The opinion
Filed 12/5/25 P. v. Murillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H051886
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1899933)
v.
ROSEL TORRES MURILLO,
Defendant and Appellant.
Defendant Rosel Torres Murillo was convicted by jury of various sexual offenses
against his minor stepdaughter. He contends on appeal that, among other things, the trial
judge was biased against him; his trial counsel was constitutionally ineffective; the
prosecutor committed numerous acts of misconduct during the trial; and the evidence
against him was legally insufficient. Finding no reversible error, we will affirm the
judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged with oral copulation or sexual penetration of a child 10
years old or younger (Pen. Code, § 288.7, subd. (b); count 1); aggravated sexual assault
of a child (Pen. Code, § 269, subd. (a); count 2); and two counts of forcible lewd or
lascivious acts involving children (Pen. Code, § 288, subd. (b)(1); counts 3 and 4). The
alleged victim of all four charged offenses was defendant’s minor stepdaughter, Jane
Doe.1 With respect to counts 3 and 4, it was alleged that the victim was particularly
vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and defendant took advantage of a
position of trust or confidence to commit the offenses (Cal. Rules of Court,
rule 4.421(a)(11)).
A. WITNESS TESTIMONY
Doe was 16 years old at the time of defendant’s 2023 trial. She testified that
defendant began touching her inappropriately when she was eight or nine years old.
Defendant and Doe’s mother, Y.D., would sometimes give Doe massages together. At
some point, defendant started massaging Doe without her mother present. On one
occasion, Doe was lying on a bed and defendant was massaging her. Defendant told Doe
to turn onto her back, which she did because she was “scared.” He then touched her
breasts and vagina. Another time, defendant was massaging Doe in his bedroom when
she told him she wanted to leave to watch a movie. Defendant told her to watch the
movie on his television. Doe could not remember what happened next.
Both Doe and her mother Y.D. testified that Doe had told Y.D. about the abuse at
some point, but Y.D. did not believe her. According to Y.D., that conversation took
place sometime in 2015 (when Doe would have been eight or nine years old). Doe said
defendant “was touching her breast and her intimate part,” meaning her vagina. Y.D. told
Doe that she would talk to defendant, which caused Doe to cry. Doe admitted having lied
at the preliminary hearing when she testified that she had not told her mother about the
abuse, and Y.D. admitted having lied when she told a detective that Doe “had never said
anything about that.” Y.D. testified under an immunity agreement with the prosecution.
Doe testified that the abuse stopped after she told Y.D. about it, but resumed the
summer before she started seventh grade (when she was 11 years old). Multiple times
1
Doe is referred to by her first name in the record. However to protect the
privacy of Doe and her family members, we refer to her as Jane Doe and to her family
members by their initials.
2
that summer, defendant entered Doe’s room at night while she was in bed. He touched
her breasts and vagina. Once Doe woke up sensing moisture on her ear and saw
defendant “on the side of [her] bed.” She did not remember what happened next.
R.D., defendant’s son and Doe’s half-brother, was five years younger than Doe.
He testified about an incident he witnessed in 2018, when he would have been six years
old and Doe eleven. R.D. was sleeping in his parents’ bedroom with his father when he
woke up to the sound of his father leaving the room. He got up and followed his father,
who he saw go into Doe’s bedroom. R.D. saw Doe take her shirt and pants off, appearing
to do so at his father’s direction. He also saw his father touch the part of the body that
gives “milk to newborn babies” and “the parts where you have to, like, go to the
bathroom.” When asked to indicate on a diagram where he had seen his father touch
Doe, R.D. circled the breasts and the navel area. R.D. first testified that Doe “didn’t do
anything” when his father touched her, but then said that Doe had “punched” and
“slapped” his father in an unsuccessful attempt to stop him from touching her. Later,
when defendant was no longer living in the house, R.D. told Y.D. what he had seen.
R.D. was unable to identify anyone in the courtroom as his father.
