People v. Hrbac CA1/1

Filed 11/5/26 P. v. Hrbac CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A170225 v. ROBERT HRBAC, (Mendocino County Super. Ct. No. 23CR01086A) Defendant and Appellant. Defendant Robert Hrbac appeals from a judgment entered after a jury convicted him of continuous sexual abuse of a child 14 years of age or younger (Pen. Code, § 288.5, subd. (a))1 and dissuading a witness by conspiracy (§ 136.1, subd. (c)(2)). Hrbac contends the trial court abused its discretion in admitting evidence of uncharged sexual offenses under Evidence Code section 1108 (section 1108). He also asserts the court erred in failing to instruct sua sponte on the defense of unconsciousness. Hrbac further claims the cumulative effect of these errors deprived him of a fair trial and requires reversal. We affirm. 1 Undesignated statutory references are to the Penal Code unless otherwise indicated.  I. BACKGROUND A. Hrbac is Charged with Abusing Z.H. Z.H. was born in April 2017. Hrbac is her father, and her mother is Yani Beaty. The following facts are taken from the parties’ pretrial motions, as those were the only facts before the trial court at the time it ruled to admit the evidence of uncharged sexual offenses under section 1108.2 (See People v. Fruits (2016) 247 Cal.App.4th 188, 208 [“we must focus on what the court was made aware of at the time it ruled on the motion, not on evidence that came out or circumstances that took place during the trial”].) In April 2023, when Z.H. was six years old, she spent the night at the home of Beaty’s cousin, Tanya Nylund. Z.H. was playing with Nylund’s husband when she made a comment about playing with Hrbac in a similar way except that their “privates touch.” The comment concerned Nylund because she knew Hrbac was a registered sex offender. A week later, Nylund told Beaty what Z.H. had said. Nylund said she would report the incident to law enforcement if Beaty did not do so herself within 24 hours. The following day, Beaty told Nylund she must have misheard Z.H. Nylund reported the incident to law enforcement later that day. 2 Hrbac also challenges the trial court’s later decision to admit the uncharged offense evidence under Evidence Code section 1101, but he does not develop a separate argument based on the trial evidence and instead bootstraps this challenge to his section 1108 argument, which relies almost exclusively on the facts set forth in the prosecution’s pretrial motion. Moreover, as we will explain, we conclude the court did not err in admitting the evidence and that any error in failing to instruct on an unconsciousness defense was harmless based on the instructions given to the jury. Thus, we omit a detailed recitation of the evidence presented at trial as unnecessary to our resolution of the appeal. (See People v. Dillard (2018) 21 Cal.App.5th 1205, 1212, fn. 2.) 2  That evening, law enforcement went to Hrbac’s residence and informed him of the sexual abuse allegations. Beaty then drove Z.H. to a Child Protective Services office, where Z.H. underwent a forensic interview. Z.H. did not disclose past sexual abuse during the interview but stated that her parents had talked to her about the family going to jail and being separated. After the interview, a police officer spoke to Beaty, who said that Hrbac had denied sexually abusing Z.H. Hrbac and Beaty had also recorded a conversation they had with Z.H. about the sexual abuse allegations. The recording referenced “events occurring in dreams” and the “family being separated.” Beaty said it was Hrbac’s idea to talk to Z.H. about the allegations. Z.H. underwent a second forensic interview in May 2023. During the interview, she disclosed sexual abuse that had started when she was three or four years old. She stated that her and Hrbac’s “privates” would touch while clothed and unclothed. She did not like it, and it would sometimes hurt. She further said that she would “feel his privates ‘inside’ of her.” This happened about 10 times “up to” when she was five years old. She said Hrbac would stop when she told him to. She also said Hrbac told her not to tell anyone about their privates touching or she would get in trouble. Hrbac was charged with continuous sexual abuse of a child under 14 years old (§ 288.5, subd. (a)) and dissuading a witness by conspiracy (§ 136.1, subd. (c)(2)). The information alleged that Hrbac was convicted in 2006 of committing lewd or lascivious acts with a child under 14 years old. (§ 288, subd. (a).) B. Hrbac Is Tried and Convicted A jury trial was held in 