People v. Leon CA2/8 ( 2022 )

Filed 12/21/22 P. v. Leon CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322696
Plaintiff and Respondent,
(Fresno County
v. Super. Ct. No. F16907319)
JOSE GOMEZ LEON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno
County. W. Kent Hamlin, Judge. Affirmed.
Janet J. Gray, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Daniel B. Bernstein, Eric L. Christoffersen and
Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
Defendant and appellant Jose Gomez Leon appeals from
his conviction by jury of nine counts of aggravated sexual assault
of a child and one count of committing a forcible lewd act upon a
child. The victim was defendant’s biological daughter who was
under the age of 14 at the time the assaults occurred. Defendant
raises numerous contentions of evidentiary error, instructional
error, sentencing error and ineffective assistance of counsel.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by amended information with
10 felony counts, all of which were alleged to have occurred
during the period from July 23, 2014, through December 5, 2016:
four counts of aggravated sexual assault (rape) of a child under
the age of 14 by an individual more than seven years older than
the child (Pen. Code, § 261, subd. (a)(2), § 269, subd. (a)(1);
counts 1–4); two counts of aggravated sexual assault (sexual
penetration) of a child under the age of 14 by an individual more
than seven years older than the child (§ 269, subd. (a)(5), § 289,
subd. (a)(1)(B); counts 5 & 6); two counts of aggravated sexual
assault (oral copulation) of a child under the age of 14 by an
individual more than 10 years older than the child (§ 269,
subd. (a)(4), § 287, subd. (c)(2); counts 7 & 8); one count of
aggravated sexual assault (sodomy) of a child under the age of 14
by an individual more than 10 years older than the child (§ 269,
subd. (a)(3), § 286, subd. (c)(1); count 9); and one count of
committing a forcible lewd act upon a child under the age of
14 (§ 288, subd. (b)(1); count 10).
Testimony of the Victim
M., who was 16 years old at the time of trial in August
2019, testified about how defendant, her father, molested her for
over two years. She said the abuse began in 2014 when she was
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11 and did not end until December 5, 2016. The first time
defendant abused M., they were alone in the house. Defendant
touched her and put his fingers inside her vagina. M. said it was
very painful. She was confused and scared and therefore
remained quiet. Defendant told her not to tell anyone.
The second time, defendant took M. in his car and drove to
a nearby field. M. said the car was gray in color but she could not
recall the make or model. She said the assault was similar to the
first time, but defendant pulled down her shorts and used his
mouth and not just his hands. Defendant also touched her
breasts. He again told M. not to tell anyone.
Over the next year, this type of assault happened “over and
over,” more than 10 times. Sometimes it would occur at home if
no one else was home, but usually defendant would take M. in his
car and park next to a field or orchard and assault her in the car.
Defendant told M. to take photographs of herself naked and
text them to him. He showed M. pornographic videos so she
would know how to pose. Defendant threatened to show the
photographs to people if M. told anyone about what was going on.
Defendant also told M. that if she told anyone what he was doing,
it would be her fault if their family split up. He also threatened
to touch her two younger sisters if she talked. M. said she felt
great pressure to do what defendant wanted, so that he would not
hurt anyone else whom she loved. M. wanted to protect her
sisters and her mother because she knew how much her mom
loved her dad. She said it was “like living, but not living at the
same time.”
About a year after the touching first started, defendant
took M. to a hotel in Sanger. M. could not recall the name of the
hotel but she remembered defendant picked her up early from
school to take her there. When they got to the room, defendant
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told her to undress. He touched her breasts and repeatedly put
his penis in her vagina which was very painful. M. saw
defendant ejaculate a white substance but she did not know what
it was. He cleaned it up from the bed with toilet paper and told
her to get dressed and they went home.
This happened two more times at other hotels. M. could
not recall the names of the hotels. Each time defendant took her
out of school early, took her to the hotel and did what he did the
first time. When M. said she did not want him to touch her like
that, defendant said it was normal, that it was even in the Bible.
Another day, M. recalled that defendant was in the
bathroom at their home, shaving or doing something like that.
He called for M. When she went in the bathroom to see what he
wanted, she could tell he was drunk. Defendant tried to force her
to have sex with him. She said no and defendant started to raise
his voice. M.’s brother heard them and came to the door asking
what was going on, and defendant stopped.
On December 5, 2016, defendant came to M.’s soccer
practice to pick her up. She was wearing a shirt and gym shorts.
Defendant drove them to an orchard and parked the car. He
forced himself on her and raped her in the car like he had done at
the hotels. M. finally decided she was going to confide in
someone about what defendant had been doing.
