Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN190510, Timothy Casserly, Judge.
HALLER, J.
Peter Ziskin appeals from a judgment convicting him of numerous counts of lewd conduct with a child under age 14. (Pen. Code, § 288, subd. (a).) He contends the judgment should be reversed because (1) the evidence was insufficient to support the verdicts, (2) the prosecutor committed misconduct in closing argument when addressing the reasonable doubt standard, (3) the prosecutor committed misconduct in closing argument when commenting on the defense failure to present expert testimony criticizing taped interviews of the victims, (4) the trial court erred in admitting four taped interviews of the victims, (5) the trial court erred in admitting evidence relating to the child sexual abuse accommodation syndrome and "grooming" of molestation victims by child molesters, (6) the trial court erred in admitting uncharged sex offense evidence, and (7) Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 1110 improperly elaborates on the elements of the lewd act offense in a manner that favors the prosecution. He also asserts the judgment should be reversed for cumulative error depriving him of a fair trial. We reject his assertions of reversible error and affirm the judgment.
Subsequent statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Ziskin was convicted of committing numerous lewd acts with his male students from August 2004 through January 2005 while he was a sixth and seventh grade teacher at Rincon Middle School. Ziskin's male students would frequently wrestle with him, initiating the activity by jumping on him and laughing. Ziskin would lift the boys up, flip them over his shoulder, and spin them around. The lewd touching typically occurred during the course of this activity.
On January 14, 2005, instructional aide Nancy Kramar was in Ziskin's classroom assisting students. After the bell rang and only a few students were in the classroom, Kramar saw Ziskin pick up a boy and swing him around, with his hand touching "outside [the boy's] pants in the area of the crotch." Kramar felt uncomfortable about her observation. On January 18, 2005, Kramar went to Ziskin's classroom during Ziskin's lunch period to leave him a message about a change in her assignment. When she walked into the classroom, Ziskin was holding a boy (David) on his shoulders and spinning the boy around. When Ziskin saw Kramar, he put the boy down. Kramar saw Ziskin's hand "struggle a couple of times as he tried to get his hand out of the boy's pants." Kramar observed Ziskin's hand was "pretty deep" inside the front of David's pants because he had to struggle to get it out. There were no other people in the room other than Ziskin and David. Kramar reported the incidents to the school administration.
During the ensuing investigation, numerous boys (including David) revealed that on some occasions while wrestling with Ziskin in the classroom, Ziskin put his hand in their pants and touched their penises. We summarize the boys' testimony.
David
While lifting David up during wrestling activity, Ziskin touched David's "private part" under his clothes with his hand. This happened in the classroom on more than two occasions. At first David thought the touching was accidental. Sometimes Ziskin's hand was still, and other times his hand rubbed David's "dick." David felt "weird" from the touching, and David stopped playing with Ziskin because he did not want to be touched in this manner.
Brandon
While they were wrestling, Ziskin lifted Brandon up and stuck his hand in his pants under his underwear and touched his penis. Sometimes Ziskin would just put his hand over Brandon's penis and sometimes he would rub Brandon's penis. The touching occurred in the classroom during passing periods, and happened on more than two occasions.
Juan
When Ziskin was wrestling with Juan and spinning him around, Ziskin put his hand inside Juan's pants and touched him on his "manhood" under his underwear. The touching occurred on about five occasions in the classroom, when there were about 15 or more students in the classroom. Juan initially thought the touching was accidental. Juan viewed the touching as a "[b]ad" touching. The touching made him feel uncomfortable and "weird" because "no one really touches [him] there."
Charles
When Ziskin was wrestling with Charles, Ziskin put his hand under Charles's pants, picked him up, and swung him in a circle. On several occasions during this activity, while Ziskin was picking Charles up off the floor, Ziskin's hand touched Charles's penis under his boxers. This touching occurred in the classroom after school on more than two occasions. On one occasion it happened when they were alone in the classroom. Ziskin's hand was moving when it was touching Charles's penis. At first Charles thought the touching was innocent, until Ziskin kept touching his penis. One time, when Charles's penis was between Ziskin's ring and middle fingers, Charles said, "Ow." Ziskin responded as if the touching was a joke. The touching felt "wrong" and "uncomfortable."
Gabriel
On several occasions Ziskin picked Gabriel up off the ground and swung him around, and while doing so touched Gabriel's "dick" with his hand underneath Gabriel's boxers. Sometimes Ziskin would put Gabriel back down to "get a better grip" of Gabriel's pants and his "dick." The touching made Gabriel feel uncomfortable. He viewed it as a "bad kind" of touching, explaining that "usually if someone was going to pick [him] up, they wouldn't pick [him] up underneath the boxers." The touching occurred on more than two occasions, and happened mostly after school when Gabriel would stay for help with homework.
On one occasion when Gabriel was in the classroom with another victim (Luis) and Ziskin picked Gabriel up, Gabriel stated, "Stop. You're touching my balls." Ziskin responded, "Oh, sorry." Corroborating Gabriel's testimony, Luis testified that he saw Ziskin put his hand under Gabriel's boxers, and Gabriel told him to stop because he was touching his "balls." Three or four days after this incident, Ziskin again touched Gabriel's penis.
Luis
When they were wrestling, Ziskin picked Luis up and spun him around. On two occasions while doing so, Ziskin "cupped [Luis's] private," touching his "balls" with his hands over his clothes. This happened after school in the classroom. At first Luis thought it was accidental. Luis thought the touching was a "bad" touching. It made Luis feel "weird," and he stated to Ziskin, "What are you doing?"
Nick G.
On one occasion after school when Nick G. was in the classroom wrestling with Ziskin, Ziskin straddled Nick while Nick was laying on the floor. Ziskin "stuck his hand down [Nick's] pants" and touched his "private areas." The touching felt "[v]ery inappropriate" and Nick G. felt "violated." Nick G. told Ziskin to stop, and Ziskin responded that he thought they could just play around.
Nick M.
