People v. Santos CA1/2 ( 2021 )

Filed 4/29/21 P. v. Santos CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A153384
v.
NER BELLIN SANTOS, (Alameda County
Super. Ct. No. 176167)
Defendant and Appellant.
In re NER BELLIN SANTOS,
A159050
on Habeas Corpus.
One morning, 17-year-old John Doe disclosed to his mother that his
father had sexually abused him several years earlier, and so had his father’s
former boyfriend, defendant Ner Santos. It is undisputed Doe’s father had
done so. Doe revealed the abuse by the two men in a burst of anger at his
father, during a quarrel with his mother over some pocket money.
Doe’s father later admitted to having sexually abused his son, pled no
contest to two charges in exchange for a determinate 22-year prison sentence,
and testified for the prosecution against his former boyfriend. A jury
1
convicted defendant of all five sex crimes charged against him, and he now
appeals. He also brings a related petition for habeas corpus.1
We conclude that defendant’s convictions on two counts of sodomy must
be vacated, punishment on another count must be stayed, and an award of
fees, fines and assessments must be reversed with directions for a limited
remand. We otherwise reject defendant’s contentions.
BACKGROUND
On May 6, 2015, defendant and the victim’s father were charged jointly
by information, defendant with five counts:
Two counts (numbers 5 and 6) of sodomy of a person under 14 years
old, and more than ten years younger, between January 16, 2009, and
January 15, 2010 (Pen. Code, § 286, subd. (c)(1)2);
One count (number 8) of continuous child sexual abuse, between
January 16, 2010, and January 15, 2011 (§ 288.5, subd. (a));
One count (number 12) of oral copulation of a person under 16 years
old, between January 16, 2012, and January 15, 2013 (former § 288a,
subd. (b)(2) [now renumbered as § 287, subd. (b)(2); see Stats. 2013, ch. 282,
§ 1; Stats. 2018, ch. 423, § 49]); and
One count (number 14) of sending harmful matter to a minor, between
January 16, 2008, and January 15, 2012 (§ 288.2, subd. (a)).
Defendant pled not guilty, and the case against him proceeded to a jury
trial several years later, commencing in May 2017. In the meantime, Doe’s
1 Previously we ordered that defendant’s petition for a writ of habeas
corpus would be considered with his direct appeal. We hereby consolidate the
two now for purposes of decision.
2Unless otherwise indicated all further statutory references are to the
Penal Code.
2
father had pled no contest to two sex offenses as part of a plea bargain to
testify for the prosecution; we discuss those details below.
I.
The Prosecution’s Case
A. Family Background3
The victim, John Doe, was born in January 1997. His parents were
married for 20 years, and his home life was turbulent. Both parents had
tempers, argued a lot, and would often scream at Doe and hit him. One of
Doe’s sisters also fought with him and tried to harm him, including hitting
him with a bat. Later, she tried to kill him with a knife, had a mental
breakdown and was hospitalized.
Mother testified Doe’s father would often lie to her during their
marriage, and she knew it but was afraid to confront father about his lies
because of his temper. Doe also testified his father was untruthful and would
always lie in order to be the center of attention. Mother testified Doe would
sometimes lie to her about little things, to avoid getting into trouble, but she
doesn’t consider him to be a liar.
In October 2003, around the time Doe was six and a half years old, his
parents separated and father moved out of the family home in Hayward and
went to live with defendant in San Leandro, in a small studio apartment. At
a recent church barbecue, father had introduced defendant to the family as
someone he’d met at the gym and who had helped him get a job, and
defendant had then come to dinner in their home. Unbeknownst to the
family, defendant and father were romantically involved.
3For reasons of personal privacy, we omit names of the victim and
non-law-enforcement-related witnesses.
3
Mother testified that, of her three children, the divorce was hardest on
Doe, who would often cry at night asking when his father would come back
home. Despite the turbulence in their home, Doe felt very close to his father
and his feelings remained that way even after his parents separated. She
testified that the crying went on for about four years, until he was around
nine years old.
Doe visited his father every other weekend. After less than a year,
father and defendant moved from their studio apartment to a bigger, one-
bedroom apartment in San Leandro for about a year, and Doe continued to
visit him there. Then he and defendant moved to another one-bedroom
apartment in San Leandro. When Doe visited father in those homes, he slept
on the couch. Father testified they moved again after about a year (he
couldn’t recall precisely) to another apartment in San Leandro, on Franklin
Street, where they stayed for about two years. Then, he and defendant
moved to a one-bedroom house on Thornton Street in San Leandro (he
couldn’t recall the exact year). At first, Doe slept on the couch in the living
room at the Thornton Street house, but later father converted the attic to a
bedroom for Doe and his sister.
After some period of time, father revealed to Doe that he and defendant
were boyfriends.4 Doe shared that information with his mother who hadn’t
known either. She disapproved of homosexuality because of strong religious
views and made her disapproval known to her children.
By the time Doe was nine, he was diagnosed with behavioral problems,
began therapy for two or three years for his mental health and was
prescribed medication. At around age nine or ten, when it was revealed in
4Mother testified this was when Doe was around seven; Doe thought
he was eight or nine at the time.
4
therapy his sister had been attacking him at his mother’s house, Doe was
removed from his mother’s home and lived for several months with a couple
from church.
When Doe was around 10 or 11, he became angry at and estranged
from mother, and briefly went to live with father and defendant for about
three months. Father testified this was when he was living in the apartment
on Franklin Street in San Leandro. Mother testified she didn’t want Doe to
go live there but Doe threatened to make his mother’s life miserable if she
wouldn’t allow it. When he moved back to his mother’s home he continued to
visit his father on weekends.
Eventually, in roughly 2010, father and defendant broke up after a
seven-year relationship that had been on-again, off-again, and marked by
frequent fighting. Although they continued to live at the same property on
Thornton Street after breaking up, they occupied different apartments
(father moved to a back unit and defendant remained in the front one),5 had
little contact with each other, and became romantically involved with other
people.
Doe testified that after the sexual abuse in his father’s household had
ended (summarized next), he again went to live with father, this time for
about a year and a half. The move was precipitated by an angry incident
with his mother one day that culminated with her leaving him abandoned in
South San Francisco, far from home, and it triggered a CPS investigation.
Mother testified this happened when Doe was 14; Doe testified this happened
in 2012, when he was 15. Doe testified he didn’t want to go live with his
5 The house was divided into two apartments, one in the back and one
in the front with an attic which is where the men first lived together. There
was also a garage area in the back that had been converted into an
apartment.
5
father but felt it was his only option. After living for a year and a half at
father’s house, he was transitioning back to living with mother when he
revealed to her he had been sexually abused.
B. John Doe’s Revelations to His Mother That His Father and
Defendant Had Sexually Abused Him
On the morning of May 2, 2014, when Doe was 17 years old, mother
confronted Doe about the amount of money she was giving him to pay his
BART fare to school, because father had told her it was too much and that
Doe was using the money to sell drugs. Doe testified he was using the extra
BART money to support his marijuana habit. By this point, he also had tried
cocaine, all of the drugs to numb the stress of what had happened to him in
his father’s home. He testified he was still living with his father at this
juncture (after the rupture with his mother), but was in the process of
transitioning back to living with his mother.
Doe testified that when his mother confronted him about the BART
money and told him his father had said he was smoking marijuana, “I was
really pissed that he told my secrets to my mom . . . . So I thought to myself,
if he’s not going to keep any of my secrets why should I keep his.” According
to mother, Doe then said his father was the one who was lying (and was
making Doe sell drugs), he became upset and said his father had raped him
and defendant had, too. Then he began crying like a baby. Doe testified he
didn’t remember specifically what he said, “but I told her that I was raped by
my father and Mr. Santos.” He also testified that if his father hadn’t
revealed to his mother that he was using drugs, he never would have had the
courage to tell his mother about what his father and defendant had done to
him.
Mother testified that at first, she didn’t think Doe was being sincere
and wasn’t sure he was telling the truth. Doe testified she said, “you’re lying,
6
you’re just trying to get out of this,” but then she started to believe him when
she saw him breaking down in tears.
Doe was too upset to go to school and stayed at his sister’s house for the
day. At the end of the day, mother took him to the San Leandro police
station after she got home from work.
C. Statements by Doe and His Mother to Law Enforcement
Officials
That evening, mother and Doe gave a statement to San Leandro police
officer Jason Vincent, who testified he first spoke with mother, recorded a
written statement from her, and then spoke to Doe alone. Vincent testified
that his role was just to take a preliminary report from them and that
investigators would take over the case to get more details later, and so he
didn’t ask for a lot of details.
Mother told Vincent about the BART fare conversation, that Doe said
his father raped him and that as Doe was embracing her and she was
comforting him, she felt he was being sincere because he never displayed
emotions. In the written statement Vincent took from her, she reported that
Doe had told her that his father had raped him and at first she didn’t know if
Doe was being sincere, and that both father and defendant “forced him to
watch them have sex and forced him to orally copulate them.”
Doe told Vincent that in 2008, when he was about 11 years old, he saw
the two men orally copulating each other in front of him (though he didn’t use
those words), he tried to leave the room but his father told him to stay, and
then his father told him to orally copulate both men, masturbate them and
anally penetrate both men and he did so. Vincent testified Doe said this
happened ten or more times during the three years between age 11 and 14,
and although Vincent tried to get a precise number, Doe couldn’t recall the
7
exact number of times it happened and just gave an approximation. Vincent
testified that the last time Doe recalled was at “about” age 14.
Doe was interviewed about three days later by a specialist at CALICO,
an independent entity that coordinates with law enforcement to conduct
interviews of children, and he discussed the abuse in greater detail.
Doe also revealed during his CALICO interview that defendant had
given him some pornographic videotapes. So, the following day he was
interviewed by the San Leandro police officer who had observed the CALICO
interview (police sergeant Liaquat Khan), and provided more details about
the videos. Doe told Khan that one of the first things defendant had given
him was a bisexual pornographic VHS tape that he recalled as having a gold
label and included a scene depicting a man in army fatigues having sex with
another man and a woman. Doe said his mother found out about it, so he
returned the VHS tape to defendant. Doe also said defendant had given him
pornographic DVDs. Based on this information, sergeant Khan executed a
search warrant of defendant’s home on Thornton Street, found over 100 VHS
tapes in the attic, and seized five that had gold labels, including one called
“Men, Mass Appeal For Everyone.” The videotape and still images from it
were entered into evidence.
In the three years that elapsed before the case went to trial, Doe was
interviewed four to six times by an assistant district attorney and about three
times by the trial prosecutor. He also testified at a preliminary hearing in
April 2015. A few weeks before trial in May 2017, he was asked by a member
of the prosecution team why he didn’t tell his mother initially that defendant
also had abused him, and he replied because he thought she would “blow.”
Doe only vaguely recalled saying something like that during the interview
8
but couldn’t remember the context and testified he did think at the time his
mother would “blow” at him.
Mother was interviewed one or two more times, by members of the
district attorney’s office. Nearly three years to the day that Doe first
revealed the abuse to her, she was interviewed by the trial prosecutor to
prepare for the upcoming trial, and told the prosecutor that Doe didn’t
initially mention defendant when he told her about the abuse. At trial, she
testified that it had been a long time, was painful to think about and so she
might have forgotten that fact when speaking with the trial attorney. She
also admitted she has “negative feelings” about defendant and has said
negative things about him to her children. She felt betrayed by him after she
had welcomed him into their home.
D. John Doe’s Testimony About the Abuse
Doe testified that when he first started visiting his father on the
weekends, he got to know defendant and liked him. He thought defendant
was fun and friendly, and he looked forward to going to his father’s home on
weekends. It was a more playful, enjoyable environment than his mother’s
home, which was strict and depressed. Doe would do fun things with his
father and defendant, like going to the park, or the movies or out to eat. At
the preliminary hearing, he testified he didn’t really spend much time with
defendant, and, “I didn’t really know him, he was still like a stranger to me.”
Doe testified that the abuse began when he was nine, when father and
defendant were living in their last apartment in San Leandro before they
moved to the house on Thornton Street.6 He testified that late one night
6 For much of his testimony Doe referred to the house on Thornton
Street as being located on Orchard Street. Eventually it was clarified that
the house was near the intersection of Orchard Street, but located on
Thornton Street. We refer to it here as the Thornton Street house.
9
shortly before Christmas, around 11:00 p.m., the three of them were
watching a television show together, SpongeBob. The two men were seated
about five feet away from him on a couch. The only lighting was from the
television and the lights on their Christmas tree. Doe testified he saw
defendant’s penis get hard, and then he saw father pull it out and start
sucking on it to the point of what Doe came to know was ejaculation (though
at the time he didn’t understand what he was seeing). While doing this, his
father asked Doe if he liked it. Defendant didn’t say anything but seemed to
be enjoying it. Afterwards, his father told Doe to keep it a secret from his
mother and defendant nodded in agreement. Doe didn’t get up and go into
another room because “I didn’t know what to do. I was confused.” He
couldn’t remember how long this lasted. At this point, he still considered
defendant a friend.
Three or four times after that, usually in the morning or “close to the
afternoon,” the two men also left their bedroom door open when they knew
Doe was alone in the house with them, and Doe saw them having sex. In
graphic detail, he described seeing the two men naked and sweaty, engaging
loudly in anal sex (“on top of each other humping”). One time he recalled his
father yelling out in Spanish (translated roughly as, “what a nice ‘ass,’ or
‘butthole’ ”). Sometimes father would look over and make eye contact with
Doe while this was going on. Almost every weekend as Doe left to return to
his mother’s house, father would tell him not to say anything, even on
weekends when Doe hadn’t seen anything. It was always the last thing his
father said to him before they got in the car.
