P. v. Strand

Filed 9/5/18 P. v. Strand CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER ALLEN STRAND,
Defendant and Appellant.
G055291
(Super. Ct. No. 12WF0040)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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Christopher Allen Strand appeals from a 76-years-to-life sentence
following his convictions on three sex offenses. He contends the trial court prejudicially
erred by sustaining the prosecution’s objection to questions his attorney asked two
defense witnesses. He further claims the prosecutor’s misconduct in closing and rebuttal
arguments impermissibly reduced the prosecution’s burden of proof. For the reasons
stated below, we find no reversible error. Accordingly, we affirm.
I
FACTS AND PROCEDURAL BACKGROUND
Strand was charged in an amended felony information with committing
lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a);
counts 1 & 3) and committing a lewd act on a child between the ages of 14 and 15 and at
least 10 years younger than Strand (Pen. Code, § 288, subd. (c)(1); count 2; all further
statutory citations are to the Penal Code, unless otherwise stated). Count 1 was alleged to
have occurred between September 1, 2004 and November 7, 2008, count 2 was alleged to
have occurred between November 8, 2008 and November 7, 2010, and both counts
involved the same victim, C.S. Count 3 was alleged to have occurred between May 21,
1998 and May 20, 2001, and pertained to victim L.S. The complaint further alleged that
Strand committed a sexual offense against multiple victims (§ 667.61, subds. (b), (e)(5)),
he previously had been convicted of a sexual offense (§ 667.61, subd. (a)), and he had
one prior “strike” conviction within the meaning of the Three Strikes law (§§ 667, subds.
(d), (e)(1), 1170.12, subds. (b), (c)(1)) and one prior serious felony conviction (§ 667,
subd. (a)(1)).
A. Prosecution case
Brooke S., who was 36 years old at the time of trial, testified she was 12 or
13 years old when she first met Strand, who lived on the same street as Brooke. They
would engage in light conversation, and Strand gave her a pager number to contact him.
In August 1994, when Brooke was 13, she snuck out of her house and met up with

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Strand.1
Strand invited her to his room, where he showed her some jewelry and lingerie
on his bed. Strand asked her to put on the lingerie, but she refused. They began kissing,
and Strand asked Brooke if she “wanted to go all the way.” She responded that she
“didn’t want to.” Nevertheless, Strand asked her to take off her clothes, and had sexual
intercourse with her. During the sex act, Strand ignored Brooke’s pleas to stop and that
he was hurting her, continuing the assault until he ejaculated.
L.S. the victim in count 3, was born in May 1988. Strand is her mother’s
ex-boyfriend. When she was in fifth grade, L.S. and her family lived with Strand in
Anaheim. While they were living together, Strand told L.S. he thought tight red leather
pants would look sexy on her. On one occasion, when L.S. and Strand were in the
kitchen, Strand pulled out his penis and waved it around. On another occasion, when
Strand’s son Cory was visiting, Strand called L.S. and Cory into his room and asked them
to watch pornography. The two children refused and left the room. During one of the
family beach trips, Strand pulled down L.S.’s bathing suit bottoms to her ankles.
The following year, when L.S. was around 11 years old, her family and
Strand moved to the Sunshine Inn in Cypress. While they were living at the inn, L.S.
woke up one night to see Strand rubbing her leg. When L.S. asked Strand what he was
doing, he replied, “What we have is more than what your mother and I could ever have.”
When L.S. told Strand to stop, he sat still for a minute before saying, “All I want is one
kiss.” After L.S. told Strand she would call her mother, Strand returned to his bed.
When L.S. was 12 years old, she went to live with Maryanna B., who
became her guardian. After L.S. told Maryanna what Strand had done to her at the
Sunshine Inn, Maryanna encouraged L.S. to report the incident to the police. Although
L.S. was initially reluctant, on September 23, 2002, she went with Maryanna to the
Cypress Police Department and reported the incident.
1
Strand, born in April 1964, was 30 years old at the time.