On one occasion when Ziskin and Nick M. were alone in the classroom, Ziskin made Nick M. uncomfortable by "putting [him] upside down and putting his hand down [his] pants." When Ziskin put his hand down Nick M.'s pants, Ziskin touched his private part. Ziskin's hand was moving; Nick M.'s private part was hard; and the touching lasted for about one minute. After this touching, Ziskin told Nick M. that they were "buddies" and that if Nick M. told anyone Ziskin would get into trouble. After this incident, Nick M. did not engage in the flipping activity again. Ziskin asked him if he would like to be flipped again, and Nick M. told him no.
Defense and Rebuttal
In his defense, Ziskin presented numerous character witnesses who testified that they frequently observed Ziskin play with children and never observed any inappropriate touching. Further, two defense experts (Drs. Phillip Esplin and Thomas Streed) testified regarding factors that affect memory and create suggestibility. During its rebuttal case, the prosecution presented four taped interviews of the victims that were made during the case investigation. In surrebuttal, Dr. Streed opined that one of the taped interviews was conducted in a suggestive manner.
Suggestibility is "a term that relates to factors that can influence or impact the alteration or changing of memory."
Jury Verdict
The jury found Ziskin guilty of 17 counts of lewd act on a child under age 14 (§ 288, subd. (a)), with true findings that the violations were committed against more than one victim (§ 667.61, subds. (b), (c)(8), (e)(5)). The jury acquitted Ziskin of six alleged lewd act counts. The jury was unable to reach a verdict on three alleged lewd act counts and was unable to reach a verdict on an allegation that Ziskin engaged in substantial sexual conduct with victim Nick M. Ziskin was sentenced to 15 years to life.
The jury's verdicts were as follows: (1) three guilty counts for David; (2) two guilty counts and one hung count for Brandon; (3) three guilty counts, two not guilty counts, and one hung count for Juan; (4) three guilty counts for Charles; (5) two guilty counts and one hung count for Gabriel; (6) two guilty counts for Luis; (7) one guilty count for Nick G; and (8) one guilty count for Nick M. The jury was unable to reach a verdict on the sole allegation of substantial sexual conduct (masturbation), which was alleged for Nick M. Additionally, the jury found Ziskin not guilty of three counts involving Rincon Middle School student Erick R., and not guilty of one count involving a boy (Jesse) who was not a Rincon Middle School student and who described a touching of his upper leg at night while he was sleeping, which occurred when Ziskin was visiting the boy's residence.
DISCUSSION
I. Substantial Evidence
Ziskin argues there is insufficient evidence to support the jury's verdicts as to all counts. He contends the evidence showed he was merely playing with the children, and any inference of sexual intent was speculative.
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
There was sufficient evidence to support the jury's verdicts. David, Brandon, Juan, Charles, Gabriel, Nick G. and Nick M. all testified that during the wrestling activity Ziskin placed his hand under their clothes and touched their penises. Based on Ziskin's repeated acts of placing his hand under the clothes in the genital area of sixth and seventh grade students in the classroom environment, the jury could reasonably conclude he had a sexual intent. Buttressing the inference of sexual intent, David and Brandon testified that Ziskin sometimes rubbed their penises, and Charles and Nick M. testified that Ziskin's hand was moving when he touched their penises. The students consistently testified that the touching made them feel uncomfortable. Instructional aide Kramar observed Ziskin's hand "pretty deep" into David's pants so that Ziskin had to struggle to get it out. One victim (Luis) indicated the touching he experienced—when Ziskin cupped his "balls"—was not under his clothes. When this count is considered in light of the other evidence in the record showing sexual intent, the jury's verdict regarding Luis is likewise supported. The various evidentiary matters favorable to the defense—such as that the children did not report the lewd touching on their own, that people observed Ziskin wrestle with children with no indications of inappropriate touching, that there was no child pornography on Ziskin's computer, and that there was no progression to more invasive molestation—did not require the jury to reject the evidence showing guilt. The record supports the guilty verdicts.
II. Prosecutor's Closing Argument Regarding Reasonable Doubt Standard
Ziskin argues the prosecutor committed misconduct when addressing the reasonable doubt standard during closing argument.
During closing arguments, the prosecutor cited several facts concerning the case (including, for example, that the molestation did not progress beyond fondling and no child pornography was found in Ziskin's computers) and noted the defense would likely claim these facts showed a reasonable doubt of guilt. The prosecutor asserted her view that these facts did not create a reasonable doubt of guilt and delineated her reasons. She then set forth her interpretation of the reasonable doubt standard. The prosecutor argued:
"Sometimes defense does not provide reasonable doubt. Every adult in our society gets a fair trial, and he's gotten his for days and days and days this month in our community. [¶] What is reasonable doubt? Reasonable doubt is exactly how this slide portrays it, and that 's what the law demands it is. [¶] What is reasonable doubt? Not beyond any shadow of a doubt. A doubt that is as small as a grain of sand. It's beyond a reasonable doubt. And you get to use your common sense because ultimately a trial is a search for the truth, not a search for doubts. [¶] Someone doesn't get to throw some stuff against the wall and hope it sticks with one of you. You can have doubts. Of course you can have doubts and still have a jury come together with a verdict. There will always be unanswered questions. Always. That's the nature of the United States of America legal system because we ask a collective group of people to listen to witnesses. It's not a formula. It's not something that's 100 percent or universal because it's a human dynamic reasonable doubt. [¶] Be rational and be logical and in this determination consider things in context, big picture, the entire case, not little pieces taken from a transcript, little pieces played from a video, one sentence out of this transcript and one line out of that transcript. That's not rational and logical when you're determining what is beyond a reasonable doubt." (Italics added.)
When the prosecutor referred to the defense's failure to "provide [a] reasonable doubt," defense counsel unsuccessfully objected and thereafter moved for a mistrial. Defense counsel argued the statement that the defense has not provided a reasonable doubt improperly shifted the burden of proof to the defense. The court ruled the argument was proper because the defense has an opportunity to raise a reasonable doubt, and the prosecutor can argue the defense has not done so.