2024. The prosecution called several witnesses, including Nylund, Z.H., and Beaty. A transcript of the second forensic 3 interview was admitted into evidence. The People’s expert witness testified about issues related to child sexual abuse. The People also presented testimony concerning Hrbac’s alleged sexual abuse of four other minors. The defense called two witnesses. The first was Hrbac, who denied sexually assaulting Z.H. He admitted he was previously convicted of committing a lewd act on a child under 14 years old but denied the other allegations of abuse against minors. The second defense witness was a forensic examiner, who testified about her examination of Z.H., which did not reveal physical signs of trauma. The jury found Hrbac guilty as charged and found true the prior conviction allegation. The trial court sentenced Hrbac to an aggregate prison term of 43 years. II. DISCUSSION A. Admission of Uncharged Conduct Evidence Hrbac claims that the trial court improperly admitted evidence of his prior sexual offenses under section 1108 because the evidence should have been excluded under Evidence Code section 352 (section 352). We are not persuaded. 1. Additional Facts Prior to trial, the prosecution moved to introduce evidence of uncharged sexual offenses committed by Hrbac against S.G., N.C., G.D., B.H., and V.K. as evidence of propensity under section 1108. The motion summarized interviews the prosecutor conducted with each prior victim. The incident involving Hrbac and S.G. occurred in 1993 when S.G. was 10 years old and Hrbac was 14 years old. S.G. told the prosecutor that Hrbac orally copulated her while they were outside. She pushed his head away and told him to stop, 4 but he refused. After the assault ended, she ran inside her house, but her mother told her to go back outside and play. Hrbac then rubbed her vagina. Hrbac sexually abused N.C., who is his cousin, beginning when she was three or four years old until she was 16 years old. Hrbac is several years older than N.C. N.C. said her first memory of Hrbac “was one of pain.” He would digitally penetrate her using as many as three fingers. The abuse worsened when she lived with Hrbac and his mother. There were several times where it was violent and caused her pain. N.C. said Hrbac appeared to enjoy causing her pain. He usually digitally penetrated her, though he had intercourse with her a few times. N.C. would punch herself in the stomach because she was afraid Hrbac had impregnated her. G.D. lived with Hrbac in 1995, when her father was dating Hrbac’s mother. She was seven years old and Hrbac was 17 or 18 years old. They shared a room. She recalled five incidents where, while she was in bed, Hrbac put his hand down her underwear, inserted two fingers into her vagina, and “began stimulating her.” She described one other incident where he digitally penetrated her. B.H. is related to Hrbac and has a physical disability requiring her to wear leg braces and adult diapers. She said Hrbac sexually assaulted her ten to thirty times in a two-year period beginning in 1999 when she was in eighth grade and he was in his twenties. He would enter her room while she was sleeping, rub up and down her legs, and then try to force his fingers into her vagina through her diaper. He would also rub her breasts and bite her nipples. Hrbac’s conduct against B.H. resulted in Hrbac being convicted of one count of lewd and lascivious conduct upon a child under the age of 14 years. 5  The incident involving V.K. occurred in 2005, when V.K. was ten years old and Hrbac was in his twenties. Hrbac was a family friend. On the day of the incident, Hrbac was visiting V.K.’s residence. He asked her to come outside to see his new car. As they sat in the car, Hrbac rubbed her leg before moving his hand over her vagina, outside her pants. He then rubbed her breasts and asked for a kiss. After reporting the incident to her parents, several other victims of Hrbac were identified, including B.H., and charges were filed for two counts of lewd and lascivious conduct involving V.K. The charges were dismissed as part of the plea agreement that resolved the charges against Hrbac for his sexual abuse of B.H. In addition to summarizing Hrbac’s uncharged sexual offenses, the prosecution identified eleven witnesses they expected to call during trial, including the five section 1108 witnesses. Hrbac moved to exclude the prior incidents under section 352, claiming they were minimally probative due to their age. He further argued that the potential testimony was