The opinion
Filed 1/29/26 P. v. Monterrubio CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A172249
v.
ERIK LIMETA MONTERRUBIO, (Marin County
Super. Ct. No. SC217512A)
Defendant and Appellant.
Erik Limeta Monterrubio appeals from convictions of sexual offenses
against his 11-year-old goddaughter. He contends the trial court abused its
discretion in allowing the detective who first interviewed the child to testify
that she was credible and that she behaved like a victim of sexual abuse. We
conclude his claims were forfeited by failure to object at trial on the grounds
now raised and, in any event, any error was harmless. His alternative claim
of ineffective assistance of counsel is also without merit.
BACKGROUND
I.
Factual Background
A. Prosecution Case
Jane Doe was 14 years old at the time of trial. Monterrubio was her
godfather and she had known him all her life. Doe’s mother, Ruth, met
Monterrubio’s wife, Norma, about 16 years before trial and the two families
1
became very close.1 Ruth testified that they “did everything together,”
including holidays and traveling, and she considered them family.
Monterrubio and his wife had two sons: A.L., who was a grade ahead of Doe,
and H.M., who was about a year younger than Doe and had autism.
In May and June 2021, when Doe was 11 years old, Norma took care of
her after school until Ruth picked her up around 5:00 or 5:30 p.m. Norma
would walk to the school with H.M. to pick up Doe and sometimes another
child she was babysitting. Doe testified that they would get to Norma’s
apartment about 3:00 p.m. The apartment consisted of a kitchen connected
to the living room; a bedroom shared by Monterrubio’s family; and a
bathroom accessed through the bedroom. There was also a second bedroom
with a bathroom across the hall that was used by roommates who split the
rent with the family.
Doe testified that when they got to the apartment after school, A.L.
would be in the living room, doing his online classes. Everyone would stay in
the living room, and the kids would do homework and sometimes watch
movies. She did not remember A.L. moving into the bedroom once they
arrived. H.M. was usually with Norma but sometimes he was in the living
room alone.
Monterrubio would come home a little after Doe arrived, then leave
half an hour later for a second job. Sometimes Norma would go out to a
nearby store while he was at home. On one of these occasions, Monterrubio
told Doe to come into the bedroom with him. He closed the door and told her
to lie down on the bed. She lay down and he lay down next to her, then put
1We use first names in the interest of readability. No disrespect is
intended.
2
his hand under her clothing, put his fingers inside her vagina and “went back
and forth.” She felt scared. It lasted five minutes, then he told her not to tell
anyone. The same thing happened five times in May and June, exactly the
same way. Monterrubio told her that if she told anyone he would “put [her]
parents in jail.” There were no further incidents after June because Doe did
not go to the apartment after school once school ended for the summer.
That summer, Doe was feeling “really sad” and “[n]ot really” eating
normally. She had not told anyone about what had happened because she
was scared. In August, Doe had a sleepover at the home of her friend, Jane
Doe 2. Doe told Jane Doe 2 that her godfather was touching her, providing “a
little bit” of detail and saying she was scared. She told Jane Doe 2 not to tell
anyone.
A couple of days before she testified, Doe learned that her mother had
applied for a “U visa.” Doe had not heard of a U visa before and testified that
she did not really know what it is. No one had ever told her she needed to
“say things in a certain way” to help with the visa. On cross-examination,
she acknowledged that she knew the visa was “about citizenship” and knew
her family did not have legal status. Asked whether she was concerned about
her family’s illegal status at the time the incidents with Monterrubio were
happening, Doe responded, “I wasn’t worried, I just knew they were not here
legally.” She acknowledged having testified at the preliminary hearing that
there were some “difficult issues” regarding her family’s illegal status at the
time of the events. She further acknowledged that when the prosecutor told
her family that Monterrubio’s “defense was the U visa,” Ruth said, “that
sounds dumb.”
Jane Doe 2 testified that at the sleepover in August 2021 Doe looked
sad and did not seem like her usual self. Jane Doe 2 asked if everything was
3
okay and Doe initially said everything was fine. As Jane Doe 2 continued
asking, Doe said she “couldn’t say anything,” then eventually said her
godfather was touching her vaginal area. Doe looked “scared, or sad” and
they both cried. Doe said she had not told anyone else.2
Jane Doe 2’s mother testified that the morning after the sleepover
Doe 2 told her what Doe had said. Doe 2’s mother told Ruth three days later.