On appeal, Ziskin asserts it is reasonably likely the jury understood the prosecutor's argument to mean the defendant had the burden to present evidence of reasonable doubt.
A prosecutor has wide latitude to vigorously argue the prosecution's case, as long as the argument amounts to fair comment on the evidence, including reasonable inferences to be drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) However, it is improper for the prosecutor to misstate the law, and particularly to misstate the prosecution's burden of proof. (Id. at p. 829.) When examining a claim of prosecutorial misconduct, we consider the whole argument and the instructions to determine whether there is a reasonable likelihood the jury construed the prosecutor's statements in an objectionable manner. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Marshall (1996) 13 Cal.4th 799, 831.)
The prosecution has the burden to prove the charged crimes beyond a reasonable doubt. (People v. Hill, supra, 17 Cal.4th at p. 831.) The defendant is, of course, entitled to present evidence that creates a reasonable doubt as to guilt. (See, e.g., People v. Hall (1986) 41 Cal.3d 826, 833.) However, the defendant is not required to present such evidence, but may simply rely on the state of the prosecution's evidence. (People v. Hill, supra, 17 Cal.4th at pp. 831-832.) Although the prosecutor may permissibly comment on the defendant's failure to present logically anticipated evidence, it is error for the prosecutor to suggest the defendant has a duty or burden to produce evidence or to prove innocence. (Ibid.; People v. Bradford (1997) 15 Cal.4th 1229, 1339-1340; People v. Gonzalez (1990) 51 Cal.3d 1179, 1214-1215.)
Here, the prosecutor's comment stating that "[s]ometimes defense does not provide reasonable doubt," was poorly phrased and could, when viewed in isolation, create the impression that the defense has the duty to establish a reasonable doubt, rather than the prosecution having the burden to prove guilt beyond a reasonable doubt. Although it is permissible for the prosecution to comment on the state of the evidence (including deficiencies in the defense case), a prosecutor must exercise care and insure that he or she makes clear that first the prosecution must prove guilt beyond a reasonable doubt before the jury can permissibly examine the defense case to see if the defense has "created" a reasonable doubt. (Compare People v. Hill, supra, 17 Cal.4th at p. 831 [error for prosecutor to state "[t]here has to be some evidence on which to base a doubt," italics omitted] with People v. Samayoa, supra, 15 Cal.4th at p. 842 [no error for prosecutor to state "has the defense been able to create a reasonable doubt in your mind based on what these doctors have told you?"].) Because of the potential for misinterpretation arising from prosecutorial argument referring to a defense failure to provide reasonable doubt, the trial court should have sustained Ziskin's objection to this portion of the prosecutor's argument and readmonished the jury as to the correct burden of proof.
However, we conclude the error was harmless beyond a reasonable doubt. (See People v. Woods (2006) 146 Cal.App.4th 106, 117 [applying harmless beyond a reasonable doubt standard to improper prosecutorial arguments that were of federal constitutional magnitude].) We are satisfied the jury understood the prosecution had the burden to prove guilt beyond a reasonable doubt. The trial court repeatedly instructed the jury that the prosecution has the burden of proof beyond a reasonable doubt. At the commencement of the trial, the trial court read the allegations against the defendant and stated, "Those are the allegations in this case, and again, they are not evidence. This is what the prosecution must prove beyond a reasonable doubt." The court defined this burden of proof, stating: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise." The burden of proof instructions were repeated again by the court during closing instructions. Further, the court told the jury that the defendant did not need to present evidence, stating the defendant had an absolute right not to testify and "may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt."
Counsel also repeatedly referred to the proper burden of proof during closing arguments. During her closing arguments, the prosecutor set forth the elements of the lewd act offense, stating these were the elements "the prosecution has to prove" and arguing the defendant should be found guilty because "the elements [were] met." Defense counsel emphasized the burden of proof in his closing arguments, stating: "Who has the burden of proof in this case? It's the government. We talked about that right in the beginning. His Honor told you about that burden of proof. . . . They must prove their case beyond a reasonable doubt, a single reasonable doubt . . . . [¶] . . . [¶] Now the prosecution gets up and says, well, the defense can do this. The defense can do that. Well, if that happens, you've got to turn and say, well, wait a minute. You've got the burden of proof. That's what the law says." In rebuttal, the prosecutor responded to a defense claim that there was no corroboration, commenting that "the testimony of one victim can prove the case beyond a reasonable doubt if believed." Considering the record as a whole, there is no reasonable possibility the jury did not understand that the burden of proof was on the prosecution.
We note the reporter's transcript reflects that during her closing arguments, the prosecutor used what was apparently a computer slide to illustrate her arguments pertaining to reasonable doubt. Defense counsel cited this slide when moving for a mistrial. Because this slide has not been provided to us on appeal, our analysis does not consider its impact (if any) on the jury, and we express no opinion thereon.
III. Issues Concerning the Children's Taped Interviews
During the investigation of the abuse allegations, the authorities videotaped or audiotaped interviews with the children. The prosecutor wanted to introduce several of the recorded interviews into evidence to rebut anticipated defense claims that the interviews were conducted in a suggestive manner and that the children's trial testimony was not credible.
Prior to trial, defense counsel moved to exclude the tapes. Defense counsel stated that although he might refer to portions of the tapes to show suggestibility, he did not intend to introduce the tapes themselves. He suggested that it might be appropriate for either side to refer to portions of the tapes, but argued the tapes should not be admitted in wholesale fashion because they contained a significant amount of extraneous hearsay statements by the interviewers. In its pretrial ruling, the trial court ruled the prosecution could not present the tapes in its case-in-chief, but the issue could be revisited if at some point the parties thought there was relevant evidence on the tapes.
