People v. Smith CA6 ( 2021 )

Filed 4/9/21 P. v. Smith CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046537
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1651226)
v.
JOSEPH JERMANE SMITH,
Defendant and Appellant.
Defendant Joseph Jermane Smith appeals after a jury convicted him of committing
a lewd act on a child under the age of 14 by means of force, violence, duress, menace, or
fear (count 1; Pen. Code, § 288, subd. (b)(1)1) and an aggravated sexual assault on a child
under the age of 14 and 10 or more years younger than himself (count 2; § 269). The trial
court imposed an indeterminate prison term of 15 years to life for count 2 and stayed the
term for count 1 pursuant to section 654.
On appeal, defendant contends there was insufficient evidence that he used force,
violence, duress, menace, or fear in the commission of counts 1 and 2. He also contends
the trial court erred by admitting the victim’s prior statement under the fresh complaint
doctrine, permitting the prosecution to call a live witness to provide evidence relating to a
prior uncharged act, and admitting evidence of Child Abuse Accommodation Syndrome
(CSAAS). Defendant challenges CALCRIM No. 1193, which tells the jury how to
1
Unspecified section references are to the Penal Code.
consider CSAAS evidence, and he contends the trial court erroneously imposed a $200
restitution fine and $120 in fees without finding defendant had an ability to pay.
We find substantial evidence supports both of defendant’s convictions. We find
no error in the challenged evidentiary rulings or the challenged jury instruction. We find
that any error in failing to hold a hearing on defendant’s ability to pay the fine and fees
was harmless. We will therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. S. Doe’s Testimony
S. Doe was 22 years old at the time she testified at defendant’s trial in July 2018.
Two years earlier, in July 2016, Doe had called the police and reported that defendant
had sexually assaulted her when she was five years old, which was in 2001. Doe
believed defendant was about 18 or 20 years old at the time of the sexual assault.2 Doe
was unsure if defendant was her cousin or her half-brother; she had learned that
defendant’s father, Joseph Smith, Sr., was “possibly” her father.
The sexual assault had occurred when Doe’s family was moving from her great
grandmother’s house in San Jose to an apartment. At the time, Doe knew that defendant
“was family.” She knew that defendant’s father was the brother of her aunt, who lived in
“the back house” at the same property.
On the day of the sexual assault, Doe’s adult family members, including
defendant, were helping with the move. Some of the adults left with a U-Haul truck.
Defendant, however, stayed at the house with Doe.
Defendant told Doe to go up to the attic to finish packing; she did.3 Defendant
came up to the attic after the U-Haul truck left. Defendant had a “blank face, serious”
look.
2
Defendant was born in October 1981, so he would have been 19 years old for
most of the year 2001.
3
The house had a permitted “loft” with an eight-foot ceiling.
2
Defendant told Doe to lie down, so she lay down on the floor. Either “before or
after,” defendant told Doe “not to tell anybody.” Defendant pulled down Doe’s shorts or
pants, and he pulled down his own pants while kneeling above her. Defendant may have
said, “It won’t hurt.” Defendant then inserted his penis into Doe’s vagina.
Doe did not cry or scream; she was not in pain. She did not “know what was
happening” and was scared that something would happen to her if she told anyone.
Defendant stopped when the U-Haul truck returned.
Doe did not see defendant again until she was in sixth grade. Doe’s mother had
asked defendant to drive Doe and her brother to school. By that time, Doe had realized
that what had happened “was wrong.” Doe told her mother she did not want to go with
defendant, but she did not give a reason, and her mother insisted.
In 2008, when Doe was 12 years old, she moved to Fresno. After the move, she
told her mother about the sexual assault. Doe had been “caught dry humping” the son of
her mother’s friend. Doe’s mother kept asking questions, “trying to figure out” why Doe
was “doing that.” Doe’s mother said that a “similar” thing had happened to her with
defendant’s father. Doe’s mother also said it was “too late” for Doe to report the sexual
assault.
