People v. Valenti (243 Cal. App. 4th 1140, 2016)

Opinion

LAVIN, J.—

INTRODUCTION

Defendant Raynard Anthony Haylock, calling himself Renoir Vincent Valenti, was convicted of continuous sexual abuse, lewd act on a child, child molestation, forgery, and violating a court order — all relating to his sexual abuse of 15 children over nearly 30 years. The jury found multiple-victim and substantial-sexual-conduct allegations true.

On appeal, defendant contends there is insufficient evidence his continuous sexual abuse of Denzel lasted at least three months or that he touched Jeremy or Bradley with lewd intent; that we must reverse his six convictions for annoying or molesting a child because there is insufficient evidence of objectively disturbing or offensive conduct, the court erred by instructing the jury the People did not have to prove sexual motive, and the instruction for those offenses misstated the law; and that the court erred by failing to instruct the emotional support person not to influence the witnesses. Defendant also contends his conviction for lewd act on Alexis is unauthorized; his consecutive One Strike sentences are unauthorized and an abuse of discretion; and the noneconomic restitution awards are unauthorized and unconstitutional.

We affirm in part, reverse in part, and remand with directions. We reverse the convictions for counts 1,5, and 10 for insufficient evidence, and count 14 for violating the ex post facto clauses of the federal and state Constitutions; those counts may not be retried. We reverse the convictions for counts 6 through 9 for failure to instruct on an element of the offense, and remand for retrial. We vacate the indeterminate sentences imposed for counts 2 and 12, and remand for resentencing without application of the “One Strike” law. We reverse the noneconomic restitution awards for all counts, and remand with directions to conduct a restitution hearing for counts 15, 23, and 24 only. We direct the court, upon resentencing, to recalculate defendant’s custody credit to reflect no more than 15 percent local conduct credit. In all other respects, we affirm.

PROCEDURAL BACKGROUND

Defendant was charged by fourth amended information with 20 counts related to the sexual abuse of children who lived in his neighborhood and played on the soccer teams he coached. The information charged him with five counts of continuous sexual abuse, a felony (Pen. Code, § 288.5; counts 1 [Denzel M.], 2 [Garrett M.], 12 [Cory D.], 13 [Ammon C.], and 20 [Thomas C.]); three counts of lewd act on a child younger than 14, a felony (§ 288, subd. (a); counts 15 [Jeremy S.], 23 [Justin B.], and 24 [Bradley T.]); one count of lewd act upon a 14- or 15-year-old child by a person more than 10 years older, a felony (§ 288, subd. (c)(1); count 14 [Alexis K.]); six counts of annoying or molesting a child, a misdemeanor (§ 647.6, subd. (a)(1); counts 5 [Ricardo S.], 6 [Larry S.], 7 [Hunter S.], 8 [Wyatt S.], 9 [Richard S.], and 10 [David S.]); four counts of recording a false or forged instrument, a felony (§ 115, subd. (a); counts 16-19); and one count of violating a court order, a misdemeanor (§ 166, subd. (a)(4); count 21).

As to the charges of continuous sexual abuse (§ 288.5; counts 1-2, 12-13, and 20), the information alleged the crimes involved substantial sexual conduct with a child younger than 14 (§ 1203.066, subd. (a)(8)) and defendant committed the offense against more than one victim (§ 667.61, subds. (b), (c), (e)(4)). As to the charges of lewd act on a child (§ 288, subds. (a), (c); counts 14-15, 23-24), the information alleged defendant committed the offense against more than one victim (§ 667.61, subds. (b), (c), (e)(4)).

Defendant pled not guilty and denied the allegations. A jury found defendant guilty of all remaining counts, and found all allegations true.

The court sentenced defendant to a determinate term of 10 years eight months, and a consecutive, indeterminate term of 120 years to life. For the determinate sentence, the court selected count 14 (§ 288, subd. (c)(1)) as the base term, and imposed the upper term of three years. The court imposed consecutive one-year terms for counts 5 through 10 (§ 647.6, subd. (a)(1)) and 21 (§ 166, subd. (a)(4)), for a total of seven years. The court imposed eight months — one-third the middle term of two years — for count 16 (§ 115, subd. (a)), to run consecutive, and the middle term of two years for counts 17, 18, and 19 (§ 115, subd. (a)), to run concurrent with the principal term. For the indeterminate sentence, the court imposed eight consecutive terms of 15 years to life for counts 1, 2, 12, 13, and 20 (§ 288.5) and counts 15, 23, and 24 (§ 288, subd. (a)) under the One Strike law (§ 667.61, subds. (c), (i)). Defendant was ordered to pay fines and assessments totaling $36,490, and restitution for noneconomic damages (§ 1202.4, subd. (f)(3)(F)) totaling $450,000. Defendant received 1,241 days’ pretrial custody credit — 621 days’ actual credit and 620 days’ local conduct credit.

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

In 1983, eight-year-old James K. met defendant at the Santa Monica Pier. James liked to break-dance with his friends in Santa Monica and Venice while his father fished nearby. James approached defendant, who was photographing the break-dancers, and asked defendant to take pictures of James and his friends, who were hoping to book a commercial. Defendant and James began to spend time together and soon, James’s 10-year-old sister, Alexis, asked to come along.

By 1986, defendant and Alexis had started dating. Alexis was 13 years old; defendant was 24. They married the following year, on August 11, 1987. In 1991, Alexis gave birth to the couple’s first child, Damien. In 1993, the young family moved to Palmdale. Defendant told people his name was Renoir Vincent Valenti, and that he was a soccer coach from England. In early 1994, Alexis gave birth to the couple’s second child, Alex.

In 1995, defendant’s sons introduced him to Garrett, a five-year-old boy who lived in the same apartment complex as the Valenti family. Defendant soon started molesting Garrett. The abuse, which continued for nearly a decade, ultimately involved thousands of episodes of molestation, including repeated oral copulation, masturbation, and sodomy.

The same year, defendant began to coach boys’ soccer in Lancaster. He would go on to coach Lancaster soccer from 1995 until 2006 — primarily coaching teams of boys younger than 10 or 12 years old.

