Filed 1/8/20 P. v. Jaurique CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE RIOS JAURIQUE,

Defendant and Appellant.

F075467

(Super. Ct. No. F14907030)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge.

Nuttall Coleman & Drandell, Roger T. Nuttall, Jim Vorhies, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

Jose Rios Jaurique appeals from his convictions for multiple crimes involving the sexual molestation of a minor. He argues the trial court abused its discretion in denying his motion for a new trial. He seeks reversal of the trial court’s order and remand for a new trial. We affirm.

PROCEDURAL HISTORY

Jaurique was charged with molesting Denise, a minor, over a three-year period running from May 2009 to August 2012. Specifically, Jaurique was charged, in a first amended information (information) filed in the Fresno County Superior Court, with two counts of sexual intercourse with a child 10 years old or younger (counts 1 and 3; Pen. Code, § 288.7, subd. (a), oral copulation or sexual penetration of a child 10 years old or younger (count 2; § 288.7, subd. (b)), continuous sexual abuse of a child under the age of 14 (count 4; § 288.5, subd. (a)), and aggravated sexual assault by force, violence, duress, menace, or fear of immediate and unlawful bodily injury, on a child under 14 years old and more than 10 years younger than the defendant (count 5; §§ 269, subd. (a)(4), 288a). A jury found Jaurique guilty on all counts. Jaurique was sentenced to an aggregate term of 96 years to life in prison.

FACTS

Prosecution Case

Wendy, who was 38 years old at the time of trial, testified for the prosecution. Wendy was not the complaining witness in the case but had been sexually molested by Jaurique when she was a child. In 1987, when Wendy was nine years old, she moved into an apartment with her mother and Jaurique, then her mother’s boyfriend. Jaurique would often babysit Wendy at the apartment, while her mother was out.

On one occasion, Jaurique lay down on the couch with Wendy, as if they were going to take a nap. He then took off his pants, pulled down Wendy’s pants, and rubbed his erect penis against her vagina until he ejaculated. He also put his fingers inside Wendy’s vagina. Jaurique molested Wendy at least 10-15 separate times, with the frequency of the abuse increasing over time. Jaurique would ejaculate on Wendy’s buttocks or vagina, or into a sock. Jaurique repeatedly tried to insert his penis into Wendy’s vagina, but he could not fit it in fully.

The sexual abuse was both physically and mentally traumatic for Wendy but she did not initially reveal it because she was scared of Jaurique and worried about being separated from her mother. Wendy was so traumatized she would sit on the edge of the window in her second-story bedroom and dangle her legs outside. Finally, after yet another sexual assault by Jaurique, Wendy’s mother found her crying, with her legs dangling outside her window. Wendy told her mother she wanted to jump off. After her mother questioned her, Wendy broke down and revealed Jaurique’s abuse. Wendy’s mother called the police and Wendy described the abuse, using dolls as demonstrative aids. Wendy did not see Jaurique again. Law enforcement contacted Wendy approximately 27 years later in connection with the instant matter.

The complaining witness in the instant case was Denise, who also testified for the prosecution. Denise’s mother had abandoned her when she was an infant and her father’s identity was unknown. Denise lived with, and was raised by, her maternal grandmother.

Denise came to know Jaurique through her friendship with his son, Allen. Denise first met Allen in preschool and the two later went to elementary school together. Denise and Allen became best friends and Denise also became extremely close to Allen’s mother, Lisa, who would volunteer in the classroom. When Denise and Allen were in the second grade, Lisa would take them on outings to the mall and park. Denise would also visit Allen at his house, to swim and play. When Denise was in the third grade, she met Jaurique, Lisa’s husband and Allen’s father. Lisa had become a mother figure for Denise. Denise called Lisa, “mother,” and would have liked to be part of her family. By fourth grade, Denise would come to Allen’s house nearly every day and occasionally spent the night on the couch.

Around this time, Lisa became seriously ill and was eventually bedridden. Denise remained close friends with Allen and continued to come to the house to help care for Lisa. She would help Allen change Lisa’s diapers, assist with Lisa’s baths, wash and brush Lisa’s hair, and keep her company. One day, during the summer after Denise completed fourth grade, Jaurique walked in on her while she was changing into her swimsuit in Allen’s room. Jaurique apologized, claiming he was unaware she was in the room. He then paused, looked at Denise’s naked body—she was 10 years old at the time—and told her she looked cute. Denise was “a little creeped out.”

