.
       Defense counsel cross-examined Officer Genest and confirmed that he was never
a sex crimes investigator. Genest testified that his exposure to sex crimes cases involved
taking initial reports. He also testified that his knowledge would often come from
following up with colleagues about the cases because he did not conduct the follow-up
interviews.
       A trial court has broad discretion in deciding whether to admit or exclude expert
testimony, and its decision is reviewed for abuse of discretion. (People v. McDowell
(2012) 54 Cal.4th 395, 426.) “Expert opinion testimony is admissible only if it is
‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact.’ ” (People v. Watson (2008) 43 Cal.4th 652, 692
(Watson) quoting Evid. Code, § 801, subd. (a).)
       CSAAS is a syndrome with five stages: secrecy, helplessness,
entrapment/accommodation, delayed disclosure, and denial. (People v. Bowker (1988)


                                               22
203 Cal.App.3d 385, 389.) The use of CSAAS testimony at trial is limited to rebutting an
attack on the credibility of the victim, explaining delays in reporting or debunking a myth
or misconception about child victims. (Id. at p. 393–394.) “CSAAS testimony has been
held admissible for the limited purpose of disabusing a jury of misconceptions it might
hold about how a child reacts to a molestation.” (People v. Wells (2004) 118 Cal.App.4th
179, 188 quoting People v. McAlpin (1991) 53 Cal.3d 1289, 1300–1301.)
         Here, Officer Genest’s testimony was not traditional CSAAS testimony that is
more commonly provided by expert witnesses. His testimony was based upon his
experience as a police officer conducting interviews with child victims in sexual assault
cases.
         In People v. Dunnahoo, two five-year-old victims did not immediately tell police
officers they were sexually abused. At trial, the prosecution called two police officers,
qualified as experts, who testified that it was not unusual for child victims to be reluctant
to talk about their abuse. (People v. Dunnahoo (1984) 152 Cal.App.3d 561, 577.) Both
officers testified that “a sexually molested child finds it quite difficult to talk about sexual
indiscretions with an adult.” (Ibid.) “The officers’ testimony was admissible as opinion
testimony by an expert witness pursuant to Evidence Code section 801 because the
subject of child molestation and more particularly, the sensitivities of the victims, is
knowledge sufficiently beyond common experience such that the opinion of an expert
would be of assistance to the trier of fact.” (Ibid.)
         Similarly, in People v. Tompkins, a police investigator testified that victims of
long-term child sexual abuse may have difficulty remembering and distinguishing
specific incidents. (People v. Tompkins (2010) 185 Cal.App.4th 1253 (Tompkins).) One
of the victims, who was molested by her father over a period of years, had been unable to
recall the number of incidents and the details of the specific incidents. (Id. at p. 1264.)
The police investigator testified that victims “block out the majority of what happened”
and have difficulty distinguishing between incidents. Defense counsel objected and the
prosecution questioned the investigator about his expertise. The officer testified that he
had been involved in many child molestation investigations over his ten years in law


                                               23
enforcement and had been present during interviews with molestation victims conducted
by child investigation specialists. (Id. at pp. 1264–1265.) He had also taken a 40-hour
course in the investigation of sex crimes against children. (Id. at p. 1265.) The Tompkins
court held that even though the investigator did not have extensive academic credentials,
he had substantial experience as a child sexual abuse investigator. (Ibid.) Any question
about the degree of his knowledge went to the weight rather than the admissibility of the
evidence and the trial court did not abuse its discretion in admitting the testimony. (Ibid.)
       Here, after Reed objected to Officer Genest’s testimony, the prosecution elicited
his qualifications. Like the officer in Tompkins, Genest had been in the department for a
substantial period of time (16 years) and while he had not investigated a large number of
cases, he had been involved in 10-12 cases involving the sexual abuse of children. He
had also attended a 40-hour training on child sex crimes and children’s reaction to
trauma. He further explained that although he did not conduct follow-up interviews, he
would discuss them with his colleagues. (See People v. Hill (2011) 191 Cal.App.4th
1104, 1121–22. [In providing expert testimony, a gang expert may rely “on his or her
personal investigations of gang-related crimes, and on information obtained from
colleagues and other law enforcement agencies.”].)
       The trial court did not abuse its discretion in admitting the testimony and the jury
could properly weigh it in light of Reed’s cross-examination about Officer Genest’s
qualifications. Given the nature of Officer Genest’s testimony the court was not required
to sua sponte give a limiting instruction on the use of CSAAS evidence. (But see People
v. Housley (1992) 6 Cal.App.4th 947, 958–959 [requiring court’s to provide a limiting
instructing when CSAAS evidence is introduced].)
       Ineffective Assistance of Counsel
       Defense counsel objected to Officer Genest’s testimony at the time it was elicited
and the court allowed the prosecution to establish Officer Genest’s qualifications. The
court ruled that Officer Genest had sufficient qualifications to answer questions. Defense
counsel did not lodge any further objection. Reed now claims this constituted ineffective
assistance of counsel. As outlined above, Reed must demonstrate both counsel’s


