People v. Noriega, 188 Cal. Rptr. 3d 527

Defendant Arturo Mendez Noriega was convicted of nine counts of aggravated sexual assault of a child (Pen. Code § 269(a)(1)) for repeatedly raping and sodomizing his girlfriend’s stepdaughter from about age 5–13; sentenced to nine consecutive 15‑to‑life terms (135 years to life).
Victim ("Doe") testified at trial but frequently was evasive, emotionally distressed, and at times said she could not recall prior statements; defense moved to strike her testimony for denial of meaningful cross‑examination.
Defendant’s sister/step‑sibling (K.A.) testified under Evidence Code § 1108 that she was also sexually abused by defendant; her testimony included a remark that defendant sat in court denying what he had done.
Defense raised multiple appellate claims: failure to strike Doe’s testimony for confrontation/due process violations; failure to instruct on lesser included offense (unlawful sexual intercourse with a minor); Griffin error from K.A.’s remark; improper admission/use of § 1108 propensity evidence; CALCRIM No. 1191 allegedly undermined presumption of innocence; failure to instruct on consent/defense; prosecutorial misconduct; and restitution fine procedure.
The trial court read V.C.’s preliminary hearing testimony (mother) due to unavailability (deported). The jury convicted; this appeal challenges evidentiary rulings, instructions, and counsel performance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to strike Doe’s direct testimony (denial of meaningful cross‑examination)	Doe’s evasive answers prevented effective cross‑examination; testimony should be excluded.	Doe’s memory lapses were genuine/trauma‑based or jurors could assess credibility; court properly exercised discretion.	Court affirmed: no abuse of discretion; no complete refusal to submit to cross‑examination; inconsistencies were before jury.
Griffin error from K.A.’s statement that defendant sat and denied it	N/A	K.A.’s comment amounted to impermissible comment on defendant’s silence, violating Fifth Amendment.	Waived for failure to object; trial counsel not ineffective for not making futile objection; court declined to extend Griffin to a witness’s remark.
Admission of other‑acts evidence under Evidence Code § 1108	N/A	§ 1108 testimony was improper propensity evidence violating due process/equal protection.	Claim rejected (discussion in omitted sections); § 1108 evidence admissible with limiting instruction; no constitutional violation found.
Failure to sua sponte instruct on lesser included offense (unlawful sexual intercourse)	N/A	Trial court should have instructed on lesser offense for all counts.	Rejected (detailed analysis omitted here); court did not err in instruction practice.

Griffin v. California, 380 U.S. 609 (1965) (prohibits prosecutorial/commentary inference from defendant’s silence)
Pointer v. Texas, 380 U.S. 400 (1965) (cross‑examination is fundamental to fair trial and confrontation)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
People v. Price, 1 Cal.4th 324 (1991) (trial court discretion to strike testimony of witness who refuses cross‑examination)
People v. Lancaster, 41 Cal.4th 50 (2007) (failure to object can waive Griffin claim)
People v. Gunder, 151 Cal.App.4th 412 (2007) (distinguishing genuine memory loss from refusal to submit to cross‑examination)