During the prosecution's case-in-chief, defense counsel cross-examined the prosecution's forensic psychology expert (Deborah Davies) on the issue of suggestive interviewing techniques, and specifically regarding questions that were asked during an interview of Nick M. Based on this questioning, the trial court reconsidered its ruling excluding the tapes and ruled they were admissible to rebut the suggestibility defense and as prior consistent statements. Although the admissibility ruling was made during the prosecution's case-in-chief, ultimately the prosecution did not introduce the tapes until its rebuttal case.
During the defense case, defense forensic psychology expert Dr. Esplin testified generally regarding factors that create suggestibility during the interview process, but did not address whether the particular interviews in this case were suggestive. In the prosecution's rebuttal case, the prosecutor played four of the taped interviews for the jury. In surrebuttal, defense expert Dr. Streed evaluated one of the tapes (an interview of Nick M.) and opined that portions of the interview were conducted in a suggestive manner.
On cross-examination, the prosecutor attempted to question Dr. Esplin as to whether he thought the interviews in this case were handled suggestively. The trial court sustained an objection to this line of questioning as beyond the scope of direct examination.
Ziskin argues (1) the prosecutor committed misconduct during closing argument by commenting on the defense failure to present testimony from Dr. Esplin criticizing the children's interviews as suggestive, and (2) the trial court erred in admitting the taped interviews.
A. Prosecutor's Closing Argument Regarding Defense Expert Esplin's Failure to Testify the Interviews Were Suggestive
Background
In closing arguments, the prosecutor argued that if the interviews were suggestive, the defense would have "played all ten tapes with Dr. Esplin"; but instead, the defense never showed Dr. Esplin the tapes because "the tapes [were] great." Defense counsel unsuccessfully objected and moved for a mistrial because of this argument. During the defense closing argument, defense counsel responded to the prosecutor's reference to Dr. Esplin's failure to criticize the tapes, arguing to the jury: "The government talked to you about these tapes and said, 'Oh, well, why didn't Dr. Esplin review all these other tapes? Why didn't you hear all about that?' [¶] Well, if Nick M.'s interviews are any indication of how bad these interviews were and how many of the principles were violated that Dr. Esplin and Dr. Streed talk about, that just gives you a random sampling." In rebuttal closing argument, the prosecutor in turn responded to the defense criticism of the Nick M. interview, arguing: "Defense wanted to make mention of Nick M[]'s audiotape. And interestingly, Dr. Esplin had no problem. If he has problems with the way these interviews ran, you would have heard it, okay?" Defense counsel objected to this argument, and on this occasion the trial court sustained the objection. The prosecutor then continued addressing the issue of the defense criticism of the Nick M. interview, but focused her arguments on a challenge to defense expert Dr. Streed's testimony on this point.
Although the trial court overruled the defense objection and denied the mistrial motion, the court agreed with defense counsel that the prosecutor's argument improperly implied that Dr. Esplin had not seen any of the tapes, which was not true. The prosecutor stated the intent of her argument was to state that the defense did not question Dr. Esplin about the tapes during his testimony.
After closing arguments concluded, defense counsel again moved for a mistrial based on the prosecutor's argument about Dr. Esplin's failure to criticize the interviews. Defense counsel argued it was unfair for the prosecutor to urge the jury to draw an inference adverse to the defense based on the defense failure to question Dr. Esplin about the tapes because the tapes had not yet been introduced when Dr. Esplin testified. Defense counsel requested that the trial court either grant a mistrial, or allow additional closing argument to clarify the manner, or admonish the jury on this point. The trial court agreed to admonish the jury. The trial court stated to the jurors: "There was an objection during the final argument that I sustained. And I just wanted to point out one thing. Remember you can only base your decision on the evidence that was actually received in this trial. And I wanted to note that there is no evidence properly before you as to whether or not Dr. Esplin viewed any of the tapes or that he has an opinion as to the propriety of the interviews one way or the other; that he was never asked about that. So that's not before you."
Analysis
Ziskin argues the trial court erred in denying his mistrial motion because the trial court's admonishment did not cure the prosecutor's misconduct. He asserts the prosecutor implied that she "was privy to knowledge about [Dr.] Esplin's opinion of the videotapes that was being withheld from the jury," which constituted an improper reference to a fact not in evidence.
Although the prosecutor may not suggest the existence of facts outside the record by arguing matters not in evidence, the prosecutor is generally permitted to comment on the state of the evidence or the defendant's failure to call logical witnesses. (People v. Woods, supra, 146 Cal.App.4th at pp. 112-113; People v. Mitcham (1992) 1 Cal.4th 1027, 1051.) A prosecutor may properly argue that the defendant failed to present logically anticipated evidence and "had such evidence existed, the defense would have presented it." (People v. Chatman (2006) 38 Cal.4th 344, 406-407; People v. Mitcham, supra, 1 Cal.4th at p. 1051.)
The prosecutor's argument noting that the defense had not presented testimony from Dr. Esplin stating the interviews were suggestive was a permissible comment on the failure to present a logical item of evidence. Because Dr. Esplin testified regarding factors that create suggestibility, it was permissible for the prosecutor to assert that if Dr. Esplin thought the interviews in this case were suggestive, defense counsel would have elicited this opinion from him. Ziskin's characterization of the comment as referring to a fact not in evidence is unavailing.
Regardless of when the prosecutor elected to introduce the tapes, the defense was free to present Dr. Esplin's opinion regarding the interviews and the prosecutor was likewise free to comment on the defense failure to do so.
Given that the prosecutor's argument was permissible comment on a gap in the defense evidence, the trial court was not required to sustain the defense objection and admonish the jury not to consider whether Dr. Esplin had an opinion on the suggestibility of the interviews. The trial court's ruling inured to the defense benefit, but it was not necessary. Ziskin cannot prevail on his claim that he was entitled to a mistrial.
B. Admission of the Taped Interviews
Ziskin asserts the four taped interviews should not have been admitted into evidence. He contends they constituted inadmissible hearsay and were not shown to satisfy the statutory requirements for the hearsay exception applicable to prior consistent statements.