A couple of months after the abuse began, they moved to the house on
Thornton Street. The men’s behavior became more frequent after the move,
almost every time Doe visited. The two men would have sex openly in front
10
of him without any regard to his presence—while on the couch, in their bed
and in the shower with the bathroom door wide open.
Then, Doe’s father initiated sexual contact with him.
It started one day when Doe was 11. Doe asked his father for advice
about his body and the erections he was starting to feel, and father wanted to
show him what to do with his penis. Father took him into the shower,
showed him how to masturbate, touched Doe’s penis and orally copulated Doe
for about ten minutes, and made Doe stroke his own penis. Doe later
testified he was most likely 12 when this happened, right around the time he
was learning how to shave.
The next weekend, the same thing happened again but father also
made Doe orally copulate him. Doe visited his father every weekend, and
almost every visit his father would engage in inappropriate sexual activity
with him. Once, his father tried to anally penetrate Doe but it hurt and he
began crying, so father stopped. Father also made Doe anally penetrate him
(Doe couldn’t remember how many times).
Within months after father started doing these things, defendant got
involved.7 The first time was when Doe was around 11 or 12 years old.8 Doe
was in the living room watching cartoons in the middle of the day. Father,
who was naked, invited Doe into the bedroom and told him “Ner wants to try
that out too,” and so Doe went into the bedroom. When Doe came into the
room, defendant said something to him that he couldn’t recall, but was
7 At trial, Doe testified it was a month later. At the preliminary
hearing, he testified it was about two or three months later, after about 15
incidents with his father.
8 Doe told the CALICO interviewer he was 11. He testified at the
preliminary hearing he was 12. At trial, he couldn’t remember if he was 11
or 12.
11
naked, seemed to be in a good mood and was smiling and laughing. Doe took
off his clothes, and father made him orally copulate defendant. Defendant
“kept on saying that I had a hard dick,” and then orally copulated Doe. Then,
father made Doe orally copulate and anally penetrate him (father), and then
anally penetrate defendant (which Doe described in detail at trial, down to
their precise body positions, use of lubrication and the fact that his father
showed him how to do it without hurting defendant).
A couple of weeks later, the same thing happened again. With his
father present, Doe orally copulated and anally penetrated defendant, and
defendant orally copulated Doe. Also some things happened with his father.
Defendant told Doe that he liked what they were doing together, that it was
fun and good and they should do it more often.
Their next encounter was weeks later (Doe couldn’t remember exactly
when), and it would happen every few weeks from around age 12 until he was
about 15, except for periods in which the men had broken up.9 The same
thing happened every few weeks: Doe would anally penetrate both men, and
sometimes there would be oral copulation too. It would always start with his
father and then defendant would join in too. Doe considered telling his
mother what was going on, but didn’t really know what would happen, and
9 At first, Doe testified he had about 20 sexual encounters with
defendant in total. He later testified (albeit unclearly) that it was 20 times
when he was 12 and after that, it was every few weeks. He testified he was
going there every other weekend, and every time he visited something sexual
happened with defendant. In closing argument, the defense acknowledged
Doe testimony’s that defendant was having sex with him every other week for
about two years. Doe had told Sergeant Vincent incidents with defendant
happened 10 or more times from approximately ages 11 to 14. Prior to trial,
he had never told anyone the abuse happened 20 times.
12
he also didn’t want anybody to know. “I thought people would look at me
weird and she wouldn’t look at me the same.”
From about age 12 to 14, Doe’s father was always present. But his last
sexual encounter took place alone with defendant, after Doe’s last sexual
encounter with his father. One evening around 5:00 p.m., shortly after Doe
turned 15, when his father wasn’t home, defendant and Doe performed oral
sex on each other in the bedroom. Doe couldn’t remember who initiated it or
what was said. This was their last sexual contact.
After the sexual encounters ended, Doe continued to visit his father on
weekends and eventually moved in with his father in the house on Thornton
Street and saw defendant every day. His interactions with defendant were
“different,” though. Doe wouldn’t talk to defendant much anymore, and when
the two men fought with each other Doe would even make faces at defendant.
Doe now hated defendant because of what had happened, although he never
confronted defendant about it. Doe never told anybody what had happened
until May 2, 2014, when he revealed it to his mother at age 17.
Around age 11 or 12, at some point after his father had begun
molesting Doe, defendant gave Doe a pornographic video depicting bisexual
sex to help him masturbate, which he took to his mother’s house. Doe’s
mother found it, and Doe lied to her and said he had got it from a friend. She
took it away, but Doe found it and returned it to his father and defendant. It
was an old VHS tape with a gold label. He also used to watch pornographic
videos at his father’s house on Thornton Street, which were kept unlocked in
the bedroom.
The primary focus of Doe’s cross-examination was on inconsistencies
between various aspects of his trial testimony and the accounts he had given
to law enforcement, the CALICO interviewer, and at the preliminary hearing.
13
Doe also was asked what “markings” there were on defendant’s body,
and he identified a butterfly tattoo on defendant’s chest, a tattoo band on his
wrist, scarring on his chest from a stab wound. He also recalled that
defendant was fully circumcised.
E. Father’s Testimony About the Abuse
Father testified he pled no contest to two charges in connection with
the abuse of his son (one count of continuous sexual assault of a child under
14, and one count of sodomy of a child under 14), and he agreed to testify
truthfully in defendant’s case with the expectation of a 22-year prison
sentence. Later, a copy of his plea agreement was admitted into evidence and
made available to the jury. It reflects that father was facing 11 charges and
pled only to two.
At trial, father corroborated the fact that both he and defendant had
engaged in sexual activity with Doe, but his account greatly differed from his
son’s. According to father’s version of events, the abuse began when Doe was
older, was much less frequent and virtually all of it was initiated by Doe.
Father testified all of the abuse happened at the house on Thornton
Street, over the course of about one year when his son was 13 and ended
before he turned 14. He testified the incidents involving defendant took place
over the course of about only two months, during the summertime.
Father testified he personally had only four sexual encounters with his
son: twice, his son tried to perform oral sex on him, once his son performed
anal sex on him, and once at his son’s request he put his son’s penis in his
mouth. And defendant had only three: twice in bed and once in the shower.
In addition, father also stumbled on the two of them doing something behind
a locked door one time when he came home from the store, and he thought
they were having sex. Father admitted he previously told police that he saw
14
defendant having sex with his son four or five times after the first time, and
that it went on for “more than two years.”
According to father, it all started one night when his son stumbled on
the two men having anal sex in the bedroom. Father saw him and told him to
go back upstairs to bed but Doe asked if he could “do something” with
defendant. Father said no, but Doe began pleading to have sex with
defendant (“can I fuck Santos”). Father continued to say no but, eventually,
his son performed anal sex on defendant while defendant coached the boy on
what to do and father watched from the other side of the bed. At defendant’s
request, father also took a close-up picture of the penetration. Then his son
went back upstairs without saying anything. Nothing else happened that
night.
Some days later, defendant had sex with his son a second time, again in
the bedroom and in his presence. This time his son not only performed anal
sex on defendant but also oral sex. In addition, defendant tried to perform
oral sex on his son but stopped because the boy isn’t circumcised and
defendant didn’t like the odor. While defendant had his mouth on Doe’s
penis, father put his own mouth on defendant’s penis but denied having any
sexual contact with his son on that occasion.
The third incident with defendant happened months later, in the
shower, and this time father also took part. Father was showering and his
son asked to join him, and then defendant got in the shower too. As father
was scrubbing his son’s back, the boy began grabbing defendant’s penis and
saying he wanted to perform oral sex on defendant, and so he did. Defendant
used his own hand to ejaculate and finish. Then Doe told his father he
wanted to try it with him too; father said no but Doe grabbed father’s penis.
15
Father let him put it in his mouth but father couldn’t get hard because it was
his son. He denied putting anyone’s penis in his own mouth.
Father also testified about three incidents involving only him and his
son. One was within weeks of the first incident (father couldn’t recall exactly
when), when his son performed anal sex on him. Father was asleep in bed
when the boy climbed into bed with him and asked to “do it” with him,
“because . . . it’s better to do it with you than [to] do it with somebody else.”
Father said no, but his son did it. That was the only time they had anal sex.
Another time, the boy put his father’s penis in his mouth. And another time,
when the two were in the shower together, father put his mouth on his son’s
penis at the boy’s request.
Father testified Doe stole the pornographic videotape from the attic in
their house.
Father corroborated some of Doe’s recollection about defendant’s body.
Similar to his son, he testified that defendant has three puffy scars on his
chest, a tattoo on his chest and a tattoo on his arm. In addition, he testified
defendant has a scar below his belly button from bladder surgery, two
circular scars on his lower back, and small moles on his penis but he couldn’t
remember any details about them because he never paid them any attention.
Father specifically denied a number of things that Doe had testified to
concerning specific details and frequency of the abuse. Nevertheless, father
vouched for his son’s credibility, testifying Doe had no reason to lie about his
sexual encounters with the two men and was telling the truth.
F. Prosecution Experts
A pediatric doctor, Dr. James Crawford-Jakubiak, testified for the
prosecution about the various stages of puberty and the physical changes
that accompany them.
16
Pediatric psychologist Dr. Anthony Urquiza, an expert in the area of
child sex abuse, testified about Child Sexual Abuse Accommodation
Syndrome, which he described as a therapeutic, educational concept to help
therapists understand the experiences of children who have been abused, not
a diagnostic tool to ascertain whether a child has in fact been abused.
Broadly speaking, he testified it consists of five components: secrecy;
helplessness; entrapment and accommodation; delayed and unconvincing
disclosure; and retraction. Dr. Urquiza had not examined Doe, had no
information about him and offered no opinion as to whether Doe had been
sexually abused. We discuss his testimony in greater detail below.
II.
Defense Case
Two of defendant’s cousins who at various times had lived with
defendant and father both testified that Doe didn’t have a good relationship
with defendant, the two were never friends, and defendant was only civil to
Doe because Doe was his boyfriend’s son. Both cousins described conflict and
arguments between the two men about Doe, mainly because Doe didn’t pick
up after himself and this irritated defendant who thought father spoiled Doe.
One of them testified Doe wasn’t respectful toward defendant and sometimes
wouldn’t even acknowledge him. She also testified Doe would sometimes lie
about school, or things that happened at home (“[Y]ou could tell that he was
just making up stories when he talks”). In addition, she testified defendant
has two hole-shaped scars on his lower back, from a childhood accident when
he fell from a tree onto barbed wire.
A defense investigator took photographs of defendant’s penis during
trial (from a poorly lit jail cell), and they were entered into evidence. The
17
investigator testified they showed a slightly raised mole on his penis, and
that there were several smaller moles not depicted well in the photographs.
A former boyfriend who had dated defendant for three years (starting
in June 2011), testified that defendant didn’t like to be anally penetrated and
that 99 percent of their sexual contact entailed oral sex. He also testified
that the moles on defendant’s penis depicted in photographs taken by the
defense investigator were not big, were only slightly raised and that one
would have to look pretty closely to see that they were raised.
After the defense rested, and over its objection, the court granted the
prosecution’s oral motion to amend the information to expand the time
periods embraced by the two sodomy charges (counts 5 and 6) and the
continuous child sexual abuse charge (count 8) in order to conform to proof,
with the result that the two charges overlapped in time. As amended, the
two sodomy counts charged for the period between January 16, 2008 (rather
than 2009) and January 15, 2010, and the continuous child sexual abuse
count charged for the period between January 16, 2008 (rather than 2010)
through January 15, 2011.
III.
The Jury’s Verdict
The theory of the defense, as argued to the jury in closing, was that Doe
fabricated his charges against defendant because he blamed defendant for his
parents’ divorce. Primarily, defense counsel stressed inconsistencies in Doe’s
testimony compared to the prior statements he had made to police,
prosecutors and during the preliminary hearing, and also the fact that Doe’s
version of events was largely contradicted by his father, whose testimony
didn’t help the prosecution and if anything helped the defense, but who had
to implicate defendant to some degree because of his plea agreement. The
18
defense also stressed Doe’s inability to recall the scarring on defendant’s
lower back or the moles on his penis, which should have been evident during
the sexual encounters Doe described. To a lesser degree, defense counsel also
argued Doe’s relationship with defendant was never as friendly as Doe made
it out to be on direct examination, and that several witnesses questioned his
truthfulness.
The jury deliberated for slightly less than a day and returned a verdict
(on the afternoon of June 2, 2017) of guilty on all counts.10
The jury submitted three requests, none discussed in open court on the
record. About an hour into deliberations on the first afternoon, it asked for a
copy of all exhibits, Doe’s testimony and his father’s testimony, adding that it
intended to narrow the testimony request after reviewing the exhibits. The
following morning, a second note posed two questions. The jury asked for the
“legal definition/consequences” of a “no contest” plea, adding that the inquiry
related to “defense item B” (father’s plea agreement)), and it also asked for
information relating to the dates of the two sodomy counts (numbers 5 and
6).11 About twenty minutes later, the foreman notified the court that an
answer to part b was no longer needed, and the court then conferred with
counsel off the record and answered part a, advising the jury that a “no
contest” plea is the same as a guilty plea. About an hour later, at 12:15 p.m.,
the jury sent out a third note before taking an hour and a half break, asking
for clarification about a portion of the jury instructions concerning the
10The jury deliberated for less than an hour on the afternoon of June 1
and then until about 3:20 p.m. on June 2.