Early in her seventh-grade school year, Doe told a friend that her stepfather had
“raped” her after giving her a massage. The friend testified that Doe cried when she told
him and asked him not to tell anyone. Shortly afterward, on September 5, 2018, Doe was
visibly upset in class. The teacher sent her to a guidance counselor, who allowed her to
cry for “15 to 20 minutes” before asking her what was wrong. The counselor testified
that Doe told him “her stepfather had been touching her inappropriately” during
massages. Doe explained that “he would touch her underneath her clothes, in the breast
area,” and “inside her private area.” She said she had told her mother about the abuse,
but her mother did not believe her. The abuse “discontinued after that for a while” but
resumed in July 2018. Doe’s stepfather would “sneak into her room” at night, “lick” her
3
neck, and touch “her breasts and her private area, skin-to-skin.” The counselor called the
police and reported what Doe told him.
Defendant had no physical contact with Doe or her siblings after September 5,
2018. At the 2023 trial, Doe had trouble remembering specific instances of abuse
because they were “all blurred into one big thing now.” Doe started smoking marijuana
in eighth grade, and said that had also “affected [her] memory” to the extent that she
could not remember “what [she] did yesterday.” She described marijuana as “the only
thing that helped [her] sleep at night and made [her] feel happy.” The night before Doe’s
testimony began, she had an “argument” with Y.D. that led to Y.D. calling the police.
Doe testified that although Y.D. had “claimed that [Doe] hit her,” the “complete
opposite” was true; Y.D. had hit Doe, who had “a bruise … on [her] head and on [her]
shoulder.”
A psychologist testified as an expert on Child Sexual Abuse Accommodation
Syndrome (CSAAS), and confirmed that CSAAS cannot be used “to say a kid was
abused” but can be used to dispel “myths and misconceptions” about how children
respond to abuse. According to the expert, children who are abused may keep the abuse a
secret; feel helpless if they report the abuse and nothing is done about it; find ways to
cope with the abuse; report the abuse in a delayed or unconvincing manner; or recant
their allegations.
B. PAST RECOLLECTIONS RECORDED
Over partial defense objection,2 several videos of Doe’s interviews with
investigators on September 5, 2018 were admitted into evidence under Evidence Code
section 1237. In the interviews, Doe provided additional details about specific incidents
2
Defense counsel objected only to the admission of those statements related to
the first wave of alleged abuse when Doe was eight or nine years old, and did not object
to the admission of statements related to abuse in 2018. Alternatively, counsel expressed
a preference that, if the statements were to be admitted, they be shown to the jury in
video format.
4
of abuse. Doe testified that she had told the truth during the interviews (although she
acknowledged lying about whether she had disclosed the abuse to her mother). She also
acknowledged the abuse was fresher in her mind at the time because she had not yet
started smoking marijuana.
Doe told a detective about three incidents that took place when she was eight or
nine years old. In the first, while defendant was massaging Doe, he “started touching”
her vagina and “chest area” for approximately 30 minutes. At one point, Doe attempted
to leave and defendant “carried [her] back up to the bed.” Defendant touched Doe’s
vagina “under [her] clothes” and put his fingers inside it. When Doe told defendant she
wanted to leave, he said, “no, just a little longer.” Doe eventually ran out of the room.
The second incident occurred a week or two later when defendant “touched [her] in [her]
vagina again” during a massage. Defendant also “started touching [her] chest area” and
did not stop when she asked him to. He touched Doe’s breasts and vagina “under [her]
clothes” and she felt him “moving his fingers” while touching her vagina. In the third
incident, defendant touched Doe’s vagina “inside” for 20 minutes. Doe then left the
room to watch a movie. The parties stipulated that the movie Doe watched premiered on
television on July 31, 2015.
Doe also told investigators about being abused in the summer of 2018. She said
she kept her bedroom door locked, but defendant would use a key to open it. One night,
Doe woke up because she thought she felt someone licking her ear. She saw defendant
run out of the room and close the door. About a week later, Doe woke up to defendant
licking her neck and touching her breast. Doe told defendant to leave, which he did.
Another night about two weeks later, defendant entered Doe’s room and touched her
vagina. Between July and September of 2018, defendant went into Doe’s room
approximately five times. The last time he did so was about two weeks before the
September 5 interview. Doe would pretend to be asleep, and defendant would stand by
the door for a few minutes. Apparently believing Doe to be asleep, defendant would then
5
walk over to her bed and start touching her. He put his fingers inside her vagina, put his
hands inside her shirt to touch her breasts, and kissed her on the lips. Doe was frightened
when defendant was touching her. She would pretend to wake up and then tell defendant
to leave, at which point he would walk out of the room.