Meanwhile, Alexis had grown unhappy in her marriage to defendant and jealous of the time he spent with other people’s children. They separated on March 30, 1996; a judgment of dissolution was entered on January 6, 1997. Despite the divorce, Alexis and defendant continued to live together, and in April 1998, they moved to the nearby Pavilion Apartments. Justin and Gary Q. lived in the complex.

In 1998, defendant’s apartment was “the place to be” for neighborhood boys like Justin, Garrett, and Gary. He had stocked it with big screen televisions, video games, food, and candy. Defendant also took Justin and his friends to the desert to shoot BB guns. On the way, the boys took turns sitting on defendant’s lap to steer the car. When Justin sat in his lap, defendant usually became aroused, and Justin felt him get an erection. Sometimes, defendant also rubbed Justin’s inner thigh. On June 17, 1998, Justin’s mother reported defendant to the police for child molestation. Defendant was arrested on June 28, 1998, but the case was dismissed for insufficient evidence.

By 2001, defendant and Alexis had moved from Palmdale to an apartment in Lancaster. That year, defendant met Cory. Like Garrett, whose abuse continued during this period, Cory often spent the night at defendant’s home. Defendant frequently hugged Cory, kissed him on the forehead and lips, and inserted his tongue into Cory’s mouth. One evening, defendant brought Cory to his bedroom and fondled his penis.

In 2001 or 2002, Alexis finally moved out, leaving Damien with his father, defendant. On January 31, 2003, Damien reached out to the sheriff’s department. He told authorities defendant had been beating and molesting him for five years, along with Garrett, Cory, and a boy named David. Sergeant Anna Fernandez investigated the allegations, but no charges were ever filed. Damien later recanted.

Before long, defendant had moved on to Ammon. Ammon met defendant through his older brother, a friend of Damien’s and a member of the soccer team defendant coached. Soon, Ammon joined the soccer team too. By 2004, eight-year-old Ammon had started sleeping over at defendant’s house nearly every weekend — and defendant molested him on nearly every visit. During those visits, defendant touched Ammon’s penis, put his mouth on Ammon’s penis, and masturbated Ammon and himself.

Ammon met Thomas in the fall of 2005, when they sat together in fourth grade. In early 2006, defendant moved west to Quartz Hill. Sometime that winter or spring, Ammon introduced Thomas to defendant. Thomas was nine years old. Thomas went to defendant’s house two or three times each week until 2007, when he was scheduled to start sixth grade. Every time Thomas visited defendant, defendant sat Thomas on his lap, reached his hand into Thomas’s pants, and stroked his penis and buttocks. Defendant put his fingers around Thomas’s anus and kissed his neck. The abuse continued as long as Thomas spent time at defendant’s house.

In the summer of 2007, Thomas failed fifth grade, and Ammon moved to Bakersfield for sixth grade. For Thomas, the abuse ended when Ammon moved away in 2007, and he stopped visiting defendant. Ammon’s abuse did not end, however. Despite living in Bakersfield, Ammon continued to see defendant. In 2008, when Ammon moved back to Lancaster for seventh grade, he joined defendant’s Manchester United soccer team, and resumed his frequent visits to defendant’s house.

Meanwhile, brothers Enrique, Eduardo, and David had also joined Manchester soccer. Along with their younger brother Ricardo, they began sleeping over at defendant’s house nearly every weekend before their soccer games. During their weekends with defendant, the brothers played soccer and video games, and defendant took them to the movies, out to eat, and to amusement parks like Universal Studios, Hurricane Harbor, Six Flags, and Magic Mountain. While defendant bought gifts for some boys — like RC cars worth hundreds of dollars — he did not buy gifts for Enrique, Eduardo, David, or Ricardo. He did, however, pay their soccer registration fees.

Defendant applied to coach soccer in Quartz Hill beginning in 2007, and was assigned a team for the 2010 season. That summer, Manchester soccer disbanded, and defendant began coaching the Red Devils — the soccer team he would coach through the 2010-2011 regular and all-star seasons. Ammon joined another soccer team; he stopped going to defendant’s house, and the abuse ended. Enrique, Eduardo, and David followed defendant to the Red Devils, where 13-year-old Jeremy would become defendant’s star player and the main focus of his attention.

Jeremy met defendant at the 2010 soccer tryouts. He sometimes visited defendant’s house with the other boys, but mostly, defendant went to Jeremy’s house, where he spent a lot of time with Jeremy’s family. Defendant played basketball with Jeremy, his dad, and his brother; he played video games with them; he joined the family for dinner and for his birthday. Sometimes Jeremy’s friend Bradley was there too. Defendant, Jeremy, and Bradley went on adventures together — to the RC car racing track, Mulligan Family Fun Center, or out to eat. For Christmas, defendant made Jeremy a large photo collage, created a photo calendar, and bought him an Xbox. Sometime after that, he bought Jeremy a $600 RC car. Defendant’s nightstand sported a matted, framed photo of Jeremy, with the phrase “all the numbers” written on the mat. “All the numbers” was an expression of defendant’s love for Jeremy, and defendant frequently told Jeremy he loved him. Defendant also showed his love in other ways. He cuddled with Jeremy on the couch, kissed him, held his hand in the car, sat Jeremy on his lap to steer the car, and huggéd him for inappropriately long periods. Defendant also spent time with Jeremy at Bradley’s house, where he swam with the boys in the pool. In 2011, defendant’s relationship with Jeremy’s family soured when he took Jeremy to Littlerock Dam without the family’s permission. Though defendant begged for forgiveness, Jeremy’s family would no longer let defendant see their son. However, Jeremy continued to send defendant text messages; once, he asked defendant to bring him food and donuts; another time, he asked for $20.

Meanwhile, sometime during this period, Ammon moved to Nevada. Before he moved away, defendant delivered a letter to Ammon’s mother. “Hello son,” he wrote, “I thought that I would get to see you grow up and graduate from middle school and high school, teach you to drive, get you a car and see you off to college; however, it seems, this is not to be. ... I have and will always miss you every day, yesterday and forever. I will never forget my Ammon. ... I will always love you all the numbers.”