11 The latter stated, “Please clarify if the dates in count 5 and 6
(1/16/08-1/15/10) restrict the finding of guilt given that the law says ‘other
person was under the age of 14 years.’ John Doe would be 11-13 inclusive in
that date range.”
19
harmful matter distribution charge under section 288.2. After conferring off
the record with counsel, the court wrote back, “I cannot clarify the wording.”
About forty minutes later, the jury returned its verdict.
Defendant was sentenced to 17 years and four months in prison, with
1,509 days of credit for time served.
This timely appeal followed.
DISCUSSION
I.
Issues Concerning Father’s Plea Agreement
Defendant raises a series of errors that he argues, individually and
collectively, left the jury with an incomplete and misleading understanding of
the precise details of the sentence Doe’s father believed he was avoiding by
entering into a plea agreement with the prosecution. These errors, defendant
contends, were prejudicial because they impaired defendant’s ability to
effectively impeach father’s credibility.
Relatedly, in his companion habeas petition, defendant argues the
prosecutor violated both her Brady obligations and due process by failing to
disclose to the defense and to the trial judge what father was told at his
change of plea hearing about his maximum potential prison sentence. He
raises related claims of ineffective assistance of counsel.12
12 Because we are resolving all of defendant’s claims on the merits,
including the others discussed in the remainder of this opinion, those aspects
of his habeas petition asserting counsel was ineffective by failing to preserve
certain errors are moot.
20
A. Background
Father was charged initially with 11 sex crimes, with special
allegations that could have subjected him to discretionary full-term
consecutive sentencing (§ 667.6, subd. (c)).
The change of plea hearing at which he pled no contest to two of the
charges in exchange for a 22-year prison sentence took place on November 4,
2016, about six months before the commencement of defendant’s trial. It was
conducted by a different judge than the one who presided over defendant’s
trial. The prosecutor who tried this case against defendant was present.
Before accepting father’s plea, the judge advised father of his maximum
potential exposure as follows:
“Your minimum if you were convicted, otherwise if you went to trial
without this agreement and you were convicted, the minimum would be
15 years to life if you’re convicted of everything. The maximum would be well
beyond your natural life-span. [¶] So if you’re convicted of everything and the
judge gave you the maximum, you would die in prison. The minimum if you
are convicted of everything would be 58 years to life. So this agreement
would allow you to plead, if you comply with the terms of the agreement in
terms of testifying and everything else, it would be 22 years as recommended
by the DA if the judge accepted that.” (Italics added.)
The subject of father’s 22-year plea deal and the sentence he potentially
avoided then arose at numerous junctures during defendant’s trial.
The first time was during defense counsel’s opening statement, which
drew an unspecified objection by the prosecutor:
“Now, due to the numerous inconsistent statements of John Doe,
[father]—[father] who was essentially facing life in prison was given a deal,
22 years. [Father] who groomed his toddler to be molested. [Father] who had
21
his son orally copulate him, admittedly orally copulated his son. [Father]
who had his son sodomize him for years. He’s [sic] incentive when [Father]
takes the stand is obviously he wants to get out of state prison in 22—less
than that because he’s been in custody for three years, but he wants to get
out of state prison. So, he will testify to whatever he believes will be helpful,
and it’s interesting because the prosecution gave him a deal, yet the
prosecution stood before you and called him selfish, disgusting and
minimizing his role. That doesn’t sound like a very credible witness to me.
And when you look at [Father], when you hear his role, his testimony will it
be minimizing? Yeah. [Father] is not someone that can tell the truth. Yet,
he was given a benefit. Life in prison or 22 years. He chose the 22 years—
“[Prosecutor]: I’m going to object, there’s no—
“The Court: Overruled. Proceed, Counsel.
“[Defense Counsel]: So, with regards to what he chose, he chose the
benefit of 22 years. Once you’ve reviewed all of the evidence, and again,
keeping an open mind until the end of the case, I think the logical conclusion,
the only conclusion can be that [defendant] is not guilty of the allegations as
charged.”
At the end of that day’s proceedings, after the presentation of evidence
had begun and the jury had been excused for the day, a colloquy took place
about the prosecutor’s objection:
“The Court: At the end of defense’s opening statement, the DA had
interposed an objection during the opening statement objecting to the term
‘life.’ I had assumed it meant in the vernacular sense that he would spend
the rest of his life. This wasn’t a life-top case. [The prosecutor] indicated to
me that she felt it conveyed to the jury an indeterminate sentence of life
imprisonment. I am inclined to give some type of curative instruction but I
22
need to know what the determinant maximum was and then I would be more
than happy to give that curative instruction to the jury. Might get lost in the
shuffle. And I assume at some point when [father] testifies as part of his plea
negotiation, I assume the max would be subject to fair game for cross-
examination. [¶] So, have you figured out what the max was, [Prosecutor]?
“[Prosecutor]: No, I haven’t left the courtroom.
“The Court: Okay.
[¶] . . . [¶]
“[Defense counsel]: So, your Honor, I did put in there essentially life
and I was not talking about a life sentence, so I understand the Court’s
curative and we can discuss this more when the Court’s—but I would also put
in how old [father] was because I believe if he were to be convicted, it would
essentially be a life case for him.
“The Court: Well, I see it somewhat as a minor point. I guess I feel
like maybe I should have sustained the objection looking back in this
retrospect. I think it’s somewhat of a very minor point whether it—I just
agree with [the prosecutor] now that I think about that indeterminate life
sentence as opposed to factually a life sentence if this were 60- or 80-year
sentence or whatever for the number of charges he faces. So I think a
curative instruction would be appropriate, although I think subsequently it
really is somewhat moot because [father] will get crossed on it any way.”
The following morning, before the evidence resumed, the court gave a
curative instruction:
“The Court: One other point I did want to clear up, once again, both
counsel are professional and very ethical. In [defense counsel’s] opening
statement she referred to essentially life or life. I just wanted a clarification,
this is not—first of all you’re not to consider penalty or punishment.
23
“Secondly, both counsel would agree that this is not a life case. I
meant, I, as a judge, I cannot give life imprisonment in this type of case, so
that is not an option. She was using it more in the sense of essentially life or
a long period of time in prison, so it’s not a life penalty case.”
Father later testified. The prosecutor did not elicit any testimony
about the maximum potential exposure father faced had he not pled to 2 of 11
charged sex offenses, and defense counsel did not cross-examine him about
that subject nor, indeed, about any aspect of his plea agreement.
B. Defendant’s Claims
Defendant now raises seven errors, four in his direct appeal and three
in his habeas petition.
On appeal, he contends there were two separate errors in the curative
instruction the trial court gave after the prosecutor objected to defense
counsel’s opening statement: one, the court erred by instructing the jury that
it should not consider penalty or punishment, because in context the jury
would have understood this as an instruction to disregard father’s motivation
for testifying, and, second, the court erred in instructing the jury father could
not have been sentenced to life in prison, because before father entered his
plea he was essentially told that he could have been (were he to receive the
maximum sentence). This, he argues, undercut his theory that father was
motivated to testify against him to obtain a “much more lenient sentence and
avoid the possibility of a life sentence that would ensure he died in prison.”
Each instructional error, defendant argues, not only violates state law but
also his constitutional rights to due process and a fair trial, as well as his
right to present a defense and to confront and cross-examine witnesses.
Defendant argues, third, that his constitutional rights also were
violated when the prosecutor did not inform the trial court during the
24
colloquy out of the jury’s presence that father had been told at his change of
plea hearing he did potentially face a life sentence, an error that defendant
argues resulted in the trial court giving the misleading and erroneous
curative instruction.
Fourth, he contends his counsel was ineffective by failing to cross-
examine father about the maximum potential sentence father faced had he
not entered a plea and agreed to testify.13 Individually and collectively,
defendant argues, these errors left the jury with the impression that father
was not facing a maximum life sentence and that, in any event, the jury could
not consider the penalty he would have received absent the plea deal.
In his petition for habeas corpus, supported by a declaration of defense
counsel, defendant argues the prosecutor violated Brady v. Maryland (1963)
373 U.S. 83 (Brady) by failing to inform defense counsel of what was said at
father’s change of plea hearing about father’s maximum potential sentence
and, alternatively, that defense counsel was ineffective for failing to obtain
the hearing transcript and learn what father had been told. He also argues
the Brady error was compounded by the prosecutor’s misconduct at trial,
when she objected to defense counsel’s attempt in opening statement to argue
that father’s plea allowed him to avoid a life sentence, and then failed to
correct the trial court’s misimpression that father did not enter into the plea
agreement to avoid a life sentence.
13 Defendant also raises an ineffective assistance of counsel claim
regarding his counsel’s failure to object to the curative instruction, preserving
that claim of error. It is unnecessary for us to address that ineffective
assistance claim because we are not resolving defendant’s claims of
instructional error on the basis of forfeiture.
25
C. Analysis
Several errors defendant raises present serious questions.14 It is
unnecessary to decide whether any error occurred, however, because even
under the prejudice standard most favorable to the defense, defendant was
not prejudiced by any of them. In the context of this record, all of the claimed
errors defendant has raised were harmless beyond a reasonable doubt, both
individually and collectively. (See Chapman v. California (1967) 386 U.S. 18,
23-26; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [6th
Amendment violation of defendant’s opportunity to impeach a witness for
bias is subject to Chapman harmless-error analysis]; Strickland v.
Washington (1984) 466 U.S. 668, 695 [in claiming ineffective assistance of
counsel, defendant must show “reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt”]; In re
Sassounian (1995) 9 Cal.4th 535, 544 [Strickland “reasonable probability”
standard incorporated into materiality element of Brady claim].)
14 The Brady claim is not one. The prosecutor’s failure to disclose what
occurred at father’s change of plea hearing did not constitute a suppression of
evidence under Brady. Defendant’s counsel could have attended that hearing
(but did not) and/or could have procured a transcript of it. The People cite
the principle that “ ‘when information is fully available to a defendant at the
time of trial and his only reason for not obtaining and presenting the
evidence to the Court is his lack of reasonable diligence, the defendant has no
Brady claim’ ” (People v. Morrison (2004) 34 Cal.4th 698, 715), and defendant
cites no authority to the contrary. (See also People v. Osuna (1969) 70 Cal.2d
759, 767 [prosecutor did not suppress evidence because facts were “a matter
of record readily available to the defense”].) Defendant contends the
prosecutor’s objection at trial took this case outside that rule but cites no
legal authority to that effect nor offers any reasoned explanation as to why.
He also contends the publicly available nature of the information is irrelevant
because the trial court had ordered the prosecution to provide the defense
with Brady material, but that is circular logic and presupposes the
information falls within Brady.
26
Preliminarily, we note the issues defendant has raised (both on direct
appeal, and in his habeas petition) at most affected only one of the five
charges of which he was convicted. This is so, first, because father testified in
a manner that was favorable for defendant on two of the charges; hence,
additional impeachment of father would not have aided defendant with
regard to those charges. Specifically, the crime of continuous sex abuse
entails three prohibited acts “over a period of time, not less than three
months in duration.” (§ 288.5, subd. (a).) Father testified that all of the
sexual encounters between defendant and Doe took place within about a one-
to two-month period when Doe was 13, which if believed would have
exonerated defendant on that charge. Father’s trial testimony also would
have exonerated defendant of distributing harmful material to his son
(former § 288a, subd. (b)(2)), by testifying that Doe found the pornographic
videotape in the attic and “stole” it on his own. Because father testified in a
manner that if believed would have exonerated defendant, the claimed errors
regarding impeachment of father could not have infected defendant’s
conviction on those two charges. Second, the People agree for unrelated
reasons that the two sodomy convictions must be vacated (because, as
discussed below, they improperly overlap with the conviction for continuous
sex abuse). Any error as to those charges is now moot. As a result,
evaluating the impact of these errors on defendant’s conviction is required
only for defendant’s conviction of the charge of oral copulation of someone
under 16.
But regardless whether the errors affected one or all of the charges, our
conclusion is the same: beyond any reasonable doubt, they did not affect the
jury’s verdict.
27
Even though the jury did not know the precise details of the potential
maximum sentence father was told his plea would avoid, the jury was well
aware he had a strong incentive to testify favorably for the prosecution, and
was specifically aware that, without this plea agreement, he was likely facing
the prospect of spending most of his life—if not all of it—behind bars. This
was not kept from the jury, nor was the jury prevented from considering that
fact in weighing father’s credibility.
The trial court itself told the jury father was “essentially” facing the
prospect of life in prison had he not pled to two counts in exchange for an
agreement to testify. Although its curative instruction told the jury
(misleadingly, in the defense view) that “I cannot give life imprisonment in
this type of case” and “it’s not a life penalty case,” the court also instructed
the jury that defense counsel’s reference in her opening statement to a life
penalty was meant “more in the sense of essentially life or a long period of
time in prison.” (Italics added.) In assessing father’s credibility, the jury in
all likelihood would have been utterly indifferent about the technical
sentencing distinction between an indeterminate sentence of life
imprisonment and a determinate sentence of such length that it amounted to
life imprisonment (“essentially life”).
In addition to the court’s comments, the jury also most likely would
have inferred from the evidence that father could have spent “essentially” the
rest of his life in prison had he not entered to his plea bargain.
Father’s plea waiver form, which we know from one of the jury’s notes
the jury clearly examined, reflects father was 55 years old when he pled to a
22-year prison term.15 So the jury knew that even under the plea bargain,
15The plea waiver form recites both father’s birthday and the date of
his change of plea hearing.