Ruth testified that in May and June 2021 she had noticed Doe was
becoming “a little bit more shy and more quiet,” eating less and having
“issues with insomnia.” Ruth was worried and asked Doe if anything was
going on, but Doe said no. Ruth had seen changes in her two older children
in their early teenage years, but Doe’s were different; Doe started cutting
herself, which her older sister had not done, and “[t]here was a lot of sadness
in her eyes.”
When Doe 2’s mother told Ruth what Doe 2 had reported, Ruth felt
“[h]urt, betrayed, sad, angry, shocked.” She felt betrayed because she had
“trusted [Monterrubio] blindly.” Ruth took Doe to the pediatrician. About a
month later, on September 27, 2021, she went to Doe’s school to ask for
counseling and the police were contacted. Ruth met with Detective Rodriguez
that day.
In June 2023, Ruth applied for a U visa, which she understood to be a
type of visa allowing temporary status for victims of specific types of crimes
and their families. She testified that she had first heard of this type of visa
at an informational talk at school sometime before 2020 but did not know
2Jane Doe 2 testified that she and Doe had been friends since
elementary school. On cross examination, she said she did not remember
when she had last seen Doe prior to the sleepover and she was “not sure”
whether they went to the same school.
4
exactly what the requirements were until sometime in 2022, when she made
an appointment to get the information. Asked how she felt when she heard
the accusation that her family had made up the allegations against
Monterrubio to get a visa, Ruth responded, “I’m mad. I’m angry. I’m just
really upset, because to this day my daughter has not been able to open up
and tell me what happened. I don’t know exactly what happened.”
On cross examination, Ruth testified that after speaking with the police
officer in September 2021, she was referred to a law firm or legal
immigration organization. She got the referral on December 14, 2021, and
subsequently got contact information for an immigration attorney in
October 2022. The parties stipulated that the form necessary for a U visa
application was provided to the district attorney’s office on December 28,
2022, certified by that office and returned to Ruth’s attorney on January 5,
2023. Ruth filed her application for the U visa in June 2023.
Police Detective Antonio Rodriguez, who was a school resource officer
during the initial investigation of this case, took separate statements from
Ruth and Doe at Doe’s school on September 27, 2021. Doe appeared to have
difficulty maintaining eye contact with Rodriguez and was “very soft spoken.”
Rodriguez testified, “she was “exhibiting mannerisms that are consistent
with somebody that’s experiencing emotional distress. She was looking
down, she was fidgeting with her hands. And when it came time to speak
about the incidents that were reported, the thing I remember clearly is she
started rocking her leg.” Rodriguez explained that he found this significant
because he had “vast experience interviewing children that have experienced
sexual abuse, and in my training and experience I’ve witnessed that type of
behavior to be indicative of somebody that’s attempting to disassociate with
explaining the incident, or trauma.”
5
Rodriguez testified that when he entered the assistant principal’s office
to interview Doe, she was drawing flowers on a notepad. As Rodriguez
chatted with her, trying to gain rapport, Doe continued to draw “with
purpose,” but when they started to discuss her allegations, he noticed that
she “would scribble like a couple lines, and immediately erase them, and then
write them back again, and immediately erase them, and she did that for
almost the entirety of when she was actually speaking about the incidents.”
This caught Rodriguez’s attention “because it was a clear change in behavior”
and in his training and experience, “it's indicative that children that are
victims of sexual abuse will often exhibit some type of behavior to
disassociate themselves from the incident and trauma.
Rodriguez found Doe credible. Because she made disclosures of a
sexual nature, a child forensic interview was scheduled. Rodriguez observed
the interview and a recording of it was played for the jury.3 Rodriguez
testified that “her mannerisms, and the way that the disclosures were made,
and the environment of the child forensic interview room, in my opinion they
appeared to be credible.” After the interview, Monterrubio was arrested.
B. Defense Case
Attorney Josh Sigal testified as an expert on family immigration law
and U visas. He explained that a U visa is a type of visa available for victims
3 In the interview, Doe said that all the molestations happened when
Norma went to the store and no one else was at home. She thought the boys
went with Norma. She said Monterrubio told her not to tell anyone or he
would “get [her] mom arrested” and that he would “do it even more” if she
told anyone. She felt scared because she thought he was going to do it more
and have her mother arrested. She also said that while she and the boys
were watching a movie, Monterrubio lay down with them, called her ”pretty”
and “smacked [her] butt.”