After they got home, M. took a shower and put her gym
clothes in the laundry basket. She then went to talk to C.G., a
next-door neighbor and friend of the family, and confided in her
that defendant was abusing her. C.G. told M.’s mother, I.M.L.,
when she got home from work. The police were called and
several deputies from the Fresno County Sheriff’s Office
responded to the home. They spoke with and took statements
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from M., C.G. and I.M.L. M. was taken to Valley Children’s
Hospital in Madera to be examined.
M. also testified about an additional incident of abuse that
she reported to the nurse who examined her at the hospital. She
said defendant once tried to have anal sex with her. It was very
painful and caused her to bleed. She was in pain for a couple of
days afterward.
Events Leading to Defendant’s Arrest and
Confession
C.G. corroborated M.’s testimony that in December 2016,
M. told her defendant was sexually abusing her. C.G. told I.M.L.
about her conversation with M.
I.M.L. confirmed her conversation with C.G. I.M.L. spoke
with M. when she got home from school. M. cried as she
explained what defendant had been doing and told her mother
she did not want to live. M. told her mother that defendant had
just abused her the day before (December 5). I.M.L. told M. she
had done nothing wrong, she was just a child. I.M.L. was angry
and upset that she had not realized what was going on and had
not protected her daughter.
I.M.L. confronted defendant. He denied he had done
anything wrong. She threw his car keys at him and told him to
leave. She also called the sheriff’s office and reported the abuse.
Detective Leticia Baylon of the Fresno County Sheriff’s
Office responded to the family home with Deputy Stearns and
took statements from M., I.M.L. and C.G. M. told Detective
Baylon about the abuse defendant had subjected her to since she
was 11 years old. Detective Baylon recalled that M. said the
abuse occurred in multiple different locations over two years,
including different hotels in Sanger and Fresno, various nearby
fields, and the family home.
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Detective Baylon took possession of M.’s gym shorts that
she had been wearing on December 5 when defendant assaulted
her in the car. The shorts were booked into evidence.
The next day (December 7), defendant returned to the
house. I.M.L. told him she had called the police. She then
contacted the sheriff’s office and told them defendant was at the
house. Detective Baylon, Deputy Stearns, Sergeant Pugliese and
Detective Virginia Rodriguez went to the house. When they
arrived, they knocked on the door and announced who they were
in both English and Spanish.
After receiving no response, they started to go inside to
search for defendant. I.M.L. had given them a key to the home
and her permission to enter if defendant did not answer the door.
I.M.L. had left to be with her children who were at her mother’s
home. Sergeant Pugliese, who had gone around to the back of the
home, reported on his radio there was a male running out the
back door. When Detective Baylon got to the backyard, she saw
defendant standing with Sergeant Pugliese. Defendant was
“swaying back and forth” and smelled of alcohol. He was placed
under arrest and taken to the sheriff’s office in Fresno. One of
the deputies located defendant’s gray car parked several doors
down from the home.
Several hours after defendant was arrested, Detective
Jesse Gloria and his partner, Detective Rodriguez, interviewed
defendant. The interview was conducted in Spanish and
videotaped. It began at 9:37 p.m. and lasted a little over an hour,
ending just before 11:00 p.m.
At the beginning of the interview, Detective Gloria
separately identified each of defendant’s rights under Miranda v.
Arizona (1966) 384 U.S. 346 and asked defendant if he
understood those rights. Defendant said yes. Detective Gloria
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then asked defendant if he was willing to waive those rights and
talk with them, and defendant again answered yes. The
videotape of the interview was played for the jury during the
testimony of Detective Gloria, and an English language
translation was provided to the jury. The parties stipulated the
video and English translation were accurate.
Detective Gloria testified defendant did not show any
obvious signs of intoxication at the time of his interview. He said
defendant was initially a little defensive and evasive, but soon
thereafter engaged with the detectives in a normal conversational
manner. He did not seem confused or have difficulty answering
questions.
For the first few minutes of the interview, they discussed
defendant’s work history, marital status and children. Defendant
said he had been living in the United States for about six years
and usually worked in the fields. He was, at the time, working at
a local ranch.
When defendant was asked if he knew why he had been
arrested, he said his wife I.M.L. had accused him the day before
of touching M. inappropriately and kicked him out of their home.
Defendant said he assumed that was what they wanted to talk to
him about. Defendant said several times that while M. was a
good daughter, she must be lying because he had done nothing
wrong. The detectives told him his DNA was found on M.’s
clothing and it would be better for him if he told the truth
because it would look worse for him in court if he was shown to
be a liar. Detective Rodriguez also said there was other evidence
in addition to DNA supporting M.’s statement, including video
evidence from the hotels he took her to and evidence he took her
out of school early several times. As the interview went on, the
detectives repeated several times that it would be better for
7
defendant to tell the truth, that they understood that people
sometimes make mistakes.
