Filed 12/12/19 P. v. Zamarron CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARGARITO JUAREZ ZAMARRON,

Defendant and Appellant.

H045835

(Monterey County

Super. Ct. No. SS161082A)

Appellant Margarito Juarez Zamarron challenges his conviction by jury trial of various child molestation charges. On appeal, Zamarron claims reversible error on the basis of insufficiency of evidence, erroneous admission of evidence, ineffective assistance of counsel, and cumulative error. He also contends that remand for resentencing is warranted because the trial court misunderstood the scope of its sentencing discretion. We reject Zamarron’s claims of error and affirm the judgment.

I. BACKGROUND

A. Procedural Background

The Monterey County District Attorney’s Office filed a first amended information (information) charging Zamarron with a forcible lewd act on Jane Doe 1, a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); count 1), two counts of a lewd act on Jane Doe 3, a child under the age of 14 (§ 288, subd. (a); counts 2 and 3), and a lewd act on Jane Doe 4, a child who was 14 or 15 years old (§ 288, subd. (c)(1); count 4). The information also contained a multiple victim allegation under section 667.61, subdivision (e)(4). Although Jane Doe 2 was not named as a victim in the information, she testified at Zamarron’s trial about an uncharged act he allegedly committed against her when she was six years old.

Following a trial, the jury found Zamarron guilty of all four counts and found the multiple victim allegation to be true. At sentencing, the trial court imposed consecutive terms of 15 years to life on count 1 and 25 years to life on count 2, as well as concurrent terms of 25 years to life on count 3 and two years on count 4, for an aggregate term of 40 years to life.

B. The Prosecution’s Case

Jane Doe 1 was born in 1998, Jane Doe 2 in 1979, Jane Doe 3 in 2003, and Jane Doe 4 in 1998. Jane Doe 1 and Jane Doe 3 are cousins, and Jane Doe 2 and Jane Doe 4 are sisters. Jane Doe 2 is Jane Doe 3’s mother. Zamarron, who was born in 1952, is related to the Jane Does through his marriage to Mrs. Zamarron, who is Jane Doe 2’s and Jane Doe 4’s grandmother, and Jane Doe 1’s and Jane Doe 3’s great-grandmother. Zamarron has a teenage step-granddaughter named Paulina in Mexico, who Zamarron communicated with through the Facebook application on his iPad.

1. Jane Doe 1

Jane Doe 1 was born in 1998. Count 1 alleged that Zamarron committed a forcible lewd act on Jane Doe 1, a child under 14 years of age, in violation of section 288, subdivision (b)(1) (hereafter § 288(b)(1)).

In 2005, when Jane Doe 1 was approximately six years old, she was at the Zamarron house while Mrs. Zamarron was babysitting her. Zamarron, who was approximately 53 years old at the time, saw Jane Doe 1 playing in the hallway that day and told her to come into a bedroom with him. Zamarron told her to stand with her chest against the bed. Zamarron pulled down Jane Doe 1’s pants and underwear, and then got onto his knees and unzipped his pants. Zamarron’s chest was pushing against Jane Doe 1’s back. Jane Doe 1 tried to move away, but she could not because “he was pushed up against [her].”

Jane Doe 1 stated that Zamarron did not “pin[]” her to the bed in the sense that he was “holding [her] down,” but she was pushed up against the bed by him. Jane Doe 1 “felt [Zamarron’s] penis against [her] butt hole,” but Zamarron’s penis “didn’t go in at all.” Jane Doe 1 “twisted and moved” away without resistance from Zamarron, put her pants and underwear back on, and “just left” the bedroom. Earlier during the incident, Jane Doe 1 could not move because Zamarron was “pushed up against [her].”

Jane Doe 1 was scared, so she did not say anything about what Zamarron did until 2016, when she told her boyfriend and mother that Zamarron had raped her in 2005. Jane Doe 1’s mother initially expressed disbelief, but eventually she and Jane Doe 1 reported Zamarron to the King City Police Department.

2. Jane Doe 2

Jane Doe 2 was born in 1979 and is Jane Doe 3’s mother and one of Mrs. Zamarron’s granddaughters. Jane Doe 2 testified about an act that was not charged in the information.

Mrs. Zamarron used to babysit Jane Doe 2. Jane Doe 2 testified that when she was six years old, she came out of the bathroom and found Zamarron standing outside the bathroom door. Zamarron pulled Jane Doe 2’s pants halfway down. Zamarron “put his fingers inside [her] pants, and he started rubbing [her] vagina with his two fingers, and he pulled [her] closer to him, and he started kissing [her] in the mouth.” After Zamarron stopped kissing her, Jane Doe 2 pulled her pants back up and ran away from him. Jane Doe 2 was shocked, scared, and confused about what Zamarron had done. Jane Doe 2 did not tell anyone about what happened until 2016, when she told Jane Doe 1’s mother, who is Jane Doe 2’s sister. Jane Doe 2 made the disclosure only after Jane Doe 1’s mother told Jane Doe 2 about what Zamarron had done to Jane Doe 1. Jane Doe 2 “stood quiet” and hugged Jane Doe 1’s mother. Jane Doe 1’s mother asked if Jane Doe 2 believed Jane Doe 1, and Jane Doe 2 said that she believed what Jane Doe 1 had accused Zamarron of because he had done the same to Jane Doe 2 many years ago.