6
of certain crimes, mainly violent crimes, who cooperate with law enforcement
to help prosecute the crime. A U visa provides temporary legal status. If U
visa status is maintained for three years, the individual can apply for a green
card, which provides permanent resident status and may lead to citizenship,
but a U visa does not guarantee either green card status or citizenship.
The application process for a U visa requires a certification from a law
enforcement agency stating that the individual was a victim of qualifying
crime, possesses information helpful to the investigation and is cooperating
with the investigation. If the crime victim is under 16 years old, the parents
may be eligible for a U visa if they are helpful to the investigation. The
average wait time for a decision on a U visa is five years or more.
A.L., Monterrubio’s older son, testified that in the spring of 2021, he
was in sixth grade and attending school virtually. He logged onto Zoom
around 8:40 a.m., did assignments in the middle of the day, and toward the
end of the day logged onto Zoom again. His last class ended around 3 p.m.
A.L. did his classwork on a bed in his family’s bedroom and would be in the
bedroom doing his homework when the others returned from school.
Monterrubio would get home a little after the others, shower quickly, change
and go to his second job, which started at 3:00 p.m.
A.L. testified that his mother always took H.M. with her when she
went to pick Doe up from school. H.M. could not be left unattended because
of his autism, and he was never left with A.L. or the other children; one of the
parents was always with him.4 Neither of the parents would ever have gone
4 A.L. testified that H.M. had a lot of behavior problems. He was
nonverbal and would make “loud, almost like screaming sounds,” and he
often had tantrums over small things. He also needed assistance with basic
things like using the bathroom.
7
into the bedroom and left H.M. alone in the other part of the house with other
children.
A.L. testified that the other children would come into the bedroom
while he was doing his homework if they needed to use the bathroom. When
Doe came in to use the bathroom, she was always by herself. During the
spring semester of 2021, A.L. never missed school; he had checked a record to
confirm this. When the school day ended, he would spend about an hour in
the bedroom doing his homework and when he finished he would join the
others in the living room. He did not do his homework in the kitchen or
living room because H.M. would be “loud and distracting.”
A.L. acknowledged that he loved Monterrubio and did not want him to
get in any trouble, and that Monterrubio was the breadwinner for the family,
but testified that he would not be dishonest for Monterrubio.
II.
Procedural Background
Monterrubio was charged by information filed on April 18, 2023, with
one count of lewd act upon a child under the age of 14 years (Pen. Code,5
§ 288, subd. (a)) and one count of sexual penetration with a foreign object
(§ 289, subd. (a)(1)(B)). The information alleged four aggravating
circumstances. (Cal. Rules of Court,6 rules 4.421(a)(1) [crimes involved great
violence]; 4.421(a)(3) [vulnerable victim]; 4.421(a)(11) [took advantage of a
position of trust]; 4.421(b)(1) [violent conduct indicating danger to society].)
On September 5, 2024, a jury found Monterrubio guilty of both offenses
and found the aggravating circumstances true. On November 7, 2024, the
5 Further statutory references will be to the Penal Code.
6 Further references to rules will be to the California Rules of Court.
8
court sentenced him to the upper term on each count for a total sentence of
20 years in prison.
This timely appeal followed.
DISCUSSION
Monterrubio contends the trial court abused its discretion in allowing
Detective Rodriguez to testify that Doe was credible and that she behaved
like a victim of child sexual abuse. The prosecutor did not present Rodriguez
as an expert witness and he was not qualified as such. Rodriguez referred to
his training and experience in stating his opinions and observations,
however, and on cross examination defense counsel questioned him about his
background, training and experience in law enforcement and specifically in
investigation of child abuse cases.7 Monterrubio argues Rodriguez’s opinion
on Doe’s credibility was inadmissible whether Rodriguez was testifying as a
layperson or as an expert witness; his argument regarding the testimony that
Doe behaved like a sexual abuse victim treats Rodriguez as an expert
witness.