After denying several times that any improper touching
occurred and repeatedly claiming M. often lied, defendant
admitted he had touched M. once when she was 11 or 12 years
old. But he said M. had agreed to it and she did not think it was
wrong. Defendant explained he picked up M. from school and
while they were parked in the car, he touched her vagina with his
hand, but nothing else happened.
Defendant then admitted that on another day he took M. to
a hotel in Sanger. He said he touched M. with his hands, but
they did not have sex and he never used his penis. Defendant
later admitted he may have put his penis near her body, but
never inside her, because the one time he tried to do so, M. said it
hurt so he stopped. Defendant reiterated that he never did
anything that M. did not agree to. He said he knew she was
“underage” but “she was in agreement.”
Defendant also admitted he took M. to a motel in Fresno.
He said nothing happened that day because M. said she was not
ready to have sex and defendant “always” told her that if she was
not ready, that was fine and he never forced her.
Defendant said M. sometimes asked him to touch her and
would send him pictures, but he knew he was the adult and
should have stopped it from happening. Defendant said the
touching started because M. was the one who tried to touch him
initially. He said the touching incidents happened maybe a total
of 10 times.
Towards the end of the interview, Detective Gloria told
defendant he did not believe defendant had told them everything,
that he believed M. was being truthful about everything that had
occurred, and he would give defendant one more chance to
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explain everything in full. Detective Gloria said, “[y]ou can fix
your heart right now, or keep hurting for the rest of your life.
This is your chance to help yourself, and help your daughter
that’s the only thing you can do now.” Defendant responded by
saying there was nothing else to say because “I didn’t do anything
wrong.”
Other Evidence
The vice principal for the Sanger Unified School District,
where M. was a student, testified that school records showed
defendant came to M.’s school on four days in the fall of 2016 and
took M. out of school early.
Forensic testing of the gym shorts M. had worn on
December 5, 2016, the day of the last assault, tested positive for
seminal fluid and a DNA match to defendant was confirmed.
Dr. Anna Washington, a licensed psychologist at the
University of California at Davis, testified. She described her
work at the University’s Child Adolescent Abuse Resource Center
which consists primarily of counseling children who are the
victims of sexual abuse. Dr. Washington said she did not
interview or meet with M., but rather was providing testimony
regarding Child Sexual Abuse Accommodation Syndrome
(CSAAS) generally. She explained how children who suffer
sexual abuse often exhibit certain behaviors and difficulty
reporting the abuse. She said CSAAS is characterized by five
components, each of which has certain associated behaviors:
secrecy, helplessness, entrapment and accommodation, delayed
unconvincing and conflicting disclosures, and retraction.
Defendant’s Testimony
Defendant testified in his own defense. He denied touching
M. inappropriately in any manner. He said he had picked up M.
early from school several times but it was only to take her to the
9
eye doctor because she was having trouble with one of her eyes.
He denied it had anything to do with taking M. to hotels to have
sex. Defendant also denied taking naked photographs of M. or
showing her pornography. He said the only explanation for his
DNA being on M.’s gym shorts was because when he had sex with
his wife, he would ejaculate outside of her because he did not
want her to get pregnant again. When he did that, he would grab
a piece of nearby clothing to clean up afterward. He denied
threatening M. in any way to keep quiet. Defendant also said he
did not try to flee from the police and that he was extremely
intoxicated when he was arrested. He had had a lot of beer and
had also taken drugs which he referred to as “crystal.” He had no
idea why he admitted to anything during the interview. He
claimed to feel intense pressure from the detectives to say things
that did not occur. Defendant also said that where he came from
you have to talk to the authorities or “bad things” can happen,
and that is “possibly” why he started to admit to things that did
not actually happen.
The Verdict and Sentencing
The jury found defendant guilty as charged. The court
sentenced defendant to an eight-year midterm on count 10 and
nine consecutive terms of 15 years to life on each of counts 1
through 9 for a total sentence of eight years, plus 135 years to
life. The court awarded defendant 1,182 days of presentence
custody credits. The court imposed the following fines and fees:
a maximum restitution fine of $10,000 (Pen. Code, § 1202.4,
subd. (b)), court operations assessments totaling $400 (§ 1465.8,
subd. (a)(1)), and court facilities assessments totaling $300 (Gov.
Code, § 70373). The court imposed and suspended a parole
revocation fine. Defendant stipulated to victim restitution in the
amount of $1,460.87.