3. Jane Doe 3

Jane Doe 3 was born in 2003 and is Jane Doe 2’s only daughter. Jane Doe 3 is Jane Doe 1’s cousin and Mrs. Zamarron’s great-granddaughter. Counts 2 and 3 alleged that Zamarron committed lewd acts on Jane Doe 3, a child under 14 years of age, in violation of section 288, subdivision (a) (hereafter § 288(a)). Both acts occurred in 2016, when Jane Doe 3 and her mother, Jane Doe 2, were living with Zamarron and Mrs. Zamarron.

Jane Doe 3 testified that the first act occurred one morning in 2016 at the Zamarron house when she was 13 years old. Jane Doe 3 was standing with Zamarron in the hallway, and she asked him for money to attend her cousin’s swim meet. As Zamarron handed Jane Doe 3 some money, he put his right arm on her stomach and, wrapping his left arm around her shoulder, groped her left breast with his left hand. Jane Doe 3 told Zamarron she had to go, pushed him away, and went to her room.

Jane Doe 3 also testified that Zamarron groped her breast on a different occasion when she was 13. Zamarron wrapped his arms around Jane Doe 3 and began squeezing one of her breasts with his right hand. After Jane Doe 4 came in the room, Zamarron backed away and left.

Jane Doe 3 did not say anything about what Zamarron had done until later in 2016. After Jane Doe 2 learned about what Zamarron had done to Jane Doe 1 and Jane Doe 4, Jane Doe 2 told Jane Doe 3 to pack her things because they were moving to Jane Doe 3’s grandmother’s home. Jane Doe 2 told Jane Doe 3 briefly about what Zamarron had done to Jane Doe 1 and Jane Doe 4, and asked Jane Doe 3 if Zamarron had ever touched Jane Doe 3. Jane Doe 3 denied that Zamarron had touched her. Later, Jane Doe 3’s grandmother asked her the same thing. Jane Doe 3 told her grandmother that Zamarron had touched her. Jane Doe 3 began crying and told her grandmother that she had lied to her mother, Jane Doe 2. Jane Doe 3 said that she had not said anything earlier because she was ashamed and afraid that no one would believe her, and also because she was afraid of Zamarron.

4. Jane Doe 4

Jane Doe 4 was born in 1999 and is one of Mrs. Zamarron’s granddaughters. Count 4 alleged that Zamarron committed a lewd act on Jane Doe 4, a child who was 14 or 15 years old, in violation of section 288, subdivision (c)(1) (hereafter § 288(c)(1)).

Jane Doe 4 considered Zamarron to be her grandfather because he had been married to her grandmother for Jane Doe 4’s entire life. When Jane Doe 4 was approximately 14 years old, Zamarron groped her right breast while he was giving her a hug. Jane Doe 4 told Zamarron she had to go home and left. Afterwards, Jane Doe 4 avoided being alone with or hugging Zamarron. Jane Doe 4 did not tell anyone about what happened until after Jane Doe 1 told her mother what Zamarron had done to Jane Doe 1.

5. Mrs. Zamarron

Mrs. Zamarron testified that Zamarron has a step-granddaughter in Mexico named Paulina. Mrs. Zamarron discovered a Facebook message exchange between Zamarron and Paulina on Zamarron’s iPad and said that the messages sounded “[l]ike [Zamarron] was courting [Paulina].” Mrs. Zamarron turned Zamarron’s iPad over to the King City Police Department.

6. Joshue Partida

Joshue Partida is a detective with the King City Police Department. Detective Partida interviewed Jane Doe 1 and Jane Doe 2 and observed the interviews of Jane Doe 3 and Jane Doe 4. When Detective Partida interviewed Mrs. Zamarron, she brought Zamarron’s iPad. Mrs. Zamarron unlocked the iPad and gave it to Detective Partida. Detective Partida opened the application and saw Zamarron’s picture. He then obtained a search warrant for the specific user number associated with Zamarron’s Facebook account. A forensic analyst inspected the iPad and provided an extraction report for Zamarron’s Facebook account. The extraction report contained a Facebook message exchange between Zamarron and Paulina.

7. Jorge Ramirez

Jorge Ramirez is an investigator for the Monterey County District Attorney’s Office. Ramirez translated the Facebook message exchange between Zamarron and Paulina from Spanish to English for the jury.

In the Facebook message exchange, Zamarron told Paulina that she looked beautiful with the changes she had made to her lips and that he saw her “ ‘a little different’ ” with “ ‘[t]hose lips.’ ” Zamarron continued, “ ‘Anyway, you don’t need makeup. [¶] . . . [because y]ou are beautiful. [¶] . . . You are 13. You are a flower.’ ” Paulina replied, “ ‘No, I’m 14.’ ” Zamarron responded, “ ‘That’s good. Anyway, you’re a beautiful flower.’ ” Zamarron told Paulina to send him a picture of herself because he “ ‘like[d] seeing’ ” her. Zamarron said she “ ‘look[ed] very good’ ” and that he liked the way Paulina painted her lips. He complimented her again on how she had “ ‘beautiful lips.’ ” Zamarron sent Paulina a picture of himself and said to her, “ ‘Let’s see if you like it.’ ” Zamarron then sent Paulina another message, asking if she did not respond because she “ ‘got scared.’ ” After Paulina replied no, Zamarron asked, “ ‘How do I look? I am old; right?’ ” Paulina responded “ ‘[n]ot much’ ” and Zamarron told her that he was “ ‘going to see [her] in person and see if those lips are that beautiful.’ ”