highly prejudicial because of the volume of the accusations and because many of the accusations involved “more serious and repulsive sex crimes” than the current offenses. He also contended that the potential testimony would require an undue consumption of time at trial. Hrbac identified four witnesses he expected to call at trial, including two that did not appear on the prosecution’s witness list. At the hearing on the motions, the prosecutor argued the evidence would not confuse the jury because the court could instruct the jury with CALCRIM No. 1191, regarding consideration of propensity evidence. He further argued that the potential testimony would not result in an undue consumption of time. He would be limiting his direct examination of the 6 prior victims in large part to the facts summarized in the prosecution’s pretrial motion. The trial court ruled to admit the section 1108 evidence. It found the evidence probative of Hrbac’s guilt on count one, noting the similar ages of the victims and that some of the same conduct occurred in each case. It further found the evidence was more probative than prejudicial. The court concluded that, given the witness list and the estimated length of trial of five to six days, the evidence of uncharged sexual offenses would not be an undue consumption of time. 2. Analysis Evidence the defendant committed a prior crime is generally inadmissible to prove the defendant likely committed a later crime. (Evid. Code, § 1101, subd. (a).) However, section 1108, subdivision (a), provides an exception to this rule and allows admission of evidence of a prior sex offense when a defendant is charged with a sex crime. (§ 1108, subd. (a).) To prevent unfair misuse of such propensity evidence, the trial court must analyze whether it is admissible under section 352. (§ 1108, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 916–918, 920.) Evidence of a prior sex offense should be excluded 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.” (§ 352.) The “undue prejudice” referred to in section 352 is not the damaging effect that relevant evidence may have on a party’s case; rather, it refers to “ ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issue.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 19.) 7  We review a trial court’s decision to admit evidence pursuant to section 1108 and its application of section 352 for an abuse of discretion (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274), making all reasonable inferences from the evidence in support of the court’s decision (In re Walker’s Estate (1963) 221 Cal.App.2d 792, 796). As mentioned, in determining whether the trial court abused its discretion, we look to the information available to the court at the time it ruled, not the evidence that was eventually presented at trial. (People v. Fruits, supra, 247 Cal.App.4th at p. 208; see People v. Harris (2008) 43 Cal.4th 1269, 1289.) “We will not overturn or disturb a trial court’s exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) Hrbac argues the evidence of uncharged sexual offenses should have been excluded based on the balancing of five factors relevant to a section 352 analysis: (1) the probative value of the uncharged offenses, (2) the remoteness in time of the uncharged offenses, (3) the inflammatory nature of the uncharged offenses, (4) the amount of time involved in introducing and refuting the uncharged offense evidence, and (5) the probability of confusion of the issues. (See People v. Harris (1998) 60 Cal.App.4th 727, 737–741 (Harris).) We conclude the trial court did not abuse its discretion in admitting the uncharged offense evidence. We first address the probative value and the remoteness in time of the uncharged offenses, as both factors concern the degree of similarity between the uncharged and charged offenses. “ ‘The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.’ ” (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.) For evidence of uncharged crimes to be admissible under section 1108, it is sufficient that the 8 charged and uncharged crimes are sex offenses as defined in section 1108. (People v. Loy (2011) 52 Cal.4th 46, 63.) “ ‘Many sex offenders are not “specialists” and commit a variety of offenses which differ in specific character.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 984; see People v. Frazier (2001) 89 Cal.App.4th 30, 40–41, 43 [no abuse of discretion to admit evidence of the defendant’s uncharged acts of sodomy and forcible oral copulation of his cousin even though they were different from the charged acts of touching the bare buttocks of his niece], disapproved on another ground in People v. Loy, supra, at pp. 73–74.) “Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offenses.