7 Rodriguez had been a detective for about a year and a half at the
time of trial; during the initial investigation of this case, he was a police
officer working as a school resource officer. Prior to this investigation, he had
attended approximately 500 hours of instruction at the police academy, a
“large block” of which was “centered on child abuse and sexual assault, sex
crimes against children.” As a patrol officer, he was involved in numerous
investigations of child sexual abuse allegations, and as a school resource
officer he “routinely” took initial reports of children’s disclosures to school
counselors or family members which he would then refer to detectives.
Because Rodriguez aspired to be a detective, he worked with the sex crime
detective and shadowed her child forensic interviews. He had observed 5 to
10 child forensic interviews at the time of the present investigation and by
the time of trial he had observed about 10 and conducted 21.
9
I.
Opinion on Credibility
A. Additional Background
On direct examination, when the prosecutor asked if Rodriguez found
Doe credible in the initial interview at school, the officer replied,
“Absolutely.” Defense counsel objected, “relevance, calls for speculation,
outside the scope of the witness, foundation,” and the court sustained the
objection. Rodriguez then explained the protocol for scheduling and
conducting a forensic interview when an officer receives a report of child
sexual abuse, and authenticated the recording of Doe’s forensic interview,
which was played for the jury.
Much of Rodriguez’s cross examination focused on his training and
experience with investigations of child sex crimes, including techniques used
in interviewing children, both in general and in this case in particular. On
redirect, the prosecutor described Rodriguez having been asked a number of
questions about “juvenile witnesses, children, wanting to please police
officers in forensic interviews” and asked, “Was there anything about Jane
Doe’s interview that gave you pause or concern as far as her disclosures?”
Rodriguez responded, “Absolutely not.” Asked, “[w]hy is that?” Rodriguez
testified, “Well, at the time, based on the training and experience I had at the
time, based on her mannerisms, and the way that the disclosures were made,
and the environment of the child forensic interview room, in my opinion they
appeared to be credible.” Defense counsel objected, “non-responsive,” and the
objection was overruled.
B. Governing Law
“A lay witness may testify in the form of an opinion only when he
cannot adequately describe his observations without using opinion wording.
10
(Jefferson, Cal. Evidence Benchbook (1972) § 29.1, pp. 495-496.) ‘Whenever
feasible “concluding” should be left to the jury; however, when the details
observed, even though recalled, are “too complex or too subtle” for concrete
description by the witness, he may state his general impression. [Citation.]’
(People v. Hurlic (1971) 14 Cal.App.3d 122, 127.)” (People v. Sergill (1982)
138 Cal.App.3d 34, 40 (Sergill).)
“ ‘A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to qualify him
as an expert on the subject to which his testimony relates.’ (Evid. Code,
§ 720, subd. (a).) An expert witness may give opinion testimony ‘[b]ased on
matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to
him at or before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is precluded by law
from using such matter as a basis for his opinion.’ (Evid. Code, § 801,
subd. (b).)” (People v. Brown (2014) 59 Cal.4th 86, 99-100.) “ ‘The general
rule is that an expert may not give an opinion whether a witness is telling
the truth, for the determination of credibility is not a subject sufficiently
beyond common experience that the expert’s opinion would assist the trier of
fact; in other words, the jury generally is as well equipped as the expert to
discern whether a witness is being truthful.’ ” (People v. Sanchez (2019)
7 Cal.5th 14, 46, quoting People v. Coffman and Marlow (2004) 34 Cal.4th 1,
82.)
11
C. Analysis
1. The Claim Was Forfeited.
Monterrubio objected to the testimony he now challenges as improper
opinion testimony not on this ground but only as nonresponsive. A
defendant’s “failure to make a timely and specific objection on the ground he
now raises forfeits the claim on appeal.” (People v. Pearson (2013) 56 Cal.4th
393, 416; People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 81-82
[forfeiture of improper opinion challenge by failure to object, or to object on
this ground]; People v. Rodriguez (2014) 58 Cal.4th 587, 631 [improper
opinion argument not cognizable due to failure to object on this ground].) The
specific objection requirement “is necessary in criminal cases because a
‘contrary rule would deprive the People of the opportunity to cure the defect
at trial and would “permit the defendant to gamble on an acquittal at his
trial secure in the knowledge that a conviction would be reversed on appeal.” ’
[Citation.] ‘The reason for the requirement is manifest: a specifically
grounded objection to a defined body of evidence serves to prevent error. It
allows the trial judge to consider excluding the evidence or limiting its
admission to avoid possible prejudice. It also allows the proponent of the
evidence to lay additional foundation, modify the offer of proof, or take other
steps designed to minimize the prospect of reversal.’ ” (People v. Partida
(2005) 37 Cal.4th 428, 434.) “A party cannot argue the court erred in failing
to conduct an analysis it was not asked to conduct.” (Id. at p. 435.)