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This appeal followed. After briefing was complete, this
matter was transferred from the Fifth District (F080091) to this
court for argument and disposition and assigned case No.
B322696.
DISCUSSION
1. The Admission of Defendant’s Pretrial Confession
Defendant contends his pretrial confession to the
investigating detectives should have been suppressed as
involuntary given his intoxication, level of education and
unfamiliarity with the criminal justice system, combined with the
coercive interrogation tactics used by the officers. He says the
admission of his statement deprived him of his constitutional
right to due process. We are not persuaded.
a. Background
Defendant moved in limine to suppress his pretrial
statement on the grounds he was intoxicated, uneducated and an
unsophisticated recent immigrant who did not understand the
significance of what was happening and did not make a knowing
and voluntary waiver of his rights under Miranda.
The court denied the motion, explaining that in the
videotaped interview, defendant did not display any obvious signs
of intoxication like slurred speech or confusion. The court said it
had “really looked” at defendant’s conduct throughout the
interview and there was no indication the detectives pressured
defendant. They spoke to defendant in Spanish, and clearly and
slowly identified each Miranda right before asking him if he
understood his rights and was willing to waive them. The court
said defendant did not appear confused or puzzled by any of the
detectives’ questions, but rather responded to them in a manner
that seemed to indicate he wanted to tell his side of the story.
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b. Applicable law
“An involuntary confession may not be introduced into
evidence at trial. [Citation.] The prosecution has the burden of
establishing by a preponderance of the evidence that a
defendant’s confession was voluntarily made. [Citations.] In
determining whether a confession was voluntary, ‘ “[t]he question
is whether defendant’s choice to confess was not ‘essentially free’
because his [or her] will was overborne.” ’ [Citation.] Whether
the confession was voluntary depends upon the totality of the
circumstances. [Citations.] ‘ “On appeal, the trial court’s
findings as to the circumstances surrounding the confession are
upheld if supported by substantial evidence, but the trial court’s
finding as to the voluntariness of the confession is subject to
independent review.” ’ ” (People v. Carrington (2009) 47 Cal.4th
145, 169 (Carrington).)
c. No evidence confession was not voluntary due
to intoxication.
“Our Supreme Court ‘has repeatedly rejected claims of
incapacity or incompetence to waive Miranda rights premised
upon voluntary intoxication or ingestion of drugs, where, as in
this case, there is nothing in the record to indicate that the
defendant did not understand his rights and the questions posed
to him.’ ” (People v. Debouver (2016) 1 Cal.App.5th 972, 978; see
also People v. Maury (2003) 30 Cal.4th 342, 411 (Maury) [in the
absence of state coercion, a “defendant cannot complain that any
self-induced intoxication rendered his statements involuntary”].)
Like Debouver, there is nothing in the record here to
indicate defendant’s will was overborne or that his confession was
not voluntary due to intoxication. Detective Gloria testified that
defendant was interviewed several hours after his arrest and that
defendant did not exhibit any signs of intoxication at that time.
12
The interview was conducted entirely in Spanish, defendant’s
first language. Defendant answered the detectives’ questions
directly and without any apparent difficulty. Defendant did not
appear confused or ask any questions when his Miranda rights
were explained to him or when Detective Gloria asked if he was
willing to waive his rights.
Given the totality of circumstances, we conclude
substantial evidence supports the trial court’s findings and we
agree defendant’s statement was voluntary and properly
admitted. (People v. Boyette (2002) 29 Cal.4th 381, 412
[testimony from interviewing officers that the defendant
understood his rights and “did not seem mentally slow” was
substantial evidence supporting trial court’s decision that
statement was voluntary].)
d. Coercive interrogation tactics
Defendant also argues the detectives used inherently
coercive interrogation tactics, such as lying about DNA results.
However, defendant did not raise this issue in the trial court and
any objection has therefore been forfeited.
In any event, the record demonstrates the detectives did
not use any tactics or techniques that denied defendant due
process. Once a suspect has been properly advised of his
Miranda rights, as was the case here, “ ‘he [or she] may be
questioned freely so long as the questioner does not threaten
harm or falsely promise benefits. Questioning may include
exchanges of information, summaries of evidence, outline of
theories of events, confrontation with contradictory facts, even
debate between police and suspect.’ ” (Carrington, supra,47 Cal.4th at p. 170.)
The questioning by the detectives here included, as
Detective Gloria conceded in his testimony, some deception
13
regarding the existence of certain evidence. “Deception does not
undermine the voluntariness of a defendant’s statements to the
authorities unless the deception is ‘ “ ‘of a type reasonably likely
to procure an untrue statement.’ ” ’ ” (People v. Williams (2010)
49 Cal.4th 405, 443; accord, Maury, supra, 30 Cal.4th at p. 411.)
It is a permissible interview tactic for an officer to imply that he
knows more or has evidence tending to show more than it does.