When the next soccer season began in August 2011, defendant had been banned from coaching boys’ soccer in Palmdale, Lancaster, and Quartz Hill. In Palmdale and Quartz Hill, defendant had tried to register boys to play soccer without their parents’ consent; the reasons for the Lancaster decision were not disclosed to the jury. By this time, Ammon had moved away and Jeremy was off-limits, so defendant directed his energies towards Bradley, repeating the pattern that had worked so many times before. By May or June 2012, however, Bradley’s mother had ordered him to stop seeing defendant. Bradley asked his father, James T., for permission — but James insisted on interviewing defendant first. At their meeting, defendant told James that “his children were grown and he liked hanging out with younger children.” James responded, “It wasn’t going to happen then or at any time.” Bradley continued to contact defendant by text message — but eventually, Bradley’s mother found out and grounded him. Now Bradley, too, was off-limits. But Eduardo, Enrique, Ricardo, and David still spent the weekends at defendant’s house — a house full of fun things for boys to do — and defendant moved on to children in his neighborhood.

Nine-year-old Denzel, his older brother Gary, and their mother, Monique, were defendant’s next-door neighbors in Quartz Hill. In January 2012, Gary started spending time at defendant’s house with Enrique and Eduardo. Eventually, Denzel joined him. Denzel usually played outside with the neighborhood kids. By May 2012, however, Denzel had started spending more time inside defendant’s house, playing video games, watching movies, and eating pizza. By June 2012, defendant was a well-established presence in Denzel’s life. Sometime that summer, defendant called Denzel into his bedroom and began to molest him. Defendant would call Denzel into his bedroom, close the door, and lift him onto the bed. Then, using his hand, defendant rubbed Denzel’s penis through his clothes. Other times, defendant sucked “around my wiener area,” again through Denzel’s clothes. DNA tests confirmed the presence of defendant’s saliva on Denzel’s shorts.

In late June 2012, Larry, Richard, and twin brothers, Hunter and Wyatt (Rachel’s sons), met defendant through their friend Denzel. Rachel arrived at Denzel’s house one day to pick up him up for a sleepover with the twins; she was chatting with Monique when defendant came over to introduce himself. Defendant picked Denzel up the following day, and began turning up at Rachel’s house whenever Denzel was there. On July 10, 2012, defendant appeared uninvited at a family birthday party for Rachel’s nephew. The following day, Denzel told Monique that defendant had been molesting him. On July 12, 2012, Monique reported defendant to the police, and no longer allowed him to have contact with Denzel. At that point, defendant dramatically increased the attention he paid to Rachel’s sons.

Cut off from Denzel, defendant started showing up at Rachel’s house almost every day. As with the previous objects of his affection and abuse, defendant and Rachel’s sons played video games and basketball, and raced RC cars. He took the boys to the movies, to Mulligan’s, to the desert to shoot Airsoft pistols, and to the local pool. He put them on his lap and let them steer the car. This time, however, his conduct escalated quickly. Defendant tried to see the boys every day. He appeared at the house uninvited — or invented a pretext to come over even when Rachel specifically told him not to. He called the house to wish the boys goodnight, and asked Rachel to tell them that he missed them, and that he loved them. Within weeks, defendant had overstayed his welcome.

Finally, on August 6, 2012, authorities took defendant into custody.

CONTENTIONS

On appeal, defendant contends that count 14 (§ 288, subd. (c)(1); Alexis) was barred by the statute of limitations, supported by insufficient evidence, based on conduct that did not violate the statute, and based on sexual intercourse with his lawful wife; that there was insufficient evidence the continuous sexual abuse in count 1 (§ 288.5; Denzel) lasted more than three months; that there was insufficient evidence of lewd intent to support counts 15 and 24 (§ 288, subd. (a); Jeremy and Bradley); that in counts 5 through 10 (§ 647.6, subd. (a)(1); Ricardo, Larry, Hunter, Wyatt, Richard, and David), there was insufficient evidence of an objectively disturbing act, the court improperly instructed the jury the prosecution did not have to prove motive, and CALCRIM No. 1122 misstates the law; that the court prejudicially erred by failing to instruct the emotional support person not to “prompt, sway, or influence the witness in any way”; that the court did not understand it had the discretion under the One Strike law to impose concurrent life sentences for the convictions obtained for counts 1, 2, 12, 13, 15, 20, 23, and 24 (§ 667.61, subds. (b)-(e); Denzel, Garrett, Cory, Ammon, Jeremy, Thomas, Justin, and Bradley); that the award of noneconomic restitution (§ 1202.4, subd. (f)(3)(F)) to the victims of continuous sexual abuse charged in counts 1, 2, 12, 13, and 20 (§ 288.5; Denzel, Garrett, Cory, Ammon, and Thomas) is unauthorized by statute; and that the entire noneconomic restitution award is unsupported by substantial evidence or a rational method of calculation, violates the Sixth Amendment, irrationally distinguishes between two groups of child predators in violation of the equal protection clause, and violates the right to a civil jury trial under the California Constitution. In response, the People agree the conviction for count 14 (§ 288, subd. (c); Alexis) should be reversed, but only because it violates the ex post facto clauses of the state and federal Constitutions.

By letter, we invited the parties to file supplemental briefing on the issue of whether application of the One Strike law to the sentences for counts 2, 12, 13, and 20 violated the ex post facto clause. In response, the People and defendant agree that the One Strike sentences for counts 2 and 12 violate the ex post facto clause, and defendant contends his sentences for counts 13 and 20 also violate the ex post facto clause.