A few days later, Denise came over again to swim with Allen and ended up staying the night on the couch. She was awoken by Jaurique rubbing his hard penis against her face. He told her she was cute and that he wanted to put himself inside her. Denise did not know what he was talking about and tried to go back to sleep. Jaurique persisted, telling her she had to do a favor for him. He showed her a gun on the nearby coffee table and threatened to shoot both Lisa and her unless she remained quiet and complied with his requests. Denise was scared. Jaurique pulled down his pants and underwear, put a condom on his penis, pulled down Denise’s pajamas and underwear, grabbed both of her wrists, and forced his penis inside her vagina. Denise was in pain but did not cry out because she was scared for her life; she felt she had no choice but to comply. The assault seemed to go on for 30 minutes. Afterwards, Jaurique went to the bathroom, leaving Denise crying on the couch. Jaurique returned to the living room, told Denise she had done a good job, and warned her to not say a word about what had occurred. Although Denise’s vagina was bleeding and painful thereafter, she was too scared to turn to anybody.

Denise continued to visit the house because of ongoing fear, her friendship with Allen, and her love for Lisa. A week after the first assault, Denise again stayed the night on the couch. As he had done the first time, Jaurique woke her up by rubbing his penis against her face. He told Denise she looked gorgeous while sleeping and that they were going to have some fun. Denise understood his words to mean he planned to rape her again and told him she did not want to participate. Jaurique alluded to his prior threat to her life, warning her she had to cooperate to protect Lisa and herself. He then pulled down her pants and underwear, looked at her body, rubbed her breasts, and inserted his penis into her vagina. He whispered in her ear that she was beautiful and sexy. After the assault, Denise buried her face into her pillow and cried.

Approximately two weeks later, on a Saturday afternoon, Denise was playing video games with Allen in the living room. Lisa was bedridden in her room. Allen went outside to ride his skateboard and Denise attempted to follow him. Jaurique stopped her, explaining she needed to do something for him. He pulled down his pants and told Denise to get on her knees. She obeyed. He pulled out his penis and directed her to put her mouth around it; he then grabbed her hair and pulled her head back and forth. Denise started to choke and tried to pull away, but he held her head in place. She put her hands on his legs and tried to push back but was not strong enough to do so. Someone came to the door at that point, prompting Jaurique to pull up his pants and walk out of the room.

Over the next three years, Jaurique put his penis in Denise’s mouth more than 100 times. Similarly, he penetrated her vagina with his penis or fingers more than 100 times. The assaults were unwanted but Jaurique continued to perpetrate them, often commenting he could not wait until Denise turned 18 years old so they could have children together.

The last time Jaurique assaulted her, Denise was 13 years old and had just started 7th grade (it was the beginning of the school year). She recalled two incidents around this time. One incident occurred as she was just about to fall asleep in the living room. Jaurique came in and said he was excited it was raining because he loved having sex in the rain. He pulled down Denise’s pants, took off her shirt, and penetrated her vagina with his penis. He then told her to ride him. She got on top of him, and he put his arms on her hips and pulled her up and down. When she said it hurt, Jaurique commented that was why it was fun.

A few days later, Denise was walking back to Allen’s room after helping Lisa. Jaurique told Denise to kiss him on the lips. She complied. He then told her to get down on her knees and unzipped his pants. He pulled out his penis and told her to put her mouth around it slowly. She did not want to comply but did so because she felt she had no choice. Jaurique moved his penis back and forth in her mouth before ejaculating on her face. Afterwards, he instructed her to wash her face. This incident occurred in August 2012.

Shortly thereafter, in August or September 2012, Denise was hospitalized for 10 days at Children’s Hospital for herniated discs in her back. Her back problems occurred after she started spending time at Allen’s house. She was very emotional during her hospitalization and was terrified of seeing Jaurique again. She thought Jaurique was following her and had nightmares he would kill her. Denise’s grandmother testified that, during her hospital stay, Denise would frequently cry, seemingly for no reason, to the consternation of hospital staff, who even called in a therapist to talk to her. Lisa was also hospitalized around this time, and Denise had stopped going over to Allen’s house. Finally, in an emotional moment on October 7, 2012, not too long after Denise had come home from the hospital, she told her grandmother Jaurique had abused her for the last two to three years; her grandmother called the police.

Two of Denise’s elementary school friends testified Denise had told them, when they were all in elementary school, that her best friend’s father was molesting her. One friend testified: “[Denise] said because she was scared of him, that she – that he had threatened her.” Both friends also said Denise had gone from being sunny to withdrawn; one noted Denise would sit by herself and cry. Denise’s grandmother similarly testified Denise’s personality changed from outgoing to introverted over time and she exhibited inexplicable crying bouts and mood swings.

An expert witness called by the people testified about Child Abuse Accommodation Syndrome, Stockholm Syndrome, and Posttraumatic Stress Disorder.