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 285.) However, “significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (Ibid.) Time periods more remote than the 15 years to 28 or 30 years at issue here have been permitted by courts when the uncharged and charged offenses are sufficiently similar. (See id. at p. 284 [30 years]; People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [40 years].) Here, there were substantial similarities between the charged and uncharged offenses. All the victims were female and were sexually abused by Hrbac when they were under 14 years old and he was several years older than them. The prior sexual abuse involved vaginal touching and/or penetration. The court could reasonably infer from the facts presented to it 9 that the abuse of Z.H. similarly involved touching and penetration of her “privates.” The abuse occurred when Hrbac was alone with the victim, and its frequency appeared to correlate with his access to the victims. Hrbac was related to two of the victims, B.H. and N.C., and had lived with another victim, G.D. Hrbac sexually abused those victims on multiple occasions over lengthy periods of time, as was the case with Z.H. Hrbac knew V.K. and abused her on a single occasion, but that was likely because V.K. immediately reported the abuse, resulting in a law enforcement investigation. He abused S.G. while she was outside near her home. The prosecution’s pretrial motion does not indicate whether Hrbac knew S.G. Hrbac minimizes these similarities as “superficial” and “generic.” Relying on Harris, supra, 60 Cal.App.4th 727, he argues the charged and uncharged crimes are too dissimilar for the uncharged offenses to carry any probative value regarding his disposition to commit the kind of crime at issue in this case. Specifically, he claims the charged sexual offense involved “breach of trust sexual misconduct” and lacked violence, and he notes that Z.H. said Hrbac would stop the abuse when she told him to. In comparison, Hrbac argues, some of the uncharged offenses involved force and violence and pleas to stop that were ignored. In Harris, the defendant was a mental health nurse who took sexual advantage of two female patients at the center where he worked. (Harris, supra, 60 Cal.App.4th at pp. 730–732.) He “licked and fondled an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him.” (Id. at p. 738.) The appellate court described the charged crimes as involving “a breach of trust and the ‘taking advantage’ of two emotionally and physically vulnerable women.” (Ibid.) In comparison, the section 1108 evidence described a vicious sexual assault 10 years earlier on a female stranger who was attacked in her apartment and the defendant’s subsequent conviction for burglary with the infliction of great bodily injury. (Harris, at pp. 733–735.) The only similarities between the offenses that the trial court could point to were that all three women were Caucasian and in their twenties and thirties, similarities that the appellate court found to be insignificant. (Id. at p. 740.) The appellate court concluded that the “23-year-old act of inexplicable sexual violence” was not probative of the defendant’s disposition to commit the charged “ ‘breach of trust’ sex crimes,” in part because the charged offenses were “of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury.” (Id. at pp. 738, 740–741.) As compared to Harris, we do not find the facts of the uncharged offenses so dissimilar from the charged sexual offense as to undercut their probative value in this case. The pertinent inquiry is whether “ ‘ “the evidence tends logically and by reasonable inference to prove the issue upon which it is offered.” ’ ” (People v. Jandres (2014) 226 Cal.App.4th 340, 355; Harris, supra, 60 Cal.App.4th at pp. 739–740.) The uncharged offenses demonstrate Hrbac’s propensity to sexually abuse underage females he had access to in a similar manner. The uncharged offenses therefore had “ ‘some tendency in reason to show’ ” that Hrbac was “ ‘predisposed to engage in conduct of the type charged’ ” (Jandres, at p. 355), i.e., continuous sexual abuse of a child under 14 years old. The trial court could reasonably conclude that the uncharged offenses had high probative value in this case despite their remoteness. (See People v. Soto, supra, 