DISCUSSION

1. Sufficiency of the Evidence of Continuous Sexual Abuse of Denzel (Count 1) and Lewd Intent Toward Jeremy and Bradley (Counts 15 and 24)

Defendant contends we must reverse the conviction for count 1 (§ 288.5; Denzel) because the evidence was insufficient to establish the abuse lasted at least three months, and that we must reverse the convictions for counts 15 and 24 (§ 288, subd. (a); Jeremy and Bradley) because the evidence was insufficient to establish sexual intent)

In assessing the sufficiency of the evidence, we review the entire record to determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357 [75 Cal.Rptr.3d 289, 181 P.3d 105].) “The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) In applying this test, we review the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) The same standard applies where the conviction rests primarily on circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th 79, 113 [109 Cal.Rptr.3d 549, 231 P.3d 289].) We may not reweigh the evidence or resolve evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181 [24 Cal.Rptr.3d 112, 105 P.3d 487].) The testimony of a single witness can be sufficient to uphold a conviction — even when there is significant countervailing evidence, or the testimony is subject to justifiable suspicion. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [63 Cal.Rptr.3d 82, 162 P.3d 596].) Accordingly, we may not reverse for insufficient evidence unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal.Rptr.2d 412, 956 P.2d 374].)

1.1 There is insufficient evidence the continuous sexual abuse of Denzel (count 1) lasted at least three months.

A violation of section 288.5 requires proof of the following elements:

1. The defendant lived with or had recurring access to a child;

2. The defendant engaged in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the child;

3. Three or more months passed between the first and last acts; and

4. The child was younger than 14 years old at the time of the acts.

(People v. Rodriguez (2002) 28 Cal.4th 543, 550 [122 Cal.Rptr.2d 348, 49 P.3d 1085] [statute “requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have ‘recurring access’ to, the child”]; People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284-1285 [59 Cal.Rptr.2d 389, 59 Cal.Rptr. 389] [at least three months between first and last act of abuse].)

“[T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts. Generic testimony is certainly capable of satisfying that requirement . . . [but] ‘the victim must be able to describe the general time period in which these acts occurred (e.g., “the summer before my fourth grade,” or “during each Sunday morning after he came to live with us”), to assure the acts were committed within the applicable limitation period.’ [Citations.] That is, while generic testimony may suffice, it cannot be so vague that the trier of fact can only speculate as to whether the statutory elements have been satisfied.” (People v. Mejia (2007) 155 Cal.App.4th 86, 97 [65 Cal.Rptr.3d 776] (Mejia).)

Defendant was charged with continuous sexual abuse of Denzel “[o]n or between January 1, 2012 and July 11, 2012.” The testimony established that Denzel’s older brother, Gary, began spending time at defendant’s house sometime in January 2012, six months before their mother, Monique, reported defendant to the police on July 12, 2012. Denzel first met defendant sometime after that, when he went next door to bring Gary home. Denzel told defendant he was there to pick up his brother; he did not go inside the house. Denzel next went to defendant’s house “a long time later” — again, to pick up Gary. As on the first visit, he did not go inside. This is consistent with Monique’s account: “In the beginning [Denzel] would go by himself to play outside out in the front yard and practice soccer .... [H]e would go outside. Renoir spent most of his time in the driveway and in the garage with the garage door open. So [Denzel] would go outside and Renoir had a bag of soccer equipment right there by the garage door, and the neighborhood kids felt free to come up enough that they would come and play. So my son would do that and he would play in the grass in the front yard.” However, it is unclear when Denzel started playing outside defendant’s house or how long this period lasted.

“[A] long time” after the second visit, Denzel went to defendant’s house again. He accompanied Gary, and that time, he went inside; he stayed for about an hour, played video games, and went home. “A couple weeks” after that, Denzel returned for a fourth visit, again with his brother. At first, Denzel’s visits were short, and always at times when other kids were there too; he went inside to play video games, watch movies, and eat pizza. By May 2012, Denzel had started spending more time inside defendant’s house. However, it was not until sometime that summer, “a couple months” after his fourth visit, that defendant called Denzel into his bedroom and began to molest him.

“Presuming in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, we find no reasonable, credible, solid evidence to support a nonspeculative inference that the three-month minimum time period element was satisfied.” (Mejia, supra, 155 Cal.App.4th at p. 94.) “[Although there was ample evidence that at least three qualifying sexual offenses occurred during the charging period” (id. at p. 95), there is no evidence that at least one of those offenses occurred before April 11, 2012 — three months before the last possible incident. The evidence established Denzel briefly met defendant sometime after mid-January 2012. “[A] long time later,” Denzel briefly met defendant a second time. A “long time” after that, Denzel went inside defendant’s house for an hour to play video games. “A couple weeks” later, Denzel went back for another uneventful visit. After another “couple months,” sometime during the summer, defendant molested Denzel for the first time. Witness testimony established defendant paid excessive attention to Denzel, was well enmeshed in his life, and began to molest him during the summer of 2012. But the testimony does not establish that defendant touched Denzel before May 2012, or support an inference that he did so in April 2012. To the contrary, the court’s careful questioning of Denzel elicited unequivocal testimony that the abuse did not last for more than one month. We therefore reverse the conviction for count 1.

1.2 There is sufficient evidence defendant touched Jeremy and Bradley (counts 15 and 24) with lewd intent.

A violation of section 288, subdivision (a) requires proof of the following elements:

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 younger than 14 years old at the time of the act.

(People v. Martinez (1995) 11 Cal.4th 434, 444 [45 Cal.Rptr.2d 905, 903 P.2d 1037] (Martinez).)

Section 288’s defining characteristic is “the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (Martinez, supra, 11 Cal.4th at p. 444.) Accordingly, “[a]ny touching of a child under the age of 14 violates [section 288, subdivision (a)], even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289 [79 Cal.Rptr.2d 195, 965 P.2d 713] (Lopez), italics omitted, citing Martinez, supra, at pp. 450-452.) Where, as in this case, the defendant’s physical conduct might be consistent with a nonsexual purpose, the jury can look to surrounding circumstances and rely on them to draw inferences about his intent. (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 [71 Cal.Rptr.3d 542] [“Because intent for purposes of Penal Code section 288 can seldom be proven by direct evidence, it may be inferred from the circumstances.”]; cf. People v. Ortiz (2012) 208 Cal.App.4th 1354, 1365 [145 Cal.Rptr.3d 907] [jury could reasonably infer from the circumstances that defendants kidnapped the victims for the dual purposes of taking them and their car].) In determining whether defendant acted with lewd intent, the jury was entitled to consider the other charged counts and his pattern of conduct. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1381 [7 Cal.Rptr.2d 660].)