8. Anthony Urquiza

Anthony Urquiza is a psychologist and professor of pediatrics at the U.C. Davis Medical Center and the director of its program for treating child abuse victims. He did not meet any of Zamarron’s victims and his expert opinion testimony was offered to aid the jury’s understanding of the psychology of sex abuse child victims. Dr. Urquiza stated that child victims often fail to report sexually abusive conduct out of fear for him or herself, someone close to the child victim, or even the abuser. Child victims are ashamed of what happened, afraid others will learn of the abuse or that any disclosure may be met with skepticism or blame, and may feel that something is wrong with him or herself. Even when there is objective physical evidence of the abuse, child victims still have difficulty disclosing or even admitting that the abuse occurred. When a child victim does not disclose the abuse until he or she reaches adulthood, there is the additional burden of explaining the belated disclosure so the difficulty of coming forward increases over time. The closer the relationship between the child victim and the abuser, the more difficult the disclosure.

After the prosecution and defense counsel questioned Dr. Urquiza, the jury submitted questions to him, which were read by the trial court to Dr. Urquiza without objection from defense counsel. The first question was “[i]s there data regarding children reporting false sexual abuse?,” and the second question was “is there data on the reasons for that happening?” Dr. Urquiza replied “[y]es” to both questions. The third question was “what is that data?” Dr. Urquiza explained that while it was difficult to conduct studies with children, he was aware of “roughly” 12 studies on the issue. These studies reflected that between 1 and 6 percent of sexual abuse allegations were identified as false, and that the false allegations typically arose in the context of a divorce or custody proceeding.

C. The Defense Case

The defense did not present any evidence. The defense introduced its “fabrication” theory of the case during opening statements, referring to the Jane Does’ anticipated testimonies as “stories” and telling the jury: “There is a saying ‘The devil is in the details.’ . . . [¶] I don’t know if the girls are lying, misremembering, or misinterpreting. But what I am going to tell you is when you listen to the details . . . there’s going to be some issues with those stories.” During closing statements, counsel reiterated the defense’s fabrication theory, telling the jury that Jane Doe 2’s testimony was “completely unbelievable” because her recollection was inconsistent, it was “bullshit” that she would be willing to move in to the Zamarrons’ with her kids if Zamarron had molested her decades ago, and concluding that Jane Doe 2 was “lying” because “her story just doesn’t make sense.” As for Jane Does 1, 3, and 4, defense counsel referred to Dr. Urquiza’s testimony about the prevalence of false allegations of sex abuse and argued, “We all know teenagers lie. . . . We know teenagers can make up stories for no reason at all, or for what they think is a good reason. . . . teenagers don’t admit to . . . [lying] [] when they get caught. So might that explain why we don’t have teenagers who are admitting false reports? Absolutely.”

II. DISCUSSION

A. Sufficiency of the Evidence

Zamarron contends there is insufficient evidence of force or duress to support his conviction in count 1 for the forcible lewd act on Jane Doe 1, a child under the age of 14 (§ 288(b)(1)).

1. Legal Principles

“On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a ‘meaningful opportunity to defend’ against the charge against him and a jury finding of guilt ‘beyond a reasonable doubt.’ ” (Musacchio v. United States (2016) 544 U.S. ___, ___ [136 S.Ct. 709, 715] [quoting Jackson v. Virginia (1979) 443 U.S. 307, 314–315].) “ ‘To determine whether sufficient evidence supports a jury verdict, a reviewing court reviews the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hardy (2018) 5 Cal.5th 56, 89.) “Although circumstances might also reasonably be reconciled with a contrary finding, it does not warrant reversal of the judgment. [Citation.] All intendments are in favor of the judgment and a verdict will not be set aside unless the record clearly shows that there is not sufficient evidence based upon any hypothesis.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071 (Thomas).) We focus our inquiry on whether substantial evidence supports the verdict and not whether that evidence may “ ‘ “be reasonably reconciled with the defendant’s innocence.” ’ ” (People v. Gomez (2018) 6 Cal.5th 243, 278.)

Section 288(a) “prohibits the commission of a lewd or lascivious act on a child under age 14 done with the intent to arouse or satisfy the sexual desires of the perpetrator or the child.” (People v. Soto (2011) 51 Cal.4th 229, 237.) Section 288(b)(1) “further prohibits the commission of such an act ‘by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. . . .’ ” (Ibid.) “ ‘[D]uress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1004.) “Force” means an exertion that is “ ‘substantially different from or substantially greater than’ the physical force normally inherent in” the prohibited act. (People v. Griffin (2004) 33 Cal.4th 1015, 1023.) “ ‘Force’ includes circumstances where the victim did not want to engage in the act and the evidence does not otherwise establish the victim’s positive cooperation in act or attitude. [Citation.] It also includes the force used to accomplish ‘the penetration and the physical movement and positioning of [the victim’s] body in accomplishing the act.’ ” (Thomas, supra, 15 Cal.App.5th at p. 1071.)

The presence of force or duress may be implied from the totality of circumstances, and evidence of physical resistance is sufficient but not necessary. (Thomas, supra, 15 Cal.App.5th at pp. 1072–1073.) “The totality of the circumstances includes the victim’s age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child.” (Id. at p. 1072.) “When the victim is young and is molested by [a relative] in the family home, duress will be present in all but the rarest cases.” (Id. at pp. 1072–1073.)