                                             24
ineffectiveness and prejudice. “[A] mere failure to object to evidence seldom establishes
counsel’s incompetence.” (People v. Malone (1988) 47 Cal.3d 1, 33.) Officer Genest
was qualified to testify and the depth of his experience with child sex crime
investigations went to the weight rather than the admissibility of his testimony. Counsel,
therefore, was not ineffective for electing not to renew his objection when it appears from
the record he made the tactical decision to cross-examine Officer Genest about his
limited experience.
       Harmless Error
       The harmless error standard from People v. Watson applies to the trial court’s
decision to allow officer Genest to testify on CSAAS. In conducting a review pursuant to
Watson, we evaluate whether it is “reasonably probable” that a result more favorable to
the defendant would have been reached in the absence of error. (People v. Jandres,
supra, 226 Cal.App.4th at p. 360 citing Harris, supra, 60 Cal.App.4th at p. 741.)
       Even if the trial court erred in admitting Officer Genest’s testimony, any such
error was harmless. (People v. Archer (1989) 215 Cal.App.3d 197, 206–207 [any error in
the admission of child sexual abuse accommodation syndrome testimony was harmless in
light of ample evidence of the defendant’s guilt].) The evidence against Reed was
substantial including Jane Doe’s testimony as well as her videotaped interview and the
testimony of both the doctor and sexual assault nurse to the severity and unusual nature
of Jane’s injuries. There was also substantial physical evidence including Jane’s blood
and Reed’s sperm and DNA on the towel found in the washing machine at the Bonnie
Lane home, the broom handle and one missing glove, Reed’s DNA on Jane’s nipple. The
jury was also presented with Reed’s letters from jail stating he smoked methamphetamine
with Jane and with the propensity evidence from Alexis L. and Celia M.
       Moreover, in considering Officer Genest’s testimony, it was limited to discussion
of child victims as a class and related to his experience with Alexis L. rather than Jane
Doe. (See People v. Tompkins, supra, 185 Cal.App.4th at p. 1266.)
       Reed identifies one reference to Officer Genest’s testimony in the prosecutor’s
closing argument that he says is prejudicial: “She stated that after Reed gave Jane Doe


                                             25
the massage, she did not tell anyone. And you remember Officer Genest from Ceres
P.D., the officer from 1995 who said children react differently. Some people never say
anything, and they come and report when they’re adults. Others let out a little bit at a
time. Others report right away. It just depends on the child.” In his closing argument,
defense counsel referenced the prosecutor’s statement that “children don’t always say
right away” and then asked: “do we have any basis in psychology or any sort of expert
testimony to that effect. We don’t.” The prosecutor objected that counsel had misstated
the facts in evidence and the court instructed the jury that statements of counsel are not
evidence and they should rely on their own recollections of the evidence. No matter. It
is not reasonably probable that Reed would have received a more favorable verdict absent
the introduction of Officer Genest’s testimony and the brief reference to it in closing
argument.
F.     Jury Instruction on Consciousness of Guilt
       During trial, the court stated that it planned to give CALCRIM No. 371, over
Reed’s objection, regarding consciousness of guilt because there was an inference that
Reed may have “gotten rid of some evidence.” The prosecutor added that there was also
evidence that Reed told Jane Doe to shower before he took her home which demonstrated
an attempt to hide the sexual assault. The court instructed the jury: “If the defendant tried
to hide evidence or discourage someone from testifying against him, that conduct may
show that he was aware of his guilt. If you conclude that the defendant made such an
attempt, it is up to you to decide its meaning and importance. However, evidence of such
an attempt cannot prove guilt by itself.”
       The facts giving rise to an inference of consciousness of guilt do not need to be
conclusively established for the court to give an instruction, “ ‘there need only be some
evidence in the record that, if believed by the jury, would sufficiently support the
suggested inference. [Citations.]’ ” (People v. Alexander (2010) 49 Cal.4th 846, 921–922
quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
       Reed contends that the instruction supported an inference of “global guilt” of all
crimes and was irrational and unfair. The court’s instruction, however, carefully