28
fathers’ prison term could extend well into his elderly years (potentially until
around age 77). The only reasonable inference a jury could draw from the
fact that additional charges against him were dismissed is that his sentence
would have would have been even longer, and he would have been even older
upon its completion (if he even lived), had he not agreed to testify for the
prosecution.
In addition, the specific details reflected on the plea waiver form shed
light on the extent of the leniency father was receiving. The jury knew from
that document father was charged with 11 enumerated counts and pled
guilty to only two: a section 286, subdivision (c)(1) charge which the jury
would know from the instructions was sodomy with a child under 14, and a
section 288.5, subdivision (a)(1) charge which the jury would know from the
instructions was continuous child sexual abuse.16 The only reasonable
assumption a layperson could make is that had father been convicted of all
eleven counts—more than five times as many sex crimes as he pled to—his
sentence would have exceeded 22 years by a considerable margin. In fact,
applying simple math, a reasonable lay assumption would be something on
the order of approximately 11 years (on average) for each additional offense—
or, about 99 more years on top of the 22. Based on the number of charges
16 The nine dismissed charges, which were identified on the plea
waiver form by their Penal Code citations, included: three additional sodomy
charges (§ 286, subd. (c)(1)), one charge under section 288, subdivision (a)
(lewd act on a minor), one charge under section 288.2 which the jury would
know from the instructions was distributing harmful materials to a minor,
three charges under section 286, subdivision (b)(2) (sodomy with a child
under 16) which the jury could infer from the instructions on sodomy with a
child under 14 (§ 286, subd. (c)(1)) was a related sodomy charge under the
same statute, and one charge under section 288.4 (lewd or lascivious acts
with a child under 14) which the instructions did not define.
29
alone (and regardless of father’s age), the jury most likely would have
inferred father was potentially facing spending the rest of his life in prison.
These inferences were in fact made explicit by defense counsel in
closing argument, who argued at length that father’s plea agreement
incentivized him to lie. After emphasizing that father’s testimony
contradicted Doe’s in various ways, she then argued the reason father was
given a plea deal is because Doe was not to be believed: “If you believe John
Doe, then [father] should never have been given a deal, right? He’s the one
that allegedly started it all. He’s the one that allegedly masturbated his son.
He’s the one that started grooming him at a young age. Why give him a deal?
Because you don’t believe John Doe and you’re grasping at what [sic]
evidence. John Doe is contradicted in every way by [father].”
Defense counsel then turned to the specifics of father’s plea waiver
form, reminding the jury the document was admitted into evidence and “so
you’re going to have his plea agreement.” Directing the jury’s attention to
that document, she then asserted—without objection or contradiction by the
prosecution, and despite the court’s curative instruction at the beginning of
the case to “disregard punishment”—the following: “He pled to two counts for
22 years, meaning given his age he will most likely get out on bail—on parole.
Without this plea agreement and facing ten charges, [father] may not have
ever been out of custody which is why he accepted it.” (Italics added.) Then
after some additional remarks, defense returned to the subject of the plea
agreement and again emphasized that it undermined father’s credibility.17
17 She argued: “Now, why would he say something about [defendant]?
Because he has to. He has to give testimony regarding [defendant] because
that’s part of the plea agreement, right, to testify against [defendant.] So,
when you look at [father], as I stated[,] at his testimony, does it contradict
John Doe? Yes. Does it help the prosecution? I didn’t think it did. If
30
The entire thrust of defense counsel’s argument, and in particular her
contention that father might have spent the rest of his life in prison without
his plea bargain, both urged the jury to do that which defendant claims the
curative instruction told the jury not to do (disregard punishment), and was
fully consistent with what father was told at his change of plea hearing:
namely, that “if you’re convicted of everything and [if] the judge gave you the
maximum, you would die in prison.” (Italics added.) Her closing argument
alone therefore rendered any errors harmless beyond a reasonable doubt.
(See People v. Mincey (1992) 2 Cal.4th 408, 463 [error in precluding cross-
examination of murder accomplice about details bearing on her expectation of
leniency held harmless beyond a reasonable doubt because closing arguments
“sufficiently apprised” the jury of witness’s potential bias]; People v. Phillips
(1985) 41 Cal.3d 29, 48-49 [error in prosecution’s failure to turn over copy of
agreement it reached to procure accomplice’s testimony held harmless beyond
a reasonable doubt, in part because closing arguments demonstrated jury
“was made well aware of the possible impact of [accomplice’s] expectation of
leniency on her credibility,” including because defense counsel “emphatically”
argued the point; “In this situation, the jury could properly assess [witness’s]
credibility even without testimony on a specific agreement between her
attorney and the prosecution”].)
anything, it helped the defense more. Is [father] lying about everything?
No. . . . [¶] So, there’s a plea agreement where he has to be truthful. The
impeachment part was very limited. Very limited. So, in other words, he
didn’t give inconsistent statements about most of his testimony. So, what do
you do with that? How do you determine whether or not he’s telling the
truth? And that’s something that if you look and take his testimony into
account, his testimony limited or not, whether or not he was given 22 years,
his testimony completely contradicts John Doe.” (Italics added.)
31
In addition, the closing instructions gave the jury ample room to doubt
father’s credibility. The jury was instructed that accomplice testimony, while
not to be arbitrarily disregarded, “should be viewed with caution.” It also
was instructed that, in assessing a witness’s credibility, it could consider
whether the witness had been convicted of felonies and whether the witness
was “promised immunity or leniency in exchange for his or her testimony.”
As illustrated by defendant’s own cited authority, although the jury did not
know precise details about the extent of leniency father secured, these
instructions also lessened the impact of any claimed errors that prevented
the jury from learning those details. (See U.S. v. Larson (9th Cir. 2007)
495 F.3d 1094, 1108 [en banc] [erroneous refusal to permit prosecution
witness to be cross-examined about mandatory minimum life sentence he
faced absent cooperation held harmless beyond a reasonable doubt where,
inter alia, prosecution’s case was strong and jury was instructed to view the
testimony of the cooperating witnesses with greater caution than that of
other witnesses].)
For these reasons, it is apparent the claimed errors at best had only a
slight, if any, impact on the jury’s understanding of the magnitude of leniency
father’s plea bargain secured him and also, as a practical matter, did not
restrict the jury’s ability to consider this in judging his credibility. (See, e.g.,
People v. Masters (2016) 62 Cal.4th 1019, 1068 [no reasonable probability of a
different result had full details about informant’s agreement with prosecution
been disclosed where, inter alia, “the gist of the agreement—information in
exchange for safety—was known to [defendant] and heard by the jury,”
informant’s testimony was merely corroborative and his “credibility was
thoroughly attacked at trial”].)
32
Moreover, Doe’s testimony about the sexual abuse, while not
corroborated by any physical evidence, was corroborated by the undisputed
circumstances in which he revealed it. Doe’s mother described him blurting
out in a burst of anger at his father that defendant had sexually abused him
too. This was corroborated by the testimony of Vincent, to whom mother and
Doe first reported the abuse.
Doe’s recollection of the abuse also was quite detailed in many respects.
For example, he recalled the first incident between defendant and his father
down to the dim flicker from a television screen and Christmas tree lights, as
well as the very television show the three of them had been watching when
the oral sex began in front of him. He also remembered he had been
watching cartoons in the living room in the middle of the day right before he
was called into the bedroom to have sex for the first time with defendant.
Doe also remembered specific things that were said on various occasions
(“Ner wants to try that out too”; his father’s comment in Spanish about
defendant’s “nice ass”; defendant “kept on saying I had a hard dick”;
defendant said he liked what they were doing, it was fun and they should do
it more often).
The defense attacked Doe’s credibility based on his inability to
remember various specifics, such as how many times he had sex with his
father before defendant became involved. However, in terms of the overall
picture of what had happened to him—by whom, how, generally when and
where—he unequivocally recalled a long period of sexual abuse, regularly
carried out by defendant in concert with his father.
For all of these reasons, we conclude that none of the errors defendant
has raised concerning father’s plea agreement had an impact on the jury’s
33
verdict and were, individually and cumulatively, and beyond a reasonable
doubt, harmless.
II.
Child Sexual Abuse Accommodation Syndrome Evidence
Next, defendant challenges the admission of testimony from the
prosecution’s expert witness, Dr. Urquiza.
A. Background
As noted, Dr. Urquiza was qualified as an expert in child sex abuse,
knew nothing about the facts of this case, offered no opinion as to whether
Doe had been sexually abused, and testified it would not be appropriate for
him to formulate an opinion about that. He testified generically about typical
behaviors in children who have been sexually abused, which he explained to
the jury is commonly referred to as Child Sexual Abuse Accommodation
Syndrome (CSAAS).
Dr. Urquiza testified that CSAAS is a concept that originated in 1983
in professional literature, in order to educate mental health professionals
about the common characteristics of children who have been sexually abused
in order to dispel misperceptions and assist in the clinical treatment of child
sex abuse victims. The article that pioneered the concept was based on work
with children who had been sexually abused. He described CSAAS as an
“educational tool” for therapists, and testified it is not a diagnosis or a mental
health disorder.
Dr. Urquiza outlined the five components of CSAAS and explained
what each entails.
The first is secrecy. He testified that most children are sexually abused
by someone they know, and a variety of strategies are used to prevent
children from revealing the abuse, including threats (including tacit threats)
and coercion. He also testified children are naturally inclined to keep sex
34
abuse secret out of shame, embarrassment, guilt or fear. Ninety percent of
children, he testified, keep the abuse secret at least for some period of time.
The second component is helplessness. Dr. Urquiza testified that
children who are sexually abused don’t fight back or resist, and that the
power imbalance is particularly acute when the perpetrator is an authority
figure who lives with the child.
The third component is entrapment and accommodation. This, he
testified, means that a child can’t stop the abuse and thus becomes
entrapped. And then the child must find ways to cope with (or
“accommodate”) all of the trauma and painful feelings the abuse inflicts. One
way a child does that, he testified, is by disassociating, which he described as
a child becoming detached from what’s happening and suppressing their
feelings, and doing so to such an extent that children who are sexually
abused often appear outwardly to be perfectly normal. He testified that
disassociation is more typical in children who have been sexually abused
repeatedly rather than a single time, and that roughly three quarters of
children talk about their experience of being sexually abused without
appearing to become distraught or upset.
The fourth component is delayed and unconvincing disclosure. Dr.
Urquiza testified that the research demonstrates that most children
significantly delay revealing sexual abuse; in one study, approximately three
quarters of all children kept the abuse secret for a year. He testified there is
some controversy, though, as to whether children who are abused tend to
reveal their abuse all at once or, instead, gradually. Those who do reveal
their abuse gradually tend to be perceived as unconvincing, “because it is
different the first time, [and then] the second time.” He testified that
whether a child discloses abuse gradually or more rapidly probably depends
35
on a number of factors, such as a child’s age, the nature of their relationship
to the abuser, the length of time they were abused and whether any threats
were involved. He also testified that most victims of child sex abuse
experience feelings of embarrassment, shame and guilt that affect their
ability to disclose details.
Asked whether children’s reports of sexual abuse commonly contain
inconsistencies, Dr. Urquiza confirmed that they sometimes do regarding the
exact timing and frequency of abuse and regarding details that are
peripheral. He explained: “[I]t happens often that kids may not be accurate
in providing information. We know that victims are really quite good, even
as young as three years or seven years of age, . . . [at] being able to describe
what they saw and what happened to them. Where they struggle would be
on details, sort of more distal kind of things. If you’re being forced to orally
copulate somebody, are you attending to what color shoes they are wearing?
Probably not. So those kinds of details are difficult and if we call those
inconsistences, well maybe, but they are just not a focus of attention.
“Kids also have difficulty with intangibles. Time is an intangible. How
long something lasted is a really tough question for a child. If you have been
abused once, frequency is not an issue. It’s only happened once. But if you
have been abused, you know, 30 times, 50 times, 100 times[, then] being able
to identify—because again these [sic] are not what kids want to think about.
They don’t want to remember them, so being able to describe either how
many times all together you have been abused or being able to say this is
what happened on the twenty-third time and not the twenty-fourth time is
really just unreasonable. And so, those types of characteristics are really
tough for kids to report with any accuracy.”
36
The fifth component is retraction. Dr. Urquiza testified that in about
20 to 25 percent of cases, children who were sexually abused recant their
allegations, usually because of family pressure.
Dr. Urquiza also testified that it’s not uncommon for a child to have a
positive relationship with the perpetrator if the child can successfully
compartmentalize their feelings about the abuse, especially if the perpetrator
has an important, positive role in the child’s life apart from the abuse. He
testified that other people who are close to the child, such as another parent
or family member, often are unaware of the sexual abuse going on.
Dr. Urquiza was cross-examined at some length about whether CSAAS
is a medical “syndrome.” He testified that it constitutes a pattern of events
that tend to co-occur, but declined to offer an opinion as to whether it met the
legal definition or medical definition of a syndrome because he wasn’t
competent to do that.
Dr. Urquiza also testified on cross-examination that CSAAS “should
not be used to make a determination as to whether a child was abused or
not.” At some length, he explained it is not the role of mental health
professionals to determine whether a child has been sexually abused or to
offer such an opinion in court. The responsibility for deciding whether a child
has been abused, he emphasized, rests solely with juries.
At the conclusion of trial, the jury was instructed with CALCRIM
No. 1193 (“Testimony on Child Sexual Abuse Accommodation Syndrome”). In
full, it stated: “You have heard testimony from Dr. Anthony Urquiza
regarding child sexual abuse accommodation syndrome. [¶] Dr. Anthony
Urquiza’s testimony about child sexual abuse accommodation syndrome is
not evidence that the defendant committed any of the crimes charged against
him. [¶] You may consider this evidence only in deciding whether or not John
37
Doe’s conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of his testimony.”