Defense Case

Allen testified Denise came over to his house two or three times a month to help Lisa after the latter returned from a lengthy stay in a nursing facility. He never saw Jaurique act inappropriately with Denise and did not perceive any awkwardness between them. Allen believed Denise stopped coming to the house because of a dispute between Denise’s grandmother and Jaurique over work performed by Jaurique’s brother on the grandmother’s car.

Jaurique testified he first met Denise at Lisa’s nursing facility and, before that, had encountered Denise at his house. After Lisa was discharged from the facility, Denise started coming over to the house to assist her and occasionally stayed the night.

Jaurique testified he never touched Denise inappropriately, never had vaginal or oral sex with her, and never threatened her with a gun. Jaurique implied Denise’s accusations stemmed from a dispute he had with her grandmother over work his brother had done on her grandmother’s car. Denise’s grandmother was upset over issues with her car and told Jaurique, “you watch, you’re going to get it, bastard.”

Jaurique also said Wendy’s testimony was untrue. He denied he had ever touched Wendy inappropriately, but acknowledged he had pleaded guilty to molesting or annoying Wendy for sexual gratification, a misdemeanor.

DISCUSSION

I. Trial Court’s Denial of Jaurique’s Motion for New Trial

Jaurique made a motion for new trial in the trial court. He argued a new trial was warranted because he was denied a fair trial on account of the following trial errors: (1) ineffective assistance of counsel; (2) the erroneous admission of prior bad act evidence under Evidence Code sections 1108 and 352; (3) the trial court’s failure to properly instruct the jury with respect to the charge of aggravated sexual abuse in count 5; and (4) insufficiency of evidence with regard to the latter charge. The trial court denied the motion. Jaurique seeks reversal of the trial court’s ruling and remand for a new trial.

Under section 1181, the trial court may grant a new trial, among other instances, “[w]hen the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury.” (§ 1181, subd. 5.) Section 1181 also confers on the trial court the discretion to grant a new trial “[w]hen the verdict or finding is contrary to law or evidence.” (§ 1181, subd. 6.)

A new trial may also be granted on nonstatutory grounds where failure to do so would result in a miscarriage of justice or denial of a fair trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582; People v. Whittington (1977) 74 Cal.App.3d 806, 821, fn. 7.) Ineffective assistance by trial counsel is a recognized nonstatutory basis for seeking a new trial. (People v. Fosselman, supra, 33 Cal.3d at p. 582.) On appeal from the denial of a new trial motion based on a claim of ineffective assistance, we review the trial court’s factual findings for substantial evidence and review de novo the ultimate issue of whether defendant’s constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; cf. People v. Uribe (2011) 199 Cal.App.4th 836, 855-858.)

The trial court has broad discretion in ruling on a new trial motion and its ruling is reviewed for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 730.) The court abuses its discretion when it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence. (People v. Robarge (1953) 41 Cal.2d 628, 634.) “‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (People v. Davis (1995) 10 Cal.4th 463, 524.)

A. Alleged Instructional Error Regarding Count 5

The trial court instructed the jury pursuant to CALCRIM No. 1015, with respect to count 5. Jaurique argues the court erroneously omitted some optional, bracketed language from CALCRIM No. 1015 and the error was prejudicial. Jaurique further argues his counsel was ineffective in failing to request inclusion of the omitted language. Jaurique contends his trial was rendered unfair on account of the instructional error and the ineffective assistance rendered by counsel in this regard. He posits the court should therefore have granted his motion for new trial. We reject these contentions.

Background

Jaurique was charged in count 5 of the information as follows:

“On or about August 1, 2012 through August 31, 2012, in the above named judicial district, the crime of AGGRAVATED SEXUAL ASSAULT OF A CHILD – ORAL COPULATION, in violation of PENAL CODE SECTION 269(a)(4),[ ] a felony, was committed by Jose Rios Jaurique, who did commit the following act upon victim, Jane Doe who was under the age of 14 years, the defendant Jose Rios Jaurique, being more than 10 years older than the victim: oral copulation, in violation of section 288a,[ ] when committed by force, violence, duress, menace, and fear of immediate and unlawful bodily injury on the victim and another.” (Emphasis added.)

The trial court instructed the jury pursuant to CALCRIM Nos. 1123 and 1015, with regard to count 5. CALCRIM No. 1123, as given by the court, provided in part:

“The defendant is charged in Count 5 with aggravated sexual assault of a child who was under the age of 14 and at least seven years younger than the defendant in violation of Penal Code Section 269 subdivision (a).