                                             26
instructed the jurors that if they concluded Reed attempted to hide evidence then they
must decide its meaning and importance and that such an attempt “cannot prove guilt by
itself.”
           There was sufficient evidence before the jury to warrant the instruction. Jane Doe
testified that Reed instructed her to “rinse off” in the shower before he took her home to
her grandmother. The jury could infer that Reed wanted her to wash any of his bodily
fluids from her body and to remove any of her own blood. The jury also heard testimony
that the police search team found a damp towel in the washing machine that appeared to
have blood on it. The jury could infer that Reed had attempted to wash the towel to
conceal evidence from the assaults. (See People v. Tate (2010) 49 Cal.4th 635, 698–699
[consciousness of guilt instruction was proper where a defendant charged with first
degree murder had attempted to throw away his blood-stained socks and wash the suit he
was wearing on the day of the murder]; People v. Richardson (2008) 43 Cal.4th 959,
1020 [upholding instruction where defendant had attempted to conceal evidence of
drawings by the 11-year-old victim that had defendant’s nickname on them showing that
he had been a recent visitor to the murder victim’s residence].)
           Moreover, the officers did not find two items described by Jane Doe: (1) the sheet
for the inflatable air mattress where one of the assaults occurred and (2) a pornographic
video. The jury could infer Reed had hidden or destroyed these items. (See People v.
Williams (1996) 46 Cal.App.4th 1767, 1780 [where police searched defendant’s
apartment and found some clothing worn by defendant during alleged attacks but could
not find shoes and shorts worn by him that day; it was reasonable to assume he hid them
to thwart efforts to identify him and consciousness of guilt instruction was properly
given].)
G.         Reasonable Doubt Instruction
           The jury was instructed that a defendant is presumed innocent and the prosecution
must prove him guilty beyond a reasonable doubt. “Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge is true. In deciding
whether the People have proved their case beyond a reasonable doubt, you must


                                               27
impartially compare and consider all the evidence that was received throughout the entire
trial. [¶] Unless the evidence proves the defendant . . . guilty beyond a reasonable doubt,
he is entitled to an acquittal, and you must find him not guilty.”
       Reed contends that the trial court’s instruction pursuant to CALCRIM No. 220
denied him due process and a fair trial. His first objection is to language in the standard
instruction—that the jury must rely on evidence presented in court—that was not given in
this case. Reed’s second objection is to the “abiding conviction” language. He argues
“recognizing California court[s] hold to the contrary” but “for purposes of exhausting
state remedies, that the archaic and incomplete abiding conviction language set forth in
CALCRIM No. 220 constitutes reversible per se structural error by conveying an
insufficient standard of proof akin to clear and convincing evidence and going only to
jurors’ duration of belief in guilt, not their degree of certainty.” But, as Reed admits,
California courts hold to the contrary, in reliance on People v. Freeman (1994) 8 Cal.4th
450. (See, e.g., People v. Campos (2007) 156 Cal.App.4th 1228, 1239 [“[t]he Courts of
Appeal in every appellate district have also consistently rejected similar claims”].) We
see no reason to revisit the issue.
H.     Cumulative Error
       We have rejected Reed’s arguments that errors occurred during his trial.
Accordingly, we reject his contention that the cumulative effect of the errors requires
reversal. (See People v. Bolin (1998) 18 Cal.4th 297, 335.)
I.     Sentencing
       At sentencing, the prosecution requested that Reed receive consecutive sentences
on all applicable counts. Reed argued that under Penal Code section 654, “there’s no
evidence or any testimony of any break” in the conduct. Reed argued that the sentence
advocated by the People of 500 years to life “makes no sense” and it was a sentence
without meaning amounting to “over kill.” The court found that counts one, two, three,
five, six, seven, eight, ten and thirteen were separate and distinct acts. “They were not
only different sexual conduct and acts and offenses, but they were in different room[s], in
different positions, we went from the living room, to the bedroom, to the shower, back


