THE PEOPLE v. HUGH MANLEY JETT (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Hugh Manley Jett appeals from his convictions of three counts of sexual penetration of his six-year-old great-granddaughter and one count of a lewd act on the same victim.   He argues that the court gave erroneous jury instructions and wrongly denied his request to cross-examine the victim about a molestation accusation she made against another man.   We conclude there is no reversible error on these points and affirm the judgment.

Jett received three consecutive sentences of 15 years to life for the sexual-penetration counts plus a sentence of six years for the lewd-act count.   He requests that we order the abstract of judgment amended to state that his sentence for the lewd-act offense is concurrent with his sentences for the other three counts.   We agree with Jett that the record as a whole makes it sufficiently clear that the court intended to impose a concurrent sentence for that count.   We order the abstract of judgment to be amended accordingly.

FACTUAL AND PROCEDURAL HISTORIES

Jett was arrested on April 20, 2007, a day after K., his great-granddaughter, told her mother he had touched her private parts.   The district attorney filed an information on December 12, 2008, charging Jett with three counts of sexual penetration or oral copulation of a child 10 years old or younger (Pen.Code, § 288.7, subd. (b) ¹ ) and one count of a lewd and lascivious act upon a child under 14 (§ 288, subd. (a)).

At trial, K.'s mother, A.D., testified that Jett, her grandfather, provided childcare for her three children on Thursday nights and on alternate weekends.   On Thursdays, Jett took care of the children at their home in Fresno and on weekends he did so at his home in Caruthers.   He did this from November 2006 until the day K. disclosed the abuse.

A.D. testified that on April 19, 2007, K. was taking a shower when she screamed and said her private parts hurt.   She indicated her vagina and anus.   A.D. looked at the area and saw that it was red and swollen and had scratches.   A.D. asked if anyone had touched her there, and K. said it was a secret and that Jett, whom K. called Papa, would be very upset if she told.   A.D. called 911 to report this and then took K. to a hospital.   K. had been having recurring urinary tract infections two or three times a month at this time and had been taking medication for them.   She also had been wetting her pants and had done so that afternoon.

At the hospital, K. underwent a sexual assault examination and was interviewed by a police officer, Miguel Archan, who testified at trial.   When Archan began questioning K., she did not want to answer at first and said Jett had told her they would both go to jail if she ever told a secret they had been keeping.   Archan assured her she would not go to jail.   K. then told Archan that, earlier that day while Jett was babysitting her at her house in Fresno, he asked her to remove her clothes.   She refused.   He touched her shoulders, moved his hands down her arms and then rubbed her “private area,” which she identified by pointing.   She asked him to stop, but he continued, and penetrated her vagina with his finger.   Then he told her to touch his penis.   She said no, but he grabbed her hand and made her move it up and down on his penis.   After this, he told her it was their secret and they would go to jail if she ever told anyone.

Following further questioning, K. told Archan there had been similar occurrences in Caruthers.   When Jett babysat overnight on weekends at his home, K. and her brothers would sleep in Jett's bed with him.   K. always slept beside Jett. When the boys were asleep, Jett put his hand in K.'s underpants and penetrated her vagina and anus with his finger.   He also grabbed her hand and made her rub his penis.   She said that when this first started, she told Jett no, but he grabbed her, forced her down, and penetrated her with his finger.   Another time, he hurt her and made her cry by penetrating her with his finger;  he gave her “a liquid that made her feel kind of weird and drowsy,” as Archan described it.   K. also saw Jett watching “nasty movies” in which “two naked adults jump on each other.”

K. testified at trial.   She was eight years old at the time of trial.   She said the first time Jett touched her she was six, and the last time he did so she was seven.   He touched her once at her house and more than once at his house.   She described an occasion at his house when they were alone in his bedroom and he put his finger inside her vagina.   It hurt and she told him so.   She described the incident at her house.   They were alone in the living room watching television.   He put his hand under her nightgown and his finger in her vagina.   He said she would go to jail if she told anyone.   When he touched her, he drank whiskey from a jar.   Sometimes he had Vaseline on his fingers when he touched her.   She said yes when asked whether a doctor had ever given her cream to put around her private parts, but said it was Vaseline, and not the cream, that Jett had on his fingers when he touched her.

During cross-examination, defense counsel twice asked K. whether anyone other than Jett had ever molested her.   The court sustained the prosecutor's objections.   Defense counsel persisted, however, and asked a third time:

“Q All right.  [K.], when you say that your grandfather did this bad touch, are you sure you're not talking about somebody else?

“A No.

“Q You're not sure?

“A Yes.

“Q Could you be talking about somebody else, [K.]?

“A Yes.

“Q Who could you be talking about?

“A Dennis.

“Q Did Dennis bad touch you?

“A Yes.