“To prove the defendant is guilty of this crime, the People must prove that, one, the defendant committed oral copulation by force, fear, or threat on another person and, two, when the defendant acted, the other person was under the age of 14 years and was at least seven years younger than the defendant.

“To decide whether the defendant committed oral copulation by force, fear, or threat, please refer to the [next instruction, i.e., CALCRIM No. 1015].

The court then instructed the jury with CALCRIM No. 1015, in part:

“The defendant is charged in Count 5 with oral copulation by force in violation of Penal Code Section 288a.

“To prove the defendant guilty of this crime, the People must prove that, one, the defendant committed an act of oral copulation with someone else, two, the other person did not consent to the act and, three, the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone, [or] threatening to retaliate against someone when there was a reasonable possibility that that threat would be carried out.”

CALCRIM No. 1015 contains optional, bracketed language as follows: “[In order to consent, a person must act freely and voluntarily and know the nature of the act.]” The court omitted this optional language in instructing the jury pursuant to CALCRIM No. 1015. CALCRIM No. 1015 also reflects optional, bracketed language to the effect: [“The defendant is not guilty of forcible oral copulation if he or she actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented. If the People have not met this burden, you must find the defendant not guilty.]” The court omitted this optional language in instructing the jury pursuant to CALCRIM No. 1015 as well.

At trial, the prosecutor argued in closing argument, with respect to count 5:

“And Count 5. And Count 5 gets a little tricky because of the nature of it. Count 5 is sexual assault of a child under 14. So we know she had to be under 14 because the abuse stopped when she was 13. This is the last time, the oral copulation where the defendant ejaculated on her face. The timeframe was August 1, 2012 to August 31, 2012. So that one month of August, that’s when she said the last time it occurred. She doesn’t remember the exact day. [As set forth in CALCRIM No. 1123,] [t]he elements [under section 269] are that the defendant committed oral copulation by force, fear, or threat of another, defined in [CALCRIM No.] 1015, and that Denise was … under 14 and seven years younger than the defendant.” The prosecutor continued: “So that brings us to [CALCRIM No.] 1015, which is the elements of oral copulation by force [under section 288a]. And in order to prove that, [the elements are,] the defendant committed an act of oral copulation with someone else, the person did not consent to the act, and the defendant accomplished that act by force, violence, duress, menace, or fear. So in this case she is in fear of not only her life, but Lisa’s life. She did not do this act willingly. She did not consent. He forced her to do it. She was under the age of 14.”

Analysis

Trial courts must correctly instruct on legal principles that are applicable to the evidence. (People v. Benson (1990) 52 Cal.3d 754, 799; People v. Singleton (1987) 196 Cal.App.3d 488, 492 [“[t]rial courts are duty-bound to avoid instructions which are not justified by the facts of the case, since they have a natural tendency to overburden and confuse the jury”].) Accordingly, the trial court has a sua sponte duty to instruct on a defense, “even in the absence of a request, ‘if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’” (People v. Boyer (2006) 38 Cal.4th 412, 469, overruled on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

As mentioned, CALCRIM No. 1015 specifies that an element of the offense of oral copulation by force, duress, or threat is that “the other person did not consent to the act.” CALCRIM No. 1015 further contains optional, bracketed language to the effect: “[In order to consent, a person must act freely and voluntarily and know the nature of the act.]” CALCRIM No. 1015 also contains optional, bracketed language concerning a defense based on the defendant’s actual and reasonable belief that the victim consented to the charged act. Jaurique argues the trial court erred in omitting both sets of bracketed text when instructing the jury pursuant to CALCRIM No. 1015. This contention has no merit.

First, the court properly omitted the bracketed language explaining that consent must be freely and voluntarily given, because the record did not disclose substantial evidence for the proposition that Denise consented to any of the acts of sexual molestation encompassed by the charges, including the act of oral copulation at issue in count 5. Denise testified that when Jaurique began to molest her, he showed her a gun and threatened to shoot both Lisa and her unless Denise submitted to the molestation. Denise said she complied because she was scared for her life. When Jaurique subsequently molested Denise again, he reminded her of his prior threat, warning her to cooperate to protect Lisa and herself. Denise also testified that Jaurique had a lot of weapons and would tell Denise he would use the weapons to hurt Lisa if Denise did not quietly submit to the ongoing abuse. In addition, Denise’s elementary school friend testified Denise had told her Jaurique had threatened Denise.

Denise further noted, with respect to an incident in which Jaurique forced her to orally copulate him, that she tried to push him away but was not strong enough to do so. Moreover, with regard to the act of oral copulation charged in count 5, Denise said she did what Jaurique asked because she felt she had no choice. Finally, Denise expressly testified she did not want to participate in any of the acts of molestation. As for Jaurique’s testimony, he testified no sexual contact ever occurred.