It is undisputed that defendant kissed and hugged both Jeremy and Bradley. The prosecution also presented ample evidence that defendant’s conduct with Jeremy and Bradley — and his unusual attachment to both boys — mirrored the courtship phase of his relationships with Garrett, Justin, Cory, Ammon, Thomas, and Denzel. Upon consideration of the whole record, and based on defendant’s extraordinary focus on these boys and strikingly similar methods of operation, the jury had sufficient evidence from which it could conclude defendant touched Jeremy and Bradley with the required intent. We affirm the convictions for counts 15 and 24.

2.Annoying or Molesting a Child (Counts 5 through 10)

Defendant was convicted of annoying or molesting six children, in violation of section 647.6, subdivision (a)(1) — Ricardo (count 5), Larry (count 6), Hunter (count 7), Wyatt (count 8), Richard (count 9), and David (count 10). A violation of section 647.6 requires proof of the following elements:

1. The defendant engaged in conduct directed at a child;

2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct;

3. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child or in children generally; and

4. The child was under age 18 at the time of the conduct.

(People v. Phillips (2010) 188 Cal.App.4th 1383, 1396 [116 Cal.Rptr.3d 401].)

As to each count, defendant contends the evidence was insufficient to prove the second element — objective irritation or offense, and in any event, the court prejudicially erred by instructing the jury that the People did not have to prove the third element — sexual motive. Alternatively, defendant contends motive is not an element of section 647.6, subdivision (a)(1); that CALCRIM No. 1122 misstates the law; and that the misstatement “altered the jury’s focus and analysis of the evidence with an element that was not part of the charged offense,” thereby prejudicing defendant.

The People, in turn, contend there was sufficient evidence of objectively irritating behavior. Rather than explaining how the defendant’s behavior was objectively disturbing, however, the People point us to evidence of defendant’s mental state, which we may not consider for this purpose, and the children’s subjective discomfort, which is irrelevant. (Lopez, supra, 19 Cal.4th at pp. 290-291.) The People also insist we should not consider the facts of other published cases on this topic because doing so would amount to “this Court. . . substituí[ing] its own judgment (or, rather appellant’s judgment) for that of the jury.” Finally, as to each claim of instructional error, the People contend defendant forfeited the issue, the court did not err, and any error was harmless.

We conclude the convictions for counts 5 and 10 are not supported by substantial evidence of objectively irritating behavior. We conclude substantial evidence supports the convictions for counts 6 through 9, but the conflicting jury instructions on sexual motive violated defendant’s right to due process of law. Because we reverse on that basis, we do not address defendant’s novel assertion that CALCRIM No. 1122 misstates the law.

2.1 Sufficiency of the evidence of objectively irritating or offensive conduct

Unlike section 288 (lewd act on a child), section 647.6, subdivision (a)(1) does not require a touching (Lopez, supra, 19 Cal.4th at p. 289), but does require conduct that would unhesitatingly disturb or irritate a normal person (People v. Carskaddon (1957) 49 Cal.2d 423, 426 [318 P.2d 4]). “[T]o determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person, we employ an objective test. . . .” (Lopez, supra, at p. 290.) The defendant’s observable conduct, on its own, must unhesitatingly irritate or disturb a reasonable person; in evaluating it, we may not consider either the defendant’s intent or the child’s subjective discomfort. (Id. at p. 291.)

a. Ricardo (count 5) and David (count 10)

For several years, Ricardo, David, and their older brothers, Eduardo and Enrique, slept over at defendant’s house nearly every weekend. During these years, defendant hugged David three times and once kissed Ricardo on the top of the head. Defendant contends this behavior is not objectively disturbing. We agree.

As our colleagues in Division Seven have explored in detail, not all kisses are sexual. (In re R.C. (2011) 196 Cal.App.4th 741, 750-751 [126 Cal.Rptr.3d 418].) A kiss’s meaning changes with the era, culture, and even the family in which it occurs. (Ibid.) Because kisses possess such variety and meaning, In re R.C. hinged on whether the defendant kissed the child with an open or closed mouth. “Unlike kissing without the use of tongues, which is an important means of demonstrating parental love and affection for a child, there can be no innocent or lovingly affectionate tongue kissing of a child by an adult.” (Ibid.) Though the People ask us to hold that kissing a child on the top of the head is always objectively disturbing, we agree with our colleagues in Division Seven that without more, a closed-mouth kiss is not necessarily a sexual act.

Here, defendant hugged David and gave Ricardo a brief goodnight kiss on the top of the head. There is no evidence suggesting the kiss or the hug were of any significant duration, that defendant tried to touch either boy — or himself — in any way, or that he became aroused then or later. Put simply, there is no evidence defendant’s actions consisted of anything more than the briefest peck or embrace, such as might be exchanged by friends or family members as an expression of nonsexual affection. While Ricardo and David may have been uncomfortable, in light of defendant’s lengthy, close relationship with their family, defendant’s actions were not objectively disturbing. Because there is insufficient evidence to support the convictions involving Ricardo and David, we reverse counts 5 and 10.

b. Richard, Wyatt, Hunter, and Larry (counts 6 through 9)

While defendant’s interactions with Ricardo and David were reasonable in light of his close relationship with their family, the attention he paid to Rachel’s sons — Richard, Wyatt, Hunter, and Larry — was alarming. Defendant kissed and hugged the boys on their second meeting. He tried to see them every day. Defendant appeared at Rachel’s house uninvited — or invented a pretext to come over despite her objections. He called the house to wish the boys goodnight, and asked Rachel to tell them that he missed them, and that he loved them. When defendant took the boys to the desert to shoot Airsoft pistols, defendant put each of them in his lap and let them steer the car. Indeed, the jury could have reasonably inferred defendant took Rachel’s sons on this trip without Rachel’s knowledge; while all four boys testified to the outing, neither Rachel nor her mother mentioned it. Rachel testified that defendant acted “like a teenage girl [who] had a crush on a boy[.] . . . [He called] to see my children, four, five, six times a day, after I would say no, we’re busy, now isn’t a good time, we’re preparing for school. My kids are going to bed early. He wouldn’t take no for an answer, he still would call to see what we were doing and what was going on, if he could come over.” Defendant’s behavior was “totally inappropriate” and felt “like stalking.” He knew the family for no longer than five weeks. We therefore conclude substantial evidence supports the convictions for counts 6, 7, 8, and 9.