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C.S., the victim in counts 1 and 2, testified that Strand is her biological
father. She was born in November 1994, and began living with Strand when she was in
fifth grade. C.S. testified Strand began sexually abusing her when she was in the fifth or
sixth grade, and the last time he abused her was in her sophomore year in high school.
C.S. testified that the abuse happened on multiple occasions during this time period.
Strand would ask her to meet him in his room, take off her clothes and lick her vagina.
Strand also attempted to have sexual intercourse with her on several occasions, but C.S.
resisted by closing her legs and pushing him away. Strand offered C.S. things in
exchange for sexual activity. He bribed her with clothes and an iPod, and stated he
would let her go out with her boyfriend if she allowed him to sexually abuse her.
On one occasion, C.S. asked Strand what would happen if she told anyone
about the abuse. He responded that no one would believe her, and having sex with him
was normal, stating, “I know other people who did this to their daughters.” Nevertheless
C.S. told several friends about the abuse, including Joanna L., Ashley G., M.B. and C.A.,
and her boyfriend Juan G. When C.S. told Juan in the summer of 2011, he replied that he
was not surprised because he had seen Strand’s picture on a website. Joanna, Ashley,
C.A., M.B., and Juan all testified at the trial. They confirmed that C.S. had told them
about Strand’s molestation.
A week after C.S. told Joanna about Strand’s abuse, Joanna’s mother asked
C.S. whether Strand was abusing her. C.S. replied that she had lied about the abuse. C.S.
testified she told Joanna’s mother she had lied because she was “scared of what would
happen” and “didn’t want anyone else knowing.” In 2002, a social worker asked her if
anyone had touched her private parts. She lied to the social worker and said, “No,”
explaining she lied because she was “embarrassed or disgusted” about the abuse.2
2
C.S. was interviewed by another social worker in 2004. During that interview, she
also denied the existence of any sexual abuse.

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On September 20, 2011, C.S. disclosed Strand’s sexual abuse to her
mother, who drove C.S. to the Cypress Police Department, where C.S. reported the abuse.
C.S. explained she decided to tell her mother about the abuse because she had a recent
fight with her father. During that incident, C.S. was sitting on the couch when Strand
placed his hand on her legs. When she slapped his hand off, he responded, “You’re not
acting like my daughter anymore,” and called her a “bitch.” C.S. angrily left the room.
B. Defense case
C.S.’s mother testified she never observed any abuse, and believed Strand
and C.S. had a loving relationship. She heard about Strand’s abuse for the first time on
September 20, 2011. She also testified she purchased an iPod for C.S. for Christmas
2011. C.S.’s brother Cory also testified he never saw Strand physically abuse C.S. He
further testified that neither C.S. nor L.S. ever disclosed to him any abuse by Strand.
Cory could not recall Strand pulling down L.S.’s bathing shorts, and he denied Strand
ever asked him and L.S. to watch pornography.
Donna Barnes testified she began dating Strand in 2010, and lived with
him, C.S. and Cory, until Strand was arrested in September 2011. Barnes never observed
Strand touch C.S. in an inappropriate or sexual manner. Barnes and C.S. did not have a
good relationship. On numerous occasions, Barnes observed C.S. acting rebelliously, not
doing her chores or homework. C.S. would argue with her father and lied to him. C.S.
wanted to live somewhere else, and mentioned moving in with her mother or her
boyfriend Juan. Around September 2011, C.S. began spending more time with her
mother.
Misty Dever testified she dated Strand from 2007 to 2011, and in 2008
lived with Strand, C.S. and Cory. When she started living with Strand, Dever was aware
that he previously had been convicted of having sex with a minor. Dever had a close and
positive relationship with C.S. Dever never observed nor was ever told of any
inappropriate sexual conduct between Strand and C.S. Strand was strict, and C.S.