In 2015, Doe confronted defendant’s father about possibly being her own father.
Doe asked for a DNA test, but defendant’s father refused.
In July 2016, Doe attended a family reunion at a park in San Jose. A few days
later, she had a conversation with her aunt, during which she disclosed the sexual assault.
Doe was hoping her aunt would help her get a DNA test. The aunt told Doe that it was
not too late for her to file a police report.
Just before calling the police, Doe found out that defendant was facing child
sexual assault charges in another case. Doe did not know the victim in that case.
3
Doe admitted that she had advertised herself on the Internet for “prostitution
services.” She testified under a grant of use immunity: her testimony regarding her
prostitution-related activities could not be used in any criminal prosecution against her.
B. CSAAS Evidence
Psychologist Anthony Urquiza testified as an expert regarding Child Sexual Abuse
Accommodation Syndrome (CSAAS). He explained that CSAAS “is used to educate
people” about “the context of sexual abuse, what happens to kids who have been sexually
abused, and to dispel any misperceptions or myths” about child sexual abuse. CSAAS
“should not be used to make a determination as to whether somebody was abused or not.”
CSAAS has five “categories,” or common characteristics of child sexual abuse:
secrecy, helplessness, entrapment and accommodation, delayed and unconvincing
disclosure, and retraction or recantation.
Secrecy explains why children keep sexual abuse a secret. A child may keep the
abuse a secret because the abuser has threatened the child or because the abuser has
authority or power over the child. The child may keep silent because the abuser provided
the child with attention, affection, or gifts. Additionally, the child may keep the abuse
secret because he or she feels embarrassment or shame.
Helplessness refers to the “inherent vulnerability” of children who are sexually
abused by someone “bigger, older, and stronger than them” and “in a position of power,
authority,” with “access to them.” In other words, such children have few options for
preventing the sexual abuse.
Entrapment and accommodation explains how children who are being sexually
abused deal with their feelings of shame, humiliation, fear, trauma, and disgust. Such
children often disassociate, shut down, and suppress their emotions.
Delayed and unconvincing disclosure refers to the fact that “most children do not
tell right away” and the fact that the disclosure may be gradual. It may take months or
4
years for a child to disclose sexual abuse. If a child receives a negative reaction to his or
her initial disclosure, that can cause the child to further delay a full disclosure.
Retraction and recantation describes how a child may “take back” an allegation of
sexual abuse after an initial disclosure. Often the retraction is due to pressure from a
family member.
C. Anabella Doe Incident
In 2013, defendant was convicted of having committed a lewd act (§ 288,
subd. (a)) on Anabella Doe in October 2010. Anabella Doe testified that she was born in
May 2005 and that she was 13 years old at the time of trial.
D. Verdicts and Sentence
A jury convicted defendant of committing a lewd act on a child under the age of
14 by means of force, violence, duress, menace, or fear (count 1; § 288, subd. (b)(1))
and of committing an aggravated sexual assault on a child under the age of 14 and 10 or
more years younger than defendant (count 2; § 269) by means of forcible rape (§ 261,
subd. (a)(2)). The trial court imposed an indeterminate prison term of 15 years to life for
count 2 and stayed the term for count 1 pursuant to section 654.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence that he used force, violence,
duress, menace, or fear in the commission of counts 1 and 2.4 Defendant points out that
Doe did not try to push him away, that he did not threaten Doe with weapons, and that he
did not perform a physical act such as choking Doe or pinning her down. Defendant also
asserts that he made no express threat of retribution and that there was no evidence he
had authority over Doe.
4
Defendant moved for dismissal of count 1 at the close of the prosecution’s case
on the ground that there was insufficient evidence of force or duress. (See § 1118.1.) In
argument to the jury, defendant argued that he had not committed any sexual act.