C. VERDICT AND SENTENCING
The jury found defendant guilty as charged and found true the alleged aggravating
circumstances. The trial court sentenced defendant to fully consecutive indeterminate
terms of 15 years to life on counts 1 and 2, consecutive to 10-year determinate upper
terms on counts 3 and 4, for an aggregate sentence of 30 years to life consecutive to 20
years.
II. DISCUSSION
Defendant (represented by retained counsel on appeal) asserts that his trial was
pervaded by numerous instances of judicial bias, prosecutorial misconduct, and
ineffective assistance of counsel. He also contends that none of his convictions are
supported by substantial evidence. In addition to those claimed grounds for reversal, he
lists in his opening brief 21 “matters preserved for appeal”—many of which are not
accompanied by any specific legal argument or citations supporting his assertion of
reversible error. He concludes his briefing by requesting modification of his sentence as
an alternative to reversal of his convictions, without stating any legal grounds or
providing any argument in support of his alternative request. We address in this opinion
the arguments that are sufficiently developed to permit our analysis. “To the extent
defendant perfunctorily asserts other claims, without development and, indeed, without a
clear indication that they are intended to be discrete contentions, they are not properly
made, and are rejected on that basis.” (People v. Freeman (1994) 8 Cal.4th 450, 482, fn.
2.)
6
A. DEFENDANT’S REQUEST FOR JUDICIAL NOTICE IS DENIED
As a preliminary matter, we deny defendant’s request for judicial notice filed on
January 10, 2025, which was deferred for consideration with the merits of the appeal.
Defendant asks us to take judicial notice of three matters that he describes as “fact[s] and
proposition[s] of generalized knowledge”: (1) “that human beings are not automatically
rational” or in other words, as stated by one psychologist, “ ‘that Humans are not well
described by the rational-agent model’ ”; (2) that “using [] marijuana under the age of 30
years old can cause severe memory issues including loss of memory related to
schizophrenia and other very serious diagnoses”; and (3) that research about those effects
of marijuana use “is widespread, easy to access, obvious to the public, and might have
been judicially noticed or proffered as evidence at trial by the parties.”
None of the information referenced in the request for judicial notice was presented
in the trial court. Defendant therefore asks us to take judicial notice of the three
identified assertions, contending that they “are of such common knowledge within the
territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.”
(Evid. Code, § 452, subd. (g); see Evid. Code, § 459.) He alternatively argues that the
assertions “are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code, § 452, subd. (h).) Defendant provides no support for his contention that the
general public is familiar with academic research regarding rational-agent theory, its
applicability to human behavior, or the effects of marijuana use on memory within a
specific age range of users, such that any research findings in those fields could be
deemed matters of common knowledge. Although he provides excerpts from
publications that appear to state conclusions consistent with his assertions, those excerpts
do not establish that their contents reflect scientific consensus such that they are not
reasonably subject to dispute. (Cf. Brown v. Smith (2018) 24 Cal.App.5th 1135, 1142–
1143.) Nor does a screenshot of internet search results—which do not appear to include
7
the single study cited by defendant in relation to the effects of marijuana use—establish
that research consistent with that study is “widespread, easy to access,” or “obvious to the
public” as defendant suggests. We thus deny defendant’s request for judicial notice.
B. DEFENDANT HAS NOT MET HIS BURDEN OF DEMONSTRATING JUDICIAL BIAS
Defendant asserts that “everyone involved in this trial,” including the trial judge,
both “succumbed to implicit biases against Hispanic males and immigrants that runs deep
in California” and “succumbed to an over-sensitivity for the veracity of crime reports”
made by alleged victims of child sex abuse. He acknowledges that the judge attempted to
preside over the trial impartially, but contends reversal is required because the judge’s
implicit biases constituted structural error despite the judge’s best efforts.
To the extent defendant argues that the trial judge was disqualified due to bias (see
Code of Civ. Proc., § 170.1, subd. (a)(6)), he forfeited the issue by not raising it in the
trial court. (People v. Rodriguez (2014) 58 Cal.4th 587, 626.) To the extent he contends
judicial bias so permeated the trial as to deprive him of due process and require reversal
notwithstanding his failure to object, we reject that argument. “Mere expressions of
opinion by a trial judge based on actual observation of the witnesses and evidence in the
courtroom do not demonstrate a bias.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111.)