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frequently complained about not being able to go out to see her friends or her boyfriend.
After Strand and Dever broke up, Dever remained in contact C.S. C.S. told Dever that
she wanted to live with her mother because her mother would allow her more freedom.
After reporting the abuse on September 23, 2011, C.S. told a social worker
in a follow-up interview the same day that her relationship with her mother over the past
year was “amazing.” In that same interview, C.S. also denied that her father had abused
her.
Detective James Kyle testified he interviewed C.S.’s boyfriend Juan in
2011. Juan told the detective that C.S. disclosed she had received an iPod in exchange
for performing oral sex on Strand. During C.S.’s 2011 interview, however, she denied
ever orally copulating Strand.
Defense investigator James McLean testified L.S.’s guardian, Maryanna,
told him that L.S. had reported performing oral sex on Strand on one occasion.
Maryanna previously told the police and a social worker that L.S. had disclosed
performing oral sex on Strand on two occasions. In her 2002 interview, L.S. denied ever
orally copulating Strand.
The jury convicted Strand on all counts and found true the multiple victims
allegation. In a bifurcated proceeding, the trial court found true the prior strike and
serious felony conviction allegations.
The court sentenced Strand to state prison for 76 years to life, consisting of
30 years to life on counts 1 and 3, 3 years doubled on count 2, plus 10 years for the prior
conviction. Strand timely appealed.

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II
DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Excluding Evidence of
C.S.’s Prior Acts of Dishonesty.
Strand contends the trial court prejudicially erred in sustaining the
prosecutor’s relevancy objections to questions his defense counsel asked Donna Barnes
and Misty Dever about C.S.’s prior acts of dishonesty. We disagree.
1. Relevant factual background
Strand’s attorney asked Barnes on direct examination whether she was
aware of any instance during the time she lived with C.S. (between February 2010 and
February 2011) where C.S. lied to Strand. Barnes responded, “Yeah.” Counsel then
asked, “What was that occasion?” After the trial court overruled the prosecutor’s
relevancy objection, Barnes then answered: “Um, one day [Strand] came home from
work and he asked me if [C.S.] was on the computer and I said, yeah, and he said, okay.
[¶] So he went down and talked to [C.S. ], asked C.S., were you on the computer? And
she said, no, I wasn’t on the computer. [¶] So [Strand] came . . . and got me and said [to
C.S.], are you trying to say that Donna is lying. [C.S. replied,] [y]eah, she’s lying. So I
said, Okay, forget it. I’m going upstairs, [Strand], I’ll leave it at that.”
Defense counsel then asked, “Any other occasions [sic] in our twelve-
month period of time?” Barnes started describing an incident in which C.S. did not want
to go to a birthday party, saying she wanted to visit a friend instead. Strand told C.S. she
could go to her friend’s house, but he would call her from the birthday party. When
Strand called, C.S. said, “We’re waiting for pizza.” Strand felt something was wrong and
decided to check on C.S., and “he was right.” At this point, the prosecutor objected on
the ground that Barnes was giving a narrative answer. The trial court stated it had
originally overruled the prosecutor’s relevancy objection because it thought the question

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had to do with the relationship between C.S. and Barnes, which might bear on motive.
Based on Barnes’s testimony, “this doesn’t appear to be within that scope.” The court
reversed itself, sustained the prior objection, and struck the answer.
When questioning Dever, defense counsel asked, “In your relationship with
C.S. did you ever come to learn that she lied to you?” The trial court sustained the
prosecutor’s relevancy objection. Defense counsel then asked Dever, “Did you ever
come to learn that she, C.S., was ever untruthful with her father?” The court again
sustained a relevancy objection.
2. Analysis
As an initial matter, we conclude Strand forfeited his claim that the trial
court erred in excluding evidence of C.S.’s prior acts of dishonesty by failing to make an
offer of proof about the proposed testimony of Barnes and Dever. “In general, a
judgment may not be reversed for the erroneous exclusion of evidence unless ‘the
substance, purpose, and relevance of the excluded evidence was made known to the court
by the questions asked, an offer of proof, or by any other means.’” (People v. Anderson
(2001) 25 Cal.4th 543, 580 (Anderson), quoting Evid. Code, § 354, subd. (a).) “This rule
is necessary because, among other things, the reviewing court must know the substance
of the excluded evidence in order to assess prejudice. [Citations.]” (Anderson, supra,
25 Cal.4th at pp. 580-581.) Here, after the trial court sustained the prosecutor’s
objections, defense counsel did not explain the substance or relevance of Barnes’s and
Dever’s proposed testimony. Without an offer of proof, we cannot assess whether the
court erred in excluding the proposed testimony or whether any error was prejudicial.
This is particularly true with respect to Dever’s proposed testimony: whether Dever ever
observed C.S.’s lying to her or to Strand is not in the record. Strand therefore forfeited
the issue.
Moreover, even if not forfeited, we conclude there was no reversible error.
(See People v. Ghebretensae (2013) 222 Cal.App.4th 741, 751 [erroneous exclusion of