Such deception is not reasonably likely to procure an untrue
statement. (People v. Jones (1998) 17 Cal.4th 279, 299.)
Both detectives also encouraged defendant to tell the truth
and urged that he would feel better in the long run if he did. But
neither detective threatened defendant, nor promised leniency in
exchange for a confession. When law enforcement officers
“describe the moral or psychological advantages to the accused of
telling the truth, no implication of leniency or favorable
treatment at the hands of the authorities arises.” (Carrington,
supra, 47 Cal.4th at p. 172.)
Defendant’s contention his trial counsel was ineffective for
failing to raise this argument below is without merit.
e. Failure to redact statement
Defendant further contends his trial counsel was ineffective
in failing to seek redaction of his statement after the court ruled
the statement was admissible.
Defendant has a heavy burden to establish ineffective
assistance on direct appeal. Defendant must demonstrate “both
that trial counsel failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates, and
that it is reasonably probable a more favorable determination
would have resulted in the absence of counsel’s failings.” (People
v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v.
Washington (1984) 466 U.S. 668, 687–696; accord, People v.
14
Ochoa (1998) 19 Cal.4th 353, 414.) And where, as here, “the
appellate record does not reveal whether counsel had a legitimate
reason for a litigation choice, we generally reserve consideration
of any ineffective assistance claim for possible proceedings on
petition for writ of habeas corpus.” (People v. Snow (2003)
30 Cal.4th 43, 95; accord, People v. Mendoza Tello (1997)
15 Cal.4th 264, 266–267.)
Defendant says his counsel should have asked to redact
Detective Gloria’s comment that he believed M.’s statement that
defendant had sexual relations with her 16 to 17 times over the
course of more than two years. Detective Gloria then told
defendant he did not believe defendant had told him everything
yet, “you can see it in your face.”
Defendant has not established either element of an
ineffective assistance claim. Defendant has not shown it is
reasonably probable he would have obtained a more favorable
verdict if counsel had sought to redact these portions of the
interview. The statements by Detective Gloria came at the end of
the interview. Defendant had already admitted he had
committed multiple sexual acts with M., acts that were largely
consistent with M.’s testimony and the other evidence the jury
had already heard. A reasonable jury would not have been
unduly influenced by these brief statements and would have
recognized them for what they were, Detective Gloria’s final
effort to get defendant to explain additional details.
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2. The CSAAS Evidence
Defendant raises numerous arguments related to the
CSAAS evidence presented by the prosecution through its expert,
Dr. Anna Washington. None of the arguments has merit.
a. Admission of CSAAS evidence
Defendant contends that as a matter of policy, CSAAS
evidence should not be admissible for any purpose. However,
more than 30 years ago in People v. McAlpin (1991) 53 Cal.3d
1289, our Supreme Court held that while CSAAS evidence is not
admissible to prove a victim has in fact been sexually abused, it is
admissible “ ‘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.) McAlpin remains the law in this
state. Courts of this state routinely recognize “the well-
established relevance, necessity, reliability, and importance of
[CSAAS] evidence.” (See, e.g., People v. Munch (2020)
52 Cal.App.5th 464, 472 (Munch).)
Dr. Washington testified consistently with the limited
parameters set forth in McAlpin. She did not meet with or
interview M. or state any opinions about M.’s testimony or
credibility. Dr. Washington only described CSAAS generally, set
forth its various components, and described it as a theoretical
framework used to dispel some of the common myths surrounding
child sexual abuse and how children react to being abused.
Defendant acknowledges McAlpin but urges us to rely on
out-of-state authority to conclude, contrary to McAlpin, that
CSAAS evidence is categorically inadmissible. We decline to do
so. We are bound to follow Supreme Court precedent. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
16
b. CALCRIM No. 1193
Defendant next contends that CALCRIM No. 1193
misstates the law regarding CSAAS evidence and allowed the
jury to improperly consider the evidence to find that M. had in
fact been sexually abused instead for the limited purpose allowed
by McAlpin.
Defendant concedes he did not object to CALCRIM
No. 1193 in the trial court. The contention has therefore been
forfeited. In any event, we are not persuaded CALCRIM
No. 1193 invites the jury to misuse CSAAS evidence in the ways
defendant suggests. The instruction does not misstate the law.