2.2 The court erred by instructing the jury that the People did not have to prove motive because motive was an element of the charged offenses.

Defendant contends conflicting motive instructions allowed the prosecution to convict him of annoying or molesting a child without proving every element of the offense beyond a reasonable doubt. The People contend defendant forfeited the issue, the court did not err, and any error was harmless. We find no forfeiture and conclude the instructions violated defendant’s Fourteenth Amendment right to due process of law. Because the People have not proven beyond a reasonable doubt that the error was harmless, we reverse the convictions for counts 6 through 9.

As a preliminary matter, we address the People’s argument that defendant forfeited his claim of instructional error because he did not object to the instructions, or seek their revision, at trial. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570 [76 Cal.Rptr.2d 239, 957 P.2d 928].) Certainly, a criminal defendant has a right to accurate instructions on the elements of a charged crime. (People v. Mil (2012) 53 Cal.4th 400, 409 [135 Cal.Rptr.3d 339, 266 P.3d 1030] (Mil).) And it is settled that a defendant need not object to preserve a challenge to an instruction that affects his substantial rights. (People v. Mackey (2015) 233 Cal.App.4th 32, 106 [182 Cal.Rptr.3d 401]; see §§ 1259 [we “may also review any instruction given, refused or modified, even though no objection was made thereto in the [trial] court, if the substantial rights of the defendant were affected thereby”], 1469 [same].) Because defendant contends CALCRIM No. 370 removed an element of the offense from the jury’s consideration, the instructional error affected his substantial rights. We therefore review the issue de novo despite his failure to object below.

a. The court erred by instructing the jury with an unmodified version of CALCRIM No. 370.

The due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068]; see U.S. Const., 14th Amend.) Because due process principles require the prosecution to prove every element of the crime beyond a reasonable doubt, jury “instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process.” (People v. Lee (1987) 43 Cal.3d 666, 673 [238 Cal.Rptr. 406, 738 P.2d 752].) Conflicting intent instructions — where one instruction requires the prosecution to prove intent while another instruction eliminates that requirement — can operate the same way. (Id. at pp. 673-674.) Accordingly, “[i]f conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury’s consideration, the instructions constitute a denial of federal due process . . . .” (People v. Maurer (1995) 32 Cal.App.4th 1121, 1128 [38 Cal.Rptr.2d 335] {Maurer).) This is so even where the court’s instructions on the offense itself correctly explain the required intent, because we have “no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [85 L.Ed.2d 344, 105 S.Ct. 1965]; see People v. Gay (2008) 42 Cal.4th 1195, 1225-1226 [73 Cal.Rptr.3d 442, 178 P.3d 422].) CALCRIM No. 1122 and CALCRIM No. 370 are one such pair of conflicting instructions.

Motive is not generally an element of a criminal offense. But when it is an element, the trial court errs by giving an unmodified version of CALCRIM No. 370, an optional instruction that tells the jury the prosecutor need not prove the defendant’s motive to commit the charged crimes. (Maurer, supra, 32 Cal.App.4th at p. 1128; see People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015] [not error to refuse instruction on motive].) To convict a defendant of violating section 647.6, the prosecution must prove the defendant was motivated by an unnatural sexual interest in a particular child or in children generally. (People v. Hillhouse (2002) 27 Cal.4th 469, 503-504 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Here, the court instructed the jury with both CALCRIM No. 1122, which correctly instructs that the prosecution must prove the defendant acted with sexual motive, and CALCRIM No. 370, which incorrectly instructs that the prosecution does not have to prove motive. (Compare CALCRIM No. 1122 [“People must prove that... [¶] ... [¶] [t]he defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child . . .”] with CALCRIM No. 370 [“The People are not required to prove that the defendant had a motive to commit any of the crimes charged.”].) When given together, the instructions effectively “removed the mental state element” from the jury’s consideration. (Maurer, supra, at pp. 1128-1129.) This was error, which we treat as a failure to instruct on an element of the offense. (Ibid.)

b. The People have not proven the instructional error was harmless beyond a reasonable doubt.

We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman). Under Chapman, we must reverse unless the People “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Ibid.) Where the trial court fails to instruct on an element of the charged offense, however, the People must make a more substantial showing. That showing is governed by Neder v. United States (1999) 527 U.S. 1, 17-19 [144 L.Ed.2d 35, 119 S.Ct. 1827] (Neder), and by the California Supreme Court’s decision interpreting Neder, Mil, supra, 53 Cal.4th 400 — authority both parties fail to discuss.

“Neder instructs us to ‘conduct a thorough examination of the record. If, at the end of that examination [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error — for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding — [we] should not find the error harmless.’ ” (Mil, supra, 53 Cal.4th at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) On the other hand, the error is harmless if the People can prove beyond a reasonable doubt that the omitted element was uncontested and supported by such overwhelming evidence that no rational juror could come to a different conclusion. (Mil, supra, atpp. 417-419; accord, People v. French (2008) 43 Cal.4th 36, 53 [73 Cal.Rptr.3d 605, 178 P.3d 1100].)