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impeachment evidence reviewed for harmless error under People v. Watson (1956)
46 Cal.2d 818, 836].) Assuming Strand’s offer of proof would have shown C.S. had lied
on other occasions, we agree with Strand this evidence was relevant to her credibility
under Evidence Code sections 780 and 1103.3
(People v. Brown (2004) 33 Cal.4th 892,
908 [evidence relating to witness’s credibility is relevant]; People v. Harris (1989) 47
Cal.3d 1047, 1080-1081 [statutory limitations on the admission of evidence relevant to a
witness’s honesty or veracity no longer apply in criminal cases, except for exclusion
under Evidence Code section 352].) But excluding this marginally relevant evidence
does not require reversal. Whether C.S. lied about going to visit her friend to avoid
attending a birthday party was collateral to whether she lied about being the victim of sex
crimes. The jury heard evidence C.S. had lied to Strand about not using the computer,
and she had falsely denied being abused to Joanna’s mother and two social workers. The
excluded evidence was therefore cumulative. We conclude there was no reasonable
probability the exclusion of this evidence affected the outcome and therefore any error
was harmless.
B. There Was No Prosecutorial Misconduct.
Strand contends the prosecutor committed misconduct during closing and
rebuttal arguments by suggesting the prosecutor’s burden of proof beyond a reasonable
doubt is satisfied if a reasonable interpretation of the evidence would point to the
3
Under Evidence Code section 780, a “jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove or disprove
the truthfulness of his testimony at the hearing, including but not limited to,” her
“character for honesty or veracity or their opposites.” (Evid. Code, § 780, subd. (e).)
Similarly, under Evidence Code section 1103, “evidence of the character or a trait of
character (in the form of an opinion, evidence of reputation, or evidence of specific
instances of conduct) of the victim of the crime for which the defendant is being
prosecuted” is generally admissible if “[o]ffered by the defendant to prove conduct of the
victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd.
(a)(1).)

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defendant’s guilt. We disagree the prosecutor’s statements can reasonably be interpreted
in the manner Strand suggests.
1. Relevant factual background
At the beginning of her closing argument, the prosecutor stated: “Standard
of proof is guilt beyond a reasonable doubt. Okay, that’s my job, to prove that this
defendant is guilty beyond a reasonable doubt. Doesn’t mean doubt. It doesn’t mean you
go through everything looking for doubt. It doesn’t mean you hunt for doubt. It means
you consider all of the evidence, all of the testimony in this case. Determine what’s
reasonable. And make a decision, guilty or not guilty, based on all of the evidence in this
trial.”
At the end of her closing argument, the prosecutor discussed Strand’s claim
that C.S. and L.S. fabricated the allegations. The prosecutor concluded: “As jurors you
consider all the facts. You talk about credibility of the witnesses. Talk about all the
evidence you’ve heard in this trial. You talk about [Strand’s] prior sexual history and
what it means. You have everything you need to determine what’s reasonable and to find
[Strand] guilty of the charges.”
During rebuttal argument, which focused on inconsistencies in witness
testimony, the prosecutor stated: “It’s the People’s job, my job, to present the evidence,
to present the facts, to present what this case is about. It’s the judge’s job to present the
law. And it’s your job to determine what happened, what are the facts, what’s
reasonable. And it’s your job to determine guilty or not guilty. And all of the evidence
in this case leads you to guilty on all three counts.”
Defense counsel never objected to any of these statements.
2. Analysis
“‘A prosecutor who uses deceptive or reprehensible methods to persuade
the jury commits misconduct . . . .’” (People v. Friend (2009) 47 Cal.4th 1, 29.) “When
a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the