(People v. Lapenias (2021) 67 Cal.App.5th 162, 176; Munch,
supra, 52 Cal.App.5th at p. 474; People v. Gonzales (2017)
16 Cal.App.5th 494, 503–504.)
c. Cross-examination of Dr. Washington and
Nurse Janie Salazar
Defendant contends his counsel was ineffective in cross-
examining Dr. Washington, the CSAAS expert, and Ms. Salazar,
the nurse who performed the sexual assault examination of M.
In cross-examining Dr. Washington, defense counsel
elicited negative testimony regarding false allegations of sexual
abuse. The testimony on this point was minimal. When asked,
Dr. Washington said that in her experience, false allegations by
children were rare. She believed most allegations of false
testimony by children were asserted by adults in custody
disputes.
In cross-examining Ms. Salazar, defense counsel pursued a
line of questions about the concept of force in sexual assaults and
whether the size of an adult penis would necessarily involve force
upon a child. Ms. Salazar generally agreed, but also testified
17
more generally about whether force will result in trauma and
when an examination is performed relative to the assault.
As we already explained ante, defendant has a heavy
burden to establish ineffective assistance on direct appeal. This
is particularly true when it comes to litigation tactics like how to
cross-examine witnesses. “ ‘Even where defense counsel may
have “ ‘elicit[ed] evidence more damaging to [defendant] than the
prosecutor was able to accomplish on direct” ’, we have been
‘reluctant to second-guess counsel’ where a tactical choice of
questions led to the damaging testimony.” (People v. Williams
(1997) 16 Cal.4th 153, 217, citations omitted.)
We find no basis, on this record, to conclude defense
counsel had no valid reason to question Dr. Washington on false
allegations. As for the questioning of Ms. Salazar, defense
counsel successfully established that her examination of M.
revealed no signs of physical trauma, notwithstanding the
testimony from M. that defendant had raped her in the car two
days earlier.
Defendant has not established both elements of ineffective
assistance regarding the cross-examination of these two
witnesses.
3. The Flight Instruction
Defendant contends it was prejudicial error to instruct on
flight because there was insufficient evidence to support the
instruction. Defendant says the evidence showed only that he
left the family home because his wife had thrown him out. We
disagree.
Penal Code section 1127c requires the trial court to instruct
on flight where evidence of flight is relied upon as tending to
establish guilt. The statute provides in relevant part that “the
court shall instruct the jury substantially as follows: [¶] The
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flight of a person immediately after the commission of a crime, or
after he is accused of a crime that has been committed, is not
sufficient in itself to establish his guilt, but is a fact which, if
proved, the jury may consider in deciding his guilt or innocence.
The weight to which such circumstance is entitled is a matter for
the jury to determine.”
The jury was instructed with CALCRIM No. 372 which is
derived from the statutory language: “If the defendant fled or
tried to flee immediately after the crime was committed or after
he was accused of committing the crime, that conduct may show
that he was aware of his guilt. If you conclude that the defendant
fled or tried to flee, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the
defendant fled or tried to flee cannot prove guilt by itself.” (See
People v. Paysinger (2009) 174 Cal.App.4th 26, 32 [rejecting
constitutional challenge to CALCRIM No. 372].)
“ ‘ “An instruction on flight is properly given if the jury
could reasonably infer that the defendant’s flight reflected
consciousness of guilt, and flight requires neither the physical act
of running nor the reaching of a far-away haven.” ’ ” (People v.
Abilez (2007) 41 Cal.4th 472, 522.) It does not require evidence
that the defendant knew criminal charges had been filed, nor is
there any “ ‘defined temporal period within which the flight must
be commenced . . . .’ ” (People v. Leon (2015) 61 Cal.4th 569, 607.)
Here, Detective Baylon testified about the events that
occurred on the day they went to the family home to arrest
defendant. She testified that after a knock and announce did not
result in anyone answering the front door, Sergeant Pugliese
reported over his radio that someone was running out the back
door of the home. When Detective Baylon and Deputy Stearns
reached the backyard, they found Sergeant Pugliese with
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defendant. Furthermore, defendant admitted, in his pretrial
statement, he was aware of his daughter’s accusations, that his
wife had told him the detectives wanted to speak to him, and that
when they came to the house he did think about fleeing for a
“moment.” This evidence supports instructing with CALCRIM
No. 372. As the instruction explains, it was for the jury to resolve
the meaning and import of defendant’s actions.
4. Cumulative Error
Defendant contends the combined effect of the errors by the
court and his counsel during trial violated his constitutional right
to due process. We have not found any prejudicial error. There
is, therefore, no cumulative prejudice warranting reversal.
(People v. Lewis (2001) 25 Cal.4th 610, 635.)