Monterrubio asks us to exercise our discretion to consider his claim
despite his failure to object to Rodriguez’s testimony as improper opinion
evidence. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) That we are
not precluded from reaching the issue, of course, does not require us to do so,
and Monterrubio suggests no particular reason for us to depart from the
12
usual forfeiture rules. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642,
649 [exercising discretion to review improper jury instruction where objection
would have been futile, prosecution was “at least equally at fault in allowing
the error,” and “shocking nature of the error . . . rendered the trial unfair”].)
2. Any Error Was Harmless.
In any event, we are convinced that even if Rodriguez’s testimony was
improper, Monterrubio was not prejudiced by it. The testimony at issue came
in the course of Rodriguez’s explanation why he did not find anything
problematic in the way Doe’s forensic interview was conducted. On cross
examination, defense counsel had questioned Rodriguez about ways to
determine a child’s understanding of truth and lies; children’s susceptibility
to suggestion, particularly in the context of a police interview; and whether
specific questions asked during Doe’s interview were suggestive. In response
to this line of questioning, the prosecutor asked Rodriguez whether anything
about the interview “gave you pause or concern as far as her disclosures.”
Rodriguez’s response—that Doe’s disclosures appeared to be credible based
on her mannerisms, the “way that the disclosures were made” and the
“environment of the child forensic interview room”—was not so much a
general statement that Rodriguez believed Doe was telling the truth as an
explanation that he did not see anything in the way the interview was
conducted that would have led Doe to say what she believed the interviewer
wanted to hear rather than what Doe claimed happened.
The jurors were instructed that they were the sole judges of the
credibility of witnesses and could believe all, part or none of a witness’s
testimony. They were instructed that they were not required to accept an
expert witness’s opinion as true or correct and could disregard any opinion
they found unbelievable, unreasonable or unsupported by the evidence, and
13
that the same applied to witnesses not testifying as experts. The prosecutor’s
closing argument emphasized that the jurors were “the sole judges of the
credibility of the witnesses,” stating, “You and only you decide who’s telling
the truth. You and only you decide who has a motive to lie. [¶] Did you
believe [Doe]? That’s what this case is going to come down to. Did you
believe Jane Doe? Did you find her credible? Did you find that she was
telling the truth? If you believe Jane Doe then the defendant is guilty. If you
don’t believe her, then he’s innocent, and you find him not guilty.” After
noting that the jurors had heard the forensic interview and testimony of “the
officers,” Doe’s mother and Doe’s friend, the prosecutor urged, “But most
important of all, you heard from Jane Doe.”
These circumstances are quite different from those in Sergill, supra,
138 Cal.App.3d 34, which involved sexual abuse of a child by her uncle. A
police officer who interviewed the child testified that “he could usually
determine ‘with a high degree of accuracy’ whether a child’s statements were
true, and that he believed the girl was telling the truth to him,” and another
officer testified that “she questioned the girl to try and arrive at the truth”
and “thought she had determined the truth.” (Id. at p. 41.) Sergill held there
was no basis for admission of this testimony.
In finding the error prejudicial, the Sergill court noted a number of
reasons to question the evidence against the defendant: The case had been
tried previously and the jury had been unable to reach a verdict; there were
inconsistencies between the child’s several accounts of the incident as well as
between her account and her mother’s; there was evidence of animosity
among members of the family; and while there was medical testimony that
the girl’s physical condition was consistent with sexual abuse, this diagnosis
was premised on the girl’s report and the physician acknowledged that he
14
would have been “puzzled” about the cause of what he observed if he had not
heard her report. (Sergill, supra, 138 Cal.App.3d at p. 41.)