2. Analysis

Zamarron contends there is insufficient evidence of force because “[t]he only physical contact between [Zamarron] and Jane Doe 1 was the physical contact ‘inherent in the prohibited act’ ” of “placing his penis against her anus.” Zamarron argues that placing his penis against Jane Doe 1’s anus “necessarily required [him] to be directly behind Jane Doe 1 with his chest against her back” and does not constitute substantial evidence of “force” for purposes of section 288(b)(1) because “the same exact type of force would have been necessary had Jane Doe 1 consented to the act.”

We disagree with Zamarron’s characterization of the evidence. Jane Doe 1 told the jury that she “tried to move away from [Zamarron]” before he put his penis against her anus but was unable to “[b]ecause he was pushed up against [her].” Zamarron argues this is not substantial evidence of force because “Jane Doe 1’s other testimony clearly shows” that “[t]he prosecutor was [] wrong when [the prosecutor] told the jury that Jane Doe 1 was able to leave only because [Zamarron] stopped touching her with his penis.” He asserts that Jane Doe 1’s “later testimony makes clear that she was only guessing that [Zamarron] would have prevented her from leaving” and explains why we should reject the Attorney General’s “interpretation of the evidence.”

These arguments, however, amount to an attack on the inferences the jury could draw from the evidence. “The question is not whether the jury reasonably could have reached a different conclusion. Instead, it is whether any reasonable trier of fact could have reached the same conclusion as the jury.” (Thomas, supra, 15 Cal.App.5th at p. 1073.)

With respect to “force” under section 288(b)(1), “ ‘[t]he evidentiary key to whether an act was forcible is not whether the distinction between the “force” used to accomplish the prohibited act and the physical contact inherent in that act can be termed “substantial.” Instead, an act is forcible if force facilitated the act rather than being merely incidental to the act.’ [Citation.] ‘[A]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves’ are sufficient to support a finding that the lewd act was committed by means of force.” (People v. Morales (2018) 29 Cal.App.5th 471, 480.)

Jane Doe 1 testified that when Zamarron removed her clothing and pressed her against the bed, she could not move away from him because his chest was pressed to her back. Although Zamarron asserts that, because he was kneeling behind Jane Doe when he put his penis against her anus, “[t]his act necessarily required [Zamarron] to be directly behind Jane Doe 1 with his chest against her back,” we disagree that Zamarron’s prohibited act required that he press his chest against her back. Because Zamarron need not have pressed his chest against Jane Doe 1 to accomplish the lewd act, Jane Doe’s testimony provides substantial evidence from which a reasonable jury could find the element of force necessary to support a conviction under section 288(b)(1).

A reasonable jury could also infer that Zamarron accomplished the act charged in count 1 by duress. Citing People v. Espinoza (2002) 95 Cal.App.4th 1287, Zamarron asserts “duress must be based on a direct or implied threat.” Zamarron argues that the evidence is insufficient to support a finding of duress because he “did not grab or restrain Jane Doe 1, and she did not resist, cry, or ask him to stop.”

On the record before us, we find Espinoza distinguishable on the question of duress. Jane Doe 1 was no more than six years old—half the age of the 12-year-old victim in Espinoza—at the time of the lewd touching by Zamarron, who was 53 years old at the time. (See People v. Veale (2008) 160 Cal.App.4th 40, 43 & 49 [“Espinoza is distinguishable in that the victim in Espinoza was considerably older than” the six-year-old victim in Veale.].) Zamarron was also married to Jane Doe 1’s great-grandmother, who regularly babysat her. A rational jury could infer Zamarron was an authority figure in Jane Doe 1’s life given the 47 year age difference between them and because he was married to her great-grandmother. In view of the totality of the circumstances presented (Thomas, supra, 15 Cal.App.5th at p. 1072), we determine that “[b]ecause of [Jane Doe 1’s] young age, [Jane Doe 1] was more susceptible to being coerced through fear and due to [Zamarron’s] position of authority.” (Veale, at pp. 49–50.) The record therefore contains substantial evidence of duress.

For these reasons, we conclude that there was sufficient evidence to permit a rational jury to find beyond a reasonable doubt that Zamarron committed the lewd act against Jane Doe 1 using force or duress and reject Zamarron’s claim of insufficiency.

B. Erroneous Admission of Evidence

Zamarron contends prejudicial error by the trial court in admitting evidence of Zamarron’s Facebook message exchanges with Paulina, his step-granddaughter. He argues the prior uncharged act was not admissible under Evidence Code section 1101, subdivision (b) (hereafter Evid. Code, § 1101(b)) as evidence of his intent and absence of mistake. Zamarron also argues that even if admissible under Evidence Code section 1101(b), the trial court abused its discretion under Evidence Code section 352 in admitting the evidence because it was not probative of his intent and had a significant prejudicial impact.

1. Relevant Background

During pretrial proceedings, the prosecution sought a determination on the admissibility of the Facebook messages pursuant to Evidence Code section 1108 to demonstrate Zamarron’s propensity to commit lewd acts with young girls, alleging Zamarron’s communication with Paulina constituted an attempted violation of section 647.6 (annoying or molesting a child under 18). The trial court indicated that, if the prosecution could lay a foundation for the evidence, it was “inclined to allow it.” However, because the prosecution did not anticipate calling Paulina to testify that she actually received the messages, the trial court stated the evidence was “more properly admissible under [Evidence Code section] 1101(b) . . . for motive or intent than [Evidence Code section] 1108.” The trial court deferred a final ruling on the admissibility of the Facebook messages until after the prosecution laid a proper foundation for the evidence.