“Moreover, a trial court’s numerous rulings against a party—even when erroneous—do
not establish a charge of judicial bias, especially when they are subject to review.” (Id. at
p. 1112.)
Defendant’s assertion of judicial bias is based on three alleged errors made by the
trial court, none of which actually constitutes error or establishes bias. Defendant first
contends the trial judge “inappropriately, prejudicially, and unconstitutionally allowed”
the prosecutor to “excuse” Doe’s “problematic testimony” as the product of a physical
altercation with her mother the previous night. He cites to a portion of the reporter’s
transcript in which the court, the prosecutor, and defense counsel discuss Doe’s testimony
outside the presence of the jury. All three acknowledged that her first day of testimony
8
did not go as the prosecution had planned, and the prosecutor suggested the reason may
have been the previous night’s incident between Doe and her mother. (That incident had
been communicated to the prosecutor via email from the Victim Advocate shortly before
opening statements, and the prosecutor immediately disclosed the communication to
defense counsel and then to the court.) The trial court agreed with aspects of the
prosecutor’s assessment, as did defense counsel. Given the new circumstances, the court
encouraged both counsel to “work out a resolution” of the case (which they were unable
to do). The court also indicated to the parties that recordings of Doe’s interviews with
investigators could possibly be admitted into evidence, but only with proper foundation.
In our view, the entire exchange illustrates the trial court’s efforts to conduct a fair trial
that served the interest of justice, not judicial bias.
Defendant next faults the trial court for failing to “admonish or instruct the jury
regarding [Doe’s] physical altercation, marijuana use, and memory loss” and the effects
of those factors on her testimony. Defendant cites no legal authority to support the
implicit assertion that he was entitled to an instruction on any of those issues—even
without a request, which he did not make. He does not explain how the purported error
indicates bias, and we see no connection. We also note that, in suggesting that Doe’s
altercation with Y.D. may have affected her testimony and the judge should have
instructed the jury accordingly, defendant appears to advance an argument that he deems
“inappropriate[], prejudicial[], and unconstitutional[]” when made by the prosecutor.
Defendant’s final allegation of bias is based on the trial court ultimately admitting
Doe’s recorded interviews into evidence. Defendant argues the evidentiary foundation
for their admission was inadequate, given Doe’s inability to remember and authenticate
their contents at the time of trial. There was no apparent dispute that the recordings
depicted Doe’s interviews with investigators on September 5, 2018. One video, which
Doe said depicted her conversation with a detective on that date, was admitted subject to
“the right for the defense to further argue foundation[.]” At one point, the court sustained
9
a defense objection to admission of another recording after Doe said she could not
confirm it depicted the same conversation. The prosecutor then elicited testimony
observing that Doe and the detective were wearing the same clothing in both videos, after
which the court admitted the second video “over the objection of the defense.” When
later placing her objections on the record, counsel focused on whether the recordings
qualified as past recollections recorded under Evidence Code section 1237 given the
passage of time between the alleged abuse and Doe’s interview with the detective.
Counsel did not object to the admission of certain other recordings that concerned more
recent abuse. On this record, we cannot say the trial court abused its discretion in finding
adequate foundation for admission of the recordings notwithstanding Doe’s spotty
memory of the conversations depicted. We also see no support in the record for
defendant’s assertion that the court’s ruling was influenced by bias.
C. DEFENSE COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE
Defendant alleges 19 instances of constitutionally defective representation to
argue that he was denied the right to effective assistance of counsel. Many of the
asserted defects concern quintessential matters of trial strategy typically left to the tactical
discretion of counsel, such as deciding whether to object to testimony elicited by the
prosecution. None requires reversal.
To establish ineffectiveness of trial counsel in violation of a defendant’s right to
counsel under the Sixth Amendment to the United States Constitution, a defendant must
show both deficiency in counsel’s performance and prejudice from the deficiency.
(People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) Deficient performance is rarely
shown if there was a tactical reason for trial counsel’s conduct. (See People v. Cruz
(1980) 26 Cal.3d 233, 255–256 [“except in rare cases, an appellate court should not
attempt to second-guess trial counsel as to tactics”]; People v. Bolin (1998)
18 Cal.4th 297, 317 (Bolin) [affirming conviction when alleged failure to object “may
well have been ‘an informed tactical choice within the range of reasonable
10
competence’ ”].) To prove prejudice, a defendant must affirmatively show a reasonable
probability that, but for his trial counsel’s errors, the result would have been different.