“Q When did he do that?

“A When I was seven.

“Q What about [Jett]?

“A When I was six.

“Q Did [Jett] touch you like that?

“A Yes.

“Q Who is Dennis? [¶] ․ [¶]

“A My mom's friend's husband.”

The court took a recess, during which it decided to disallow further questioning on the subject of the other molester.

The jury watched a video recording of an interview K. gave at the Multidisciplinary Interview Center on May 1, 2007, 12 days after she reported the abuse.   She said Jett began putting his finger in her vagina when she was four years old and in preschool and continued doing it when she was five and six.   He also put his finger in her anus.   She told him to stop, but he would not do so.   K. said Jett touched her in this manner more than 10 times.   On one occasion, K.'s older brother J. saw the abuse taking place and asked Jett what he was doing.   Jett scratched J.'s nose and cheek, causing bleeding, and told J. he was going to jail.   Another time, Jett placed fingers inside K.'s vagina and anus simultaneously.   She said that when she asked him to stop, “he just threw me down on the ground.”   He told her not to tell anyone and that if she did, they would both go to jail.

Sometimes he used Vaseline on his fingers when he placed them inside her.   He made her touch his penis and put her finger in his anus.   What she called “potty” came out of his penis when he made her touch it.   She also said he penetrated her vagina and anus with his penis on numerous occasions.   She saw him watching movies which, as she described them, showed “people having ․ ‘s,’ ‘e,’ ‘x’ ․ with other people.”   She never told her parents what was happening because she was afraid.

K.'s brother J. testified at trial.   He was 10 years old at the time of trial.   He stated that one day when Jett was babysitting him and K. in Caruthers, he, Jett, and K. were lying in Jett's bed.   J. saw Jett put his hand inside K.'s underwear.   He was afraid to say anything at the time, but in the morning he asked Jett what he had been doing to K. Jett responded by hitting J. in the face with a belt.   J. spoke to K. afterward and found out what Jett had been doing.   He was concerned and wanted to protect her, but did not tell anyone because Jett threatened both of them.

The medical examination K. received at the hospital the night she reported the abuse did not yield conclusive results.   The pediatrician and nurse who examined K. reported abnormal findings, namely, a white discharge and redness, tenderness, and dry, scaly, and peeling skin in the area around the vagina and anus.   The nurse testified that these conditions did not constitute definite evidence of sexual abuse.

An officer testified about statements Jett made to police.   When police arrived at Jett's house in Caruthers on April 20, 2007, he said, before the officers spoke, “ ‘If I did it, I was probably drinking.’ ”   He told an officer that when he drinks, he does inappropriate things and forgets things.   He was handcuffed to be taken to a police station.   As the officers were leading him to a police car, his daughter, Sharon, drove up and asked, “ ‘Did you do it?’ ”   Jett replied, “ ‘You know, Sharon, I don't know.   I don't remember.   I was probably drinking.’ ”

At the police station, Jett gave an interview, which was recorded.   The recording was played for the jury.   The officer conducting the interview read Jett his Miranda rights and questioned him about K. The officer began by asking what Jett meant when he said if he did it, he was probably drinking.   Jett said, “[I]f I get too much” to drink, then “I don't realize what I'm doing.”   Jett said A.D., K.'s mother, had called him the night before and asked if he had been touching K., but Jett denied it.   The officer reminded him that K. herself also made the claim.   Jett replied, “I said well if [K.] just said I did I must have.”   He said A.D. had “the right to be mad” “[i]f I did what you're telling.”

When the discussion focused on a particular day, the previous Wednesday, Jett stoutly denied he had touched K. “I hold my hand to God if he strikes me dead right here ․ that I ․ I had nothing ․ nothing ․ I did nothing ․ how ․ on Wednesday.”   When the officer asked if it happened some other time, however, Jett began to equivocate.   He said he “[c]ould have” done something sometime when he was drinking.   He confirmed that he and the children slept in the same bed when he babysat them, but when asked if he touched K. when they were in bed, he said, “Not to my knowledge, no․”  Then he said that if he touched her inappropriately, he didn't mean to.

The officer asked if Jett touched K.'s vagina.   Jett said, “I may have ․ I may have when I was drinking.”   When asked if K. ever touched his penis, Jett said yes, but then said “her hand came over and did it” accidentally sometimes when she was asleep.   The officer persisted in questioning Jett about whether he had touched K., and he finally conceded that he had.  “Seems like I did ․ I touched her.   And ah ․ what was that at ah ․ I guess that was when we was at the house.”   He said it was about a month before, and that he had drunk a pint of bourbon.   Then he touched her “front” or her “privates”:

“[Officer]:  Her vagina?

“[Jett]:  Uh-huh (affirmative).

“[Officer]:  Ok. Now, how are you touching her vagina?