In short, there was no evidence to show Denise consented to any of the acts. Rather, the evidence showed that, in light of Jaurique’s threats to harm Lisa and Denise, Denise felt she had no choice but to comply with his demands. Accordingly, there was no basis for the court to instruct the jury, as part of CALCRIM No. 1015, that in order to consent for purposes of section 288a, “a person must act freely and voluntarily and know the nature of the act.” Omission of the latter language was therefore not erroneous.

The court also properly omitted the bracketed language in CALCRIM No. 1015 regarding the defendant’s actual belief that the victim had consented, as there was no evidence to suggest Jaurique actually believed Denise had consented to the acts of sexual molestation, including the act of oral copulation at issue in count 5. Jaurique did not testify he believed Denise consented to the latter act of oral copulation, or, indeed, to any of the acts of sexual molestation encompassed in the charges. On the contrary, Jaurique testified he did not commit any acts of sexual molestation in the first place. Accordingly, there was no basis for the court to instruct the jury, as part of CALCRIM No. 1015, on the defendant’s actual and reasonable belief that the victim had consented to the act at issue. Indeed, such an instruction would have been contrary to Jaurique’s testimony and his defense, which was that no sexual molestation occurred. The court therefore properly omitted the bracketed language.

Even assuming the court erred by omitting both sets of bracketed text that Jaurique highlights here, the error was harmless under any standard of prejudice, as there was no substantial evidence to suggest that Denise consented to the act of oral copulation at issue in count 5, nor was there any evidence that Jaurique actually and reasonably believed Denise consented to this act of oral copulation. Omission or inclusion of the two sets of bracketed text at issue would thus have had no impact on the verdict.

In light of the foregoing analysis, Jaurique’s alternative argument that counsel was ineffective for not requesting the court to instruct the jury on the defendant’s actual belief in the victim’s consent, as reflected in the bracketed language in CALCRIM No. 1015, also fails.

We conclude the trial court did not abuse its discretion in denying Jaurique’s motion for new trial to the extent it was based on the untenable claim that the version of CALCRIM No. 1015 utilized by the trial court was both erroneous and prejudicial. Similarly, the trial court did not abuse its discretion in denying Jaurique’s motion for new trial to the extent it was based on the untenable claim that counsel was ineffective in failing to request the court to include additional language in the version of CALCRIM No. 1015 given to the jury.

B. Ineffective Assistance of Counsel with regard to Presenting Defense

Jaurique contends the trial court abused its discretion in denying his motion for new trial because his counsel was constitutionally ineffective in failing to raise the defense, with respect to count 5, that Jaurique reasonably believed Denise had consented to the act of oral copulation at issue in count 5. We reject this contention outright because, as noted above, there was no evidence to suggest that Jaurique believed Denise had consented to the act of oral copulation at issue in count 5. Indeed, Jaurique testified the act at issue never occurred in the first place. Counsel was not ineffective for failing to raise a baseless defense.

Jaurique next contends defense counsel was ineffective because he did not adequately support with evidence his theory of defense positing that Denise’s allegations amounted to a “witch hunt” and did not adequately develop an alternative theory to the effect that Denise’s accusations represented a “[s]hakedown for money.” However, this argument is made in cursory and conclusory terms, without any discussion of what evidence counsel should have presented and which theories of defense were actually viable. Accordingly, Jaurique has failed to establish either that defense counsel’s tactics were objectively unreasonable or that counsel’s actions were prejudicial in that they undermined confidence in the outcome. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); In re Avena (1996) 12 Cal.4th 694, 721 (Avena).)

We conclude the trial court did not abuse its discretion in denying Jaurique’s motion for new trial to the extent it was based on these claims of ineffective assistance of counsel.

C. Admission of Evidence of Prior Acts of Sexual Abuse Committed by Jaurique

Jaurique next contends the trial court should have granted his motion for new trial because (1) the court erroneously admitted propensity evidence relating to prior sexual assaults on Wendy from 1987, and (2) defense counsel raised unsuccessful and incomplete arguments for exclusion of this evidence, thereby rendering ineffective assistance. We reject these contentions.

Generally, character evidence in the form of specific instances of uncharged misconduct is inadmissible to prove conduct on a specific occasion. (People v. Ewoldt (1994) 7 Cal.4th 380, 393; Evid. Code, § 1101, subd. (a).) In other words, evidence of other crimes or prior bad acts is not admissible to show criminal disposition or propensity to commit crimes. (Ewoldt, supra, at p. 393.) As an exception to the general rule, Evidence Code section 1108 permits, in sex offense cases, addmission of uncharged sexual conduct precisely to show a defendant’s propensity to commit similar sex crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) Evidence Code section 1108 is geared to assist the trier of fact in making difficult credibility determinations, given that sex offenses are usually committed in seclusion, without third party witnesses or substantial corroborating evidence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164; Falsetta, supra, at p. 915.) However, evidence that is admissible under Evidence Code section 1108 is nonetheless subject to exclusion under Evidence Code section 352.