(Ledesma, at pp. 217–218.)
Here, defendant shows neither deficient performance nor prejudice. Defendant
faults trial counsel for not objecting to the admission of CSAAS expert testimony on
general grounds that have been rejected by the California Supreme Court. (See People v.
McAlpin (1991) 53 Cal.3d 1289, 1300–1301 (McAlpin).) He also asserts counsel was
ineffective for not objecting to the exclusion of defendant’s “state of mind” and “medical
or health related issues” from opening statements, although he acknowledges it is
“unclear what effect this had on the trial.” We note that it apparently had no effect, given
counsel’s chosen defense and her statement to the court that she was “not aware of any
issues” relating to defendant’s health. Regarding evidence admitted under the fresh
complaint doctrine, defendant suggests counsel should have objected on the basis that
Doe’s disclosures were not sufficiently “fresh,” but he provides no substantive
explanation of why the relevant statements were inadmissible under the circumstances.
(See People v. Brown (1994) 8 Cal.4th 746, 750 [“the ‘freshness’ of a complaint, and the
‘volunteered’ nature of the complaint, should not be viewed as essential prerequisites to
the admissibility of such evidence”].) Defendant also argues counsel should have
renewed an objection to admission of a photograph depicting Doe at the age when the
abuse allegedly began, but counsel’s earlier objection was overruled and any further
objection may have been futile. Even assuming an objection would not have been futile,
defendant does not contend admission of the photograph was prejudicial.
According to defendant, trial counsel should have objected or otherwise responded
to certain other portions of the prosecution’s case on the grounds that some of the
prosecutor’s questions had been asked and answered; the questions were leading,
irrelevant, or prejudicial; the questions lacked foundation, misstated previous testimony,
or called for narrative answers; Doe testified to hearsay, some of which purportedly
11
contradicted her testimony at the preliminary hearing; the prosecutor “exploited” Doe’s
memory issues; certain topics covered on redirect examination of various witnesses
exceeded the scope of cross-examination; and R.D.’s testimony was “inherently
speculative” hearsay lacking foundation. The “decision whether to object, move to
strike, or seek admonition … is highly tactical, and depends upon counsel’s evaluation of
the gravity of the problem and whether objection or other responses would serve only to
highlight [it].” (People v. Catlin (2001) 26 Cal.4th 81, 165.) In each instance identified
by defendant, counsel may have reasonably determined that an objection or other
response would not benefit the defense. We observe that many of the instances concern
only marginal issues or appear to reflect nothing more than counsel’s correct
understanding of the governing law and the trial court’s proper application of it. An
attorney does not provide deficient assistance if she fails to make a meritless objection.
(People v. Ochoa (1998) 19 Cal.4th 353, 463.)
In addition to alleging that trial counsel failed to adequately respond to the
prosecution’s case, defendant argues counsel should have conducted his defense
differently. He contends counsel “erred by clarifying testimony beneficial to the
prosecution” on cross-examination and “failed to bring any evidence or witnesses” on
behalf of the defense. Those tactical choices do not support a claim of ineffective
assistance: they reflect an overarching strategy of focusing the jury’s attention on the
question of Doe’s credibility. Counsel’s cross-examination of Doe served that purpose
by highlighting confusing or inconsistent portions of her testimony, while avoiding being
overly combative. We also note that counsel had no control over the answers Doe gave
to her questions. (See People v. Cleveland (2004) 32 Cal.4th 704, 746–747.) Defendant
offers no reason to believe that Doe would have given an answer beneficial to the defense
if asked “whether she might have been suffering from … schizophrenia” or another
serious mental disorder. And he provides no legal basis for his argument that counsel
should have asked for Doe to be “tested for a genetic predisposition to confirm whether
12
she is genetically predisposed to mental disorders related to cannabis use.” To the extent
defendant implies counsel unconstitutionally prevented him from testifying, that
contention is undermined by the record: Counsel represented to the trial court in
defendant’s presence that she had advised him of his constitutional right to testify,
explained the pros and cons of doing so, and he had decided to follow her
recommendation that he not testify.