“[Jett]:  I just had my hand on it like this.

“[Officer]:  Ok. Doing that? ․ like ․

“[Jett]:  Yeah ․ uh-huh (affirmative) ․

“[Officer]:  Were you rubbing it a little bit ․

“[Jett]:  ․ just playing with her, yeah.”

Jett said, “I knew ․ that I shouldn't ․ you know ․ do what I did ․,” but denied he knew that at the time he did it, because he was “half drunk.”

Pressed to describe this incident further, Jett said he did it after K. asked him to lick her neck:

“[Jett]:  Yeah, she rolled up her hair like that ․ and had me licking her on her neck.   And I think that's when I ․ touched her.   I think that ․ ah ․ I remember that now, yeah.

“[Officer]:  Touched her, where?

“[Jett]:  On her privates.”

Jett admitted that his hand was inside K.'s underpants when he did this and that it went on for about five minutes.   Then he said, “But I never ․ I ․ never had nothing up ․ inside her.”   The officer said K. reported that Jett put his fingers inside her vagina.   Jett said that if he did, he didn't mean to.   He said there were two, three, or four times when he touched K.'s vagina inside her underpants.

“[O]nce or twice,” Jett said, K. tickled his penis while he was showering with her.   He said he told her, “[Y]ou know, we shouldn't be doing this․”  On two or three other occasions, K. was on top of Jett while K. was naked.   He said he was dressed when this happened.   The officer asked, “[W]as there one time that your penis might have been out?”   Jett replied, “Could have been.”   When asked if his penis ever touched her vagina, Jett said, “Not to my knowing of․”  The officer asked if it was possible.   Jett said, “Like I said, if I was drinking, it may have.   I don't know.”

Jett also said there were occasions when K. had a rash and he used his finger to apply a salve or cream like Desitin to her vagina and anus.   He said this happened two or three times.

At trial, Jett testified that he never touched K.'s vagina in a sexual way and was never sexually aroused while touching her.   He said he was 73, had had surgery for prostate cancer, and was unable to become sexually aroused.   While babysitting, he touched K.'s vagina and anus to apply a cream she had been prescribed and which A.D. gave to Jett. This was a white cream that came in a tube and K. needed it for a rash.   Jett's claim conflicted with the testimony of A.D., who said no topical cream was ever prescribed for K;  she was prescribed only oral antibiotics for urinary tract infections.   K. testified that she did get a cream for her vagina from a doctor, but that only the doctor, her mother, and she herself ever applied it.

Jett testified that on one occasion he touched K.'s vagina and anus to apply Vaseline after she had been swimming and complained of a burning sensation.   He also bathed K. and the other children, and touched K.'s vagina while doing so.

Jett testified that he never hit any of the children with a belt.   Instead, he would “snap it at them” to frighten them when they misbehaved.   He scratched Jason's face once with his fingernail when he “hit at him and missed him.”  “I was just trying to make him sit down to eat,” Jett testified.

Defense counsel asked Jett whether he does inappropriate things when drinking.   Jett said, “Not to my knowing of,” but admitted he had made a statement to that effect during his interview with the police.   Counsel referred to K.'s statements that Jett had put his penis in her vagina;  he asked Jett if that had ever happened.  “No sir.   Not to my knowing of, no, sir,” Jett replied.

On cross-examination, the prosecutor asked Jett about conflicts between his testimony and the other evidence.   Some parts of Jett's testimony in response to these questions confirmed that he touched K.'s vagina for reasons unrelated to applying cream to a rash or bathing, while in other parts he claimed not to know whether incidents described by K. had taken place or not.   He continued to claim he never had any sexual intent.   We quote Jett's testimony at some length to better convey the character of what he admitted and what he denied:

“Q [Y]ou do remember drinking and putting your hands down [K.'s] underwear?

“A In the bed at home when she asked me to, she asked me to-her vagina was itching, and she wanted me to tickle it, and that's what I did.

“Q You said you were playing with it?

“A No, sir.

“Q You did not say you were playing with it?

“A I don't know what she said.   I was not playing with it.

“Q You didn't tell Detective Reyes you were just playing?

“A Maybe so.   I don't know.   I'm sure if it's anything like that it was playing because there was never anything-no intentions of any sexual relations whatsoever, never.

“Q You told the detective you rubbed it for about five minutes?

“A No, sir.

“Q You didn't say that?

“A If I said that, I did, but I don't think I-you know, like I told you before, I said before I was under arrest never had been before in my life.   I may have said things I didn't even know I was saying. [¶] ․ [¶]

“Q And you also recall touching [K.] when she was in your bed?

“A Yes, sir, under the cover when nobody seen me, not even [K.'s brother J.]. He probably knew what we was doing, but he didn't say nothing.