Evidence Code 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.” The trial court is best situated to evaluate the evidence at issue through the lens of section 352, and, accordingly, enjoys broad discretion in applying the statute. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Furthermore, “‘“[t]he prejudice [that] Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.”’” (People v. Eubanks (2011) 53 Cal.4th 110, 144.) Rather, Evidence Code section 352 is designed to avoid “‘undue prejudice’” because “the ultimate object[ive] of the section 352 weighing process is a fair trial.” (People v. Harris (1998) 60 Cal.App.4th 727, 736 (Harris).)

Prior to trial, the People moved in limine to admit evidence related to Jaurique’s prior sexual assaults on Wendy under Evidence Code section 1108. The trial court conducted an Evidence Code section 402 hearing on the issue. Following the hearing, and after hearing argument from the parties, the trial court granted the People’s motion to admit evidence related to the prior sexual assaults on Wendy.

After the presentation of evidence in the case, the court instructed the jury with CALCRIM No. 1191 regarding the uncharged offense evidence that was introduced in the trial. CALCRIM No. 1191, as given to the jury, provided in part: “The People presented evidence that the defendant committed the crime of Continuous Sexual Abuse that was not charged in this case. This crime is 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 offense. 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.”

Jaurique now argues the trial court should have excluded the evidence related to the sexual abuse of Wendy under Evidence Code section 352 and that its failure to do so denied him a fair trial. We review a trial court’s rulings under Evidence Code section 352 for abuse of discretion and will not disturb the trial court’s determination unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)

Jaurique specifically argues: “The Court did not properly evaluate the factor of confusion when ruling on the admissibility of the evidence relating to the prior bad acts against the witness Wendy.” (Unnecessary capitalization omitted.) He further explains: “The record does not reflect that the Court considered the realistic prospect of confusion that the jury might have with respect to the standard of proof required for them to use in considering the prior uncharged conduct before they could consider it as propensity evidence. Nor did the Court consider the possible confusion to the jury as to whether they were weighing his guilt as related to the instant case, the prior incident, or a combination of the two.” We reject these arguments because the court’s instructions on prior act evidence were correct and cleared up any potential confusion, and, in any event, we presume the jury followed the instructions given by the court. (People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Boyette (2002) 29 Cal.4th 381, 436.)

Jaurique next argues, with respect to admission of the evidence related to the sexual abuse of Wendy: “Further, while the Court did examine the prejudice to Mr. Jaurique in broad terms, there is no indication that the Court considered the emotional impact of the testimony on the jury, in relation to the issue of the necessity of the evidence to the People’s case, the burden on Mr. Jaurique in being able to defend against the uncharged conduct, nor the availability of less prejudicial alternatives to its outright admission.” We reject this contention as well. Here, the trial court carefully considered the potential prejudicial impact of the evidence at issue in relation to its probative value and importance to the People’s case. The court ultimately concluded: “The probative value in this case … almost the exact behavior [as encompassed in the instant charges], puts it through the ceiling as far as propensity evidence. So while it is prejudicial, highly prejudicial, that is my weigh – weighing of the facts would say that this evidence would come in, because the probative value is beyond the scale.” We detect no abuse of discretion on the court’s part.

Jaurique further argues: “The Court did not properly evaluate the factor of the requisite degree of certainty of the commission of the prior bad acts against the witness Wendy when ruling on their admissibility.” (Unnecessary capitalization omitted.) (See Falsetta, supra, 21 Cal.4th at p. 917 [degree of certainty of commission of the prior bad act at issue is factor for trial court to consider in Evid. Code, § 352 analysis of evidence otherwise admissible under Evid. Code, § 1108]; People v. Abilez (2007) 41 Cal.4th 472, 502 [same].) We disagree.

The court held an Evidence Code section 402 hearing regarding the admissibility of this evidence. The police detective who investigated Denise’s allegations testified at the hearing about contacting Wendy, informing her of the investigation, and questioning her about her contact with Jaurique 27 years ago. Other than a preliminary discussion that lasted between five and 10 minutes to confirm Wendy was willing to participate in the interview, the detective recorded his interview with Wendy. The record indicates that Wendy gave a fuller account of the abuse as an adult than she had years ago as a child. Defense counsel raised the concern that the detective potentially divulged the fact of another victim (i.e., Denise) to Wendy, thereby tainting her statement. The trial court concluded the jury was capable of assessing the credibility of Wendy’s testimony about Jaurique’s sexual misconduct in light of the circumstances of the interview conducted by the investigating detective and any conflicts between her trial testimony and statements she made to police when she initially revealed the misconduct as a nine-year-old child. The trial court’s decision was reasonable and well-considered. We detect no abuse of discretion.