The trial court ultimately found the Facebook messages admissible under Evidence Code section 1101(b) to prove intent and lack of mistake. The trial court stated, “I do find that [the evidence is] relevant as to intent. And I note that the least degree of similarity between the crimes is needed to prove intent. So although this doesn’t involve actual touching, it’s not required. In fact, in appropriate circumstances, courts have admitted evidence of poems and song lyrics written by defendants to prove intent and motive. [¶] And although the uncharged offense must be similar to that charge to be admissible on intent, it need not have the same degree of distinctiveness . . . , quote, ‘the striking similarities,’ end quote, required when the issue in dispute is identity.” As to admissibility to prove lack of mistake, the trial court stated, “I also note here whether there was the intent to touch in a couple of the cases where the defendant is alleged to have put his arm around the Jane Does, this evidence, also, the Court finds may be relevant to prove the absence of mistake or accident in that it shows his, I would call, prurient interest in females that are of similar age to at least two of the Jane Does in this case. So I find it relevant to prove the absence of mistake or accident as well as intent. Under [Evidence Code section] 1101(b) it doesn’t have to be a crime to come in. It can be any crime, civil wrong, or other act when relevant.” The trial court continued, “and then I turn to [Evidence Code section] 352 and do a balancing, really. And here I don’t find it more prejudicial than probative. In fact, it’s less, I would say, serious or perhaps egregious than the conduct that’s charged in this case. [¶] And when I look at admissibility, I also look at the materiality of the facts sought to be proved. These are specific intent crimes. So, of course, these facts are material. The tendency of the evidence logically to disprove—or prove a material fact, again intent, each of these crimes is a specific intent crime. And then the [Evidence Code section] 352 balancing. So I do find the [Facebook messages] admissible.”

2. Legal Principles

“Evidence Code section 1101, subdivision (a) sets forth the ‘ “strongly entrenched” ’ rule that propensity evidence is not admissible to prove a defendant’s conduct on a specific occasion.” (People v. Jackson (2016) 1 Cal.5th 269, 299 (Jackson).) However, under Evidence Code section 1101(b), “ ‘ “[e]vidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” ’ ” (People v. Thomas (2011) 52 Cal.4th 336, 354 (Thomas).)

“ ‘When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, “[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).)

“In this inquiry, the degree of similarity of criminal acts is often a key factor, and ‘there exists a continuum concerning the degree of similarity required for cross admissibility, depending upon the purpose for which introduction of the evidence is sought.’ ” (Jackson, supra, 1 Cal.5th at p. 300.) “The least degree of similarity is required to prove intent or mental state. A higher degree is required to prove common plan, and the highest degree to prove identity.” (Thomas, supra, 52 Cal.4th at p. 355.)

With respect to intent, “[t]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) “ ‘ “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1096.)

We review the trial court’s admission of uncharged acts evidence for an abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500.) “A trial court’s exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)

Zamarron asserts that his Facebook message exchange with 14-year-old Paulina was inadmissible because the communications “did not include a single sexually explicit comment” and were “so dissimilar to the charged acts that no reasonable judge could have admitted the evidence to prove intent and lack of mistake.” Zamarron further argues that the admission of these Facebook messages was prejudicial because they undermined the defense’s theory that the lewd conduct allegations were fabricated. The Attorney General responds that the Facebook messages were relevant to prove Zamarron’s lewd propensities towards young girls and lack of mistake when he fondled Jane Doe 2’s and Jane Doe 3’s breasts, and this evidence was not cumulative given the defense’s “fabrication” theory at trial.

3. Analysis

The defendant’s intent is critical in a prosecution under section 288: “the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (People v. Martinez (1995) 11 Cal.4th 434, 444.) Section 288 “assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire.” (Ibid.) “ ‘If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute.’ ” (Ibid., italics omitted.)

We reject Zamarron’s contention that the Facebook messages must have been “sexual in nature” or must have contained “sexually explicit detail” to be relevant to the issue of his lewd intent. The proper focus is not whether the messages were “sexually explicit” but instead whether they contained language “from which the jury could infer that he had a sexual attraction to young [girls] and intended to act on that attraction.” (People v. Memro (1995) 11 Cal.4th 786, 864–865; see People v. Levesque (1995) 35 Cal.App.4th 530, 543 [rejecting the defendant’s argument that the charged act was not “ ‘sexual in nature to an objectively reasonable person’ ” and therefore not lewd for purposes of § 288]; People v. Lopez (1998) 19 Cal.4th 282, 291 [“objectively inoffensive behavior” such as “[p]hysical affection among relatives, generally considered acceptable conduct, nonetheless could satisfy the ‘any touching’ aspect of section 288, subdivision (a), and violate that section if accompanied by the requisite lewd intent”].) In other words, if the messages contain substantial evidence from which a jury could infer Zamarron harbored sexual desire for the young female recipient, then the messages are probative of Zamarron’s intent with respect to the young female victims in the charged crimes.