D. DEFENDANT HAS NOT SHOWN THE PROSECUTOR COMMITTED MISCONDUCT
Defendant argues the prosecutor improperly elicited unclear, irrelevant, and
prejudicial testimony; introduced evidence without foundation; exceeded the proper
scope of redirect examination; called a CSAAS expert to testify; and misstated evidence
during closing argument. Defendant did not claim in the trial court that any of the
prosecutor’s actions constituted misconduct. “As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety.” (People v. Samayoa (1997)
15 Cal.4th 795, 841.) We reject defendant’s argument that after defense counsel
unsuccessfully objected to one of the prosecutor’s questions as having been asked and
answered, objections on other grounds to other actions would inevitably have been futile.
We have reviewed each act identified by defendant and we conclude that none rises to the
level of misconduct that would warrant reversal.
The first alleged act of misconduct was eliciting “unclear” testimony from Doe
about basic biographical information. When the prosecutor asked her how many siblings
she had, she said “four”; when asked to name them, she named three. She identified two
of them as defendant’s children. When the prosecutor asked how much older one of
those siblings was than the other, she initially answered, “I don’t know math.” In
response to follow-up questioning, she said one sibling was about four years older than
the other. Eventually, the prosecutor moved on to a different topic and told Doe, “I don’t
13
want you to have to do any more math.” Defendant does not explain how Doe’s
testimony was so “unclear” that the prosecutor’s questioning constituted misconduct, and
we see no possibility that it affected the outcome of the trial or deprived defendant of due
process.
Defendant’s other allegations of misconduct similarly lack merit. He contends the
prosecutor made misstatements both in questioning Doe and during closing argument, but
defendant’s claim is based on selective snippets of the record. Most of the purported
misstatements turn on exactly what Doe said (or meant) during specific portions of her
testimony. A prosecutor may not pose questions to a witness that suggest facts harmful
to the defendant without a good faith belief that such facts exist. (People v. Young (2005)
34 Cal.4th 1149, 1186.) Nor may a prosecutor vouch for the credibility of a witness by
referring to evidence outside the record. A prosecutor may, however, mention the
“ ‘apparent honesty or reliability’ ” of a witness based on facts in the record or reasonable
inferences drawn from those facts. (People v. Romero and Self (2015) 62 Cal.4th 1, 39.)
Here, the prosecutor’s questions to Doe and his comments during closing argument
appear to reflect a good-faith interpretation of Doe’s testimony and reasonable inferences
from her testimony. Even if any of the prosecutor’s questions or comments relating to
Doe’s testimony were objectively inaccurate summaries (and not simply reasonable
disagreement with defendant’s preferred interpretation of the same evidence), we note
that the trial court properly instructed the jury that “[n]othing that the attorneys say is
evidence.” Because we presume that jury followed the court’s instructions, we see no
reasonable probability that the jury considered the challenged comments for an improper
purpose. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Nor has defendant shown that the trial court abused its discretion in finding
adequate foundation for the admission of Doe’s recorded interviews with investigators, as
we have discussed. We therefore reject defendant’s related argument that the prosecutor
committed misconduct by introducing the recordings without foundation. We also reject
14
defendant’s contention that the prosecutor committed misconduct by introducing some of
the recordings on redirect examination without seeking leave of court. (See Evid. Code,
§ 774.) The record indicates that certain recordings were not introduced on direct
examination because they depicted conversation in Spanish and the parties had not yet
agreed on the best means of providing the jury with an English translation.
(Conversations in the recordings introduced on direct examination were in English.)
Defendant does not explain how the prosecution’s description of the parties’ ongoing
discussions to the trial court differs from a proper request for “leave of the court” (as
required under Evidence Code section 774) or why, given those circumstances, allowing
the prosecutor to introduce the Spanish recordings on redirect examination was an abuse
of the discretion expressly granted to the court under the same statute. The prosecutor
therefore did not improperly introduce evidence without permission from the court or
otherwise improperly utilize redirect examination.
