Opinion
G050386
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDY SOETANTO, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF3212) OPINION Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was sentenced to eight years in prison for sexually molesting his stepdaughter (Victim). On appeal, he contends his convictions must be reversed because: 1) He was not advised of his Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)) before being interviewed by a social worker to whom he made various admissions; 2) the prosecution was allowed to introduce evidence of his uncharged sexual misconduct; 3) he was not permitted to question Victim's Mother (Mother) about certain matters during her testimony; and 4) CALCRIM No. 362, the standard jury instruction on a defendant's false statements, is flawed. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
The Victim was born in 1997 and has a Sister who is nine years her senior. When Victim was three years old, Mother met Appellant, and they subsequently married and had a boy together. Victim had a good relationship with Appellant during her early childhood. However, when she was 10 and 11 years old, Appellant molested her on multiple occasions.
The molestation occurred at the family's apartment in Fullerton. On the first occasion, Victim awoke from a nap to find Appellant pulling down her pants and touching her vagina. She tried to move away from him, but he pulled her back and rubbed her vagina for several minutes. About a week later, he did the same thing to her, only this time he also licked her vagina and touched her breasts. Appellant subjected her to similar abuse on three other occasions.
Victim did not disclose the molestation to anyone at the time it occurred. However, in the summer of 2009, when Victim was 11 years old, Mother noticed she was acting out a lot and seemed bothered by something. She asked Victim if Appellant had been touching her inappropriately, and she said yes. When Mother confronted Appellant about this, he denied any wrongdoing. Nevertheless, he and Mother separated in September 2009, and he moved out of their apartment the following month.
Mother did not report Appellant to the police. Instead, she told her boss Steven Venazi about what Appellant had allegedly done to Victim. Venazi, a former marriage, family and child counselor, then talked to Victim to find out what happened. After Victim confirmed the allegations to him, Venazi contacted social services and they launched an investigation into the matter.
As part of the investigation, social worker Morgan Brashears went to Mother's apartment with an officer from the Fullerton Police Department. After speaking with Mother and Victim about the allegations, Brashear had Mother call Appellant over to the apartment. When he arrived, Brashears spoke to him, and he admitted touching Victim's vagina on two occasions, once after she fell and injured her vaginal area, and once after she complained of having pain in that area. However, he claimed he did so for medicinal purposes, not for sexual gratification.
In attempting to establish otherwise, the prosecution presented testimony from Victim's Sister (Sister). She testified that when she was in high school, Appellant would touch her breasts with his elbow whenever they passed each other in the hallway of their apartment. According to Sister, Appellant tried to make the touching look like an accident, but she was convinced it was intentional because it happened so often.
The primary witness for the defense was Appellant and Mother's pastor/marriage counselor, Ryando Sindoro. Sindoro testified that during one of the counseling sessions, while Appellant was out of the room, Mother told him about Victim's allegations. Sindoro offered to talk to Appellant about the matter, but Mother did not want him to do so. Sindoro urged Mother to talk to Victim again, in order to find out if she was telling the truth about Appellant. The next day, Mother called Sindoro and told him Victim had recanted her allegations against Appellant, so Sindoro did not report the allegations to the authorities. But later he was contacted by social worker Brashears. After explaining to Brashears that Victim had apparently recanted her allegations, Sindoro thought his involvement in the matter was over. However, following his conversation with Brashears, Mother and Venazi wanted to talk to him, so he met with them in his office. During the meeting, Venazi told Sindoro he would "mess up" his life if he did not retract his statement to Brashears about Victim's alleged recantation, but Sindoro refused to do so.
DISCUSSION
Admissibility of Appellant's Statements to Brashears
Appellant contends his statements to Brashears should have been excluded because she failed to advise him of his Miranda rights before questioning him about Victim's allegations. However, Appellant was not in custody when questioned by Brashears. Therefore, no Miranda violation occurred, and his statements were properly admitted into evidence.
As a senior social worker with the Orange County Social Services Agency, Brashears was tasked with investigating the allegation that Appellant had sexually abused Victim. When Brashears arrived at Victim's apartment to do this, she was accompanied by Fullerton Police Officer Hazel Perez. Brashears testified Perez was with her for safety reasons. She said, "It's protocol to call for law enforcement whenever there's an alleged perpetrator in the home." As noted above, Appellant was not at Victim's apartment when Brashears and Perez first got there. However, he came to the apartment after Mother called him.
By that time, Brashears had already spoken to Mother and Victim about the allegations. Brashears wanted to get Appellant's side of the story, so she interviewed him in the living room. Perez was also present during the interview, but as explained more fully below, she did not take an active role in the questioning.