We conclude that a reasonable jury could infer from the language used by Zamarron an expression of sexual desire toward the teenager to whom he was writing. In the Facebook messages, Zamarron repeatedly told Paulina that she had “ ‘beautiful lips’ ” and was a “ ‘beautiful flower.’ ” Zamarron told Paulina she “ ‘look[ed] very good,’ ” and he liked the way she painted her lips. He sent Paulina a photograph of himself, asking her, “ ‘How do I look? I am old; right?’ ” A jury could infer from these statements, and particularly the references to beautiful lips and painted lips, that Zamarron was sexually attracted to Paulina, and he was asking for her opinion about his attractiveness.

As Mrs. Zamarron told the jury, Zamarron sounded “[l]ike he was courting [Paulina]” in the messages. Zamarron’s acknowledgement in his briefing on appeal that the Facebook messages were “awkward,” “may have been inappropriate,” and gave the impression that he was a “dirty old man—particularly in light of the charged offenses,” themselves illustrate the relevance of the messages to whether Zamarron had a prurient interest in the Jane Does.

Furthermore, “[t]o be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Ewoldt, supra, 7 Cal.4th at p. 402.) We find it notable that, like the victims here, Paulina was an underage female related to Zamarron by marriage.

Zamarron relies on People v. Guerrero (1976) 16 Cal.3d 719 and People v. Page (2008) 44 Cal.4th 1 (Page) to support his claim of error. Zamarron asserts that in Guerrero, the California Supreme Court “held that [the charged and uncharged] acts [were] not sufficiently similar to prove intent where one act was explicitly sexual in nature and the other was not” and that “uncharged sexual acts are not admissible to prove that the defendant must have committed the charged offense with a sexual intent.” In Guerrero, the charged act at issue involved the murder of a 17-year-old girl. (Guerrero, at p. 722.) The prosecution’s murder-rape theory was based entirely on the anecdotal stereotype that a young, healthy “boy plus girl” late at night equaled sex, despite the absence of any evidence of sexual trauma or sperm on the Guerrero victim’s fully-clothed body. (Id. at p. 727.) Guerrero rejected the prosecution’s attempt to validate a baseless murder-rape theory using a prior uncharged rape allegation, observing that “[t]he sum of zeroes is always zero” and concluding that the prior uncharged rape was not admissible to show intent or identity in the absence of any indication that the murder was sexually-motivated. (Id. at p. 729.) This logic does not assist Zamarron’s cause because the charged acts here involve crimes that are inherently sexual in nature.

Zamarron’s reliance on Page, supra, 44 Cal.4th at pages 40–41 is similarly unavailing. Zamarron incorrectly contends that Page “held that sexually explicit photographs were not admissible to prove intent in a lewd act case,” and that an “uncharged act involving children older than the victim [is] not admissible to prove lewd intent.” Page does not contain such a holding and does not stand for such a categorical proposition. (See People v. Westerfield (2019) 6 Cal.5th 632, 690 [“Page did not reach the issue of admissibility.”].) Likewise, Page did not, as Zamarron asserts, “f[i]nd that the photographs ‘were not similar’ enough under Evidence Code section 1101 to prove intent.” Rather, the California Supreme Court rejected the Page defendant’s claim of erroneous admission of evidence for failure to show prejudicial error. (Page, at p. 41 [“We need not decide whether the trial court abused its discretion under Evidence Code section 352, because defendant fails to establish that the admission of the magazines was prejudicial error.”].)

We also disagree with Zamarron’s contention that the trial court abused its discretion in admitting the Facebook messages because this evidence was not probative, and even if probative, unduly prejudicial. For the reasons described above, the messages were substantially probative of Zamarron’s intent. Zamarron also argues that the evidence was “cumulative” because the testimonies of the other Jane Does, if believed, provided “ ‘compelling evidence’ ” of Zamarron’s intent. However, the evidence involving Paulina was not cumulative because Zamarron’s primary defense at trial was that the Jane Does had together fabricated their accounts of his conduct. The evidence involving the messages to Paulina was not cumulative because she was outside this familial circle.

Turning to the prejudice analysis, “ ‘ “ ‘[t]he “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” ’ ” (People v. Goldman (2014) 225 Cal.App.4th 950, 959 (Goldman).) “ ‘ “ ‘[P]rejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)

The Facebook messages were probative of Zamarron’s proclivities towards young female step-relatives, and this was a central issue to the section 288 charges because whether his touch was “lewd” necessarily turned on Zamarron’s subjective intent. The possibility that the jury could view Zamarron as having a sexual interest in minors was highly probative of a central issue in the case. (Fuiava, supra, 53 Cal.4th at p. 667.) On the other hand, Zamarron’s conduct in posting the messages, which involved no physical contact with Paulina, was less serious than the conduct alleged in the charged crimes. We conclude this evidence “was not of a sort so egregious as to cause the jury to convict him of child molestation offenses out of an emotional response to the challenged evidence” and therefore was not unduly prejudicial. (Goldman, supra, 225 Cal.App.4th at p. 960.) Furthermore, the trial court provided the jury with thorough limiting instructions on the permissible use of this evidence, and we presume that the jury followed these instructions. (People v. Montes (2014) 58 Cal.4th 809, 888.) For these reasons, the trial court did not abuse its discretion in admitting the Facebook message exchange between Zamarron and Paulina under Evidence Code sections 352 and 1101.