“Q I'm sorry, what did you just say?

“A I said [J.] said he saw me touching [K.]. But every time that [K.] asked me, we had cover over us, the lights were out, and there was nothing on but a TV. So he never seen anything specifically.   I'm sure he knew what was going on.

“Q So when you were touching [K.], you had the covers over you?

“A Yes, sir.   Always.  And she would turn over about five minutes and she'd giggle and laugh and say Papa, that tickles.   And then about two minutes she'd turn over, and she'd be sound asleep.

“Q So you would put the cream on her vagina underneath the covers?

“A No, sir.   I put the cream on her in the bathroom.   You couldn't put the cream on under the covers no, sir.

“Q That's what I'm trying to understand.   So did you touch her without putting cream on her vagina?

“A When she asked me to yes, sir.   She said tickle.   And she'd asked me to tickle her.   I'd go tickle, tickle, tickle, and she'd turn over and go to sleep. [¶] ․ [¶]

“Q You didn't find it odd that a young girl would ask you to touch her vagina?

“A Sir, she was my great granddaughter.   If she asked me for a gun to shoot somebody, I'd give it to her.   That's how much I love her.

“Q If she asked you to stick your penis in her vagina, would you do that?

“A I don't think so, no.

“Q You don't think so?

“A I don't think I would.   I don't have any idea if I was drunk.   I don't know. [¶] ․ [¶]

“Q You also told Detective Reyes [K.] got on top of you when she was naked;  is that correct?

“A Quite a few times.   When she would ․ take a bath, she'd come in.   I'd be laying on the bed.   She'd jump right up on my chest and sit there.   I can't make you understand it never affected me in any way, and it never will.

“Q He asked if your penis was out?

“A Who? She asked me what?

“Q The detective asked if your penis was out?

“A I guess he did.   I don't know.   I don't think it was.   I had on sweats and a T-shirt.

“Q You said your penis could have been out?

“A Like I said, I answered him the best I could.   If I was drinking, it could have been.   I don't know. [¶] ․ [¶]

“Q [S]he also would come in the shower with you?

“A Sir, that girl was never in the shower with me.   Never.  I don't care who says it, or who told it, or who whatever.   She has never been in the shower with me.

“Q Would it make a difference if you said it, sir?

“A If I said what?

“Q That she was in the shower with you?

“A She wasn't in the shower with me.

“Q Detective Reyes didn't ask you, and you didn't respond she wanted to take a shower with me?

“A She wanted to, and I told her no, you get out of here. [¶] ․ [¶]

“Q So it's your testimony that she never got in the shower with you?

“A No, sir, never.

“Q And when you told Officer Reyes that she got in the shower with you, that was-you were lying then?

“A I guess I was if I told him that. [¶] ․ [¶]

“Q Do you recall when [the detective] asked if you rubbed your penis on her vagina, you said you don't think so.   Does that sound accurate?

“A As far as I know, I never did.

“Q You talked about when you tickled [K.], the tickle game.   Do you recall talking about the tickle game?

“A Yeah. Yeah.

“Q And you would touch her, and she would giggle?

“A That's right. [¶] ․ [¶]

“Q When she was giggling is when your hand was on her vagina?

“A Yeah.

“Q The tickle game didn't involve any cream?

“A No.

“Q How many times did you play the tickle game?

“A Whenever she asked me. [¶] ․ [¶]

“Q You said that touching was not done in a sexual way, but you said that when you drink, you do inappropriate things.

“A I mean what do you-nothing sexual.   I might, you know, put on a pot of coffee and forget I got it on, and boil till the pot turns black, but nothing sexual.   Never.  No, sir.

“Q Did you ever tell [K.] not to tell anyone or else you'd both go to jail?

“A When she wanted to play the game, yep, I sure did.   She was running around my house naked.   And I told her [K.], put your clothes on.   If somebody comes in, first thing you know they'll have me [in] jail.   I sure did.

“Q You told her it was your secret, it was to be kept secret?

“A Oh, yeah, when she was running around the house with no clothes on.   It didn't bother me, but it sure would bother somebody else.”

Jett denied that when the officers first approached him at his house, he said that if he did it, he must have been drinking.   He also denied saying that if he did it, he was drunk and didn't know any better and felt bad.   He said the “tickle game” was not sexual.  “It was just her game, her way of playing.   To me that's all that meant.”

A.D.'s twin brother, A.W., testified for the defense.   He began by expressing his hostility toward A.D., responding “[u]unfortunately” when asked whether he was related to her.   He explained that he had “had a couple [of] run-in's with her” but had been getting along with her until she found out he had been subpoenaed to testify for the defense.   He said yes when asked if he was “here in support of the defendant,” and agreed that it was “[f]air to say” he was not getting along with A.D. because of this support.   He admitted he was familiar with none of Jett's incriminating statements.   He said he did not believe Jett could be guilty, but conceded that if he found out Jett admitted to touching K.'s vagina for five minutes, he would be concerned.