5
1. Standard of Review
When considering a challenge to the sufficiency of the evidence to support a
criminal conviction, we “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980)
26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) “In
making this determination, we do not reweigh the evidence, resolve conflicts in the
evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71
Cal.App.4th 62, 71.)
2. Count 1 – Forcible Lewd Act
At trial, the prosecutor argued that defendant used force and duress to accomplish
the lewd act. With respect to force, the prosecutor argued that the penetration of Doe’s
vagina, and the pulling down of Doe’s pants or shorts, involved force beyond what was
necessary to accomplish a lewd touching, which could be accomplished over clothing.
With respect to duress, the prosecutor pointed out that Doe was five years old, that
defendant had a serious look on his face, and that defendant told her to lie down and not
tell anyone.
For purposes of section 288, subdivision (b)(1), “force” means “ ‘physical force
that is “ ‘substantially different from or substantially greater than that necessary to
accomplish the lewd act itself.’ ” ’ ” (People v. Jimenez (2019) 35 Cal.App.5th 373,
391.)
“[D]uress,” as used in section 288, subdivision (b)(1), means “ ‘a direct or implied
threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities to (1) perform an act which otherwise would not have
been performed or, (2) acquiesce in an act to which one otherwise would not have
submitted.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal), italics omitted.)
6
Factors relevant to a finding of duress include “the victim’s age, her relationship to
the perpetrator, threats to harm the victim, physically controlling the victim when the
victim attempts to resist, warnings to the victim that revealing the molestation would
result in jeopardizing the family, and the relative physical vulnerability of the child.
[Citations.] The fact that the victim testifies the defendant did not use force or threats
does not preclude a finding of duress.” (People v. Thomas (2017) 15 Cal.App.5th 1063,
1072 (Thomas).)
We need not reach the question of whether there was sufficient evidence of force
in this case, because there was substantial evidence to support a finding of duress. Doe
was five years old and about 15 years younger than defendant, who was an adult family
member. There was a significant size disparity between Doe and defendant. Defendant
was an apparent authority figure to Doe: he was an adult family member who remained
at the house with Doe after other adults left, and he gave Doe instructions to go to the
attic to finish packing. Defendant’s apparent authority was reinforced by his “blank face,
serious” look and his further instruction that she was to lie down. Moreover, by isolating
Doe in the attic, defendant made her even more vulnerable. (See People v. Superior
Court (Kneip) (1990) 219 Cal.App.3d 235, 238 [duress found where molestation “took
place in an isolated room out of the presence of other adults”].) Together, a reasonable
jury could find that these facts constituted an “ ‘implied threat of force, violence, danger,
hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities
to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in
an act to which one otherwise would not have submitted.’ ” (Leal, supra, 33 Cal.4th at
p. 1004, italics omitted.)
3. Count 2 – Aggravated Sexual Assault (Rape)
At trial, the prosecutor argued that defendant had used force and duress to commit
the rape, which was the basis for the aggravated sexual assault count.
7
Again, we need not reach the question of whether defendant accomplished the
sexual assault by force, because the record contains substantial evidence supporting a
finding that he used duress. The definition of duress in the rape statute (§ 261, subd. (b))
is slightly different than the definition of duress applied to section 288, subdivision (b), in
that a threat of hardship will not constitute duress for purposes of rape. (See Leal, supra,33 Cal.4th at p. 1008.) However, the same factors are relevant to a determination of
whether a defendant used duress to commit an aggravated sexual assault of a child based
on an allegation of rape. (See Thomas, supra, 15 Cal.App.5th at p. 1072.) Our analysis
is therefore the same as it was for count 1: based on the age disparity, the size disparity,
defendant’s status as an adult family member who was an apparent authority figure to
Doe, and defendant’s isolation of Doe, a reasonable jury could find that defendant
accomplished the aggravated sexual assault by means of duress.