B. Analysis
Defendant acknowledges that CSAAS testimony is admissible under
current law. In particular, he recognizes that in People v. McAlpin (1991)
53 Cal.3d 1289 (McAlpin), the California Supreme Court approved a series of
appellate decisions establishing the rule that “expert testimony on the
common reactions of child molestation victims is not admissible to prove that
the complaining witness has in fact been sexually abused; it is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the
child’s conduct after the incident . . . is inconsistent with his or her testimony
claiming molestation.” (Id. at p. 1300.) As stated by one of the leading
authorities approved by McAlpin, “[t]he evidence is admissible solely for the
purpose of showing that the victim’s reactions as demonstrated by the
evidence are not inconsistent with having been molested.” (People v. Bowker
(1988) 203 Cal.App.3d 385, 394 (Bowker).) McAlpin explained that such
testimony “ ‘is needed to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional antecedents of abused
children’s seemingly self-impeaching behavior.’ ” (Id. at p. 1301.)18
Defendant acknowledges we are bound by McAlpin. Nevertheless, he
argues the trial court erred in admitting Dr. Urquiza’s testimony for several
reasons.19
18 McAlpin extended this rule to expert testimony concerning the
behaviors of a child sex abuse victim’s parent (in that case, expert testimony
explaining why parents sometimes do not report a known crime of child
molestation). (See McAlpin, supra, 53 Cal.3d at pp. 1301-1302.)
19Prior to trial, defendant unsuccessfully moved in limine to preclude
CSAAS evidence on the grounds it was irrelevant, inadmissible under
Evidence Code section 801, subdivision (a) because it would not assist the
38
First, he argues Dr. Urquiza’s testimony was not relevant. There was
no dispute Doe was abused by his father and delayed reporting that abuse.
Therefore, he argues, testimony about children’s delayed disclosure of sex
abuse (and related concepts of helplessness, accommodation, and
entrapment) was not relevant. Moreover, he argues, Dr. Urquiza’s testimony
did not address the scenario in which a child who has indisputably been
victimized by one person also accuses someone else of sexual abuse.
“[T]he decision of a trial court to admit expert testimony ‘will not be
disturbed on appeal unless a manifest abuse of discretion is shown.’ ”
(McAlpin, supra, 53 Cal.3d at p. 1299.) Defendant has not established an
abuse of discretion. Although it was undisputed Doe had been abused by his
father, delayed disclosure was by no means a non-issue. Dr. Urquiza’s
testimony on that subject did not concern delays in reporting just the fact of
abuse but also the details. Regardless of the fact Doe accused multiple
perpetrators, Dr. Urquiza’s testimony about that was directly relevant,
because on cross-examination the defense sought to impeach Doe’s credibility
concerning his accusations against defendant in part by highlighting facts
Doe had not previously mentioned in any of his prior accounts. Moreover, Dr.
Urquiza’s testimony was not limited to delayed disclosure. He also testified
about children’s difficulty recalling certain details of sex abuse, and their
tendency to sometimes give inconsistent accounts. That aspect of his
testimony was directly relevant to the defense’s impeachment efforts as well.
The defense vigorously attacked Doe’s credibility by cross-examining him
about contradictory accounts he had given, ranging from minor details (such
as whether it was on a couch or in the bedroom that he first saw his father
trier of fact, inadmissible under Evidence Code section 352, and on federal
due process grounds.
39
and defendant having sex, and in which apartment) to details about the
timing, frequency and duration of the sex abuse. This theme was a major
focus of defense counsel’s closing argument, where she argued there were
“large inconsistencies about acts, times and events.” In short, Dr. Urquiza’s
testimony tended to rehabilitate Doe’s credibility in at least two principal
ways. “It follows that the trial court did not abuse its discretion in admitting
the challenged testimony.” (McAlpin, at p. 1302; see also People v. Wells
(2004) 118 Cal.App.4th 179, 190 [Dr. Urquiza’s CSAAS testimony “was
admissible . . . because [victim’s] testimony on direct and cross-examination
revealed she had not immediately reported the alleged abuse, and when she
eventually did tell adults her disclosures were piecemeal and sometimes
contradictory in the details,” and jury was given appropriate limiting
instruction regarding Urquiza’s testimony].)
Second, defendant asserts without elaboration that even if Dr.
Urquiza’s testimony was relevant its probative value was substantially
outweighed by the danger it would confuse the issues and mislead the jury
(see Evid. Code, § 352), particularly because the standard jury instruction
given in this case (CALCRIM No. 1193) was illogical and contradictory. This
argument is undeveloped and therefore fails to demonstrate an abuse of
discretion. Further, as was true in a recent published case that upheld the
admission of Dr. Urquiza’s testimony in another prosecution for child sex
abuse, his “testimony was relatively short and benign as compared to the
highly relevant explicit details of the sexual offenses [the victim] testified
about,” “the prejudicial impact of Urquiza’s testimony was also reduced
because Urquiza testified that he knew no facts about this case,” and “[n]o
reasonable juror could believe his testimony was an attempt to prove
[defendant] committed the charged offenses” because he testified that he was
40
not offering any opinion on that subject. (People v. Munch (2020)
52 Cal.App.5th 464, 474-475 (Munch) [no error under Evidence Code section
352].) In addition, CALCRIM No. 1193 has been upheld as a correct
statement of law. (See Munch, at pp. 473-474; People v. Gonzales (2017)
16 Cal.App.5th 494, 503-504.) “ ‘The purpose of CSAAS is to understand a
child’s reactions when they have been abused. [¶] A reasonable juror would
understand CALCRIM No. 1193 to mean that the jury can use [the expert’s]
testimony to conclude that [the child’s] behavior does not mean she lied when
she said she was abused. The jury also would understand it cannot use [the
expert’s] testimony to conclude [the child] was, in fact, molested. The CSAAS
evidence simply neutralizes the victim’s apparently self-impeaching behavior.
Thus, under CALCRIM No. 1193, a juror who believes [the expert’s]
testimony will find both that [the child’s] apparently self-impeaching
behavior does not affect her believability one way or the other, and that the
CSAAS evidence does not show she had been molested. There is no conflict in
the instruction.’ ” (Munch, at p. 474.)
Next, defendant urges this court to revisit the admissibility of CSAAS
testimony for two reasons. First, he argues McAlpin and related authorities
upon which it rests rely on outdated assumptions about juror misconceptions
concerning child sex abuse. We are bound by McAlpin, however, and decline
defendant’s invitation to question its continued validity.20 (See Munch,
supra, 52 Cal.App.5th at p. 468 [rejecting similar argument].)
Second, defendant argues Dr. Urquiza’s testimony was inadmissible
under the Kelly/Frye doctrine (see generally People v. Peterson (2020)
20 Solely for purposes of further review, he also argues McAlpin and
related authorities were wrongly decided.
41
10 Cal.5th 409, 444 [summarizing doctrine]).21 Defendant contends the
California Supreme Court has never held that CSAAS testimony satisfies
Kelly/Frye, and argues it does not. However, the courts of appeal have
consistently held that Kelly/Frye does not preclude the use of CSAAS
evidence when, as here, it is not offered to prove the fact of abuse but offered
solely to rehabilitate a child’s credibility. (See Munch, supra, 52 Cal.App.5th
at pp. 472-473; People v. Harlan (1990) 222 Cal.App.3d 439, 444-445, 448-
449; People v. Sanchez (1989) 208 Cal.App.3d 721, 734-735; Bowker, supra,
203 Cal.App.3d at pp. 391-394; People v. Gray (1986) 187 Cal.App.3d 213,
218-220.) The Supreme Court cited several of these decisions favorably in
McAlpin. (See McAlpin, supra, 53 Cal. 3d at pp. 1300-1301 and fn. 4 [citing
Bowker, Gray, Harlan and Sanchez].)
This well-established limitation on the use of CSAAS evidence is in fact
rooted in the Kelly/Frye doctrine. Its origins have been thoroughly traced in
the caselaw, and so we will not revisit that subject in depth. It is derived
from a decision by the Supreme Court concerning the admissibility of
evidence of rape trauma syndrome, People v. Bledsoe, supra, 36 Cal.3d 236,
that announced a limitation on the use of such evidence in order to comport
with Kelly/Frye. Bledsoe held such evidence is not admissible to prove that a
complaining witness was raped (because it is not relied on in the mental
21 The People argue this issue was forfeited, and that defense counsel
was not ineffective by failing to raise Kelly/Frye issue below. Although this
precise ground was not raised below, it is proper for us to consider the issue
because defendant’s relevance objections below are closely connected to the
reliability issue under Kelly/Frye, and the trial court denied defendant’s
request for an Evidence Code section 402 hearing at which the adequacy of
the foundation for the CSAAS evidence could have been fully explored. (See
People v. Bledsoe (1984) 36 Cal.3d 236, 246-247 (Bledsoe) [Kelly/Frye issue
held preserved].)
42
health field as a method for determining that question) (id. at p. 251), but
acknowledged it may be introduced when the defense claims the complaining
witness’s subsequent conduct is inconsistent with a claim of sexual assault,
in order to rebut the inference of inconsistency by “disabusing the jury of
some widely held misconceptions about rape and rape victims, so that it may
evaluate the evidence free of the constraints of popular myths” (id. at pp. 247-
248).22 The appellate courts then extended the Bledsoe rule to CSAAS
evidence, precluding its use under Kelly/Frye to prove that child sexual
abuse occurred (because mental health professionals do not rely on it to
assess that question), but allowing its admission to dispel misconceptions
about how children react to sexual abuse in order to show the victim’s
behavior is not inconsistent with having been sexually abused. (See, e.g.,
Bowker, supra, 203 Cal.App.3d at pp. 391-394.) Assuming without deciding
that Kelly/Frye applies to CSAAS evidence (see footnote 22, ante, p. 43), its
use solely for rehabilitative purposes does not offend Kelly/Frye.
Defendant also argues that the erroneous admission of Dr. Urquiza’s
testimony rendered his trial fundamentally unfair, violating his right to due
process. But, as we have explained, there was no state law error, and “as a
general matter, the federal Constitution does not mandate particular rules
concerning the admission of evidence.” (People v. Fuiava (2012) 53 Cal.4th
622, 697.) The “introduction of CSAAS testimony does not by itself deny
appellant due process.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1747.)
22 The Supreme Court later observed that Bledsoe “did not hold that
the Kelly/Frye test applied to the expert opinion in that case” but rather
“assum[ed], like the parties [on appeal], that the test did apply” and “simply
concluded that the prosecution would not be able to prove that rape trauma
syndrome was generally accepted by the counseling community to prove
criminal guilt.” (People v. Stoll (1989) 49 Cal.3d 1136, 1161.)
43
Moreover, defendant has failed to show how his trial was rendered
fundamentally unfair by the introduction of CSAAS testimony “after a
rigorous defense cross-examination calling into question the victim’s
credibility.” (Ibid.)
Finally, any error in admitting Dr. Urquiza’s testimony was clearly
harmless. (See Bledsoe, supra, 36 Cal.3d at p. 252 [applying Watson
standard to erroneous admission of rape trauma syndrome evidence];
Sanchez, supra, 208 Cal.App.3d at p. 736 [applying Watson standard to
claimed error in the admission of CSAAS testimony]; People v. Wilson (2019)
33 Cal.App.5th 559, 571-572 [Chapman standard held inapplicable to
erroneous admission of expert testimony concerning false allegations of child
sexual assault].) Dr. Urquiza told the jury he had no information about Doe
and was not offering an opinion as to whether abuse occurred—a point
stressed by the defense in closing arguments. In addition, his testimony was
couched only in general terms, describing child sexual abuse victims as a
class. And the court instructed the jury it was not evidence that defendant
committed the alleged abuse. So it is highly unlikely the jury interpreted his
testimony as vouching for the truthfulness of Doe’s account, as opposed to
simply helping the jury understand that delays in disclosing the details of
abuse and/or inconsistencies in a child’s accusations are not features only of
fabricated charges. (See People v. Housley (1992) 6 Cal.App.4th 947, 956-957,
958-959.)
To the extent defendant asserts the evidence was prejudicial because
Dr. Urquiza was permitted (over defense objection) to refer to CSAAS as a
“syndrome,” we do not agree. Juries are not “incapable of evaluating properly
presented references to psychological ‘profiles’ and ‘syndromes.’ ” (People v.
Stoll, supra, 49 Cal.3d at p. 1161, fn. 22.) Dr. Urquiza used that terminology
44
infrequently, and he testified quite clearly (and more than once) that CSAAS
is not a diagnosis or a mental health condition.
There also is no indication the jury was unduly influenced by Dr.
Urquiza’s testimony. The prosecutor hardly mentioned it in closing
argument. Although she alluded briefly to his testimony, she offered an even
more powerful explanation for Doe’s memory failures: likening the situation
of repeated abuse to tying one’s shoes every day, she argued nobody can be
expected to remember exactly how they tied their shoes last week or where
they were sitting when it happened.
The only suggestion in closing argument that Dr. Urquiza’s testimony
was being offered to prove that abuse occurred was made by defense
counsel,23 who also focused on Dr. Urquiza’s testimony to a far greater degree
than the prosecutor and argued it was unhelpful and irrelevant. In rebuttal,
the prosecutor simply responded, “[W]e’re not talking about Dr. Urquiza,
who, no[,] can’t tell you whether or not somebody was abused, but can give
you an understanding of how to evaluate somebody who has been abused.”