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question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’” [Citation.]” (Ibid.) “‘In
order to preserve a claim of misconduct, a defendant must make a timely objection and
request an admonition; only if an admonition would not have cured the harm is the claim
of misconduct preserved for review.’ [Citation.]” (Ibid.)
As an initial matter, we conclude Strand has forfeited his misconduct claim
because he failed to object to the prosecutor’s statements. (Friend, supra, 47 Cal.4th at
p. 29.) Nevertheless, in light of Strand’s related claim of ineffective assistance of trial
counsel, we address the merits of Strand’s misconduct claim. (See People v. Centeno
(2014) 60 Cal.4th 659, 674 (Centeno) [“‘A defendant whose counsel did not object at
trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction
violated the defendant’s constitutional right to the effective assistance of counsel.’
[Citation.]”].)
A prosecutor is permitted (1) “to argue that the jury may reject impossible
or unreasonable interpretations of the evidence,” (2) “to urge that a jury may be
convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or
partially inaccurate accounts, and (3) “to urge that the jury consider all the evidence
before it.” (Centeno, supra, 60 Cal.4th at p. 672.) However, “it is error for the
prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the
prosecutor’s burden of proof.” (Ibid.)
Centeno is instructive. There, the prosecutor stated in closing argument:
“‘Is it reasonable to believe that a shy, scared child who can’t even name the body parts
made up an embarrassing, humiliating sexual abuse, came and testified to this in a room
full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he
abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant
for no reason or is the defendant guilty?’ (Italics added.) She continued: ‘Is it
reasonable to believe that there is an innocent explanation for a grown man laying on a

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seven year old? No, that is not reasonable. Is it reasonable to believe that there is an
innocent explanation for the defendant taking his penis out of his pants when he’s on top
of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the
defendant is being set-up in what is really a very unsophisticated conspiracy led by an
officer who has never met the defendant or he[‘s] good for it? That is what is reasonable.
He’s good for it.’ (Italics added.)” (Centeno, supra, 60 Cal.4th at pp. 671-672.) Our
Supreme Court concluded that the prosecutor impermissibly diluted the People’s burden
of proof by “repeatedly suggest[ing] that the jury could find defendant guilty based on a
‘reasonable’ account of the evidence.” (Id. at p. 673.)
Here, in contrast to Centeno, the prosecutor did not tie the concept of
reasonableness to the prosecution’s burden of proof beyond a reasonable doubt. She did
not state it was reasonable to conclude from the evidence that Strand was guilty of sexual
abuse. Rather, the prosecutor separated the concepts of reasonable interpretation of the
evidence and guilt. She urged the jury to determine both what was “reasonable” and
whether Strand was guilty or not guilty. The prosecutor did not leave “the jury with the
impression that so long as her interpretation of the evidence was reasonable, the People
had met their burden.” (Centeno, supra, 60 Cal.4th at p. 672.) Because the prosecutor
did not commit misconduct, trial counsel was not ineffective for failing to object to the
prosecutor’s statements during closing and rebuttal arguments. (See People v. Cudjo
(1993) 6 Cal.4th 585, 616 [“Because there was no sound legal basis for objection,
counsel’s failure to object to the admission of the evidence cannot establish ineffective
assistance.”].)
C. There Was No Cumulative Error.
Finally, Strand contends he was denied his right to a fair trial due to the
cumulative effect of the purported evidentiary error and prosecutorial misconduct.
Because we have rejected Strand’s other claims, his claim of cumulative error fails. (See
People v. Sapp (2003) 31 Cal.4th 240, 316; People v. Seaton (2001) 26 Cal.4th 598, 692.)

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III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.

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