C. Ineffective Assistance of Counsel

Zamarron also raises claims of ineffective assistance of counsel based on trial counsel’s alleged failure to object to portions of the testimony of Jane Doe 2 and Dr. Urquiza. In particular, Zamarron argues that his trial counsel was ineffective for failing to object to Jane Doe 2’s testimony about the uncharged act he committed against her and her statement that she believed Jane Doe 1 because the same thing had happened to her. The Attorney General responds that Zamarron’s claims fail because the record is silent on counsel’s reasons for not objecting, it was reasonable for counsel to refrain from objecting as part of the defense’s trial strategy, and Zamarron incurred no resulting prejudice.

A criminal defendant’s right to effective assistance of counsel is guaranteed under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland); People v. Cole (2004) 33 Cal.4th 1158, 1184.) Zamarron bears the burden of demonstrating by a preponderance of the evidence that his counsel’s performance fell below an objective standard of reasonableness. (Strickland, at p. 687.) To satisfy Strickland’s two-part test, a “defendant must show that counsel’s representation fell below an objective standard of reasonableness” (id. at p. 688) and “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694).

“It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.) Moreover, “a defendant cannot automatically transform a forfeited claim into a cognizable one merely by asserting ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14.)

1. Failure to Object to Jane Doe 2’s Testimony

Prior to trial, the prosecution moved to admit Jane Doe 2’s testimony under Evidence Code section 1108. At the hearing on pretrial motions, defense counsel stated that there was no objection to Jane Doe 2’s testimony. The trial court nevertheless analyzed the admissibility of her testimony under Evidence Code sections 352 and 1108: “[S]ince there is no objection to . . . the testimony of the Jane Doe 2, I’ll allow that. I do believe it is more probative than prejudicial pursuant to—I think it’s the Pierce[ ] case, even where somewhat remote in time, I think that case was 23 years prior, it’s still admissible as long as, again, it passes the [section] 352 weighing test, and also it shows a propensity to show that the defendant committed the charged act, which means was the uncharged conduct similar enough of the charged behavior. [¶] From what I know about the charged behavior and the facts here, what was stated here regarding the uncharged conduct, I do believe that’s sufficiently similar. I don’t think it’s more inflammatory than what’s charged here. And I don’t think the propensity evidence is likely to confuse or distract the jurors from their main inquiry. Doesn’t appear to require an undue consumption of time, since I believe it will just be one person, it sounds like.”

Zamarron argues that his trial counsel was ineffective for failing to object to Jane Doe 2’s proposed testimony about Zamarron’s prior act and for failing to lodge a contemporaneous objection when Jane Doe 2 testified that she told Jane Doe 1’s mother that Jane Doe 2 believed Jane Doe 1 because Zamarron had done the same thing to Jane Doe 2. Zamarron argues at length about why Jane Doe 2’s testimony was inadmissible before concluding that trial counsel was ineffective because there was no “rational tactical purpose” for failing to raise a “potentially meritorious” objection, citing People v. Roberts (2011) 195 Cal.App.4th 1106, 1132 (Roberts) and People v. Asbury (1985) 173 Cal.App.3d 362, 366 (Asbury).

We conclude Zamarron has not carried his burden of showing deficient performance by defense counsel. While Zamarron characterizes counsel’s omission as the failure to raise a “potentially meritorious” objection no less than ten times in his appellate briefing, neither Roberts nor Asbury support this “potentially meritorious” standard. Roberts found deficient performance based on “a clear instance in which the objection had substantial merit” plus “no tactical reason” for failing to do so. (Roberts, supra, 195 Cal.App.4th at p. 1132.) Asbury does not use the words “potential” or “potentially” and contains only one reference to “merit” (or derivative of “merit”), finding deficient performance based on counsel’s failure to raise an objection with actual merit and not merely, as Zamarron contends, potential merit. (Asbury, supra, 173 Cal.App.3d at p. 365 [deficient performance based on counsel’s failure to object “on the meritorious grounds that the issue was barred by the prior adjudication”].) Further, California Supreme Court cases establish that a defendant must show that an objection would have been successful. (See, e.g., People v. Grant (1988) 45 Cal.3d 829, 864–865; People v. Frye (1998) 18 Cal.4th 894, 989; People v. Lucero (2000) 23 Cal.4th 692, 732; People v. Hinton (2006) 37 Cal.4th 839, 917.)

Zamarron also points to no evidence about why trial counsel did not object. “Whether to object at trial is among ‘the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle’ ” and “[s]ometimes, the best action an attorney can take regarding an available objection is not to make it.” (People v. Riel (2000) 22 Cal.4th 1153, 1202.) “ ‘The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal’ ” because “competent counsel may often choose to forgo even a valid objection.” (Id. at p. 1197.) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Lawley (2002) 27 Cal.4th 102, 133, fn. 9.)

We reject Zamarron’s contention that there could be no satisfactory reason for his trial counsel’s failure to object to Jane Doe 2’s testimony. The defense’s closing argument attacked Jane Doe 2’s credibility, indicating that counsel likely anticipated Jane Doe 2’s testimony as more favorable to the defense and thus corroborating the principal defense argument that the family members had fabricated their allegations against Zamarron. It is possible that trial counsel believed that the more accounts the Jane Does gave about acts that Zamarron had allegedly committed against them in the past, the more credible the defense contention that the Jane Does fabricated the incidents in coordination with one another.