The trial court admitted the taped interviews on two grounds: (1) to rebut the suggestibility defense, and (2) as prior consistent statements. We review a trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
The trial court ruled the taped interviews were admissible after defense counsel cross-examined prosecution expert Davies on the issue of suggestive interviewing techniques. On cross-examination of Davies, defense counsel elicited testimony regarding leading questions; "confirmatory bias" arising from questions designed to confirm the interviewer's beliefs; "contamination" arising from the interviewer's introduction of information the child has not mentioned; and bias arising from the interviewer's identification with law enforcement.
"Evidence of an out-of-court statement is . . . admissible if offered for a nonhearsay purpose—that is, for something other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an issue in dispute." (People v. Davis (2005) 36 Cal.4th 510, 535-536.) The trial court did not abuse its discretion in ruling the taped interviews were admissible for the nonhearsay purpose of rebutting the suggestibility defense. By viewing the tapes, the jury was able to evaluate whether the interviewers used the types of questions that create suggestibility as described by the experts. As a response to the suggestibility defense, the tapes were not offered for the truth of the children's statements during the interviews, but rather to determine whether proper interviewing techniques were used. This was a relevant, nonhearsay purpose rendering the tapes admissible.
The record also supports the trial court's ruling admitting the taped interviews as prior consistent statements. The trial court instructed the jury that it could consider statements made by a witness before trial to evaluate whether the witness was believable and as evidence that the information in the earlier statements was true. (See CALCRIM No. 318.) Under Evidence Code section 791, subdivision (a), a witness's prior consistent statement is admissible if the witness has been impeached with a prior inconsistent statement, and if the consistent statement was made before the witness made the inconsistent statement. Similarly, under Evidence Code section 791, subdivision (b), a witness's prior consistent statement is admissible if the witness has been charged with recently fabricating his or her trial testimony, and the prior consistent statement was made before the witness developed the motive to fabricate.
Evidence Code section 791 states: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have occurred."
Ziskin asserts the interviews did not qualify as prior consistent statements because there was no showing of prior inconsistent statements or charges of recent fabrication, and even if there was, the consistent statements during the interviews were not made before any such prior inconsistent statements or motive to fabricate. He also asserts that if there were admissible consistent statements in the taped interviews, only those statements should have been admitted, not the entire interview.
Typically, a witness's consistent statement made prior to trial—but not preceding an inconsistent statement or the development of motive to fabricate—is inadmissible. "[I]f the consistent statement was made after the improper motive is alleged to have arisen, the logical thrust of the evidence is lost and the statement is inadmissible." (Cal. Law Revision Com. com., 29B pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 791, p. 688.) "The reason for this limitation [on the admission of prior consistent statements] is that when there is a contradiction between the testimony of two witnesses it cannot help the trier of fact in deciding between them merely to show that one of the witnesses has asserted the same thing previously." (People v. Gentry (1969) 270 Cal.App.2d 462, 473.)
However, when impeachment with a prior inconsistent statement implicitly accuses the witness of developing a motive to fabricate his or her testimony at the time of trial, a consistent statement made prior to trial is admissible even if the consistent statement did not precede the inconsistent statement. For example, in People v. Ainsworth (1988) 45 Cal.3d 984, 1013-1015, the witness was impeached with prior inconsistent statements to the police, and the court held contemporaneous consistent statements to the police were admissible because the defense had implicitly charged the witness with fabricating his inculpatory testimony at trial. The Ainsworth court held the consistent statements made contemporaneously with the inconsistent statements were admissible under Evidence Code section 791, subdivision (b) pertaining to consistent statements preceding the development of a motive to fabricate, even though they were not admissible under Evidence Code section 791, subdivision (a) pertaining to consistent statements preceding inconsistent statements. (People v. Ainsworth, supra, 45 Cal.3d at pp. 1013-1015.) Similarly, in People v. Gentry, the witness was impeached for failing to provide inculpatory information when first questioned by the authorities, and the court held subsequent consistent statements to the authorities were admissible to rebut the implicit charge that the witness fabricated his inculpatory statements when testifying at trial. (People v. Gentry, supra, 270 Cal.App.2d at p. 473; accord People v. Williams (2002) 102 Cal.App.4th 995, 1011-1012.) Under the reasoning of these cases, when a witness is implicitly accused of fabricating his or her testimony at trial, a prior consistent statement made before trial is admissible. (See also People v. Walsh (1956) 47 Cal.2d 36, 41-43 [prior consistent statements admissible to refute inference of recent fabrication at trial].)
The taped interviews introduced into evidence by the prosecution pertained to Gabriel and Nick M. When cross-examining Gabriel, defense counsel used statements made by Gabriel during the taped interview to elicit testimony suggesting that no inappropriate touching occurred. The trial court could reasonably conclude that defense counsel's impeachment of Gabriel with inconsistent statements made during the interview implicitly accused him of developing a motive to fabricate his testimony at trial. (See People v. Ainsworth, supra, 45 Cal.3d at p. 1015 ["impeachment by evidence of prior inconsistent statements [is] sufficient to constitute an implicit charge of recent fabrication or improper testimonial motive for purposes of Evidence Code section 791"].) Accordingly, the prosecutor could properly present Gabriel's consistent statements made during the interview prior to his trial testimony. It was not necessary for the trial court to scrutinize the precise order of the statements made during the interview and to allow the jury to only consider consistent statements that were made before inconsistent statements. Moreover, Gabriel's consistent statements during the interview were also admissible under Evidence Code section 356. Under this section, when a party introduces portions of an interview, the opposing party is entitled to introduce other relevant portions of the same interview to ensure the jury is not misled from a partial presentation. (People v. Arias (1996) 13 Cal.4th 92, 156.)
The prosecution introduced one tape of Gabriel, two tapes of Nick M., and a tape of an additional alleged victim, Jesse. However, the jury acquitted Ziskin of the count pertaining to Jesse. Thus, we need not evaluate the admission of Jesse's interview because any error would be harmless.