64 Cal.App.4th at pp. 991–992 [concluding trial court properly admitted evidence of 20- to 30-year-old sexual misconduct despite differences in the manner in which the defendant committed the charged and uncharged offenses; “the propensity evidence was 11 extremely probative of appellant’s sexual misconduct when left alone with young female relatives”].) Further, contrary to Hrbac’s assertion, the frequency with which he committed sexual abuse against underage females and the number of his victims increased the probative strength of the propensity evidence. (See People v. Falsetta, supra, 21 Cal.4th at p. 917 [probative value of other offenses increased by “the independent sources of evidence (the victims) in each offense”]; People v. Cabrera (2007) 152 Cal.App.4th 695, 706 [“the probative value of [prior domestic violence victim 1’s] and [prior domestic violence victim 2’s] testimony is principally in its cumulative nature”]; People v. Kerley (2018) 23 Cal.App.5th 513, 536 [“it is the frequency, regularity, and severity with which Kerley beat Dever that infuses this propensity evidence with probative strength”].) Nor are we persuaded by Hrbac’s argument that his young age at the time he committed the uncharged offenses rendered the uncharged offenses “particularly irrelevant to proving that he, as a man in his 40s, still had a propensity for sex crimes.” In so arguing, he relies on authority establishing that youthfulness is a factor in assessing the defendant’s culpability for purposes of sentencing. (See, e.g., § 1016.7, subd. (b); People v. Oliver (2023) 90 Cal.App.5th 466, 486.) This authority shows that a juvenile defendant’s still developing brain and immaturity may influence his actions and thus he may be less culpable for crimes he committed in his youth. (See, e.g., Miller v. Alabama (2012) 567 U.S. 460, 477.) Therefore, Hrbac’s age when he committed the uncharged offenses might help explain why he committed the crimes. But it is much less relevant to whether the charged and uncharged crimes are similar in nature, the principal factor affecting the probative value of propensity evidence. (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.) 12 Thus, we do not agree that the uncharged offenses had little probative value based on Hrbac’s youthfulness when he committed the offenses. Turning to the remaining section 352 factors, Hrbac contends the evidence of uncharged offenses was more inflammatory than the evidence regarding his sexual abuse of Z.H. He asserts that the prior misconduct was forceful and violent. Specifically, S.G. claimed he had ignored her pleas to stop, N.C. said Hrbac seemed to enjoy causing her pain, Hrbac touched V.K.’s vagina without her consent, and he vaginally penetrated B.H. through her diapers on as many as 30 separate occasions. In comparison, Hrbac argues, Z.H.’s description of the sexual abuse lacked detail and was vague, and she said he stopped the abuse when she told him to. He further contends the volume of the uncharged offenses made the uncharged offense evidence highly inflammatory, citing People v. Clotfelter (2021) 65 Cal.App.5th 30, 67. The uncharged offense evidence was not inflammatory “in the extreme” as compared to the charged offenses. (Harris, supra, 60 Cal.App.4th at p. 738; see People v. Christensen (2014) 229 Cal.App.4th 781, 799 [explaining the prior offense evidence was “more severe” than the charged offenses, but “not so much so that it should be excluded without a consideration of other factors”].) A father touching and penetrating his daughter’s “privates” on multiple occasions beginning when she was three or four years old is unlikely to be seen as significantly less inflammatory than similar sexual abuse against other underage females. Moreover, unlike Hrbac’s prior victims, who were all adults when they were interviewed by the prosecutor, Z.H. was only six years old when she was interviewed, and there was evidence that Hrbac and Beaty had dissuaded Z.H. from discussing the abuse. Thus, it is unsurprising that Z.H.’s account of the abuse was vague and lacked detail as compared to the accounts of Hrbac’s prior victims. (See, e.g., People v. 13 Christensen, at p. 799 [rejecting the defendant’s argument that prior offense evidence should have been excluded as inflammatory due to the victim’s inconsistent statements regarding the abuse: “the fact that a child was unclear as to the number of touchings is not surprising under any circumstance”].) Under these circumstances, it is doubtful the jury would have been