A.W. testified that, for about a year, until November 2006, he babysat A.D.'s children.   During that time, K. “was constantly fighting bladder infections and yeast infections” and had both pills and a topical cream to treat these infections.   A.D. asked A.W. to apply the cream, but A.W. refused.  “[K]nowing what I know about my sister, I did not feel comfortable doing that,” he testified.  “[K]nowing my sister and my sister's vengeance against people when she gets upset is what stopped me from doing it.”

The jury found Jett guilty as charged.   The court imposed three consecutive sentences of 15 years to life for the three violations of section 288.7, subdivision (b), sexual penetration of a child 10 years old or younger.   For the violation of section 288, subdivision (a), a lewd act upon a child less than 14, the court imposed a sentence of six years.   It made, however, ambiguous statements about whether this sentence would be consecutive to or concurrent with the other sentences:

“As to Count four, the violation of 288(a), the Court will impose the, concurrently, the midterm sentence of six years.

“The terms I believe will run-the aggregate term will be six years determinate followed by three consecutive 15-year-to-life terms indeterminate.”

The court's minute order states that the six-year term is “to be served concurrent to count 1.” The abstract of judgment does not specify whether that term is concurrent or consecutive.

DISCUSSION

I. Omission of specific-intent instruction for sexual penetration counts

For counts one through three, the violations of section 288.7, subdivision (b), the court instructed the jury with CALCRIM No. 250:

“The crimes charged in Counts one, two, and three, sexual penetration with a child ten years of age or younger as charged in this case requires [proof] of the union or joint operation of act and wrongful intent.   For you to find a person guilty of the crimes alleged in counts-that person must not only commit the prohibited act or fail to do a required act, but must do so with wrongful intent.   A person acts with wrongful intent when he intentionally does a prohibited act.   However, it's not required that he intend to break the law.   The act required is explained in the instruction for that crime.   Which will follow.”

This instruction is meant to apply to general-intent crimes, but it does not mention or define “general intent.”   Instead, it merely omits any reference to a specific intent.   By contrast, CALCRIM No. 251, the specific-intent instruction, says the defendant must act with “a specific intent or mental state.”   The court instructed the jury in accordance with CALCRIM No. 251 for count four, a lewd act, but not for the remaining counts.

Jett argues that sexual penetration is a specific-intent crime, so the intent instruction for counts one through three was erroneous.  Section 288.7, subdivision (b), requires that the defendant engage in “oral copulation or sexual penetration, as defined in Section 289․”  To count as sexual penetration under section 289, an act must be “for the purpose of sexual arousal, gratification, or abuse ․“ (§ 289, subd. (k)(1).)   This makes a violation of section 288.7, subdivision (b), a specific-intent crime.   (People v. Senior (1992) 3 Cal.App.4th 765, 776;  People v. Hering (1999) 20 Cal.4th 440, 446.)   The People concede that a specific-intent instruction should have been given, but argue that the error is harmless.

In determining the legal correctness of the trial court's instruction on intent, we conduct an independent review.  (People v. Alvarez (1996) 14 Cal.4th 155, 220 (Alvarez ).)   If the instruction was erroneous, we must determine whether it was prejudicial.   The error is prejudicial if there is a reasonable probability that it affected the outcome of the trial.  (Ibid.)

We agree with the parties that the intent instruction for counts one through three was erroneous.   Where the crime is one of specific intent, a trial court has a sua sponte duty to give an instruction on the union of the culpable act and the required specific intent.  (Alvarez, supra, 14 Cal.4th at p. 220.)   The error, however, was harmless.  Alvarez is precisely analogous.   There, the trial court failed to give a specific-intent instruction for a murder charge, though it did give that instruction for other counts.   The Supreme Court held that the error was harmless because the instruction the court gave on the offense itself, murder, correctly described the required specific intent.  (Ibid.) Here, the court gave an instruction on sexual penetration which, in accordance with CALJIC No. 10.59.6, included the element of the offense by virtue of which it is a specific-intent offense, i.e., the requirement of a purpose of sexual arousal, gratification, or abuse.   The instruction stated:

“Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person, or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument or device, or by any unknown object.

“The words foreign object, substance, instrument, or device include any part of the human body except a sexual organ.   A finger is a foreign object.”   (Italics added.)

Applying this instruction, the jury could not find Jett guilty of counts one through three unless it found he acted with the purpose of sexual arousal, gratification, or abuse.