During cross-examination of Nick M., defense counsel questioned him about a photograph showing that prior to trial he demonstrated the touching as occurring when Ziskin lifted him up by his waistband. This photograph was taken during Nick M.'s testimony at the preliminary hearing, using "Norman the bear" as the demonstration model. Nick M.'s consistent statements during the investigative interview preceded the inconsistent statement at the preliminary hearing. Hence, the consistent statement was admissible under Evidence Code section 791, subdivision (a). Moreover, the consistent statement was admissible under Evidence Code section 791, subdivision (b) because defense counsel's cross-examination implicitly accused Nick M. of fabricating his testimony at trial, which rendered admissible his consistent interview statements uttered prior to trial.
The trial court did not abuse its discretion in admitting the taped interviews.
IV. Admission of Child Sexual Abuse Accommodation Syndrome and Grooming Evidence
Ziskin contends the trial court erred in permitting the prosecution's expert to testify (1) regarding concepts associated with the child sexual abuse accommodation syndrome (CSAAS) (such as delayed reporting by the victims) and (2) regarding the tendency of child molesters to engage in "grooming" behavior with victims prior to engaging in molestation. The trial court ruled the evidence was admissible to rebut common myths and misperceptions.
Background
At trial, prosecution expert Davies testified that about two-thirds of child molestation victims tend to delay their reporting. Factors that contribute to delayed reporting include a close, trusting relationship between the child and the alleged offender; the existence of positive aspects in the relationship between the child and offender; concerns about the negative consequences of reporting such as loss of the relationship and problems for the offender or family unit; the child's feelings of responsibility, complicity, shame, or embarrassment because the child feels he or she has participated in the abuse or allowed it to continue; and the gradual progression of activities that desensitize the child until the child is not certain when or if the behavior has crossed the line from nonsexual to sexual. It is not uncommon for an abused child to return to the environment where the abuse has occurred because the relationship with the offender includes positive aspects the child does not want to lose. Boys are less likely to disclose than girls, because of such factors as the belief that males should be able to defend themselves and (if the offender is male) the concern among boys not to be perceived as homosexual. In order for a child to report the abuse, the child must conclude the behavior is not supposed to be happening; must deal with his or her own sense of guilt or embarrassment and other concerns; and must identify someone whom the child feels would be receptive to a conversation about the abuse. Some children may partially or completely disclose the abuse on their own initiative, whereas others will not disclose until they are actually asked if there is a problem with a particular individual or with their life in general. Some children may not tell the "whole story" immediately, but may give some information to some people and other information to others, and the amount of information they disclose may depend on the questions they are asked.
Regarding grooming, Davies testified the main goal of many offenders is to win the trust of the child and the child's caretaker and to begin a series of activities that help normalize the physical contact and desensitize the child to the fact the touch is moving from a nonsexual to a sexual type. For example, the offender initiates nonsexual physical contact in the company of other adults to give the child the impression that this touching is permissible, then progresses from the nonsexual behaviors towards sexual touchings, and then gauges the child's response.
Analysis
Expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).) The opinion evidence must be excluded only when it would add nothing to the jury's common fund of information, i.e., when the subject of inquiry is of such common knowledge that a person of ordinary education could reach a conclusion as intelligently as the witness. (Id. at p. 1300.) A trial court's decision to admit expert testimony will not be disturbed on appeal unless " 'a manifest abuse of discretion is shown.' " (Id. at p. 1299.)
Ziskin argues expert testimony related to CSAAS should be held inadmissible for all purposes. This assertion has been rejected by the California courts.
CSAAS evidence refers to the common reactions of child molestation victims, including delayed reporting. (McAlpin, supra, 53 Cal.3d at p. 1300 .) "[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (Ibid.) The expert testimony is "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.)
Here, on cross-examination of the children, defense counsel elicited testimony that they did not complain about the molestation when it occurred; they did not disclose the molestation or only partially disclosed it when questioned about Ziskin's conduct; and they continued to wrestle with Ziskin after the touching occurred. The trial court could reasonably conclude that some jurors might have thought the children's delayed reporting and continued voluntary contact with Ziskin necessarily meant they were not abused. Accordingly, the court could conclude it was appropriate to admit expert testimony explaining that these behaviors were not uncommon reactions to abuse. The expert testimony was not presented in a manner that suggested that because some of the children acted in this manner, this meant they were abused. Further, the trial court gave a limiting instruction telling the jury that it could consider the evidence regarding children's disclosure patterns "only in deciding whether or not the victims' conduct was not inconsistent with someone who has been molested, and in evaluating the believability of their testimony" and it could not "use this testimony as a basis to conclude that any of the alleged victims in this case were, in fact, molested." (Italics added.)
The trial court also did not abuse its discretion in admitting Davies's testimony regarding grooming—i.e., that offenders frequently seek to gain the child's trust and normalize the physical contact with the child before engaging in sexual activity, and that this may cause a child to be uncertain whether activity has "crossed the line" to inappropriate touching. Ziskin asserts the grooming evidence was presented as inadmissible profile evidence.
Profile evidence consists of " 'a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity' " and the presentation of these characteristics at trial to show the defendant met those characteristics and therefore was guilty. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084-1085.) In Robbie, thecourt found it was error to ask the prosecution expert "hypothetical questions assuming certain behavior that had been attributed to the defendant" and to allow the expert "to opine that it was the most prevalent kind of sex offender conduct." (Id. at p. 1085.) The court explained that the jury was improperly "invited to conclude that if defendant engaged in the conduct described, he was indeed a sex offender. [¶] . . . [¶] Profile evidence is unfairly relied upon to affirmatively prove a defendant's guilt based on his match with the profile. The jury is improperly invited to conclude that, because the defendant manifested some characteristics, he committed a crime." (Id. at pp. 1085-1087.)
In the hypothetical, the prosecutor described the defendant's behavior during the commission of a rape—i.e., commenting that the victim had a " 'nice pussy,' " negotiating with the victim over sexual acts, driving the victim back to where she lived, asking questions about her life, and returning to the area of the offense several days later—and then asked what conclusion the expert reached about that conduct. The expert opined that this behavior was the most prevalent type of behavior pattern with sex offenders. (People v. Robbie, supra, 92 Cal.App.4th at p. 1083.)