Brashears' attempt to keep the interview private met with mixed results. The biggest impediment to this objective was Victim's little brother. Brashears, Mother and Appellant all tried to keep the five-year-old out of the living room during the interview, but he interrupted on multiple occasions, apparently either to see what was going on, or to be with his father. Victim can also be heard talking in the background during parts of the interview, and at one point Mother interrupted the interview looking for Sister's shoes. The situation was so chaotic at times that Brashears remarked there was a "revolving door" atmosphere to the interview.
During the interview, Brashears asked Appellant many of the standard questions that are asked during a social services investigation. For instance, she wanted to know if Appellant had any American Indian ancestry and what his relationship with his family was like. Brashears also made it clear to Appellant that she was investigating a report involving his alleged sexual misconduct toward Victim. She told Appellant that having already interviewed Victim and Mother, it was only fair that she got his version of events. Appellant said he understood. He expressed no hesitation insofar as speaking with Brashears about his relationship with Victim.
Appellant said he touched Victim's vagina on two occasions. The first time was after Victim had an accident while the family was visiting their commercial storage unit. Appellant claimed that Victim slipped in the storage unit, hitting her vagina. When they got back to their car, Victim said her vagina hurt, so Appellant "checked her out" in the car. After having Victim lay down in the back, Appellant opened her vagina and noticed a small cut near her hymen. However, the injury did not look serious, so he did not seek medical assistance. Appellant claimed that in addition to himself and Victim, Mother and Sister were also present when this incident took place.
The second incident occurred inside Victim's bedroom one evening. According to Appellant, he overheard Victim talking in her sleep about having discomfort in her vaginal area. Appellant woke her up and asked her if she would like Mother to come look at her. Victim said no, so Appellant opened her vagina and asked her where she hurt. At that point, Victim said, "It's gone dad. It doesn't hurt anymore." Appellant thus ended the inquiry, and Victim went back to sleep.
After Appellant relayed this story to Brashears, she told him Victim had accused him of putting his mouth on her vagina during the bedroom incident, but Appellant denied that. He insisted he merely inspected Victim "as a patient" and never had any lewd intentions toward her. Brashears was skeptical. She told Appellant his story did not match what other people had told her and suggested it was peculiar he moved out of the apartment after the touching incidents occurred. Appellant claimed the move was strictly attributable to the fact he and Mother had different parenting styles; whereas he was a disciplinarian, Mother was more permissive with the children.
Appellant also claimed that even after the touching incidents occurred, Mother sometimes left him alone with Victim at the apartment. In response to that assertion, Officer Perez asked her first and only question of the interview: She wanted to know whether Victim's grandmother was at the apartment when Appellant and Victim were supposedly there alone. Appellant indicated the grandmother may have been sleeping in the apartment on those occasions. At that point, Brashears ended the interview and Appellant was allowed to go on his way.
Before trial, defense counsel moved to suppress the admissions Appellant made to Brashears on the basis he was not Mirandized before he was interviewed by her. Although Brashears is a social worker, not a police officer, defense counsel argued Brashears was acting "as an agent and/or in . . . association with the police for purposes of Miranda." In this regard, defense counsel found it telling that Officer Perez was present during the interview and that Brashears is part of a child abuse services team that works with the police to investigate cases of suspected child sexual abuse. However, given the noncoercive nature of the interview, the trial court did not think Appellant was in custody for Miranda purposes when he was questioned. Therefore, it denied his motion to suppress. For reasons we now explain, we believe that ruling was correct.
By requiring the police to inform a suspect of his right to remain silent before questioning, the Miranda decision was designed to implement the Fifth Amendment's self-incrimination clause and "to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." (Miranda, supra, 384 U.S. at p. 469.) Although the decision arose in the context of a stationhouse interview, Miranda applies whenever the police interrogate a suspect and "there has been such a restriction on [the suspect's] freedom as to render him 'in custody.'" (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
In determining whether the custody requirement has been met, we must assess the objective circumstances surrounding the interrogation to determine whether a reasonable person in the defendant's position would have felt at liberty to terminate the questioning and leave. (Thompson v. Keohane (1995) 516 U.S. 99, 112-113.) This turns on whether the defendant was formally arrested or his freedom of movement was restrained to the degree associated with a formal arrest. (Id. at p. 465; Stansbury v. California (1994) 511 U.S. 318, 322; People v. Leonard (2007) 40 Cal.4th 1370, 1400.) While the trial court's factual findings on this issue are entitled to great deference on appeal, we independently examine the legal question of whether the defendant was in custody at the time he was questioned by the police. (People v. Leonard, supra, 40 Cal.4th at p. 1400.)