B. Fresh Complaint Evidence
Defendant contends the trial court erred by admitting Doe’s statements to her
mother and aunt under the fresh complaint doctrine. He argues that the delay of
approximately seven years cannot be “considered ‘fresh.’ ” He also asserts that the fresh
complaint doctrine should not allow evidence of a complaint made in response to
“pressure” or “questioning.” Defendant further argues that the trial court should have
excluded Doe’s initial complaint to her mother under Evidence Code section 352 because
it had “no probative value” in light of the passage of time and circumstances of the
disclosure.
1. Proceedings Below
The People filed a motion in limine seeking to admit Doe’s prior disclosures under
the fresh complaint doctrine. Defendant opposed the admission of Doe’s disclosures,
pointing out that the disclosure to her mother was made seven years after the alleged
sexual assault and arguing that the disclosure was unreliable because it was made in
8
response to questioning. Defendant further argued that the fresh complaint evidence was
“highly prejudicial” and should be excluded under Evidence Code section 352.
The trial court held an Evidence Code section 402 hearing to consider the
circumstances of Doe’s prior disclosures.
At the hearing, Doe testified that she had lived in San Jose until 2008, when she
was 12 years old and moved to Fresno with her mother and brothers. “[A] little bit after”
they moved, Doe told her mother what defendant had done. Doe had “gotten in trouble”
that day for being “sexually inappropriate” with a boy: her mother had caught them “dry
humping.” Doe’s mother had asked how Doe knew “those things” and why she was
doing them. Doe’s mother’s asked whether Doe had any prior sexual experiences.
Afraid to “get grounded” and “get a whopping” if she did not tell her mother why she had
been “acting sexually,” Doe told her mother that defendant had raped her when she was
five years old, in the attic of the San Jose house, when the family had left with the
U-Haul truck. Doe’s mother “broke down” and said that she had been raped, too.
Doe also testified about the 2016 disclosure to her aunt. In 2014, Doe had
discovered that defendant’s father was also likely her own father. At a family gathering
in 2016, a relative had confronted Doe’s mother about defendant’s father. A few days
later, Doe told her aunt that she wanted a DNA test to confirm that defendant’s father was
her own father, because she wanted to know if the person who had raped her was a cousin
or a brother. When Doe explained that her mother had told her “it was too late” to report
the crime, her aunt told her that it was not too late to file a police report.
After Doe’s testimony at the hearing, defendant argued that the trial court should
not admit the disclosures under the fresh complaint doctrine. He argued that Doe’s
disclosure to her mother was made seven years after the incident, “under extreme
duress,” and in response to “suggestive and leading questions.” He argued that Doe’s
disclosure to her aunt had occurred 15 years after the incident and that it was made under
“pressure.”
9
The prosecutor argued that Doe’s disclosure to her mother was “volunteered” in
that she had mentioned defendant “on her own.” Likewise, he argued, Doe had
volunteered the information to her aunt.
The trial court found that Doe’s disclosure to her mother was not made in
“response to an interrogation” about whether Doe had been raped or molested, and
therefore it would be admitted. The trial court further found that Doe’s disclosure to her
aunt was “offered up” voluntarily and thus that it, too, would be admitted.
The jury was instructed on the fresh complaint evidence as follows: “Evidence
was received that on an occasion outside of court, the alleged victim made a complaint of
sexual misconduct relating to the charges. [¶] You may consider such evidence solely for
the purpose . . . that a complaint was made and not as proof of the truth of the content of
the alleged victim’s complaint.”
2. Legal Principles
The parameters of the fresh complaint doctrine were set forth in People v. Brown
(1994) 8 Cal.4th 746 (Brown): “[P]roof of an extrajudicial complaint, made by the victim
of a sexual offense, disclosing the alleged assault, may be admissible for a limited,
nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding,
the victim’s disclosure of the assault to others—whenever the fact that the disclosure was
made and the circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred. Under such generally applicable
evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the
incident or, rather, at a later date) and the circumstances under which it was made (e.g.,
whether it was volunteered spontaneously or, instead, was made only in response to the
inquiry of another person) are not necessarily determinative of the admissibility of
evidence of the complaint. Thus, the ‘freshness’ of a complaint, and the ‘volunteered’
nature of the complaint, should not be viewed as essential prerequisites to the
admissibility of such evidence.” (Id. at pp. 749-750.)