unduly prejudiced against Hrbac because of the inflammatory nature of the uncharged offenses. (See People v. Branch, supra, 91 Cal.App.4th at pp. 283– 284 [concluding it was unlikely the jury would have been so prejudiced against the defendant by the prior offense evidence as to deny him a fair trial even though the prior offenses involved “a wider variety of sexual offenses over a longer period of time,” because the “nature of the offenses was very similar” to that of the charged offenses]; People v. Thomas (2012) 53 Cal.4th 771, 799 [“we cannot say that the charges [in one case] were particularly likely to inflame the jury against defendant [in another case]” (italics added)].) In arguing that the volume of the uncharged offenses made the evidence highly inflammatory, Hrbac mischaracterizes People v. Clotfelter, supra, 65 Cal.App.5th at page 67. The appellate court in that case did not hold that the volume of the prior offense evidence itself was highly inflammatory. (Ibid.) Rather, the appellate court concluded the prior offense evidence was “highly inflammatory” because “it went well beyond the underlying facts of the prior crimes.” (Ibid.) Specifically, testimony was presented that “would have been appropriate . . . at a sentencing hearing”— witnesses testified about “the devastating effect” the offenses had on the defendant’s victims, that the defendant’s prison sentence was too short, and about their views of the defendant as a person. (Ibid.) The court concluded 14 that the “cumulative effect” of this testimony was more likely to prejudice the jury than provide probative value. (Ibid.) Hrbac does not contend that similar information was presented to the trial court at the time it ruled to admit the uncharged offense evidence. Hrbac next argues that the consumption of time involved in addressing the prior offenses weighed in favor of excluding the evidence. He points to the number of witnesses the prosecution identified in its pretrial motion and the number of pages in the trial transcript devoted to the section 1108 witness testimony and to the related jury instructions and attorney argument. Based on the information before the trial court at the time it ruled to admit the uncharged offense evidence, the court could reasonably find that this factor weighed in favor of admitting the evidence. The parties identified a total of 13 witnesses they expected to call at trial, with five being the section 1108 witnesses. Thus, the section 1108 witnesses constituted less than 40 percent of the witnesses expected to be called at trial. Moreover, the prosecutor assured the trial court his direct examination of the section 1108 witnesses would largely follow the facts set forth in the prosecution’s pretrial motion. The court could reasonably conclude that the uncharged offense evidence was unlikely to result in an undue consumption of time. (See People v. Escudero (2010) 183 Cal.App.4th 302, 312 [concluding that prior sexual offense testimony was not unduly prejudicial under § 352 where it consumed “ ‘[r]oughly 53 percent’ ” of trial testimony]; People v. Frazier, supra, 89 Cal.App.4th at p. 42 [defendant was not prejudiced by amount of time it took to present evidence of uncharged crimes where evidence related to those crimes consumed 27 percent of total trial transcript].) 15  We would reach the same conclusion even if we could consider the circumstances at trial, which occurred after the trial court ruled to admit the uncharged offense evidence. The uncharged offense testimony totaled 62 pages of the reporter’s transcript, approximately 20 percent of the trial transcript.3 Similarly, the related jury instructions spanned only five pages, or approximately 7 percent of the total jury instructions, and approximately 25 percent of the closing arguments concerned the uncharged offense evidence. This was not an undue consumption of time. (See People v. Escudero, supra, 183 Cal.App.4th at p. 312; People v. Frazier, supra, 89 Cal.App.4th at p. 42.) Lastly, Hrbac argues that there was a probability of confusing the jury with the prior acts evidence because the “jurors would likely conclude that [he] was not adequately punished for his past conduct” based on the fact that he was convicted for only one of the prior offenses. While “the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term” (People v. Falsetta, supra, 21 Cal.4th at p. 917), this factor is not dispositive (People v. Christensen, supra, 229 Cal.App.4th at p. 799). On balance, we cannot conclude the trial court abused its discretion under section 352 in admitting the uncharged offense evidence. B. Instructional Error Hrbac next argues that the trial court prejudicially erred by failing to sua sponte instruct the jury on unconsciousness as a defense. We disagree. 