Courts have developed several factors bearing on the custody issue, including the length of the interrogation, where it occurred and the ratio of officers to suspects. (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404.)
Applying these factors to this case, we find ourselves in agreement with the trial court's conclusion Appellant was not in custody for Miranda purposes when he was interviewed by social worker Brashears, even if Brashears was acting as a police agent at the time of the interview. The circumstances surrounding the questioning were simply not indicative of a custodial situation.
For one thing, Appellant was not subjected to extensive or protracted questioning. In fact, the transcript of the interview takes up only 22 pages of the appellate record, indicating the questioning did not consume a great deal of time. And with but one exception, all of the questions came from Brashears - the social worker - as opposed to the police officer, Perez.
Appellant was outnumbered two-to-one by his inquisitors, but he fully acquiesced to the interview, and it took place in a setting that was very familiar to him, the living room of his former residence. Moreover, during the questioning, Victim's little brother and Mother interrupted on multiple occasions, which lent an air of openness and informality to the proceedings. This was not a situation where the police subjected a suspect to lengthy and aggressive questioning in a secluded setting.
While Appellant was never informed he was free to leave, neither was he arrested or told he had to stay. In addition, the interview was conducted in a cordial and professional manner; Appellant was never threatened, misled or physically restrained in any fashion. He was pressed for answers at times, but "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue[.]" (Stansbury v. California, supra, 511 U.S. at p. 325.) The fact Appellant was freely allowed to leave the premises at the conclusion of the interview speaks convincingly to the noncoercive atmosphere of the situation.
All things considered, we agree with the trial court's ruling that Miranda was not implicated here for lack of evidence the interview took place in a custodial setting. The court's decision to allow Appellant's statements into evidence is fully supported by the facts of the case and is consistent with decisional law in this area. Indeed, "courts have consistently held an alleged child abuser is not entitled to Miranda warnings from a social worker in a non-custodial setting. [Citations.]" (United States v. Robles (2000 U.S.A.F. Ct. of Crim. Apps.) 53 M.J. 783, 790; See, e.g., People v. Battaglia (1984) 156 Cal.App.3d 1058, 1064-1065.) This is true even when, as here, the defendant is interviewed in the presence of both a social worker and a police officer. (State v. Holden (Minn.Ct.App. 1987) 414 N.W.2d 516, 519.)
Propriety of Uncharged Misconduct Evidence
Appellant also contends the trial court abused its discretion and violated his constitutional rights by admitting evidence he inappropriately touched Sister. We uphold the trial court's decision to admit this evidence.
Evidence of a defendant's uncharged misconduct is generally inadmissible to prove his conduct on a specific occasion or his propensity for criminal activity. (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted to prove some other material fact in the case, such as motive or intent. (§ 1101, subd. (b).) An exception to the propensity rule also exists in cases involving sex crimes. In such cases, "evidence of the defendant's commission of another sexual offense . . . is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352." (§ 1108, subd. (a).)
Unless noted otherwise, all further statutory references are to the Evidence Code. --------
Section 352 empowers the trial court to exclude evidence if its probative value is substantially outweighed by the probability its admission would cause undue delay, confusion or prejudice. Under this section, the trial court has broad discretion to admit or exclude evidence, and its decision to do so will not be disturbed unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In this case, the evidence of Appellant's uncharged sexual misconduct toward Sister was not confusing or time consuming. Sister simply testified that Appellant had a habit of brushing up against her when they passed each other in the hallway of their apartment. In seeking to exclude this evidence, Appellant argued there was no proof the touching was sexually motivated, but Sister testified Appellant touched her breasts every time he went by her in the hall. Based on this, the jury could reasonably infer Appellant was sexually attracted to underage girls, which bore directly on his culpability in this case. This is so even though Victim and Sister were different ages when they were victimized by Appellant and he molested them in different fashions. (See People v. Soto (1998) 64 Cal.App.4th 966, 984 [pointing out that section 1108 was not intended to require similarity between the charged and uncharged offenses because many sex offenders are not specialists in terms of the crimes they commit].)
As far as prejudice is concerned, we recognize evidence of a defendant's uncharged misconduct is typically detrimental to his prospects for success at trial. However, in this case, Appellant's uncharged misconduct toward Sister was much tamer than what he allegedly did to Victim. This surely lessened the harmful impact of the uncharged evidence. (People v. Whisenhunt (2008) 44 Cal.4th 174, 205 [no error in admitting evidence of the defendant's prior acts of child abuse because such evidence was far less inflammatory than the acts with which he was currently charged]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [no error in admitting evidence of the defendant's uncharged sex crimes where the testimony describing such crimes "was no stronger and no more inflammatory than the testimony concerning the charged offenses"]; compare People v. Harris (1998) 60 Cal.App.4th 727, 741 [trial court erred in admitting evidence of prior uncharged sex crime that was much more violent and inflammatory than charged offenses].) Given all the circumstances, the trial court did not abuse its discretion in admitting the subject evidence under section 1108.