Jane Doe 2’s testimony about believing Jane Doe 1 came on direct examination, after the prosecutor asked, “What did you tell her?” Defense counsel heard Jane Doe 2’s answer—“I told her that I believed her and my niece because he had done the same to me”—at the same time the jury did. Jane Doe 2 did not elaborate further on this point other than stating that she “didn’t give [Jane Doe 1’s mother] details,” and the trial recessed for lunch immediately afterwards. Defense counsel could have refrained from objecting to Jane Doe 2’s testimony about believing Jane Doe 1 for tactical reasons “because an objection would have highlighted the testimony and made it seem more significant.” (People v. Williams (1997) 16 Cal.4th 153, 215.) Counsel may also have reasoned an objection to be extraneous in light of the defense’s “fabrication” theory because if the jury believed Jane Doe 2 lacked credibility, the jury was likely to give little weight to Jane Doe 2’s statement about believing Jane Doe 1. Because there is a satisfactory explanation for defense counsel’s tactical decisions, Zamarron has not carried his burden on appeal of showing deficient performance. We therefore reject his contention that his trial counsel was constitutionally deficient in not objecting to Jane Doe 2’s testimony about Zamarron’s past act and that Jane Doe 2 believed Jane Doe 1.

2. Failure to Object to Dr. Urquiza’s Testimony

Zamarron argues that counsel was ineffective for failing to object to Dr. Urquiza’s testimony about statistical evidence on the frequency of false child molestation allegations. Citing People v. Wilson (2019) 33 Cal.App.5th 559 and People v. Julian (2019) 34 Cal.App.5th 878, Zamarron contends that Dr. Urquiza’s statistical evidence was not admissible and that he was prejudiced by counsel’s failure to object. However, because neither opinion had been issued by the time of Zamarron’s trial, it was not established as a matter of California law that such testimony was inadmissible. Moreover, Zamarron’s trial counsel may not have wanted to object to the questions because they were posed by jurors. Given the absence of any evidence about why Zamarron’s counsel failed to object to the jurors’ questions, we conclude that Zamarron has not carried his burden of showing deficient performance by trial counsel.

Even assuming for the sake of argument that Zamarron’s counsel’s performance was constitutionally inadequate, given the strength of the prosecution’s case, the fact that the jury was properly instructed on the use of this evidence, and the failure of the prosecutor to refer to the statistical evidence at all in the closing argument indicate the diminished likelihood of ensuing prejudice, we conclude that Zamarron has not carried his burden of showing prejudice. (Strickland, supra, 466 U.S. at p. 687.)

For these reasons we conclude that Zamarron has not carried his burden of showing his trial counsel was constitutionally ineffective in failing to object to the challenged testimony by Jane Doe 2 or Dr. Urquiza.

D. Sentencing Error

Zamarron contends the trial court misunderstood the scope of its discretion under the pre-2006 version of section 667.61 to impose a concurrent sentence for the section 288(b) violation in count 1. Zamarron argues that remand for resentencing is appropriate in order for the trial court to exercise its discretion whether to impose the 15-year-to-life sentence on count 1 consecutively or concurrently to the 25-year-to-life sentence on counts 2 and 3. Zamarron also maintains that if this claim is forfeited, then counsel’s failure to object amounted to constitutionally ineffective assistance. The Attorney General states that it “is not aware of any authority that mandated a consecutive sentence on count 1” but argues Zamarron forfeited his claim of error by failing to object at sentencing. The Attorney General alternatively contends remand is not required here because the trial court clearly indicated that it would have imposed a consecutive sentence even if it had not believed it was statutorily obligated to do so.

At sentencing, the trial court stated, “So I don’t think any reasons need to be given for the consecutive sentence since that’s mandated by law. . . . So I could go into details about what the court found aggravating in terms of the degree of cruelty, viciousness, and callousness being high, the position of the defendant in relation to the minors here in terms of the victims being vulnerable[.] I don’t need to make those findings for the record, but I certainly find that to be true, that the victims were particularly vulnerable in that case. [¶] The only possible factor in mitigation would have been, I believe, that the defendant doesn’t have a criminal history. [¶] I think the statute already addresses the fact that these were separate violent felonies committed against three—well, two victims that we heard of. The third one, although not violent, still a very concerning and serious sexual assault.”

The trial court continued, “And then, of course, we heard from Jane Doe 2, but that wasn’t charged here, nor is the Court taking that into account in terms of the appropriate sentence here, much of which is mandated by statute, but the Court would give for the reasons stated anyway.”

Assuming that Zamarron’s claim of error was preserved for appellate review, reversal is not required where “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Although Zamarron describes the trial court’s statements as an “underdeveloped suggestion,” we disagree with this characterization. Instead, the trial court’s statements at sentencing clearly evinced agreement with the “mandatory” imposition of consecutive sentence, and more importantly, it “ ‘clearly indicate[d]’ ” that it “would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (Gutierrez, at p. 1391.) Because we find that the trial court’s statement amounts to a clear indication that it would exercise its discretion to impose a consecutive sentence on count 1, the cases Zamarron relies on to argue for remand here are inapposite. (See e.g., People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081.) We consequently reject Zamarron’s contention of sentencing error.

E. Cumulative Error

Zamarron contends that the cumulative effect of the errors asserted above deprived him of his due process rights. However, because we find no errors, there is no prejudice to cumulate.

III. DISPOSITION

The judgment is affirmed.

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Danner, J.

WE CONCUR:

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Greenwood, P.J.

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Grover, J.

H045835

People v. Zamarron