Defendant’s remaining discernible allegation of misconduct concerns the
prosecutor’s use of CSAAS expert testimony. We reiterate that the California Supreme
Court has deemed such testimony admissible. (McAlpin, supra, 53 Cal.3d at pp. 1300–
1301.) “Although inadmissible to prove that a molestation occurred, CSAAS testimony
has been held admissible for the limited purpose of disabusing a jury of misconceptions it
might hold about how a child reacts to a molestation.” (People v. Patino (1994)
26 Cal.App.4th 1737, 1744.) The CSAAS testimony in this case was proper under
McAlpin, as it was not used to prove that abuse occurred under the particular facts of the
case. Defendant’s complaints that the expert’s testimony presupposed defendant’s guilt
and was “unresponsive to the weaknesses in [Doe’s] testimony” are belied by the record.
And defendant’s stated concern regarding the “inherently unfair use of the prosecutor’s
war chest” to fund CSAAS experts without commensurate defense resources does not
supply legal grounds to reverse the judgment.
15
E. THE VERDICT AND FINDINGS ARE SUPPORTED BY SUFFICIENT EVIDENCE
“In assessing the sufficiency of the evidence, we review 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 trier of fact could find the
defendant guilty beyond a reasonable doubt.” (Bolin, supra, 18 Cal.4th at p. 331.) We
“presume in support of the judgment the existence of every fact that the trier of fact could
reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.)
Defendant contends all four of his convictions must be reversed due to insufficient
evidence. To overturn any of those convictions, “it must clearly appear that upon no
hypothesis whatever is there sufficient substantial evidence to support it.” (People v.
Redmond (1969) 71 Cal.2d 745, 755.)
In assessing evidentiary sufficiency, we do not reweigh the evidence or second-
guess credibility determinations. (People v. Ramirez (2022) 13 Cal.5th 997, 1118.) We
thus cannot exclude “the prior victim statements and [Doe]’s testimony and [R.D.]’s
testimony” from our consideration, as defendant urges us to do. Defendant suggests that
Doe and R.D. were not credible witnesses. He speculates that Doe’s allegations may
have been “a product of her imagination, heavy marijuana use, physical trauma to the
head,” anger at her mother, and a movie she watched around the time of the alleged
abuse. (The 2015 film Descendants was the subject of a stipulation at trial, but the film’s
content does not appear to be discussed anywhere in the record.) Defendant suggests
R.D. may have “fallen victim to the Miltonic binaries” that misled the “Puritan children
of Salem, Massachusetts” during the Salem witch trials. But defense counsel made
counterarguments about witness credibility, which the jury apparently rejected. Doe’s
testimony and previous statements—corroborated in various respects by the testimony of
numerous witnesses, including R.D.—provide substantial evidence supporting her
allegations of abuse.
16
As to counts 3 and 4, defendant argues that the element of force or duress was not
proven. (Count 3 concerned events when Doe was eight or nine years old, and count 4
concerned events took place when she was 11 years old.) The evidence established that
defendant, Doe’s stepfather who was significantly older and larger, began sexually
abusing her when she was eight or nine years old. Doe testified that during one early
incident, defendant told her to turn onto her back and she complied because she was
“scared.” She had previously told a detective that when she tried to leave the room
defendant “carried [her] back up to the bed” and refused to stop when she asked him to.
In a later incident when Doe was 11 years old, defendant would enter her locked bedroom
at night to sexually abuse her. Doe told investigators that she was scared during the
incident, and R.D. testified that Doe had “punched” and “slapped” defendant during an
incident R.D. witnessed. Their testimony supports the jury’s finding that counts 3 and 4
involved force or duress. (See People v. Martinez (2024) 105 Cal.App.5th 178, 190–191;
People v. Jimenez (2019) 35 Cal.App.5th 373, 392–393.)
F. ANY ERROR IN ADMITTING DOE’S OUT OF COURT DISCLOSURES WAS
HARMLESS
Under Evidence Code section 1240, subdivision (b), statements describing an
event perceived by the declarant are not barred by the hearsay rule if “made
spontaneously while the declarant was under the stress of excitement caused by such
perception.” Defendant argues the trial court abused its discretion by allowing Doe’s
mother and Doe’s counselor to testify about the disclosures Doe made to them, which he
contends were inadmissible under the statute. (Doe’s disclosure to the counselor was
expressly admitted for its truth under Evidence Code section 1240; Doe’s disclosure to
her mother was not expressly admitted under Evidence Code section 1240 but was
admitted over a hearsay objection, and the trial court does not appear to have instructed
the jury to consider it for any limited purpose.)