                                             28
out to the living room.” The court concluded there was “ample opportunity for a person
to reflect and to take a break” so it was not one continuous act. The court then ordered
each of the 50 years to life sentences on counts one, three, five, six, seven, eight, ten and
thirteen to be served consecutively for a term of 450 years to life. For nine of the counts,
the court added a mandatory term of five years consecutive for a total of 45 years to
increase the total indeterminate term to 495 years to life. The court also imposed a
determinate sentence of 19 years, 4 months for counts 11 and 12 to be served before Reed
began the indeterminate term.
       1.      Sentencing on Counts Two and Four
       Reed contends that the court improperly imposed separate terms under Penal Code
section 654 for count two (kidnapping with the intent to commit child molestation) and
count four (assault with the intent to commit a lewd act on a child).
       Penal Code section 654 prohibits separate punishment for two offenses arising
from the same act or from an indivisible course of conduct. (People v. Latimer (1993) 5
Cal.4th 1203, 1207–1208.) Section 654 “does not preclude charging and convicting a
defendant for multiple violations based on different acts, but rather prohibits multiple
punishments for an indivisible course of conduct that is punishable in different ways.”
(People v. Elsey (2000) 81 Cal.App.4th 948, 958.) “ ‘Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such offenses but
not for more than one.” (People v. Latimer, supra, at p. 1208.)
       Reed may raise the applicability of section 654 on appeal even if no objection was
made in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
       For count two, Reed argues the kidnapping count was based on his “luring of Jane
Doe into the house” in order to commit the other crimes. He also contends, in passing,
that the court erred in imposing separate terms for all of the lewd act and sexual assault
counts.



                                             29
       In People v. Bradley the court upheld separate punishments for kidnapping and
assault with the intent to commit rape where the defendant moved the victim
approximately 60 feet from the street to a dumpster where he kissed and touched her.
(People v. Bradley (1993) 15 Cal.App.4th 1144, disapproved on another ground in
People v. Rayford (1994) 9 Cal.4th 1, 884.) Bradley’s conduct included forceful taking,
forceful movement and assault with the intent to commit rape. While this all had the
general objective of sexual gratification, the kidnapping was a separate act from the
assault. (Id. at p. 1158.) “To combine these acts into an indivisible course of conduct
under one broad-based objective of Bradley’s sexual gratification, would reward him for
his greater criminal ambition.” (Ibid.) Bradley’s objective in moving the victim was
separate from his later objective in assaulting her and he may be punished for each
separately. (Ibid.; see also People v. Harrison (1989) 48 Cal.3d 321, 326, 336 [upholding
separate punishments for three acts of sexual penetration over the course of less than 10
minutes where “each of defendant’s ‘repenetrations’ was clearly volitional, criminal and
occasioned by a separate act of force.”] italics omitted; People v. Perez (1979) 23 Cal.3d
545 [Penal Code section 654 did not preclude separate punishments for rape, sodomy
and two oral copulation counts committed during a 45-to-60 minute attack].)
       Here, Reed lured Jane into his home by telling her he needed to use the bathroom
or get a drink of water. He did not sexually assault her immediately upon entering the
home. They sat in the living room and he offered her methamphetamine. Reed did not
engage in his first sexual assault until Jane had passed out on the couch. He then
assaulted her in various ways in different locations in the house: he first orally copulated
her on the couch, then he attempted to have intercourse with her on the floor, then he
attempted to have intercourse with her in the bathroom and to force her to orally copulate
him in the bathroom, and then he assaulted her with the broom handle. After each
attempt, Reed “voluntary resumed his sexually assaultive behavior.” (People v.
Harrison, supra, 48 Cal.3d at p. 336.) As the trial court found, these were separate and
distinct acts where Reed had “ample opportunity . . . to reflect and to take a break.” “ ‘A
person who commits separate, factually distinct, crimes, even with only one ultimate