In sum, the court gave an instruction of the offense that included the required specific intent.   CALCRIM No. 250, though it is designated a general-intent instruction, does not actually contain any language conflicting with the specific-intent language included in the instruction on the offense.   The instruction as a whole, therefore, conveyed the required intent correctly and unambiguously.   There is no reasonable probability that the jury would have reached a different verdict if the court had given CALCRIM No. 251 or its equivalent for counts one through three.

Finally, giving the instruction was not federal constitutional error, contrary to Jett's contention that it relieved the prosecution of the burden of proving an element of the crime in violation of the due process clause of the Fourteenth Amendment.   The instruction defining the substantive offense included the element in question and required the jury to find that element.

II. Voluntary-intoxication instruction

Voluntary intoxication can be relevant to a crime that requires a specific intent, since intoxication can prevent a defendant from forming the required mental state. (§ 22, subd. (b);  People v. Saille (1991) 54 Cal.3d 1103, 1119.)   Under the mistaken impression that sexual penetration is a general-intent crime, the trial court ruled that an instruction on voluntary intoxication was applicable only to count four, the lewd-act charge.   It instructed the jury that “[v]oluntary intoxication is not a defense to sexual penetration of a child ten years of age or younger as alleged in Counts one, two, and three.”   It is undisputed that this portion of the instruction was not correct.

Jett claims the mistake is reversible error.   The People argue that Jett waived this issue by not requesting a voluntary-intoxication instruction for counts one through three and by not objecting.   The People also argue that the error was harmless.

It is true that the court had no sua sponte duty to instruct on voluntary intoxication.  (People v. Saille, supra, 54 Cal.3d at p. 1120.)   Here, however, the court did more than merely omit the instruction;  it affirmatively gave an incorrect instruction.   We can review an incorrect instruction given without objection if it affected the defendant's substantial rights. (§ 1259.)   We will, as a result, consider whether Jett's substantial rights were affected by the instruction.   This is essentially the same analysis as whether the error was prejudicial, which requires us to determine whether there is a reasonable probability of a different result without the error.  (People v. Watson (1956) 46 Cal.2d 818, 836-837.)   We will, therefore, consider at the same time whether the error was prejudicial if it was not waived.

Jett's testimony and statements to police were relevant to three defenses:  (1) As to some of the incidents claimed by K., Jett said he touched her but did so innocently in the course of bathing her or applying ointment.  (2) Regarding other incidents, Jett said he was tickling K.'s vagina as a game at her request and with no sexual intent.  (3) With respect to yet others, Jett said he was so drunk he did not know what he was doing and did not know whether the incidents happened.   The voluntary-intoxication instruction would have been relevant to the third of these only;  for the others, Jett did not claim drunkenness affected his intent, but that he had an innocent intent regardless of drunkenness or sobriety.

The jury rejected the first two defenses without being given an intoxication instruction.   In light of this fact, it is safe to conclude the jury would have rejected these defenses even if they had been given the intoxication instruction.   ThisDP1⌑To acquit Jett of sexual penetration based on the third defense, the jury would have had to decide first that all the incidents K. described were incidents where Jett was so drunk that he did not know what he was doing.   At the same time, the jury would have had to reject all the evidence indicating Jett's consciousness of guilt, including K.'s claims that Jett repeatedly told her never to tell anyone what happened to her and J.'s claim that Jett struck J. when he asked what was going on.   It would have to believe, instead, Jett's claims that he told K. he would go to jail because she refused to put clothes on and he hit J. by accident.

It appears to us that the likelihood the jury would have reached these conclusions if it had been instructed correctly on voluntary intoxication is close to zero.   As Jett acknowledges, the trial was a credibility contest.   The verdicts show whom the jury found to be credible.   We conclude it is not reasonably probable that the jury would have rejected the prosecution's case on counts one through three and found Jett not guilty based on voluntary intoxication if it had been correctly instructed.

We also hold that giving the incorrect instruction was not federal constitutional error.   In light of the evidence, the value of the correct voluntary-intoxication instruction to the defense was marginal, and the court's failure to give it did not prevent Jett from presenting his defense or receiving a fair trial.   The Fourteenth Amendment requires that “criminal defendants be afforded a meaningful opportunity to present a complete defense.”  (California v. Trombetta (1984) 467 U.S. 479, 485.)   The incorrect instruction did not deprive Jett of that opportunity.

III. Denial of cross-examination of victim about subsequent-molestation allegation

On December 12, 2008, at the beginning of the trial, the defense filed a motion to present evidence pursuant to Evidence Code section 782.   Evidence Code section 782 delineates the procedure by which a defendant can offer “evidence of sexual conduct of the complaining witness” in order to “attack the credibility of the complaining witness․”  The motion offered to prove that, after Jett's arrest, K. made an allegation of sexual abuse against a man named Dennis.   Attached to the motion were two police reports setting forth the following facts:  On July 1, 2007, about two months after Jett's arrest, police officers were dispatched to Valley Children's Hospital to investigate a new report of molestation of K.K. told an officer that she and her brothers had stayed with Lupe and Dennis, friends of K.'s mother, for five days while K.'s mother was in the hospital with a kidney infection.   K. said Dennis put his finger in her vagina while they were lying on a couch together.   She also said he rubbed her bottom one time and put his finger in her anus on another occasion.