Most significant to the Sergill court’s analysis of prejudice, however,
was that “[i]n the presence of the jury, the court declared in effect that [the
first officer] was especially qualified to render his opinion as to whether a
person reporting a crime was telling the truth.” (Sergill, supra,
138 Cal.App.3d at p. 41.) Specifically, in overruling defense counsel’s
objection when the officer was asked his opinion on whether the victim was
telling the truth, the trial court stated that the officer was qualified to offer
his opinion because his seven years of experience, including writing a
thousand or more reports, indicated he had experience taking witnesses’
testimony and evaluating whether a person was telling the truth. (Id. at
p. 38.) Sergill held that “[t]he court’s comment may well have caused the jury
to place undue emphasis on the officers’ testimony. It is reasonably probable
that the combined effect of the court’s comment and the improperly admitted
opinion testimony was the usurpation of the jury’s function as fact finder.”
(Id. at p. 41.)
Here, neither the trial court nor the prosecutor highlighted Rodriguez’s
testimony that he found Doe’s allegations in the forensic interview credible.
To the contrary, the prosecutor emphasized that the jurors were the sole
judges of Doe’s credibility and urged them to evaluate her credibility on the
basis of the recording of the interview they had seen and Doe’s testimony at
trial. The reasons to question Doe’s testimony that Monterrubio points to—
including his theory that the family fabricated Doe’s story in order to pursue
a U visa and A.L.’s testimony that he was always in the bedroom and Doe
could not have been alone with his father—were fully presented to the jury by
the defense and countered by the prosecution. Considering the evidence, the
15
arguments and the absence of any particular emphasis on Rodriguez’s view of
Doe’s credibility, we see no reasonable probability the jury would have
reached a different conclusion in the absence of the challenged testimony.
II.
Testimony That Doe Acted Like Victim of Sexual Abuse
A. Additional Background
After Rodriguez testified that he interviewed Doe in the assistant
principal’s office at her school, the prosecutor asked what Doe was doing
when Rodriguez walked into the room. Rodriguez testified that Doe was
sitting inside the office with a notepad, crayons and pencils and “[i]t looked
like she was coloring.” She continued to draw as he started his questions.
The prosecutor asked, “Did she do anything that caught your
attention?” Defense counsel objected on hearsay grounds and the court
overruled the objection. Rodriguez testified, “Yes, she did.” Asked for further
explanation, Rodriguez responded, “when I initially walked into the room, I
tried my best to get down and gain some rapport with her, we were chatting
about, you know, stuff that a 6th grade kid likes to do. Chatting with her.
And when I was talking with her about that stuff she was drawing with
purpose, she was drawing flowers and whatnot. And as soon as we started
getting to the allegations of the incidents that she started disclosing to me, I
really paid attention to the fact that she was—I remember she had, it was a
mechanical pencil, and she would scribble like a couple lines, and
immediately erase them, and then write them back again, and immediately
erase them, and she did that for almost the entirety of when she was actually
speaking about the incidents.” The prosecutor asked Rodriguez why this
caught his attention and Rodriguez explained that “it was a clear change in
behavior. It was, in my experience, training and experience, it’s indicative
16
that children that are victims of sexual abuse will often exhibit some type of
behavior to disassociate themselves from the incident and trauma.”
B. Analysis
1. The Claim Was Forfeited.
Monterrubio argues Rodriguez’s testimony that Doe was acting like a
victim of sexual abuse was improper in that it stated a legal conclusion that
she had in fact been sexually abused and constituted improper vouching for
her veracity. (People v. Lapenias (2021) 67 Cal.App.5th 162, 180 [expert
testimony that children rarely make false allegations of sexual abuse is
improper vouching]; People v. Munch (2020) 52 Cal.App.5th 464, 468 [expert
may not give opinion on whether victim is telling truth]; People v. Julian
(2019) 34 Cal.App.5th 878, 887 [expert testimony on statistical rarity of false
accusations by child sexual abuse victims improperly boosts credibility of
victim].) Acknowledging that defense counsel did not object to the testimony
on these grounds, Monterrubio argues the issue is cognizable on appeal
because counsel objected twice on hearsay grounds and a defendant is not
required to repeatedly object to a line of questioning after objections have
been overruled. The cases Monterrubio relies on establish that a defendant is
not required to repeatedly renew a previously overruled objection on the
same grounds in order to raise the same issue on appeal. (People v. Antick
(1975) 15 Cal.3d 79, 95; People v. Meacham (1984) 152 Cal.App.3d 142, 155;
People v. Zemavasky (1942) 20 Cal.2d 56, 62.) Monterrubio offers no
authority suggesting the forfeiture doctrine does not apply where the
overruled objection was on a different ground than the issue raised on appeal.