                                             30
intent and objective, is more culpable than the person who commits only one crime in
pursuit of the same intent and objective.” (People v. Correa (2012) 54 Cal.4th 331, 341
quoting People v. Latimer, supra, 5 Cal.4th at p. 1211.)
       A “defendant who attempts to achieve sexual gratification by committing a
number of base criminal acts on his victim is substantially more culpable than a
defendant who commits only one such act.” (People v. Harrison, supra, 48 Cal.3d at p.
336.) Here, Reed committed multiple acts of escalating violence against Jane Doe. This
warranted separate punishment for each count. This “conclusion . . . is consistent with a
line of cases holding that a trial court may impose consecutive sentences for multiple
different sex offenses committed against the same victim within a short period of time.”
(People v. Clair (2011) 197 Cal.App.4th 949, 961, citing People v. Perez (1979) 23
Cal.3d 545, 551.)
       On count four, assault with intent to commit a lewd act on a child, the court did
not impose a separate, consecutive term. Instead, the court imposed a concurrent term of
six years because it was not clear “where the jury found the assault and what crimes.”
The court should have stayed execution of this sentence rather than impose it
concurrently and we order the judgment modified to stay execution of the six year term
for count four. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1469 [to implement
Penal Code section 654, the trial court must impose sentence on all counts, but stay
execution of sentence as necessary to prevent multiple punishment]; Cal. Rules of Court
rule 4.424.) This has no impact on Reed’s total sentence.
       2.     Cruel and Unusual Punishment
       Reed contends that his sentence constitutes cruel and unusual punishment under
both the United States and California Constitutions. Reed failed to raise the issue in the
trial court, so it has been forfeited. (People v. Kelley (1997) 52 Cal.App.4th 568, 583;
People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, even if Reed had properly
preserved the issue, it would fail on the merits.
       A punishment violates the Eighth Amendment if it involves the “unnecessary and
wanton infliction of pain” or if it is “grossly out of proportion to the severity of the


                                              31
crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) “[I]n California a punishment
may violate article I, section 6, of the Constitution if, although not cruel or unusual in its
method, it is so disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8
Cal.3d 410, 424.) Under Lynch we examine (1) the nature of the offender, (2) compare
the punishment with the penalty for more serious crimes in the same jurisdiction, and (3)
compare the punishment with the penalty for more serious crimes in other jurisdictions.
(Id. at pp. 425–427.)
       Reed’s sentence was controlled by Penal Code sections 667.61 and 667.71 which
impose harsher sentences on violent sex offenders. (People v. Mancebo (2002) 27
Cal.4th 735, 741.)      Reed was convicted of 13 felonies involving sex crimes committed
against his 13-year-old niece. Reed provided Jane Doe with methamphetamine and then
repeatedly sexually assaulted her in various ways. Reed had an extensive criminal
history that included prior sexual violence against other young girls. Reed exhibited no
remorse and blamed Jane Doe for her injuries.
       Reed compares his sentence to someone convicted of first degree murder and
asserts that his sentence is unconstitutionally disproportionate but he fails to recognize
that he was not convicted of one but rather 13 felonies. “[T]he commission of a single
act of murder, while heinous and severely punished, cannot be compared with the
commission of multiple felonies.” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
The prosecution identifies cases with similar sentences for sexual assault that have been
upheld on appeal. (See People v. Cartwright (1995) 39 Cal.App.4th 1123 [upholding
indeterminate term of 375 plus a determinate term of 53 years for sexual assault charges;
People v. Wallace (1993) 14 Cal.App.4th 651 [rejecting a cruel and unusual punishment
challenge to a sentence of 283 years, 8 months for sexual assaults on multiple victims];
People v. Retanan (2007) 154 Cal.App.4th 1219 [upholding sentence of 135 years to life
against a cruel and unusual punishment challenge for defendant’s sexual assaults of three
young girls]; see also People v. Alvarado (2001) 87 Cal.App.4th 178 [upholding a life



                                              32
term for rape committed during a burglary against a challenge the sentence was cruel and
unusual punishment].)
       Reed contends that California’s sentencing scheme is the harshest in the nation,
but admits: “Several other jurisdictions in theory authorize similar sentences.” “That
California’s punishment scheme is among the most extreme does not compel the
conclusion that it is unconstitutionally cruel or unusual.” (People v. Martinez (1999) 71
Cal.App.4th 1502, 1516.) The sentencing scheme “merely reflects the Legislature’s zero
tolerance toward the commission of sexual offenses against particularly vulnerable
victims. It does not, however, render a defendant’s sentence excessive as a matter of law
in every case.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 200–201.)
       Reed is a recidivist, violent sexual offender. His sentence represents a cumulative
punishment resulting from the commission of numerous offenses on multiple victims. He
has failed to show his sentence is disproportionate to sentences for other recidivist child
molesters. Reed has failed to demonstrate that his sentence is so disproportionate to his
crimes that it shocks the conscience or offends fundamental notions of human dignity.
(See People v. Dillon (1983) 34 Cal.3d 441, 477–478.)
                                      DISPOSITION
       The judgment is modified to reflect that the six year term on count four is stayed.
As modified, the judgment is affirmed.




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                                 _________________________
                                 Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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