The jury did not request a readback of Dr. Urquiza’s testimony and did not
inquire about the jury instruction limiting its use.
For these reasons, it is not reasonably probable that the admission of
Dr. Urquiza’s expert testimony affected the judgment.
III.
Claims of Prosecutorial Misconduct
Defendant argues the prosecutor committed prejudicial misconduct in
summation in two ways. One, he argues she prejudicially misstated the
23Defense counsel asserted, “what the prosecution attempted to do with
this expert is to state that John’s inability to be consistent is consistent with
being molested.”
45
reasonable doubt standard. Second, he argues the prosecutor improperly
commented on his decision not to testify.
A. Alleged Misstatement of Reasonable Doubt Standard
1. Background
At nearly the end of her closing argument, the prosecutor addressed the
reasonable doubt standard as follows:
“Now, the law recognizes that anything in human life is possible but
not everything is reasonable. Could be that lightning strikes here in 30
seconds but there’s not a cloud in the sky outside. So, is that reasonable?
Because anything is possible but to prove this case to you it has to be beyond
a reasonable doubt. Nothing has contradicted what John has told you
happened in this case.
“Proof beyond a reasonable doubt leaves you with an abiding conviction
that the charge is true. Doesn’t need to eliminate all doubt because
everything in life is open to some possible or imaginary doubt. So I don’t
have to prove this case beyond absolutely any doubt. But if it’s reasonable
then it has been proven to you.” (Italics added.)
No objection was made.
2. Analysis
Defendant argues the prosecution’s statement that “if it’s reasonable
then it has been proven to you,” is a misstatement of law because it urged the
jury to convict based only on a “reasonable” view of the evidence, which is
improper under People v. Centeno (2014) 60 Cal.4th 659 (Centeno).
Acknowledging there was no contemporaneous objection, defendant asks us
to exercise our discretion to reach the merits and, in the alternative, contends
defense counsel was ineffective for failing to object. The People urge us to
deem the issue forfeited for lack of an objection (see Centeno, supra,
60 Cal.4th at p. 675) and dispute the ineffectiveness claim. It is unnecessary
46
to consider the claim of ineffective assistance of counsel because, exercising
our discretion to consider this issue, defendant has not demonstrated any
error.
In evaluating a claim of improper argument to the jury, the
prosecutor’s remarks cannot be judged in isolation. Centeno explained: “the
defendant must show that, ‘[i]n the context of the whole argument and the
instructions’ [citation], there was ‘a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.) Moreover,
when it is contended the prosecutor has misstated the reasonable doubt
standard, “we assess each claim of error on a case-by-case basis.” (Ibid.)
Defendant has not demonstrated it is reasonably likely the jury
understood the prosecution to be urging it to convict him because the
prosecution’s evidence was “reasonable.” Centeno is distinguishable. Unlike
here, the prosecutor in that case delivered lengthy remarks about what was
“reasonable to believe,” bolstered by the use of an improper visual aid
depicting the reasonable doubt standard that was both unsupported by the
evidence and misleading. (Centeno, supra, 60 Cal.4th at pp. 670-672.) By
contrast, the challenged conduct here consists merely of a single sentence
during the prosecution’s summation (“if it’s reasonable . . . ”) that is vague
(“it”) and therefore ambiguous. In arguing there was error under Centeno,
defendant construes the prosecutor’s statement in isolation as definitively
meaning “if it’s a reasonable conclusion then [this case] has been proven to
you.” But in context of the prosecutor’s immediately preceding comments—
which both correctly stated the reasonable doubt standard and,
47
grammatically, referred to the concept of “doubt”—the jury most likely would
have understood the prosecutor meant that “if it’s beyond a reasonable doubt
then [this case] has been proven to you.”
The likelihood the jury would have understood the prosecutor’s
statement this way is bolstered by the arguments of counsel and the jury
instructions. As noted, the challenged remark occurred at practically the end
of the prosecutor’s closing argument. Defense counsel then began her closing
argument (after a recess) by emphasizing the importance of the reasonable
doubt standard and explaining that it did not entail what the defense now
argues the prosecution improperly had suggested that it did. She argued:
“Now, in order to determine whether or not [defendant] committed
these crimes the standard of proof, now this is the standard that you came
into for voir dire, it’s a standard if you remember the first day that you were
here the judge read to you,[24] this is a standard you were questioned about
when you initially came in here.[25] This was a standard that was discussed
by the prosecutor in her opening. The reason why this is of utmost
importance is because this is the high standard that you have to hold the
prosecution to in determining the evidence in this case. It’s not if a defendant
may have committed a crime, a defendant could have committed a crime, a
defendant likely committed a crime, a defendant more than likely committed a
crime, those aren’t the standards, not even the defendant committed the crime.
That’s not the standard. The standard is, did the defendant commit the crime
24The trial court instructed the jury concerning the reasonable doubt
standard before trial began, in a set of introductory instructions given to the
newly empaneled jurors before opening statements.
25 This was accurate too. In addition, at the beginning of jury selection
the trial court instructed prospective jurors concerning the reasonable doubt
standard.
48
beyond a reasonable doubt. And that’s why it has been told to you over and
over and over again. This is not a standard that we use in every day life and
people have different standards of when they believe someone may have done
something. So, when you look at the standard, the question becomes whether
or not the prosecution has met their burden beyond a reasonable doubt.
“Now, in looking at this case, . . . there’s going to be some jury
instructions you’re going to get. The judge is going to read them to you after
our argument. Those instructions are going to be the law that you follow
when you deliberate . . . .” (Italics added.)
In rebuttal, the prosecutor did not take issue with those remarks or
comment further about the reasonable doubt standard.
After closing arguments, the court instructed the jury. The
instructions included CALCRIM No. 220 concerning the requirement of proof
beyond a reasonable doubt.
In light of the ambiguity of the prosecutor’s statement, which
immediately followed the prosecution’s correct articulation of the reasonable
doubt standard, the substance of defense counsel’s argument after the
challenged remark, and the fact the jury was correctly instructed about the
reasonable doubt standard multiple times at trial, both before and after the
challenged remark, defendant has not demonstrated the jury likely would
have understood the prosecutor’s ambiguous remark as an invitation to
convict defendant merely on the basis of a “reasonable” belief in his guilt.
Other than defense counsel’s failure to object to the prosecutor’s closing
argument, the facts here bear no resemblance to those of Centeno.
B. Alleged Griffin Error
The Fifth Amendment, made applicable to the states under the
Fourteenth Amendment, prohibits a prosecutor from commenting on the
49
accused’s decision not to testify. (Griffin v. California (1965) 380 U.S. 609,
615 (Griffin).) “Pursuant to Griffin, it is error for a prosecutor to state that
certain evidence is uncontradicted or unrefuted when that evidence could not
be contradicted or refuted by anyone other than the defendant testifying on
his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371.) Here,
defendant contends the prosecutor committed Griffin error in closing
argument by repeatedly stating that John Doe’s testimony about the acts of
sexual abuse was “uncontradicted.”26
No Griffin error occurred. Father was a percipient witness to every
accusation Doe made about defendant, and so this is not a case in which the
evidence “could not be contradicted or refuted by anyone other than the
defendant.” (Hughes, supra, 27 Cal.4th at p. 371.) That is true even of the
final accusation of abuse, when, according to Doe, he and defendant had oral
sex alone one evening while father was out running an errand. Father
testified that when he (father) returned home, he heard the two of them
through the locked bedroom door, described trying to barge in on them and
his son screaming “wait,” and testified it took about five minutes for the two
to emerge from behind closed doors after he threatened to break the door
down, and he thought they were having sex.27 Father could have
26 For example, defendant highlights one passage where the prosecutor
argued, “the evidence was clear, John was very clear, and none of the other
witnesses contradicted the fact that he put his penis inside of [defendant’s]
anus, or that [defendant] and John engaged in oral copulation, masturbation
and sodomy over a long period of time, or that a final act of oral copulation
happened when John was fifteen. [¶] The single witness is uncontradicted in
that way.” (Italics added.)
27 He testified: “And I went there and I don’t see Santos. I don’t see
my son. I see my door from my bedroom lock, and I went try to open the door
and I say, hey, open the door John—sorry, son, open the door. Open the door.
He doesn’t open the door. I said what going on. And he scream to me say,
50
contradicted Doe by testifying that he observed or heard nothing amiss when
he returned, but did not. Defendant concedes elsewhere in his brief that
father’s testimony corroborated the oral copulation charge. So, in arguing
that Doe’s testimony was uncontradicted even as to that incident, the
prosecutor was not commenting indirectly on defendant’s failure to testify.
Her arguments were merely “fair comment on the state of the evidence”
which does not violate Griffin. (See Hughes, at p. 373.) Even defendant
tacitly acknowledges this. He states the prosecutor “referred to Doe’s
testimony, repeatedly, as ‘uncontradicted,’ when [defendant] was the only
person in a position to contradict Doe and [father].” (Italics added.)
People v. Medina (1974) 41 Cal.App.3d 438, cited by defendant, is
distinguishable. Unlike in that case, the prosecutor did not argue here that
all of the percipient witnesses who testified were uncontradicted by anyone
else (i.e., thereby commenting indirectly on an invocation of Fifth
Amendment rights). (See Medina, at p. 457.) She argued that Doe was not
contradicted in material respects. There is not a “reasonable likelihood” the
jury would have understood the prosecutor’s argument as a comment on
defendant’s decision not to testify. (People v. Lewis (2001) 25 Cal.4th 610,
671; see People v. Carr (2010) 190 Cal.App.4th 475, 484 [“Ordinarily, when an
ambiguous remark is challenged under Griffin, we determine ‘ “whether
wait. I say, no, what is going on, who is there. And I hear the coughing, that
is always [defendant] has. And I say, hey, what you doing guys over there
with the door lock. I say, if you don’t open the door I wanna [break] the door.
And I take it like probably five minutes to try to open the door and I get very
hesitated (sic) and I get really upset that day. And finally, open the door and
I see that both hesitated dress but hesitated—I don’t know what he doing. . . .
[¶] . . . [¶] I think something happened [sexually] because the door was
closed.”
51
there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion” ’ ”].)
IV.
Overlapping Convictions for Continuous Sex Abuse (Penal Code
section 288.5) and Sodomy (Penal Code section 286(c)(1)) During
the Same Time Period
Defendant argues the trial court erred in permitting his conviction for
continuous sex abuse (§ 288.5) that overlapped during the same time period
with his convictions on two counts of sodomy with a person under 14 (§ 286,
subd. (c)(1)).
The People concede this error, and the concession is appropriate. A
defendant may not be convicted of both continuous sex abuse under
section 288.5 and specific sex offenses that occur during the same period of
time. (People v. Johnson (2002) 28 Cal.4th 240, 248 (Johnson); § 288.5,
subd. (c) [discrete acts involving same victim cannot be charged “in the same
proceeding with a charge under this section unless the other charged offense
occurred outside the time period charged under this section or the other
offense is charged in the alternative”].) Yet that is what occurred here after
the trial court permitted the prosecutor to amend the information to modify
the dates of these three charges, without also instructing the jury in some
fashion that the sodomy charges and the continuous sex abuse charge were in
the alternative.
The only question is the appropriate remedy.
Below, defense counsel asked the trial court (twice) only to dismiss the
two sodomy counts: both when the information was amended, at then later
at sentencing. On appeal, however, he asks us to reverse and remand for a
new trial on these three charges; or, in the alternative, to vacate the
continuous sex abuse conviction (count 8) and, in the alternative, to vacate
52
the sodomy convictions. The People urge us to affirm the continuous sex
abuse conviction and vacate the two sodomy convictions.
We agree with the People. First, defendant cites no authority
authorizing, or even suggesting, the remedy of a new trial when a defendant
is erroneously convicted of both continuous sex abuse and specific sex
offenses during the same period. On the contrary, our Supreme Court has
said that in this situation, “either the continuous abuse conviction or the
conviction on the specific offenses must be vacated.” (Johnson, supra,28 Cal.4th at p. 245.) Although the Supreme Court has not addressed how
appellate courts are to decide which conviction(s) to vacate, the unanimous
view among appellate courts, beginning with People v. Torres (2002)
102 Cal.App.4th 1053 (Torres), is that the defendant should remain convicted
of the offense that is most commensurate with his culpability. (Torres, at
pp. 1059-1060; accord, People v. Wilson (2019) 33 Cal.App.5th 559, 574
(Wilson); People v. Rojas (2015) 237 Cal.App.4th 1298, 1308-1309; People v.
Bautista (2005) 129 Cal.App.4th 1431, 1437 (Bautista).) “This will ordinarily
translate to upholding whichever conviction resulted in the greater aggregate
penalty and vacating the less serious count.” (Rojas, at p. 1309.)
Here, the trial court imposed the midterm of six years for each of the
two sodomy counts and stayed sentence on them under section 654. It
designated the continuous sex abuse charge (count 8) the principal offense
and imposed the maximum sentence of 16 years. The court stated it was
doing so because “[t]his particular victim was truly a victim” under all the
facts and circumstances. The court said it was “particularly disturb[ed]” by
father’s testimony, which the court did not find particularly credible. “[I]t
appeared to me that [father] was actually coloring his testimony for
[defendant], basically saying that the victim wanted to have sex with
53
[defendant], trying to alleviate any blame on [defendant] and throwing it on
his son.”