Here, the People’s “analysis of the prejudicial effect of the instructional error suggests” not only that they failed to apply Neder, but also that they “may have relied instead on the less demanding standard of whether [the motive] finding was supported by substantial evidence.” (Mil, supra, 53 Cal.4th at p. 417.) The People have not addressed the evidence supporting the defense on the omitted element. Instead, as in Mil, the People’s argument “focused exclusively on evidence that was favorable to the verdict” and presented “the evidence in the light most favorable to the prosecution.” (Id. at pp. 417-418.) In assessing prejudice, we must “determine ‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ ” (Id. at p. 417, quoting Neder, supra, 527 U.S. at p. 19.) Therefore, our “task in analyzing the prejudice from the instructional error is” not to determine whether a reasonable jury could have believed defendant acted with sexual motive, but rather, “whether any rational fact finder could have come to the opposite conclusion.” (Mil, at p. 418.) This is the converse of the substantial evidence test. If the record shows some evidentiary basis for a finding in the defendant’s favor on the omitted element, the People have not met their burden and we must reverse. (Id. at pp. 417-419.)

Certainly, there was ample evidence defendant’s disturbing conduct in this case was motivated by an unnatural sexual interest in children. However, under Mil, we must determine whether there is substantial evidence supporting a contrary finding on the omitted element. (Mil, supra, 53 Cal.4th at pp. 417-419.) We therefore review the evidence in the light most favorable to defendant; we may not reweigh the evidence or resolve evidentiary conflicts. (Cf. People v. Young, supra, 34 Cal.4th at p. 1181 [substantial evidence review].) The testimony of a single witness may be sufficient — even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion. (See People v. Barnwell, supra, 41 Cal.4th at p. 1052.) We conclude defendant’s testimony was sufficient to support an alternative conclusion on the omitted element. Defendant described hugging Hunter, Wyatt, Richard, and Larry in a nonsexual, innocent way — “a simple expressing your feeling to a fellow human being” who had not yet learned to fear feelings. If one of the boys scored a goal, defendant gave him a celebratory hug. If one of them got in a fight, or got hurt, or cried, defendant gave him a comforting hug. Defendant testified that his interactions with the brothers showed a family friend’s “innocuous” affection for “good little kids.” He testified his behavior was not motivated by anything “nefarious or sinister” and there were no “sexual connotations attached to it.” This testimony, if believed, would have supported a contrary finding on the omitted element. Because the People have not proven the error was harmless beyond a reasonable doubt, we reverse the convictions for counts 6 through 9 and remand for retrial.

3. Failure to Admonish the Victim Support Person

At trial, Denzel (count 1), Ricardo (count 5), Larry (count 6), Hunter (count 7), Wyatt (count 8), Richard (count 9), Jeremy (count 15), Bradley (count 24), and Jeremy’s brother, Ryan, testified with the support of a victim advocate employed by the district attorney’s office, as permitted by section 868.5, subdivision (a). Defendant contends the court erred “by failing to admonish the witness advocate to not prompt, sway, or influence any of the testifying witnesses in any way.” Though he acknowledges the record contains no evidence the victim advocate behaved improperly, he contends the omission “allowed for a distorted presentation of evidence as to the disputed crimes, . . . and deprived appellant of the constitutional due process and fair trial rights to which he was entitled.” We conclude defendant has forfeited this issue by failing to object below. In any event, we conclude the trial court was not required to admonish the victim advocate, and no discernible prejudice arose from the support system used here. Accordingly, we also reject defendant’s claim that the failure to object amounted to ineffective assistance of counsel.

3.1 Forfeiture and ineffective assistance of counsel

Though nine witnesses testified with the support of a victim advocate, defendant did not object below that the court failed to admonish them. Nor did defendant object to any other aspect of the victim-support procedure used at trial. As such, defendant forfeited this claim by failing to present it at trial. (People v. Myles (2012) 53 Cal.4th 1181, 1214 [139 Cal.Rptr.3d 786, 274 P.3d 413] (Myles).) However, defendant also argues, “[i]f this court concludes the argument is forfeited because of no objection, then a finding of ineffective assistance of counsel must follow.” We disagree.

Under either the federal or state Constitution, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland)) To establish ineffective assistance, defendant must satisfy two requirements. {Id. at pp. 690-692.) First, he must show his attorney’s conduct was “outside the wide range of professionally competent assistance.” (Id. at p. 690.) Then, he must demonstrate the deficient performance was prejudicial — i.e., there is a reasonable probability that but for counsel’s failings, the result of the proceeding would have been different. (Id. at p. 694.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008 [50 Cal.Rptr.3d 875].) We “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, at p. 697.) We therefore turn first to the merits of defendant’s argument.

3.2 The support

Before trial, the prosecutor moved in limine to allow a professional victim advocate employed by the district attorney’s office to sit with the minor witnesses while they testified. At the Evidence Code section 402 hearing that followed, the court explained the procedure it would use: “That’s fine. [The witnesses will] be advised ahead of time they can’t talk with [the victim advocate], just the comfort of having her be there should be good. With the minors, she [will] sit right behind them. The deputy will help us if you just let us know on that day what we need to do. The deputy will help us, get that set up.” The court then asked if defense counsel had any objections. Counsel replied, “That’s fine.” On the record before us, it appears the court did not advise the advocate of her role, function, duty, or behavior.

At trial, as the witnesses testified, the prosecutor alerted the court when a witness would be testifying with the support of a victim advocate. Ultimately, Denzel, Ricardo, Larry, Hunter, Wyatt, Richard, Bradley, Jeremy, and Jeremy’s brother, Ryan, used their services. Neither party asked the court to explain the presence of the victim advocate or her role to the jury.

3.3 No admonition was required under the statute.

In prosecutions for certain violent crimes and sex offenses, including violations of sections 288, 288.5, and 647.6, every prosecuting witness “shall be entitled, for support, to the attendance of up to two persons” while he testifies. (§ 868.5, subd. (a).) Only one support person may accompany the testifying witness to the stand. (Ibid.)

A witness is entitled to choose his own support person, and sometimes picks another prosecuting witness. Although this procedure could cause logistical and legal problems, subdivisions (b) and (c) impose additional requirements where a support person is also a witness. (§ 868.5, subds. (b), (c).) In those cases, the court must determine whether the support person’s attendance is necessary; in juvenile cases, the court must inform her that the proceedings are confidential; and “[i]n all cases,” the judge must admonish her not to “prompt, sway, or influence the [supported] witness in any way.” (§ 868.5, subd. (b).) Defendant contends the admonition not to “prompt, sway, or influence” must be given to all support people — not just witnesses— and should have been given here. As a matter of first impression, we conclude the admonition applies only to support people who are also witnesses.