In any event, even were we to assume the trial court erred in admitting evidence of Jaurique’s prior sexual abuse of Wendy, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818; Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard to sexual offense propensity evidence admitted under Evid. Code, § 1108].) Denise provided detailed and credible testimony about the sexual molestation and her testimony was supported by the testimony of two school friends to whom she revealed the ongoing abuse while it was happening. In his defense, Jaurique claimed he never had any sexual contact with Denise and suggested she evidently fabricated her allegations over her grandmother’s car troubles. However, as Jaurique himself acknowledges, his “witch hunt” defense had little support. In light of Denise’s corroborated testimony and Jaurique’s unsupported defense, there is no reasonable probability he would have obtained a more favorable outcome had the propensity evidence been excluded. In sum, Jaurique’s claim of evidentiary error is both meritless and harmless and the trial court properly denied his motion for a new trial to the extent it was based on this claim.

Jaurique also argues he was denied a fair trial because counsel was ineffective in opposing admission of the evidence of uncharged conduct concerning Wendy. Specifically, Jaurique argues: “Defense counsel was ineffective by failing to adequately brief or argue his Evidence Code section 352 objections to the prior acts of defendant in relation to the witness Wendy.” (Unnecessary capitalization omitted.) Jaurique further contends: “Defense counsel failed to raise the issue of confusion. Since the testimony related to uncharged conduct which was very similar to that alleged in the current case, there was the clear prospect that this would create confusion for the jury as to whether they were weighing his guilt as related to the instant case, the prior alleged incident, or a combination of the two.”

Jaurique’s contention has no merit. Counsel objected vigorously to admission of the disputed evidence concerning Wendy on a number of grounds, including the remoteness of the underlying incidents and potential prejudice arising from this evidence. Jaurique suggests counsel was ineffective because he did not additionally argue that the evidence concerning Wendy would have confused the jury. However, such an objection would have been futile because appropriate instructions would foreclose any risk of confusion. (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [any risk of juror confusion arising from evidence of uncharged offenses is counterbalanced by appropriate instructions].) Indeed, as mentioned above, the trial court properly instructed the jury on the evidence of uncharged acts. (See CALCRIM No. 1191.) Jaurique also contends counsel was ineffective in opposing admission of the prior act evidence because he did not specifically argue the evidence would evoke “an emotional bias” against Jaurique. This argument is unavailing because the court recognized the evidence was potentially prejudicial but concluded its probative value far outweighed its potential for prejudice. Furthermore, as we indicated above, even were we to assume the prior act evidence was erroneously admitted, the error did not undermine confidence in the outcome. (See Strickland, supra, 466 U.S. at pp. 687-688; Avena, supra, 12 Cal.4th at p. 721.)

In sum, counsel was not ineffective in opposing admission of the prior act evidence and counsel’s performance was not an appropriate basis for granting a new trial. Therefore, the trial court did not abuse its discretion in denying Jaurique’s motion for new trial to the extent it was based on this ground.

D. Sufficiency of Evidence to Support Aggravated Sexual Assault Conviction

Jaurique was convicted, in count 5, of the offense of aggravated sexual assault of a child, under section 269, subdivision (a)(4), for oral copulation in violation of section 288a, subdivision (c), committed between August 1, 2012, and August 31, 2012. Jaurique argues the evidence was insufficient to show the defendant committed the constituent act of oral copulation in violation of section 288a, subdivision (c), i.e., oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. We reject this contention.

As mentioned, the trial court instructed the jury with CALCRIM No. 1015 with respect to the requisite act of oral copulation underlying the charge of aggravated sexual assault. Specifically, the court instructed: “The defendant is charged in Count 5 with oral copulation by force in violation of Penal Code Section 288a. [¶] To prove the defendant guilty of this crime, the People must prove that, one, the defendant committed an act of oral copulation with someone else, two, the other person did not consent to the act and, three, the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone, [or] threatening to retaliate against someone when there was a reasonable possibility that that threat would be carried out.” The instruction further defined the term force, duress, menace, and fear. For example, the instruction defined “fear” as follows: “An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it.” The instruction defined “menace” as follows: “Menace means a threat, statement, or act showing an intent to injure someone.” The instruction defined “duress” as follows: “Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would … not otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all of the circumstances, including the age of the other person and her relationship to the defendant.”