Unlike the situation in Robbie, this case did not involve the prosecutor's posing a hypothetical describing the defendant's behavior, followed by an expert opinion that this behavior was the most common type of behavior by offenders. Rather, Davies merely explained that child molesters frequently use grooming to gradually accomplish the molestation activity. The evidence that grooming is frequently used by molesters to build trust and blur the line between appropriate and inappropriate touching was relevant to rebut the defense claims that Ziskin was not guilty because some of the children returned to play and interact with him even after the inappropriate touching occurred, some of the children acknowledged that they initially thought the touching of their genitals was accidental, and numerous adults observed Ziskin play with children and never observed any inappropriate touching. Because the grooming testimony was relevant and was not presented in a manner that urged the jury to find Ziskin guilty because he fit the profile of a typical child molester, there was no error in its admission.
V. Admission of Uncharged Sex Offense Evidence
Over defense objection, the prosecution was permitted to introduce into evidence several instances of Ziskin's conduct as uncharged sex offense evidence. The uncharged conduct admitted into evidence consisted of the following. David testified that while Ziskin was helping him with his math homework, Ziskin put his hand on David's thigh and moved his hand "left and right." The touching made David feel uncomfortable, and he pretended that he understood the math problem so Ziskin would go away. Brandon testified that when he was alone in the classroom with Ziskin during lunch to get help with his schoolwork, Ziskin massaged his shoulders. Jesse testified that when Ziskin was babysitting him, Ziskin came into the bathroom and pulled back the shower curtain while Jesse was taking a shower "to try to look at [him]." This incident occurred sometime before Jesse's eleventh birthday, at a time when he knew how to take a shower by himself. Jesse felt uncomfortable and "tried to cover [himself]" with the shower curtain.
The jury acquitted Ziskin of the charged count involving Jesse, which concerned an alleged touching of his leg while he was sleeping. (See fn. 3, ante.)
The trial court ruled the evidence constituted uncharged sexual offense evidence (based on the offense of annoying or molesting a child) which was admissible as sexual offense propensity evidence under Evidence Code section 1108. The jury was instructed that if the prosecution proved by a preponderance of the evidence that the defendant committed the uncharged offenses of annoying a child, it could conclude the defendant was disposed to commit sexual offenses. (See CALCRIM No. 1191.)
Additionally, the trial court ruled the evidence was admissible as uncharged misconduct evidence relevant to prove intent pursuant to Evidence Code section 1101, subdivision (b). However, the jury was not instructed as to this use of the evidence; accordingly, it is not relevant to our discussion.
Ziskin argues the trial court erred in admitting the evidence because the uncharged conduct was innocuous and did not constitute sex offenses. Further, he asserts the trial court abused its discretion under Evidence Code section 352 because any inference of sexual motivation was speculative, and the evidence was time consuming, inflammatory, and cumulative.
Uncharged misconduct evidence may be admissible to show a propensity to commit sexual offenses if it falls within the exception set forth in Evidence Code section 1108 for other sexual offenses when a defendant is charged with a sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 907.) To be admissible as sexual offense propensity evidence, the uncharged misconduct must constitute one of the sexual offenses specified in Evidence Code section 1108. (Evid. Code, § 1108, subd. (d)(1).) Annoying or molesting a child is one of the offenses specified in Evidence Code section 1108. (Evid. Code, § 1108, subd. (d)(1)(A); § 647.6.) To determine admissibility, the trial court makes a preliminary determination of whether the proffered evidence is sufficient for the jury to find the uncharged offense true by a preponderance of the evidence. (People v. Simon (1986) 184 Cal.App.3d 125, 132-134; People v. Carpenter (1997) 15 Cal.4th 312, 382.) We review the trial court's determination of this preliminary fact under the abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466.)
The offense of annoying or molesting a child consists of conduct (1) that a normal person would unhesitatingly be irritated by and (2) that is motivated by an unnatural or abnormal sexual interest in the victim. (People v. Lopez (1998) 19 Cal.4th 282, 289-290.) The offense does not require a touching, and does not require the child in fact be irritated or disturbed. (Ibid.) An objective test is used to evaluate "whether the defendant's conduct would unhesitatingly irritate or disturb a normal person." (Id. at p. 290.) When determining whether the disturbing conduct element of the offense is established, the conduct "is . . . evaluated . . . by the objective nature of the conduct alone (i.e., the conduct divorced from any consideration of what motivated the actor) . . . . [T]he actor's mental state is disregarded in evaluating whether the element of objectively disturbing conduct has been met." (Id. at p. 291.)
The trial court reasonably concluded that a jury could find by a preponderance of the evidence that Ziskin's acts of moving his hand on a middle school student's thigh (which can be construed as a caress) and opening a shower curtain for no apparent reason while a preteen is showering constituted conduct that would be disturbing to the average person and that reflected an abnormal sexual interest. The jury could reasonably posit that teachers do not typically caress their students' thighs and that adult babysitters do not typically open shower curtains while a preteen is showering, and this type of conduct can carry a sexual connotation.
Further, the trial court did not abuse its discretion under Evidence Code section 352 by admitting the evidence of the thigh caress and shower incident. To determine whether otherwise admissible evidence should be excluded under Evidence Code section 352, the trial court assesses whether the probative value of the evidence is outweighed by the danger of undue prejudice, confusion, or time consumption. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) When evaluating the evidence, the trial court considers such factors as "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission . . . ." (Ibid.) A trial court's ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
As we stated, a jury could reasonably find, without engaging in speculation, that the thigh caress and shower incident reflected a sexual interest in the boys. Contrary to Ziskin's assertions, the evidence was not unduly time consuming, cumulative, or inflammatory. The testimony was short, was not repetitive of other testimony, and did not describe conduct that would tend to inflame the passions of the jury.