A doctor conducted a vaginal examination and found no evidence of molestation, but stated that molestation not causing injury could have occurred.   On August 14, 2007, K. was interviewed at the Multidisciplinary Interview Center.   At one point during the interview, when she was asked about the first incident with Dennis, K. apparently misunderstood the question and referred to a time when “Pappa,” i.e., Jett, touched her when she was five.   The interviewer reminded her to talk only about Dennis.   K. then gave an account that differed from her statements at the hospital.   She said she was at Dennis's house because her mother was at work.   While she was in his bedroom, lying on the bed and pretending to sleep, Dennis took out his penis, which was long and hard, and put it near K.'s face.   She moved away and Dennis said, “[D]amn it.”

K. then described incidents in which Dennis touched her bottom and her vagina over her clothing.   She said there were no other incidents and Dennis did not touch her under her clothes.   The police officer supervising the interview concluded that K. was “confused” and “not sure about the incidents” because her statements were not the same as those she gave six weeks earlier.   A.D., K.'s mother, told the officer she believed Dennis did not assault K. and that K. was “reverting back” to the incidents with Jett because she was traumatized and confused.   Dennis refused to make a statement to police.   The officer who completed the final police report wrote that it was “unknown” whether a sexual assault occurred, that there was “insufficient evidence to prove a crime occurred,” and that the case was suspended until any new information might develop.

The trial court ruled that the evidence of the prior molestation allegation was not admissible under Evidence Code section 782 because the allegation did not constitute prior sexual conduct.   The court cited People v. Tidwell (2008) 163 Cal.App.4th 1447, 1454-1456 (Tidwell ), in which the Court of Appeal held that section 782 “was inapplicable because the evidence that defendant sought to introduce was complaints of rape, not of sexual conduct.”   In this case, similarly, the proffered evidence was of K.'s allegation of molestation;  it was not evidence of K.'s sexual conduct.   Defense counsel replied that, even if the evidence should not come in under section 782, it was still relevant to K.'s credibility because it tended to show that she was confused or inconsistent when attempting to describe incidents of molestation.   The court deferred its ruling on that contention.

During trial, K.'s allegations about Dennis came out during K.'s testimony, as we have described.   The court finally admitted K.'s testimony that an incident with Dennis took place, but ruled that no further questioning of the subject would be allowed.   The court asked the parties for additional arguments on the subject later, however, and defense counsel renewed his argument that the evidence of K.'s accusation against Dennis impeached her credibility because it showed her confusion or inability to state facts about molestation accurately.   Counsel said this showed that the evidence was not substantially more prejudicial than probative and should therefore be admitted under Evidence Code section 352.

The court disagreed.   First, the court again cited Tidwell, supra, 163 Cal.App.4th at page 1457, and another case mentioned within it, this time for the proposition that a prior rape complaint could be admissible to impeach the victim only if it could be shown that the prior complaint was false.   The court ruled that the same principle applied to an allegation of molestation and found that there was no conclusive evidence that K.'s allegations against Dennis were false.   Finally, the court applied Evidence Code section 352 in light of these conclusions and held that “the consumption of time and the opportunity for the jury to be confused outweighs any probative value.”   The court reaffirmed its ruling that no further questioning of K. about Dennis would be allowed.   It also ruled that K.'s mother and the police officers involved in the report of molestation by Dennis could not be questioned on the subject.

During closing argument, defense counsel mentioned K.'s testimony about Dennis.   The trial court sustained the prosecutor's objection and instructed the jury to disregard the argument.

Jett argues now that the court abused its discretion and violated his constitutional right to confront witnesses when it prevented him from cross-examining K. on this issue.   He contends that there was, in fact, some evidence in the police reports that K.'s allegations against Dennis were false.   Further, he says, K.'s testimony on cross-examination itself could have had great probative value even apart from independent evidence of the falsity of her allegations because it could have impeached her credibility by showing that she was confused and her statements contradictory.   He cites People v. Neely (1964) 228 Cal.App.2d 16, 18-19, a rape case in which the Court of Appeal held that, even without an offer of proof that prior rape accusations by the victim were false, the defendant should have been allowed to cross-examine the victim about the prior accusations “in the hope of establishing” their falsity where the victim's testimony showed “some uncertainty and confusion concerning the exact nature of her charges against appellant.”