In closing, the prosecution argued the act of oral copulation at issue in count 5 was the last such act that Denise described in her testimony. As mentioned, Denise testified the relevant incident occurred in August 2012, when she had just started 7th grade. Denise was walking back to Allen’s room after helping Lisa. Jaurique told her to kiss him on the lips. She complied. He then told her to get down on her knees and unzipped his pants. He pulled out his penis and told her to put her mouth around it slowly. She did not want to comply but did so because she felt she had no choice. Jaurique moved his penis back and forth in her mouth before ejaculating on her face. The evidence also showed that Jaurique committed all the acts encompassed by the charges, including the act at issue in count 5, by force, duress, menace, or threats. For example, Denise testified Jaurique had earlier threatened to shoot her and Lisa should she resist or reveal the abuse; Denise did not want to participate in any of the acts of abuse; and Denise was scared Jaurique would hurt Lisa or her if she did not submit to the abuse. In short, there was overwhelming evidence to support a finding that Jaurique committed oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. In turn, the trial court did not abuse its discretion in denying Jaurique’s motion for new trial to the extent it was based on the claim that Jaurique’s conviction on count 5 was not supported by sufficient evidence.

E. Lesser Included Offenses of Aggravated Sexual Assault

Jaurique argues the trial court was required to grant his new trial motion because the jury was not instructed on lesser included offenses with respect to the section 269, subdivision (a)(4) offense charged in count 5. Specifically, he contends the court should have sua sponte instructed on the offenses described in section 288, subdivisions (c)(1) and (c)(2) as discrete lesser included offenses of section 269, subdivision (a)(4). We reject this contention because instructions on these lesser included offenses were not warranted by the record.

A trial court has a duty to instruct the jury on generally applicable principles of law and may be required to instruct not only on the charged offenses, but also on any lesser offenses that are necessarily included in each charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) The duty to instruct on lesser included offense is triggered only “‘where there is “substantial evidence” from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.’” (People v. Whalen (2013) 56 Cal.4th 1, 68, overruled on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) “[T]he ‘substantial’ evidence required … is not merely ‘any evidence … no matter how weak’ (citation), but rather ‘“evidence from which a jury composed of reasonable [persons] could … conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Cruz (2008) 44 Cal.4th 636, 665.)

Former section 288a, subdivision (c)(1) provided: “Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.”

Former section 288a, subdivision (c)(2), provided, in pertinent part: “Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years.” (Former § 288a, subd. (c)(2)(B).)

Section 269, subdivision (a) provides: “Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated assault of a child: [¶ ] … [¶ ] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c) … [of] former Section 288a.”

Here, the evidence showed the oral copulation at issue in count 5 occurred in August 2012, when Denise was 13 years old. Further, the parties stipulated that Jaurique was born in 1962, which meant he was 50 years old at the time of the relevant incident. Thus, there was no dispute that the age difference between Denise and Jaurique was more than seven years, as required by section 269, subdivision (a)(4). Finally, the evidence showed that Jaurique threatened the lives of Denise and Lisa to compel Denise to endure the abuse. In addition, as to the incident at issue in count 5, Denise expressly testified she felt she had no choice in that instance, as in the other instances. Given this record, the trial court was not required sua sponte to instruct the jury on the lesser included offenses of section 269, subdivision (a)(4), as described in section 288a, subdivisions (c)(1) and (c)(2).

To the extent Jaurique suggests counsel was ineffective in failing to request instructions on these lesser included offenses, we reject that contention as well.

In turn, the trial court did not abuse its discretion in denying Jaurique’s motion for new trial.

F. Cumulative Error

Finally, Jaurique argues the trial court abused its discretion in denying his motion for new trial because the foregoing alleged errors cumulatively prejudiced him and, in turn, rendered his trial unfair. We disagree. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (Avena, supra, 12 Cal.4th 694, 772, fn. 32.) The test for determining whether multiple errors were cumulatively prejudicial is whether it is reasonably probable the jury would have reached a result more favorable to the defendant in their absence. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349, overruled on other grounds by People v. Whitmer (2014) 59 Cal.4th 733, 742.) Here, there were either no errors or any errors were not cumulatively prejudicial. Jaurique’s cumulative error argument therefore fails. In turn, the trial court did not abuse its discretion in denying his motion for new trial.

We conclude the trial court’s denial of Jaurique’s motion for new trial did not violate his right to a fair trial.

DISPOSITION

The judgment is affirmed.

SMITH, J.

WE CONCUR:

LEVY, Acting P.J.

SNAUFFER, J.