5. The Imposition of Fines and Fees
Defendant contends the court violated his rights to due
process by imposing fines and fees without any evidence of his
ability to pay. Relying primarily on People v. Dueñas (2019)
30 Cal.App.5th 1157, defendant argues it violated due process for
the trial court to impose the $10,000 maximum restitution fine,
the $400 court operations fee, and the $300 court facilities
assessment without an evidentiary showing by the People of his
ability to pay. Defendant concedes he did not object on this
ground below, even though the sentencing hearing was held more
than eight months after the Dueñas decision was issued.
The issue has been forfeited. (People v. Frandsen (2019)
33 Cal.App.5th 1126, 1153–1155 [finding forfeiture where no
objection raised in trial court to imposition of court operation
assessment, criminal conviction assessment and restitution fine];
see also People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [finding
forfeiture where the defendant failed to object to imposition of
20
restitution fine under Pen. Code, former § 1202.4 based on
inability to pay].)
In any event, defendant’s contention lacks merit. The court
imposed the maximum restitution fine of $10,000 pursuant to
Penal Code section 1202.4. Section 1202.4, subdivision (c) states
that a defendant’s inability to pay is not a compelling and
extraordinary reason to refuse to impose the fine, but inability to
pay “may be considered only in increasing the amount of the
restitution fine in excess of the minimum fine [of $300].” This
language was in the statute well before Dueñas was issued. The
defendant bears the burden of demonstrating his or her inability
to pay and a separate hearing for the restitution fine is not
required. (§ 1202.4, subd. (d).) Irrespective of Dueñas, it was
incumbent on defendant to have objected to the imposition of a
restitution fine greater than $300 and to demonstrate to the court
why a greater amount should not be imposed. He did not do so.
(Avila, supra, 46 Cal.4th at p. 729.)
As for the $400 court operations fee, and the $300 court
facilities assessment, the court did not err in concluding
defendant could pay those mandatory fees from prison wages.
The record shows defendant was in his early 30’s and nothing
suggests he suffered from any physical disability. The court
could reasonably infer defendant will have the opportunity to
earn prison wages. (People v. Lowery (2020) 43 Cal.App.5th 1046,
1060.)
6. Cruel and Unusual Punishment
Defendant contends his 143-year sentence, which is
effectively a sentence for the remainder of his life, is cruel and
unusual punishment within the meaning of both the California
and United States Constitutions.
21
Defendant does not make a purely legal challenge that the
mandatory consecutive sentencing scheme of Penal Code
section 667.6 violates the constitutional provisions against cruel
and unusual punishment. That argument has been rejected.
(People v. Preciado (1981) 116 Cal.App.3d 409, 412 [rejecting
Eighth Amendment challenge to mandatory consecutive
sentencing requirement set forth in § 667.6, subd. (d)].)
Defendant makes a factual argument that the statutory
scheme as applied to him resulted in a grossly disproportionate
sentence. He focuses on the fact that he had no criminal record
and that there was no evidence of physical violence in the
commission of the offenses, only duress. Defendant did not raise
this argument in the trial court, and the contention has therefore
been waived. (See, e.g., People v. Russell (2010) 187 Cal.App.4th
981, 993 (Russell); People v. Norman (2003) 109 Cal.App.4th 221,
229.)
Even if we were to reach the merits, we would reject the
argument. “A sentence violates the state prohibition against
cruel and unusual punishment (Cal. Const., art. I, §§ 6, 17) if ‘ “it
is so disproportionate to the crime for which it is inflicted that it
shocks the conscience.” ’ [Citations.] [¶] A sentence violates the
federal Constitution if it is ‘grossly disproportionate’ to the
severity of the crime. (U.S. Const., 8th & 14th Amends. . . .)”
(Russell, supra, 187 Cal.App.4th at p. 993, citations omitted.)
As defendant concedes, sexual assault of a minor is one of
the most serious criminal offenses in our penal system. Over a
period of two years, defendant engaged in repeated acts of sexual
assault, including rape, oral copulation and sodomy, against his
own daughter who was just 11 and 12 years old at the time.
Defendant’s sentence does not shock the conscience, nor is it
grossly disproportionate to the severity of the multiple felony
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crimes for which he was found guilty. (People v. Bestelmeyer
(1985) 166 Cal.App.3d 520, 531–532 [rejecting claim that
consecutive prison terms totaling 129 years pursuant to Pen.
Code, § 667.6, subd. (d) for 25 separate sex offenses involving a
minor victim constituted cruel and unusual punishment].)
Given the applicable law discussed above, we reject
defendant’s contention his trial counsel was ineffective for failing
to raise this objection at the sentencing hearing.