We review the court's rulings on admissibility of evidence for abuse of discretion.  (People v. Waidla (2000) 22 Cal.4th 690, 724 (Waidla ).)   The court abuses its discretion if its decision exceeds the bounds of reason.   (People v. Beames (2007) 40 Cal.4th 907, 920.)   We agree with the trial court's ruling that Evidence Code section 782 did not apply.   K.'s allegation of molestation by Dennis was not prior sexual conduct by K.

The court also did not abuse its discretion when it applied Evidence Code section 352 to exclude further questioning.   The court has discretion to exclude evidence under section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   This test is satisfied where the evidence “poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome.’ ”  (Waidla, supra, 22 Cal.4th at p. 724.)   If it had been “established” that the allegations against Dennis were false (Tidwell, supra, 163 Cal.App.4th at p. 1457), the evidence would have been admissible under section 352, but the evidence proffered by Jett did not show that this could have been established.   Investigators and K.'s mother thought K. was confused and the police suspended the investigation because they believed they had insufficient evidence to proceed.   None of this, however, would establish that the allegations were false.

Jett is correct that K.'s testimony on cross-examination could have had some probative value even if the falsity of the accusations against Dennis could not be established.   K.'s demeanor and her consistency or lack of it, as well as similarities or differences between her descriptions of Jett's and Dennis's conduct, all could reasonably have been considered by the jury as relevant to K.'s credibility.   Against this, however, the court had to weigh the possibility that, confronted with an eight-year-old witness's difficulty in consistently describing multiple sexual occurrences over a year old, the jury might have wrongly taken the mere fact of a later molestation allegation as evidence that K. was dishonest.   In other words, the poor performance Jett was hoping for might prejudice the jury instead of being used by it appropriately.   Under these circumstances, we conclude that the court did not exceed the bounds of reason when it decided that the likelihood of jury confusion substantially outweighed the probative value of further questioning about the alleged molestation by Dennis.

There was no violation of Jett's constitutional right to confront witnesses.   The confrontation clause of the Sixth Amendment does not prevent a trial court from exercising discretion to limit cross-examination that is prejudicial or that will confuse the issues.  (People v. Frye (1998) 18 Cal.4th 894, 946, overruled in part on other grounds by People v. Doolin (2009) 45 Cal.4th 390.)  “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses'] credibility’ [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.”  (People v. Frye, supra, at p. 946.)   The mere possibility that a child witness might have given inconsistent or muddled testimony about an unrelated incident that occurred after Jett was in custody does not amount to a showing that the prohibited cross-examination would have produced a significantly different impression of the credibility of her testimony about Jett.

IV. Cumulative error

Jett argues that even if the errors he has alleged were not prejudicial taken separately, they were prejudicial cumulatively.  (People v. Hill (1998) 17 Cal.4th 800, 844;  see People v. Bunyard (1988) 45 Cal.3d 1189, 1236.)   The errors would be cumulatively prejudicial if it were reasonably probable that the trial would have resulted in a more favorable result for the defendant absent the errors.  (See People v. Holt (1984) 37 Cal.3d 436, 458.)

We have stated that the court's jury instructions for counts one through three on specific intent and voluntary intoxication were erroneous, but its ruling on cross-examination of K. was not erroneous.   The first instructional error, on intent, was not significant because the charge as a whole conveyed the applicable law about intent correctly.   The second, on voluntary intoxication, was harmless because of the nature of the evidence;  we concluded there was almost no chance the correct instruction would have caused a different verdict.   There is no reasonable probability that these two harmless errors together altered the outcome.

V. Sentence for count four

As we have said, the court made ambiguous statements from the bench about whether the six-year sentence for count four would be concurrent with or consecutive to the sentences for counts one through three.   The minutes say the sentence is concurrent and the abstract of judgment does not address the question.

We conclude the record is sufficiently clear to establish that the court intended the sentence for count four to run concurrent with the sentences for the other counts.   The court did use the words “concurrently” and “concurrent” in its oral ruling and its minutes, and the circumstances make it unlikely that the court meant to impose the sentence consecutively.   Defendant was 73 years old and he would have to serve 45 years before those additional six years could make a difference.   The People have requested that we remand for a new sentencing hearing to allow the court to clarify, but that procedure would serve no practical purpose in this instance.

DISPOSITION

The judgment is affirmed.   The trial court is ordered to amend the abstract of judgment to state that the six-year sentence for count four shall be served concurrently with the sentences for the other counts.   The court will forward the amended abstract to the appropriate prison authorities.

Wiseman, Acting P.J.

WE CONCUR:

Cornell, J.

Hill, J.

FOOTNOTES

FN1. Subsequent statutory references are to the Penal Code unless otherwise noted..  FN1. Subsequent statutory references are to the Penal Code unless otherwise noted.