Monterrubio’s hearsay objection did not preserve his claim that the testimony
constituted improper vouching or opinion testimony.
17
2. Monterrubio Has Not Demonstrated Ineffective Assistance
of Counsel.
Monterrubio contends that if his attorney’s objections were insufficient,
the failure to object on grounds of improper vouching or legal conclusion
constituted ineffective assistance of counsel. To prevail on this claim,
Monterrubio must establish, first, that counsel’s failure to make the proper
objection “fell below an objective standard of reasonableness under prevailing
professional norms” and second, “a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding would have
been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
We are not convinced that counsel’s conduct was deficient. Rodriguez
did not directly testify that Doe “act[ed] like a victim of sexual abuse” or that
he concluded she had in fact been sexually abused. Rather, he testified that
he observed behavior by Doe that, in his training and experience, was
“indicative” of someone trying to “disassociate” with the incident or trauma of
sexual abuse. The testimony Monterrubio challenges is Rodriguez’s
statement that while interviewing Doe, when his questions moved from
general rapport-building efforts to specific discussion of Doe’s allegations, his
attention was caught by her changing from the purposeful drawing she had
been engaged in to repeatedly scribbling and immediately erasing what she
had written. The reasonable inference to be drawn from this testimony is
that Rodriguez was struck by Doe’s change in behavior because he recognized
it as consistent with what a victim of child sexual abuse might do, not that he
was saying the behavior caused him to conclude Doe had in fact been sexually
abused. So understood, the testimony offered the jurors information they
would not necessarily have had about the behavior of a child reporting sexual
abuse, and it would have been reasonable for counsel to see no basis for the
objections Monterrubio contends should have been made. Indeed,
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Monterrubio does not challenge a similar portion of Rodriguez’s testimony in
which the officer stated that when first talking with Doe at school, his
attention was caught by her starting to “rock[] her leg,” which he said was
also a type of behavior he had witnessed as “indicative of somebody that’s
attempting to disassociate with explaining the incident, or trauma.”8
To the extent Rodriguez’s testimony can be seen as improperly stating
a legal conclusion or vouching for Doe’s credibility, and counsel can be faulted
for failing to object on these grounds, we conclude Monterrubio was not
prejudiced. Rodriguez’s testimony made clear that his interviews at Doe’s
school were a preliminary step that served as the basis for proceeding with
the forensic interview at which the truth of the allegations would be assessed.
The jurors likely understood that Rodriguez’s belief Doe was acting in a
manner consistent with having been abused was a trigger for further
investigation rather than a determination that she had in fact been abused.
The prosecutor referred to this testimony in closing argument as “interesting
observations” of behavior that, according to Rodriguez’s training and
experience, was consistent with that of child sexual abuse victims; the
prosecutor did not suggest Rodriguez took this behavior as proof Doe had
been sexually abused and did not dwell on the testimony. As we have said,
the jury was instructed, and the prosecutor reiterated, that the jurors were
the sole judges of witnesses’ credibility. The jurors were able to observe and
evaluate Doe’s demeanor as she related her allegations in the forensic
interview and at trial. They were able to evaluate the credibility of witnesses
who corroborated her story—her mother and her friend—as well as that of
8 Defense counsel unsuccessfully objected on grounds of foundation to
the question that elicited this response, which asked why Rodriguez found
the leg-rocking significant.
19
A.L., whose testimony, if true, would have proved the events Doe described
were impossible. We see no reasonable probability that a juror who was
otherwise unconvinced Doe was telling the truth would have been swayed to
the contrary because the juror took Rodriguez’s testimony to indicate the
officer concluded Monterrubio was guilty based on Doe’s behavior when the
officer first interviewed her.9
DISPOSITION
The judgment is affirmed.
9 Having concluded the errors Monterrubio complains of were forfeited
or harmless, we also conclude Monterrubio’s claim of cumulative prejudicial
error is meritless. (People v. Linton (2013) 56 Cal.4th 1146, 1197.)
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STEWART, P. J.
We concur.
MILLER, J.
DESAUTELS, J.
People v. Monterrubio (A172249)
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