7. Consecutive Sentencing
In supplemental briefing, defendant raised multiple claims
of error regarding the court’s imposition of consecutive sentencing
pursuant to Penal Code sections 269, subdivision (c) and 667.6,
subdivision (d). Defendant contends the court applied an
incorrect legal standard in determining whether the charged acts
occurred on separate occasions, the evidence was insufficient to
support a finding the charged acts occurred on separate
occasions, and the “separate occasions” finding by the court
violated his right to a jury trial under both the California and
United States Constitutions. We reject all of these arguments.
Penal Code section 269, subdivision (c) provides that “[t]he
court shall impose a consecutive sentence for each offense that
results in a conviction under this section if the crimes involve . . .
the same victim on separate occasions as defined in
subdivision (d) of Section 667.6.”
Penal Code section 667.6, subdivision (d)(2) provides that a
court, in resolving whether crimes against a single victim
occurred on separate occasions, “shall consider whether, between
the commission of one sex crime and another, the defendant had
a reasonable opportunity to reflect upon the defendant’s actions
and nevertheless resumed sexually assaultive behavior. Neither
the duration of time between crimes, nor whether or not the
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defendant lost or abandoned the opportunity to attack, shall be,
in and of itself, determinative on the issue of whether the crimes
in question occurred on separate occasions.”
The court did not apply an incorrect legal standard. The
court cited the relevant language of Penal Code section 667.6,
subdivision (d). The court said, “[t]hese crimes were committed
against a single victim, but they were on separate occasions[,]
during the commission of each case [sic] and between the
commission of these crimes, this defendant had an opportunity to
reflect on his actions and, nevertheless, continued to persist in
his sexually assaultive behavior and, therefore, the court finds a
separate consecutive term should be imposed for each violent
offense under Section 667.6(d).”
The evidence, which we described at length above, amply
supports the trial court’s finding that the 10 offenses occurred on
separate occasions within the meaning of the statute.
As for defendant’s constitutional argument, both the
California Supreme Court and United States Supreme Court
have rejected the argument that vesting the trial court with the
discretion to choose between concurrent and consecutive
sentencing offends the constitutional right to a jury trial. (See
People v. Black (2007) 41 Cal.4th 799, 806 & Oregon v. Ice (2009)
555 U.S. 160, 164.)
Our Supreme Court is currently considering the issue of
whether the requirement of mandatory consecutive sentencing
embodied in Penal Code section 667.6, subdivision (d) complies
with the Sixth Amendment to the United States Constitution.
(People v. Catarino (Oct. 14, 2021, D078832) [nonpub. opn.],
review granted Jan. 19, 2022, S271828.) Pending further
guidance from the Supreme Court on this issue, we will follow
Black and Ice.
24
In any event, assuming for the sake of argument there was
error in the court’s imposition of consecutive sentences, it was
harmless beyond a reasonable doubt. (See People v. French
(2008) 43 Cal.4th 36, 52–53 [failure to submit sentencing factor to
jury is not structural error and does not require reversal if the
reviewing court determines it was harmless beyond a reasonable
doubt under Chapman v. California (1967) 386 U.S. 18]; accord,
Neder v. United States (1999) 527 U.S. 1, 15, 19.)
The record contains overwhelming evidence supporting the
finding that at least 10 separate offenses occurred on separate
occasions, that defendant “had a reasonable opportunity to reflect
upon the [his] actions” within the meaning of Penal Code
section 667.6, subdivision (d), and defendant nevertheless chose
to continue to commit multiple sexual assaults on M. over a two-
year period.
M. testified defendant picked her up from school early on
three different days, took her to a hotel and raped her each time.
She also testified that the final rape took place on December 5,
2016, when defendant picked her up from soccer practice, parked
near a field and forced himself on her in the car. There was
corroboration from a school administrator that defendant picked
up M. early from school on four different dates in the fall of 2016.
M. testified she was 11 years old when defendant first
assaulted her by putting his fingers in her vagina. She said the
next time he assaulted her, he used his mouth. She said these
types of assaults happened “over and over” at least 10 times
during the first year defendant began his abuse and before he
started raping her. M. further identified two additional
occasions, once when defendant tried to have anal sex with her,
and another time when he tried to force himself on her in the
bathroom of their home when he was drunk.
25
We have no trouble concluding that if the jury had been
asked to make an express finding pursuant to Penal Code
section 667.6, subdivision (d), the jury would have found beyond a
reasonable doubt that the 10 aggravated assaults on M. occurred
on separate occasions within the meaning of the statutory
language. Defendant therefore suffered no prejudice by the trial
court making that finding.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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