The record thus reflects the trial court exercised its sentencing
discretion by determining that serving punishment on the continuous sex
abuse charge, rather than the sodomy counts, was most commensurate with
defendant’s culpability. Accordingly, we will order defendant’s convictions on
counts 5 and 6 vacated, along with the fines and fees associated with those
counts.28 (See Torres, supra, 102 Cal.App.4th at p. 1060 [where trial court
imposed a greater maximum sentence on the individual sex offenses and
stayed execution of sentence on the section 288.5 count, appropriate remedy
was to vacate defendant’s section 288.5 conviction]; Bautista, supra,
129 Cal.App.4th at pp. 1434, 1437-1438 [vacating convictions for specific sex
offenses where trial court imposed middle term on continuous sex abuse
charge and stayed sentence on four counts of individual sex offenses;
defendant “has not suggested how . . . convicting [her] only of [four counts of]
procurement is in any way proportionate to the egregious criminal conduct in
which she engaged”].)
Defendant acknowledges the rule of Torres and its progeny but
advances several reasons we should vacate his continuous sex abuse
conviction rather than his sodomy convictions. He notes that in Johnson the
Supreme Court left standing the conviction with a shorter aggregate sentence
(in that case, the continuous sex abuse charge). The choice of which
28 Defendant asserts, without contradiction by the People, that this
requires an $80 reduction in the court operations assessment imposed under
section 1465.8 (from $200 to $120); a $1,000 reduction in the sex offender fine
imposed under section 290.3 (from $2300 to $1300); and a $60 reduction in
the court facilities assessment imposed under Government Code
section 70373 (from $150 to $90). We agree.
54
conviction to vacate was not at issue in Johnson, however. (Wilson, supra,
33 Cal.App.5th at p. 574.) Indeed, by defendant’s logic, Johnson would
require us to affirm his section 288.5 conviction and dismiss the discrete sex
offense convictions, as was done in that case.
Defendant also argues it would be unfair to apply the Torres rule by
dismissing the sodomy charges rather than the continuous sex abuse charge
(even though that is what he requested below), because the prosecutor and
the trial court “flouted Johnson” and avoided the risk that a properly
instructed jury would have convicted him only of the two discrete counts of
sodomy and acquitted him of the continuous sex abuse charge. That is
circular logic. The same could be said of any Johnson error.
Finally, defendant argues there is a reasonable probability that a
properly instructed jury would have acquitted him of the continuous sexual
abuse and convicted him only of the two sodomy counts had the jury been
properly instructed that the counts could be charged only in the alternative.
We do not agree. The continuous sex abuse conviction required a finding of
“three or more” acts of substantial sexual conduct (§ 288.5), which the jury
instructions defined as oral copulation, masturbation or penetration. Had
the jury been told it could not convict defendant of both the continuous abuse
charge and the two sodomy charges, there is no reason to think it would have
convicted defendant of engaging in only two unlawful sex acts (i.e., the two
sodomy counts) rather than three (i.e., the predicate acts for the continuous
sex abuse charge). Assuming without deciding an instruction should have
been given, any error in failing to instruct was therefore harmless.29
29The parties both assert the court should have given CALCRIM
No. 3516, an instruction promulgated by the Judicial Council applicable
when the defendant is charged in the alternative with multiple counts (such
55
(Cf. Wilson, supra, 33 Cal.App.5th at p. 574 [no likelihood jury would have
acquitted defendant of 12 sex offenses had it been properly instructed they
were charged alternatively to continuous sex abuse charge and so error in
failing to instruct as to alternative nature of charges held harmless].)
V.
Defendant’s Conviction for Distributing Harmful Material to a Minor
(Penal Code section 288.2)
Next, defendant raises a number of challenges to his conviction under
section 288.2, for distributing harmful material to a minor.
A. Instructional Error.
First, defendant contends the jury was instructed incorrectly on the
specific intent element of this charge, based on the current version of
section 288.2, which was not in effect at the time of his charged offense
as greater and lesser included offenses, or theft and receiving stolen
property).
We are not so sure. As defendant points out, that instruction “provides
the jury with no guidance as to whether, if they find all the charges proven
beyond a reasonable doubt, they should convict of section 288.5, or of the
individual counts.” The instruction’s accompanying commentary expresses
doubt as to whether it should be used in the context here, explaining:
“Because the law is unclear in this area, the court must decide whether to
give this instruction if the defendant is charged with specific sexual offenses
and, in the alternative, with continuous sexual abuse under Penal Code
section 288.5. If the court decides not to so instruct, and the jury convicts the
defendant of both continuous sexual abuse and one or more specific sexual
offenses that occurred during the same period, the court must then decide
which conviction to dismiss.” (Bench Notes, CALCRIM No. 3516.) The
parties have not cited any case approving its use in this context, and we have
found none. Whether some modified version of CALCRIM No. 3516 might
have been appropriate is not before us, as defendant has not raised that
issue.
56
(alleged to have taken place during a four-year period ending January 15,
2012).
Enacted in response to concerns over the use of obscene or indecent
matter in the seduction of children (Hatch v. Superior Court (2000)
80 Cal.App.4th 170, 176), former section 288.2 in relevant part made it
unlawful to send harmful material to a minor “with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual desires of that
person or of a minor, and with the intent or for the purpose of seducing a
minor.”30 (See former § 288.2, eff. until Sept. 30, 2011 [Stats. 1997 ch. 590],
eff. October 1, 2011 to June 26, 2012 [Stats. 2011, ch. 15, § 317], eff. June 27,
2012 [Stats. 2012, ch. 43, § 16], italics added; see also § 313 [defining
“harmful matter”].) Its purpose was “to prohibit using obscene material, as
defined in section 313, subdivision (a), ‘to groom young victims for acts of
molestation.’ ” (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.) At issue
here is the “seduction” element. The standard Judicial Council jury
instruction in effect at the time of defendant’s charged crime stated that, “To
seduce a minor means to entice the minor to engage in a sexual act involving
physical contact between the seducer and the minor.” (former CALCRIM
No. 1140, Fall 2010 edition.) That instruction was not given.
Effective January 1, 2014, section 288.2 was repealed and reenacted in
its current form, to provide enhanced penalties where the offense involves
child pornography (harmful matter that “depicts a minor or minors engaging
in sexual conduct”). (§ 288.2, subd. (a)(1); Stats. 2013, ch. 777, §§ 1, 2.) The
revision retained the first aspect of the specific intent requirement—“with the
30Defendant was charged under section 288.2 for conduct that
occurred during the four-year period between January 16, 2008, and
January 15, 2012.
57
intent of arousing, appealing to, or gratifying the lust or passions or sexual
desires of that person or of the minor”—but replaced the second. Specifically,
it replaced the phrase, “with the intent, or for the purposes of seducing the
minor” with the phrase, “with the intent or for the purposes of engaging in
sexual intercourse, sodomy, or oral copulation with the other person, or with
the intent that either person touch an intimate body part of the other . . . .”
(§ 288.2, subd. (a)(1).) The jury was instructed under the current version of
CALCRIM No. 1140 which included this revised specific intent language.
(CALCRIM No. 1140, revised Feb. 2015.) Specifically, the instruction omitted
the language about intent or purpose of seducing the minor (and the
definition of seduction) and instead required proof that “[w]hen the defendant
acted, he intended to engage in sexual intercourse, sodomy, or oral copulation
with the other person or to have either person touch an intimate body part of
the other person.”31
Defendant argues this portion of the instruction was erroneous,
because the current version of section 288.2’s intent element, which was not
in effect at the time of his charged crime, is broader than the “seduction”
element of former section 288.2. The “seduction” element under the former
31 In relevant part, the instruction stated the People must prove five
elements: “1. The defendant distributed harmful material to another person
by any means; [¶] 2. When the defendant acted, he knew the character of the
material; [¶] 3. When the defendant acted, he knew, should have known, or
believed that the other person was a minor; [¶] 4. When the defendant acted,
he intended to arouse, appeal to, or gratify the lust, passions, or sexual
desires of himself or of the other person; [¶] AND [¶] 5. When the defendant
acted, he intended to engage in sexual intercourse, sodomy, or oral copulation
with the other person or to have either person touch an intimate body part of
the other person.” The instruction defined “intimate body part” as
“includ[ing] the sexual organ, anus, groin, or buttocks of any person, or the
breasts of a female.”
58
law, he contends, requires intent to entice or persuade the minor. The
instruction given under the current statute, he argues, does not require
enticement.
The error was prejudicial, defendant argues, because there was
conflicting evidence about whether defendant gave Doe the videotape when
they had already begun engaging in sexual acts together, Doe testified
defendant gave him the tape to help him masturbate and Doe admitted he
had access to other pornographic videos at his father’s house. Given this
evidence, “[j]urors might . . . have reasonably questioned whether the
particular tape at issue was given to Doe with the specific intent to seduce.”
Further, the jury asked for clarification about the second specific intent
element in the instruction they were given—that “[w]hen the defendant
acted, he intended to engage in sexual intercourse, sodomy, or oral copulation
with the other person or to have either person touch an intimate body part of
the other person”—suggesting the jury was uncertain about its meaning.
The People argue there was no error because, while it would have been
better practice to instruct the jury under the CALCRIM instruction then in
effect, there is no material difference between the intent requirement of
former section 288.5 and the current statute.
The People also argue any error was harmless because the People’s
theory at trial fell within the seduction statute—specifically, the People
argued that defendant gave Doe the videotape “so he could learn to
masturbate,” “in order to teach him about sex so that they could all continue
their sexual interaction.” That “he did that to train him, to shape him, to
encourage him to do something that feels good. Why? For John’s
betterment? No. So that John could interact with [father] and [appellant].”
“[A]ppellant wanted the tape to help him accomplish the oral copulations and
59
sodomies that took place between he and Doe [sic].” That is, he intended “to
entice Doe to engage in a sexual act involving physical contact between
them.”
We conclude there was no error. The current version of section 288.2
encompasses but does not explicitly require an intent to seduce. But, by
requiring that when the defendant provides the pornographic material to the
minor he do so “with the intent or for the purposes of engaging in” specified
sexual acts with the minor, the statute makes a connection between the two.
It is difficult to imagine a scenario in which an adult would supply a minor
with pornographic material, with the specific intent both to arouse himself or
the minor and to engage in sexual acts with the minor, but without any
intent to entice or lure or groom the minor into engaging in such sexual acts.
But the latter is exactly what “seduction” under the former statute was
understood to mean. (See, e.g., People v. Hsu (2000) 82 Cal.App.4th 976, 985
[“luring minors into sexual contact via . . . communication of harmful
material”]; id. at p. 992 [“ ‘persuading into partnership in sexual
intercourse’ ”]; People v. Jensen (2003) 114 Cal.App.4th 224, 239 [“ ‘entic[ing]
to sexual intercourse’ ”]; People v. Powell, supra, 194 Cal.App.4th at p. 1287
[“ ‘to groom young victims for acts of molestation’ ”]; People v. Nakai (2010)
183 Cal.App.4th 499, 510 (Nakai) [“entice . . . to engage in physical sexual
acts with him, be it sexual intercourse or oral copulation”].)
Defendant postulates the jury, if instructed under the former statute,
could have found him guilty without any intent to encourage Doe to engage in
sexual relations with him because there was evidence from which the jury
could infer no encouragement was necessary, namely, Doe’s testimony that
defendant gave him the tape “around the time that [defendant] began
engaging in sex acts with him, to help him masturbate.” We disagree, for two
60
reasons. First, the precise timing of defendant’s act of providing Doe with the
tape is of little consequence. A child who has been subject to abuse on one or
more occasions may still need encouragement to continue engaging in sexual
acts, a fact of which adult abusers are no doubt aware. Second, the
instruction as given linked the act of providing the pornographic tape with
the specific intent not only to arouse Doe or himself but also to engage in
sexual acts with Doe. It could not reasonably be understood to delink the
specific intent to engage in sex with the child from the act of providing
pornography to the child. Both (along with the intent to arouse element)
were essential elements of the same crime. The only logical reading of the
instruction was to imply a causal link between defendant’s act and his
specific intent. The defendant provided the pornography with the intent to
cause arousal in himself or (more likely here) Doe, and the intent to cause
Doe to engage in sexual relations with him, whether for the first time or not.
In short, while we agree that the trial court should have given the
instruction provided for the offense as it was defined at the time the offense
was committed, we disagree that the instruction for the later amended
version of the offense was materially different. For that reason, we reject
defendant’s instructional error claim.
B. The Jury’s Note
Near the end of deliberations, the jury sent a note inquiring about the
same portion of the instruction. It stated: “Regarding instruction 1140,
section 5. We need more clarification on the wording.”32 The court conferred
off the record with counsel, and then responded, “I cannot clarify the
wording.” Defendant now assigns as error the court’s refusal to clarify this
32 The relevant portion of this instruction is quoted in footnote 31,
ante, page 58.
61
instruction, arguing it violated both state law and his federal constitutional
right to a jury determination that he is guilty of every element of the offense,
beyond a reasonable doubt.
The People argue, among other things, that defendant can’t establish
error because the record surrounding the court’s refusal to clarify the
instruction is silent. We agree.
Trial judges are not required to provide a substantive answer to every
question posed by a jury. The applicable law is stated in People v. Beardslee
(1991) 53 Cal.3d 68 (Beardslee): “[S]ection 1138 . . . provides that when the
jury ‘desire to be informed on any point of law arising in the case, . . . the
information required must be given . . . .” The court has a primary duty to
help the jury understand the legal principles it is asked to apply. [Citation.]