17
Although there was evidence that Doe made the disclosures during periods when
abuse was occurring, both disclosures concerned acts of abuse that had taken place in the
past. Evidence established that defendant had last abused Doe about two weeks before
she disclosed the abuse to her counselor, and some of the abuse had taken place years
earlier. It is unclear how much time had passed between the abuse and Doe’s disclosure
to her mother, but Y.D. testified that Doe initiated the conversation by approaching her
one night and telling her “she wanted to say something.” The circumstances of both
disclosures suggest that Doe had reflected before disclosing the abuse, despite being
visibly upset at certain points of both conversations. (See People v. Lozano (2024)
101 Cal.App.5th 366, 378.)
Assuming without deciding that the trial court improperly admitted the statements
for their truth, the error does not require reversal.3 Defense counsel did not object to
admission of the same statements as fresh complaint evidence and, as we have discussed,
we are not persuaded that counsel was ineffective for failing to do so. The jury was thus
properly permitted to consider the statements for the purpose of corroborating Doe’s
testimony. Further corroboration was provided by Doe’s friend, whose testimony about
Doe’s disclosure to him was admitted under the fresh complaint doctrine. Doe’s
statements to investigators were properly admitted for their truth as past recollections
recorded, and they contained more detail about the abuse alleged than the statements
testified to by Y.D. and the counselor. And R.D.’s testimony provided still more detail
about an event he said he witnessed. We see no reasonable probability of a different
result had the jury not been permitted to consider the two challenged disclosures for their
truth. (See People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526–1527.)
3
Defendant asserts in his reply brief that it is “impossible” for him to assess the
prejudicial impact of any individual error made by the trial court, and that requiring him
to make such “formalistic arguments” would violate his right to appeal. We nonetheless
consider his argument under the applicable prejudice standard.
18
G. DEFENDANT’S OTHER ARGUMENTS DO NOT RAISE ANY REVERSIBLE ERRORS
We have considered and addressed the numerous “matters preserved for appeal”
defendant identifies in the so titled section of his opening brief insofar as they relate to
the preceding contentions. Defendant further argues in that section that the trial was
conducted in violation of his constitutional rights, including his right to testify and his
right to confront his accusers. (He describes the asserted constitutional violations as
“matters preserved for appeal” despite defense counsel not objecting on those grounds in
the trial court.) As we have discussed, defense counsel informed the court that she had
advised defendant of his right to testify and he had elected not to. The court was not
required to inquire further or obtain a personal waiver from defendant. (People v. Hayes
(1991) 229 Cal.App.3d 1226, 1232.) Defendant also had full opportunity to cross-
examine Doe at trial, undermining his argument that admission of her recorded
interviews violated his confrontation right. (People v. Cowan (2010) 50 Cal.4th 401,
468.)
To the extent defendant attempts to raise additional issues as “matters preserved
for appeal,” or attempts to raise new issues for the first time in his reply brief, those
issues are forfeited and we do not consider them. The opening brief points to defense
objections which were overruled or sustained, but cites no legal authority or connection
them to any apparent appellate contention. He also alleges without case-specific
discussion or citation to the record that “the prosecution caused Hobbesian perversions of
the People of California’s sovereignty.” In support of that assertion, he discusses
artificial intelligence and cites to the work of Thomas Hobbes; a United States Supreme
Court case from 1793 concerning sovereign immunity; and a United States Supreme
Court case from 2024 concerning presidential immunity. “When an appellant asserts a
point but fails to support it with reasoned argument and citations to authority, we treat the
point as forfeited.” (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052,
1066.) Nor do we consider arguments made for the first time in a reply brief. (Ibid.)
19
(Topics defendant discusses in his reply brief include eugenics, prison overcrowding,
forced sterilization, and political issues relating to immigration.) Similarly, defendant
concludes his opening and reply briefs by asking us to modify his sentence in the event
his convictions are not reversed, but he does not support the request with argument or
citation to authority.
Having determined that the lone possible error identified by defendant was not
prejudicial, and that defendant has not identified any other errors in the conduct of his
trial, we necessarily reject his assertion that multiple errors cumulatively prejudiced him.
III. DISPOSITION
The judgment is affirmed.
20
____________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Wilson, J.
H051886
The People v. Murillo