The meaning of in all cases in subdivision (b) of section 868.5 is a “question[] of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71 [192 Cal.Rptr.3d 309, 355 P.3d 480].) In construing the statute, our fundamental task is “to ascertain and effectuate the intended legislative purpose. [Citation.] The text of the statute is our starting point, and ‘generally provide[s] the most reliable indicator’ of the Legislature’s intended purpose.” (Id. at p. 72.) “ ‘We give the language its usual and ordinary meaning, and “[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.” [Citation.] If, however, the statutory language is ambiguous, “we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.” [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321 [74 Cal.Rptr.3d 891, 180 P.3d 935].)

As discussed, section 868.5, subdivision (a) sets out the general rule that in sex-crime cases, prosecuting witnesses are entitled to the support of two people — one of whom may accompany the witness to the stand. Subdivision (b) of section 868.5 adds additional requirements: “If the person or persons so chosen are also witnesses, the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless [it would prejudice the defendant]. In the case of a juvenile court proceeding, the judge shall inform the support person or persons that juvenile court proceedings are confidential and may not be discussed with anyone not in attendance at the proceedings. In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way.” (§ 868.5, subd. (b), italics added.)

“Words and phrases in a statute are construed according to the rules of grammar and common usage.” (3 Singer & Singer, Sutherland Statutes and Statutory Construction (7th ed. 2014) § 59.8.) The requirements that the court admonish the support person in juvenile cases and that it do so in all cases were added to the statute together when the Legislature amended it in 1987, and are grammatically linked. (Stats. 1987, ch. 704, § 1, p. 2214.) Together, the sentences require the court (1) in juvenile cases, to inform the support person that the proceedings are confidential, and (2) in both juvenile cases and non-juvenile cases, to admonish the support person not to influence the witness. (Cf. Gutierrez v. Ada (2000) 528 U.S. 250, 254-255 [145 L.Ed.2d 747, 120 S.Ct. 740] [interpreting phrase “ ‘any election’ ” to mean any gubernatorial election, based on surrounding sentences].) In context, in all cases distinguishes not the beginning of the paragraph (“If the [support] person . . . [is] also [a] witness[] . . .”), but the previous sentence. That is, the language differentiates not the type of support person, but the type of case.

The statute’s structure supports this construction. Although we look first at the words of a statute, we do not consider the statutory language in isolation; rather, we read the statute “as a whole, harmonizing the various elements by considering each clause and section in the context of the overall statutory framework.” (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) We construe all parts of a statute together, without according undue importance to a single or isolated portion. (Cooley v. Superior Court (2002) 29 Cal.4th 228 [127 Cal.Rptr.2d 177, 57 P.3d 654].)

Subdivision (a) of section 868.5 explains which witnesses are entitled to support, who the support person may be, and how she may behave. For example, a member of the press may not act as a support person unless she is closely related to the witness, in which case the reporter may act as a support person but may not take notes. (§ 868.5, subd. (a).) Subdivision (b) of section 868.5 establishes additional pretrial procedures where the support person is also a witness. Then, subdivision (c) of section 868.5 creates trial procedures for the testimony of the supported witness and supporting witness. Had the Legislature wanted the court to admonish all support people, witness and non-witness alike, it would have made little sense, logically or grammatically, to include that requirement amidst the witness-specific provisions in subdivisions (b) and (c), rather than with the general requirements in subdivision (a). (See People v. Johns (1997) 56 Cal.App.4th 550, 554-555 [65 Cal.Rptr.2d 434] (Johns) [no showing of helpfulness required under subd. (b) because victim advocate was not a witness].) Since the support people in this case did not testify, the court did not err by failing to admonish them.

3.4. Defendant’s constitutional rights were not violated.

Notwithstanding the statutory language limiting the admonitions to support persons who are also witnesses, the warnings may be more broadly required if they are necessary to protect the constitutional rights of the accused. (People v. Patten (1992) 9 Cal.App.4th 1718, 1725-1727 [12 Cal.Rptr.2d 284] (Patten)) However, we find the use of the victim advocate in this case did not violate defendant’s constitutional rights. A support person’s mere presence with a testifying witness does not violate the defendant’s due process or confrontation clause rights. (Spence, supra, 212 Cal.App.4th at p. 514, citing Myles, supra, 53 Cal.4th at p. 1214.) Certainly, we acknowledge there may be a constitutional violation where the support person interferes with the witness’s testimony in a way that adversely affects the jury’s ability to assess that testimony. (Spence, supra, at p. 514.) For example, emotional displays or physical contact with the witness may signal to the jury that the support person believes or endorses the witness’s testimony. (Myles, supra, at pp. 1214-1215.) And though there is a split of authority on the issue, at least one court has held the confrontation clause requires a case-specific finding of need in every case. (Compare People v. Adams, supra, 19 Cal.App.4th at pp. 437-444 [case-specific finding required in all cases] with Patten, supra, 9 Cal.App.4th at pp. 1725-1727 [finding not required in every case] and Johns, supra, 56 Cal.App.4th at pp. 554-555 [no showing of helpfulness required to justify presence of non-witness support person].)

To the extent admonishing a support person not to “prompt, sway, or influence the witness in any way” helps the court avoid potential constitutional pitfalls, admonitions would have been appropriate, in this case. However, as Spence observed, “[ajlthough it would have been the better practice for the trial court to expressly make standard admonitions under section 868.5 that this support person should not do anything to sway or influence the witness, the court could logically have assumed that it was not necessary to do so, because the non[-]witness victim advocate from the district attorney’s office was presumably familiar with courtroom decorum rules.” (Spence, supra, 212 Cal.App.4th at pp. 517-518.) Here, it was understandable that the court focused on instructing the children, who presumably had much less experience with court procedures than the professional victim advocate employed by the district attorney’s office. We find no constitutional violation.

3.5 Any error was harmless.

Even assuming the failure to explain courtroom decorum to a professional victim advocate could “deprive