This does not mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full and
complete, the court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.] Indeed, comments diverging from the standard are
often risky. [Citation] . . . But a court must do more than figuratively throw
up its hands and tell the jury it cannot help. It must at least consider how it
can best aid the jury. It should decide as to each jury question whether
further explanation is desirable, or whether it should merely reiterate the
instructions already given.” (Id. at p. 97, first and third italics added.)
In Beardslee, the record affirmatively demonstrated that the trial court
did not give a jury’s note any substantive consideration whatsoever, but
simply on principle refused the jury’s request for clarification on a point of
62
law, for fear of getting reversed on appeal.33 On that record, the Supreme
Court held the trial court erred, not by failing to answer the jury’s specific
question but by refusing to consider whether some further explanation of
instructions was required. (Beardslee, supra, 53 Cal.3d at p. 97.) (The error
was held harmless, because the jury’s confusion on this point could only have
prejudiced the prosecution (id. at pp. 97-98).)
Here, by contrast, the record does not show the trial court just refused
to consider clarifying the instruction, as in Beardslee. It is true that we do
not know why the court declined, after conferring with counsel, to elaborate
upon the instructions as to one element of the section 288.5 offense. But we
do know the court discussed the matter with counsel and thus considered
whether elaboration was appropriate. Further, because the instruction was
“full and complete,” the trial court had discretion to decide no further
explanation of the concept was required. (See People v. Gonzalez (1990)
51 Cal.3d 1179, 1213 [no violation of section 1138 where jury asked for
clarification of legal definition of malice but trial court advised jury to reread
the instruction in the context of all homicide instructions]; accord, People v.
Brooks (2017) 3 Cal.5th 1, 96-97 [no error in declining to answer jury’s
request for clarification of sentencing factors and re-reading to jury relevant
portions of the standard instruction]; People v. Moore (1996) 44 Cal.App.4th
33 The jury sent a note that, unlike here, did not ask for clarification of
the wording of an instruction but, rather, sought guidance on a principle of
law (namely, how the legal requirements of deliberation and premeditation
for first degree murder apply to an aider and abettor). (See Beardslee, supra,53 Cal.3d at p. 97.) The jury was excused, and then the trial court told
counsel (in colorful and emphatic terms) that it was not going to answer the
jury’s question because trying to explain jury instructions always spells
trouble on appeal. (Id. at p. 96.) The trial court then told the jury that it was
not going to explain the instructions, told the jury to consider the instructions
as a whole, and to “Do the best you can with them.” (Id. at pp. 96-97.)
63
1323, 1331 [“By advising the jury to reread the . . . instruction, which was
full and complete for purposes of the facts before it, the trial court fulfilled its
duty under section 1138”]; accord, People v. Guilmette (1991) 1 Cal.App.4th
1534, 1542; People v. Zepeda (2018) 26 Cal.App.5th 211, 216, fn. 7.)34
A separate but related problem with the off-the-record colloquy is that
we do not know whether defense counsel agreed that no clarification should
be given (for tactical reasons, conceivably she might have done so). If so, her
agreement would preclude our consideration of this issue.35 (See People v.
Medina (1990) 51 Cal.3d 870, 902 (Medina) [“defense counsel’s approval of
the court’s limited response to the jury’s inquiry should bar defendant from
contending on appeal that a more elaborate response should have been
made”]; Beardslee, supra, 53 Cal.3d at pp. 116-117 [pursuant to Medina,
where trial court formulated a response to jury inquiry, asked whether
counsel wished to “add” anything to it and defense counsel declined, defense
counsel forfeited argument additional clarification should have been given];
People v. Zepeda, supra, 26 Cal.App.5th at p. 216, fn. 7 [defense counsel
waived error in court’s response to jury’s inquiry by failing to object].)
34 While it would have been better practice to advise the jury to re-read
the instruction in context of the entire text of CALCRIM No. 1140, we are
confident the court’s failure to do so was harmless beyond a reasonable doubt.
The jury had the instructions, continued deliberating for forty more minutes
and arrived at a verdict.
35 To the extent People v. Thompkins (1987) 195 Cal.App.3d 244suggests otherwise, we decline to follow it. (See id. at p. 251, fn. 4 [where
trial court gave erroneous answer to jury’s inquiry after conferring with
counsel off the record, “[w]e cannot interpret a silent record including an
unreported chambers conference to indicate anything other than trial
counsel’s failure to object to the judge’s instructions,” and “trial counsel's
failure to object to an error in jury instructions [actually given] does not
preclude a defendant from raising the issue on appeal”].)
64
Citing Beardslee, defendant asserts there is no requirement that the
defense object when the court refuses to provide a response to a jury’s request
for clarification of instructions. Beardslee does not stand for that proposition.
Although in that case the defense did not object when the trial court
announced it would not answer the jury’s question about the first degree
murder instruction and the Supreme Court addressed the merits of that
ruling, the Supreme Court did not address the question of forfeiture in that
context, and “ ‘ “ ‘cases are not authority for propositions not considered.’ ” ’ ”
(People v. Baker (2021) 10 Cal.5th 1044, 1109.) Further, in that case, given
both the tenor and the substance of the court’s remarks to counsel about the
jury’s note, an objection clearly would have fallen on deaf ears. (See People v.
Hill (1998) 17 Cal.4th 800, 820 [“[a] defendant will be excused from the
necessity of . . . a timely objection . . . if [one] would be futile”]; accord, People
v. Tuggles (2009) 179 Cal.App.4th 339, 356.) In another portion of Beardslee
addressing a different jury note, the Supreme Court held defense counsel did
forfeit the contention the trial court’s response to the jury’s note was
insufficient, by declining the court’s invitation to supplement the court’s
proposed response. (See Beardslee, supra, 53 Cal.3d at pp. 116-117.)
In sum, defendant has failed to demonstrate the trial court erred.
C. Failure to Instruct on the Lesser Included Offense.
Next, defendant argues the court erred by failing to instruct the jury on
exhibiting harmful material to a minor under section 313.1, which is a lesser
included offense of section 288.5 that prohibits the furnishing of harmful
material to minors but does not require proof of the defendant’s specific
65
intent to arouse and seduce.36 (See People v. Jensen, supra, 114 Cal.App.4th
at p. 244; Nakai, supra, 183 Cal.App.4th at p. 510).
There was no error in failing to give the instruction, because there was
no substantial evidence defendant committed only the lesser offense. (See
Nakai, supra, 183 Cal.App.4th at p. 510.) Defendant asserts a reasonable
jury might have concluded defendant lacked the intent to seduce Doe when
defendant gave him the videotape because the prosecution did not establish
defendant provided the tape to Doe before the abuse began. But whether the
two already had engaged in sexual contact is irrelevant. The former statute
merely required defendant to share the material with the intent of
persuading a minor to engage in sexual contact. Defendant does not explain
why an intent to persuade a minor to resume sexual relations does not satisfy
the intent element, and we can think of none.
Defendant also argues there was evidence Doe had ready access to
pornography at father’s house anyway, and so a reasonable juror might have
questioned whether this particular tape was given with the intent to seduce
Doe. But evidence of Doe’s easy access to other pornographic material does
not negate an intent by defendant to seduce him. In fact, it cuts the other
way. If the jury believed defendant furnished this videotape to Doe despite
Doe’s access to other pornographic material, it could only conclude defendant
had a specific purpose in mind for singling out that particular tape. The
evidence admits of only one conclusion: to increase the likelihood that Doe
would agree to begin, or continue, to have sexual relations with defendant.
36 It criminalizes the conduct of “[e]very person who, with knowledge
that a person is a minor, or who fails to exercise reasonable care in
ascertaining the true age of a minor, knowingly sells, rents, distributes,
sends, causes to be sent, exhibits, or offers to distribute or exhibit by any
means . . . any harmful matter to the minor . . . .” (§ 313.1, subd. (a).)
66
The record does not support a conclusion defendant only wanted to share this
videotape with Doe for a reason unrelated to defendant’s desire to have
sexual relations with Doe. There was thus no error in failing to instruct on
the lesser charge. (See Nakai, supra, 183 Cal.App.3d at p. 510 [affirming].)
Moreover, even if the instruction was warranted by the evidence any
error was harmless. There was never any theory put forward that defendant
gave the videotape to Doe for some benign purpose, unrelated to sexual
gratification. Indeed, defendant’s theory of the entire case was that Doe
didn’t even like defendant, and the two were not close. In closing argument,
defense counsel only briefly addressed this charge and disputed only that
defendant had given Doe the videotape, not that defendant had given it to
Doe for some benign, non-sexual purpose without the intent to seduce Doe.
Defendant’s theory of the case thus negated only defendant’s intent to send
harmful material to Doe, not defendant’s intent to arouse Doe, which is the
only difference between the greater and lesser offense. (See Nakai, supra,
183 Cal.App.4th at p. 512.) For this reason, “it is not reasonably probable
that the jury would have found the defendant guilty of only the lesser offense,
because the critical element between the lesser offense and the greater
offense was not disputed.” (Ibid.)
D. Penal Code section 654
Defendant was sentenced to a consecutive, eight-month term on the
section 288.2 count. He argues, at a minimum, his punishment on that count
should have been stayed pursuant to section 654 because no substantial
evidence supports a finding that in furnishing pornography to Doe, he had
any objective other than to commit the sexual offenses of which he was
convicted (sodomy and continuous sexual abuse). At oral argument, the
People conceded that if we affirm the conviction of the section 288.2 count,
the trial court erred in failing to stay it under section 654. We agree. (See
67
People v. Medelez (2016) 2 Cal.App.5th 659, 663-664 [People conceded
defendant could not be punished for both luring a minor with intent to
engage in oral sex and attempted oral sex with the minor, where offenses
shared same intent and objective].)
VI.
Cumulative Error
Defendant argues that, individually and cumulatively, the errors he
has raised, and the prejudice resulting from them, denied him a fair trial.
But we are ordering his conviction on the two sodomy counts vacated, for the
reasons discussed. With regard to the remaining charges, we have concluded
that: none of the claimed errors concerning father’s incentive to testify
favorably based upon his plea agreement prejudiced defendant individually
or cumulatively; there was no error in the admission of Dr. Urquiza’s
testimony; no error by the prosecutor in her comments to the jury; and no
error with respect to the section 288.2 charge specifically, apart from the
court’s error in failing to stay defendant’s sentence on that count. There is
thus “nothing to cumulate.” (People v. Duff (2014) 58 Cal.4th 527, 562.)
VII.
Fines, Fees and Assessments
Finally, the trial court imposed a restitution fine pursuant to
section 1202.4, subdivision (b)(1) in the amount of $50,000 and a parole
revocation fine pursuant to section 1202.45 in the same amount. Defendant
argues that both fines exceed the statutory maximum, and also were imposed
without regard to his ability to pay, violating his right to due process of law
under People v. Dueñas (2019) 30 Cal.App.5th 1557, 1164 (Dueñas).
Defendant asks us to reverse the imposition of these fines and remand
for a new hearing so that he may argue pursuant to Dueñas he lacks the
68
ability to pay even a $10,00 fine.37 Defendant also asks for an opportunity on
remand to make an argument regarding his ability to pay the other fines and
fees the trial court imposed, some of which we are ordering adjusted because
we are vacating defendant’s convictions on the two sodomy counts (see
footnote 28, ante, p. 54): $1837.50 in direct victim restitution (§ 1202.4,
subd. (f)), a court operations assessment (§ 1465.8) (set by the trial court at
$200, but which we are ordering reduced to $120), a court facilities
assessment (Gov. Code § 70373) (set at $150 by the trial court, but which we
are ordering reduced to $90), a sex offender fine (§ 290.3) (which we are
ordering reduced from $2300 to $1300), and $250 in probation costs
(§ 1203.1b).
The People concede that the restitution fine and parole revocation fine
exceed the statutory maximum, and the concession is appropriate. The
maximum restitution fine that may be imposed in a single case is $10,000,
regardless of the number of counts involved. (People v. Blackburn (1999)
72 Cal.App.4th 1520, 1534; § 1202.4, subd. (b)(1).) The parole revocation fine
is to be assessed in the same amount as the restitution fine. (§ 1202.45,
subd. (a).) The People also agree that, on remand, defendant may raise any
Dueñas issue he wishes concerning the restitution fine. On remand,
therefore, defendant is free to make the constitutional arguments that he
believes should be made concerning his ability to pay the fines, fees and
assessments imposed.
37 The constitutional claim of indigency was not raised below but is not
forfeited because Dueñas was not reasonably foreseeable at the time of
defendant’s sentencing. (People v. Johnson (2019) 35 Cal.App.5th 134, 137-
138.)
69
DISPOSITION
Defendant’s convictions for violating section 286, subdivision (c)(1)
(counts 5 and 6) are vacated. The eight-month sentence for violation of
section 288.2 (count 14) is stayed. The fee imposed under section 1465.8 shall
be reduced from $200 to $120. The fine imposed pursuant to section 290.3
shall be reduced from $2300 to $1300. The fee imposed under Government
Code section 70373 shall be reduced from $150 to $90. The restitution fine
imposed pursuant to section 1202.4, subdivision (b)(1) in the amount of
$50,000 and the parole revocation fine imposed pursuant to section 1202.45
in the same amount are vacated. The matter is remanded for recalculation of
the restitution fine and parole revocation fine, and for further proceedings
consistent with this opinion to afford defendant an opportunity to request an
ability-to-pay hearing on the fines and assessments imposed by the trial
court.
In all other respects the judgment is affirmed. The petition for habeas
corpus is denied.
70
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
People v. Santos (A153384, A159050)
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