3 Hrbac acknowledges that the trial testimony of four other prosecution witnesses spanned 101 pages of the reporter’s transcript but fails to mention the remaining witnesses who testified at trial, including Beaty, Nylund, and Hrbac, which adds another approximately 159 pages to the trial transcript. 16  “Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) A trial court has a sua sponte duty to instruct on unconsciousness “if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant’s theory of the case.” (People v. Rogers (2006) 39 Cal.4th 826, 887.) We review de novo “a claim that a court failed to properly instruct on the applicable principles of law.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Hrbac argues that statements Z.H. made during the second forensic interview suggested he was asleep when the alleged sexual misconduct occurred, and thus there was substantial evidence supporting an unconsciousness defense. He further contends the defense was not inconsistent with his theory of the case, which was that the sexual misconduct never occurred. We need not determine whether the trial court erred by failing to instruct on unconsciousness as a defense because “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’ ” (People v. Wright (2006) 40 Cal.4th 81, 98.) The jury was instructed that to convict Hrbac of continuous sexual abuse of a child under the age of 14, it must find that he “willfully touched any part of a child’s body either on the bare skin or through the clothing.” Although Hrbac contends “willfully” can refer to situations where the actor is unaware that he had committed an act, the jury was 17 instructed that “[s]omeone commits an act willfully when he does it willingly or on purpose.” The jury was further instructed that words not specifically defined in the jury instructions “are to be applied using their ordinary, everyday meanings.” The ordinary meaning of “willingly” and “on purpose” in context of the jury instructions requires a showing that the actor chose to act.4 (See Merriam-Webster Dictionary (2026) <https://www.merriam- webster.com/dictionary/on%20purpose> [as of November 5, 2026] [defining “on purpose” as “by intent: intentionally”]; Dictionary.com (2026) <https://www.dictionary.com/browse/willingly> [as of November 5, 2026] [“[w]hen a person acts willingly, they are doing something of their own free will”].) Because the jury found Hrbac guilty of continuous sexual abuse of Z.H., it necessarily found that he purposefully committed the acts of sexual abuse. This conclusion cannot be reconciled with the theory that he was unconscious when he was sexually abusing Z.H., and thus any erroneous failure to instruct on unconsciousness was harmless beyond a reasonable doubt. (See People v. Wright, at pp. 98–99 [concluding instructional error was harmless beyond a reasonable doubt under the instructions given to the jury].) C. Cumulative Error Lastly, Hrbac contends the trial court’s errors in admitting the uncharged offense evidence and in failing to instruct on an unconsciousness defense cumulatively deprived him of a fair trial and due process of law. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial 4 Hrbac cites People v. Moore (2018) 19 Cal.App.5th 889, 896, for the proposition that the opposite of “willfully” is “accidentally.” This does not mean, as he suggests, that “willfully” includes unconscious touching so long as the touching was not a “mere accident.” 18 error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a due process claim and is often presented as such [citation]. ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ ” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436, disagreed with on another ground in People v. Rosales (2014) 222 Cal.App.4th 1254, 1258–1259.) We have concluded that the trial court did not err in admitting the uncharged offense evidence and that any error in failing to instruct on an unconsciousness defense was harmless. Thus, there is nothing to cumulate. (See People v. Koontz (2002) 27 Cal.4th 1041, 1094 [“we have found no error to cumulate”].) III. DISPOSITION The judgment is affirmed. _________________________ LANGHORNE WILSON, J. WE CONCUR: _________________________ HUMES, P. J. _________________________ SMILEY, J. People v. Hrbac / A170225 19