Appellant also takes issue with the pattern jury instructions on the permissible use of uncharged sexual misconduct evidence. Consistent with section 1108, these instructions allowed the jury to consider the evidence of Appellant's uncharged sexual misconduct as proof he had a propensity to commit sexual offenses, so long as it was convinced the uncharged misconduct was more likely than not to have occurred. Appellant fears this allowed the jury to convict him based on a mere preponderance of the evidence. However, in instructing on the permissible use of the uncharged sexual misconduct evidence, the trial court informed the jury such evidence was insufficient by itself to convict Appellant, and the prosecution still had the burden to prove Appellant's guilt beyond a reasonable doubt. (See CALCRIM No. 1191.) This ensured Appellant was not convicted based on an improper standard of proof. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1168; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1017; People v. Falsetta (1999) 21 Cal.4th 903, 923-924.)
Irrespective of the trial court's jury instructions, Appellant contends section 1108 is facially unconstitutional for the simple reason it allows the jury to consider a defendant's prior misconduct as proof of his propensity to commit the charged offenses. Appellant sees this as a violation of due process and equal protection, but as he admits, these claims have been consistently rejected by the courts. (People v. Loy (2011) 52 Cal.4th 46, 60-61; People v. Falsetta, supra, 21 Cal.4th at pp. 910-922; People v. Wilson (2008) 44 Cal.4th 758, 797; People v. Robertson (2012) 208 Cal.App.4th 965, 994-995; People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Fitch (1997) 55 Cal.App.4th 172, 180-184.) We adhere to this authority, recognizing Appellant raised the issue primarily for the purpose of facilitating further review in the federal courts.
Restrictions on Appellant's Questioning of Mother
Mother was called as a witness by the defense, and not long after she took the stand the trial court granted defense counsel's request to treat her as a hostile witness. Defense counsel was also permitted to question Mother about the circumstances under which Victim disclosed Appellant's sexual abuse to her. However, the court did not allow defense counsel to ask Mother if she ever told Victim that she (Mother) had been sexually abused as a child. Appellant contends the exclusion of this questioning constituted an abuse of discretion and undermined his right to confront Mother and present a defense. We do not see it that way.
The issue of Mother's Victimization first surfaced during Victim's cross-examination. Defense counsel asked her if, before speaking to the police, Mother had ever disclosed her own sexual abuse to her. After the court sustained the prosecutor's relevancy objection to this question, a sidebar was held and defense counsel argued the question was pertinent because it "goes to the potential [for] transference or projection." In other words, he believed the veracity of Victim's allegations against Appellant might have been affected by whether she was aware of the fact that Mother had been molested as a child. The prosecutor questioned the logic of that belief, as well as the foundation for the entire line of questioning. Ultimately, the trial court decided to allow defense counsel to question Victim outside the presence of the jury to see if the issue was worth pursuing. During that questioning, Victim admitted Mother had told her about being molested as a child, but she could not remember when Mother told her this.
The issue did not come up again until Mother's testimony. At defense counsel's request, the court allowed him to question Mother outside the presence of the jury to determine what she told Victim about her own sexual abuse and when she disclosed that information to her. Mother stated she told Victim about her own sexual abuse so Victim would not feel so bad about what Appellant had done to her. Mother was unable to remember the exact date she told this to Victim. However, she said she believed she revealed this information to Victim after Victim disclosed to her that Appellant had been touching her in a sexually inappropriate fashion.
Based on this record, defense counsel argued it was "possible that [Victim] received suggestible influences. I mean, it can't be ruled out." However, the court prohibited defense counsel from questioning Mother about this issue in front of the jury. The court determined that, other than speculation, there was not an adequate foundation to support defense counsel's assertion that Victim's allegations against Appellant were influenced by what Mother told her. The court also expressed concern the evidence of Mother's own abuse would be prejudicial, unduly time consuming, and of limited probative value. It simply did not believe that questioning in this area was compelled by the rules of evidence, the Sixth Amendment or due process.