Ziskin's conduct of massaging Brandon's shoulders presents a closer question as to whether it qualifies as the sex offense of annoying or molesting a child. Arguably, a jury could find that some persons might be disturbed to see a middle school teacher massage a student's shoulders when they are alone in a classroom. However, absent some other circumstances indicating inappropriate behavior, a mere shoulder massage might not rise to the level of conduct that would " 'unhesitatingly' " irritate the average observer. (People v. Lopez, supra, 19 Cal.4th at pp. 289, 291, italics added.) In any event, even assuming error, it is not reasonably probable that absent admission of the evidence the outcome would have been more favorable to Ziskin. (People v. Walker (2006) 139 Cal.App.4th 782, 808.) Brandon's testimony on this point was very short and was not a significant evidentiary item when compared to the students' testimony regarding the lewd touchings. In light of the whole record, it is not likely the testimony regarding the shoulder massage had any significant impact on the jury.
VI. Definition of Lewd Act Offense in CALCRIM No. 1110
The jury was instructed in the language of CALCRIM No. 1110—which defines the lewd act offense (§ 288, subd. (a))—as follows:
"The defendant is charged [in Counts 1-26] with committing a lewd or lascivious act on a child under the age of 14 years.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing.
2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child;
AND
3. The child was under the age of 14 years at the time of the act.
The touching need not be done in a lewd or sexual manner.
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.
It is not a defense that the child may have consented to the act." (Some italics added.)
Ziskin argues that CALCRIM No. 1110 is argumentative and duplicative and favors the prosecution because it includes language telling the jury what the prosecution need not prove. He complains about the portions of the instruction informing the jury (1) that the touching need not be done in a lewd or sexual manner; (2) that willful commission of an act does not require that the person intend to break the law, hurt someone, or gain any advantage; and (3) that it is not necessary that the child or perpetrator be actually sexually aroused.
" ' "The trial judge functions . . . as the jury's guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case." ' " (People v. Watie (2002) 100 Cal.App.4th 866, 867.) In criminal cases, the trial court must sua sponte instruct on the general principles of law governing the case which are necessary for the jury's understanding of the case, including all the elements of the charged offense. (Ibid.; People v. Cummings (1993) 4 Cal.4th 1233, 1311 .) The language of a statute defining a crime is generally a sufficient basis for an instruction. (People v. Smithey (1999) 20 Cal.4th 936, 980-981.) If the legal meaning of a statutory term differs from its meaning in " 'common parlance,' " the trial court should provide clarifying instructions. (Id. at p. 981.) However, the trial court should not give argumentative instructions. An argumentative instruction " 'invite[s] the jury to draw inferences favorable to [a party] from specified items of evidence on a disputed question of fact, and therefore properly belongs . . . in the arguments of counsel to the jury.' " (People v. Flores (2007) 157 Cal.App.4th 216, 220, brackets in Flores.)
Section 288, subdivision (a) defines the lewd act offense as committed when a person (1) "willfully and lewdly commits any lewd or lascivious act" upon the body of a child under age 14, and (2) "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." CALCRIM No. 1110 sets forth the touching and the intent elements—i.e., a lewd or lascivious act consisting of a willful touching with sexual intent—and then clarifies that the touching need not be done in a lewd or sexual manner, the defendant need not intend to break the law, hurt someone, or gain advantage, and there is no requirement of actual sexual arousal.
The phrase "lewd or lascivious act," given its ordinary meaning, could be construed to require a touching that is inherently sexual—i.e., touching of an area of the body associated with sexuality or touching in a sexual manner. This is not the legal meaning of the lewd act element, because any touching of a child with lewd intent suffices, even if the act has " 'the outward appearance of innocence.' " (People v. Martinez (1995) 11 Cal.4th 434, 444, italics omitted; People v. Lopez, supra, 19 Cal.4th at p. 289.) Similarly, the sexual intent element could commonly be understood to require actual sexual arousal, which is not necessary. (People v. Cordray (1963) 221 Cal.App.2d 589, 593.)
Finally, the statutory requirement that the touching be done "willfully" does not clearly explain what state of mind suffices to establish the offense. Without clarification of the term, the jury might question whether some type of additional intent is required such as intent to harm the victim or to break the law. CALCRIM No. 1110's definition of willfully conforms with the statutory definition of "willfully" set forth in section 7, subdivision 1—i.e., willfully means "a purpose or willingness to commit the act . . . . It does not require any intent to violate the law, or to injure another, or to acquire any advantage." Thus, CALCRIM No. 1110 properly clarifies that the sole necessary intent is a non-accidental act committed with sexual motivation. (See People v. Martinez, supra, 11 Cal.4th at p. 449 ["willfully and lewdly" means sexually motivated].)
The additional information in CALCRIM No. 1110 provided appropriate clarifying information. It did not focus on specific items of evidence in argumentative fashion, nor was it duplicative. The trial court did not err in instructing the jury in the language of CALCRIM No. 1110.
Ziskin argues the instruction was improper because it told the jury that "certain matters need not be proven by the prosecution without also commenting that such matters may still be considered in favor of the defense . . . ." As stated, the additional information in CALCRIM No. 1110 was appropriate so the jury could understand the meaning of the elements of the offense. Ziskin could have requested a pinpoint instruction if he thought the jury should be instructed that certain factors (such as lack of sexual arousal) were relevant to evaluating sexual intent even though they need not be proven by the prosecution. Absent such a request, the trial court was not required to sua sponte amplify the instructions. (People v. Rogers (2006) 39 Cal.4th 826, 878-879.)
Given the limited nature of the errors found in this case, Ziskin's contention of cumulative error also fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.
The trial court also ruled that the prosecution could present the testimony of three other boys who were not included as alleged victims in the case. This proffered evidence included testimony that Ziskin rubbed a boy's thigh; grabbed a boy's penis and touched his buttocks outside his clothes; and touched a boy's genitals. Ultimately, however, the prosecution did not call these boys to testify. Accordingly, we need not evaluate this aspect of the court's ruling.