Neither do we. The confrontation clause of the Sixth Amendment "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics omitted.) Unlimited inquiry into collateral matters is not permitted, and judges retain wide latitude to impose reasonable limits on the questioning of an adverse witness. (People v. Quartermain (1997) 16 Cal.4th 600, 623; People v. Jennings (1991) 53 Cal.3d 334, 372.) As we have explained, the same is true under state law in that section 352 give trial courts broad discretion to exclude evidence that has little bearing on the truth of the subject charges. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
Here, the veracity of Victim's allegation to Mother that Appellant had been molesting her was certainly an important issue in the case. However, it is hard to see how Mother's disclosure about her own sexual abuse would have affected the truthfulness of that allegation. While children are generally more susceptible to influence and manipulation than adults, Appellant has failed to provide any authority - judicial or otherwise - for his claim that Mother's disclosure may have led Victim to falsely accuse him of molesting her. From a commonsense perspective, the argument just does not ring true to us.
Another hurdle for Appellant is the timing of Mother's disclosure to Victim. If Mother had disclosed her own sexual abuse to Victim before Victim revealed Appellant had been molesting her, at least there would have been a factual foundation for a cause-and-effect argument. However, Mother was of the belief that she made her disclosure to Victim after Victim revealed Appellant had been touching her in a sexually inappropriate fashion, which would make sense because the reason Mother made the disclosure in the first place was to make Victim feel better about what Appellant had done to her. So Appellant wanted to elicit her testimony that it occurred afterward and then argue - without contradicting evidence - she was mistaken.
Appellant argues the exact timing of Mother's disclosure was not that important because even if it came after Victim revealed Appellant's abuse, it could have tainted Victim's impression of what Appellant did to her. In that regard, Appellant notes that when Victim first spoke to Mother about Appellant's abuse, Victim only mentioned that Appellant had touched her in a sexually inappropriate fashion. However, later on, in speaking with the authorities and during the trial, Victim provided considerable detail regarding the particular sexual abuse to which Appellant had subjected her. Appellant maintains that regardless of when Mother told Victim about her own abuse, that disclosure "was relevant to prove, by inference, that [Victim's] subsequent factual embellishment [of Appellant's alleged abuse] was a product of suggestion precipitated by [Mother's] disclosure of molestation. It was for the jury to determine the weight of the evidence."
The argument has the air of desperation. Indeed, the convoluted nature of Appellant's claim only serves to bolster our belief that without proof that Mother's disclosure about her own abuse preceded Victim's allegations about Appellant's abuse, the evidence of Mother's disclosure was not an important aspect of Appellant's defense. Given the limited relevancy of the evidence, and in light of its potential to cause confusion and delay, we do not believe the trial court abused its discretion under section 352 in excluding it. Nor did its exclusion violate Appellant's constitutional rights in any respect. Therefore, the trial court's decision is not cause for reversal.
CALCRIM No. 362
Lastly, Appellant contends the giving of CALCRIM No. 362 violated due process and undermined his right to a fair trial. Again, we disagree.
Pursuant to CALCRIM No. 362, the court instructed the jury, "If the defendant made a false or misleading statement before the trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.
If you conclude that the defendant made the statement, it's up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." Relying on this instruction, the prosecutor urged the jury to consider the statements Appellant made to social worker Brashears in determining whether he was guilty of the charged offenses.
Appellant contends CALCRIM No. 362 contains an unconstitutional permissive inference. He is not bothered by the fact the instruction allows the jury to infer consciousness of guilt from a defendant's false statements. However, he argues the instruction goes too far in that it permits the jury to use those statements in determining the defendant's actual guilt or innocence. In his view, it is simply not reasonable to presume that a person who makes a false statement regarding the charged offenses is guilty of those crimes when there could be other reasons for the statement, such as fear of prosecution or conviction. Appellant also argues CALCRIM No. 362 gives the jury too much discretion in terms of deciding how much weight to give such statements.
These arguments are neither novel nor persuasive. In fact, CALCRIM No. 362 and other such consciousness of guilt instructions have consistently been upheld against such claims. (See, e.g., People v. Alexander (2010) 49 Cal.4th 846, 922; People v. Rundle (2008) 43 Cal.4th 76, 152-154, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Howard (2008) 42 Cal.4th 1000, 1020-1021, 1025; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101-102; People v. McGowan (2008) 160 Cal.App.4th 1099, 1103-1104; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159.) Decisional law makes clear that, for constitutional purposes, the salient features of CALCRIM No. 362 are: 1) It lets the jury decide whether or not the defendant made any false statements that were designed to be misleading; 2) it permits, but does not require, the jury to infer guilt based on such statements; and 3) it precludes the jury from convicting the defendant based solely on such statements. These features ensure evidence of the defendant's deceitfulness will not be used in a manner that is inconsistent with his right to a fair trial and due process of law. (Ibid.) Thus, the trial court did not err in giving CALCRIM No. 362.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.