10
“[S]o long as the evidence in question is admitted for the nonhearsay purpose of
establishing the circumstances under which the victim reported the offense to others, such
evidence ordinarily would be relevant under generally applicable rules of evidence, and
therefore admissible, so long as its probative value outweighs its prejudicial effect.
(Evid. Code, § 352.)” (Brown, supra, 8 Cal.4th at pp. 759-760, italics omitted.) The
evidence admitted should be “carefully limited to the fact that a complaint was made, and
to the circumstances surrounding the making of the complaint, thereby eliminating or at
least minimizing the risk that the jury will rely upon the evidence for an inadmissible
hearsay purpose.” (Id. at p. 762.)
We apply the abuse of discretion standard of review to “any ruling by a trial court
on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 724
(Waidla).)
3. Analysis
The defendant in Brown made the same arguments that defendant presents in this
case: that evidence of the victim’s out-of-court statements was not admissible under the
fresh complaint doctrine because the victim “did not voice the complaint promptly, and,
when she ultimately did report the incidents, made the complaint only in response to
questioning by an adult friend.” (Brown, supra, 8 Cal.4th at p. 749.)
In Brown, the sexual abuse began when the victim was seven years old and
continued until she was 12 years old. (Brown, supra, 8 Cal.4th at pp. 750-751.) The
victim disclosed the abuse to an adult about two or three months after the last incident.
(Id. at p. 752.) The adult had “ ‘sort of pried it out’ ” (ibid.) of the victim, who was
“ ‘reluctant’ ” to disclose the abuse (id. at p. 753).
The Brown court noted that prior case law had developed the rule that a complaint
of sexual abuse “must have been truly ‘fresh’ or ‘recent’ ” in order to be admissible.
(Brown, supra, 8 Cal.4th at p. 756.) But the court recognized that “one of the historic
premises of the doctrine—that it is natural for the victim of a sexual assault to complain
11
promptly following the assault—has been discredited substantially in contemporary
times.” (Id. at p. 758.) Even a delayed disclosure can be “relevant to the jury’s
evaluation of the likelihood that the offense did or did not occur.” (Id. at p. 761.)
Without knowing the circumstances under which the victim first reports the commission
of an alleged offense, the jury “may be left with an incomplete or inaccurate view of all
the pertinent facts.” (Ibid.) Admitting “the circumstances surrounding a delayed
complaint, including those that might shed light upon the reason for the delay, will reduce
the risk that the jury, perhaps influenced by outmoded myths regarding the ‘usual’ or
‘natural’ response of victims of sexual offenses, will arrive at an erroneous conclusion
with regard to whether the offense occurred.” (Brown, supra, at pp. 761-762.)
Ultimately, the Brown court rejected the defendant’s arguments, holding that “the
admissibility of such evidence does not turn invariably upon whether the victim’s
complaint was made immediately following the alleged assault or was preceded by some
delay, nor upon whether the complaint was volunteered spontaneously by the victim or
instead was prompted by some inquiry or questioning from another person.” (Brown,
supra, 8 Cal.4th at p. 763.) The question is whether the statements are relevant and, if so,
whether their probative value is “outweighed by the risk that the jury will consider it for
impermissible hearsay purposes, or that the evidence will otherwise create a danger of
undue prejudice or will mislead or confuse the jury.” (Ibid.; see Evid. Code, § 352.)
In the instant case, the evidence of Doe’s disclosures to her mother and her aunt
was “relevant to the jury’s determination of whether the alleged molestation did or did
not occur.” (Brown, supra, 8 Cal.4th at p. 763.) The circumstances under which Doe
made the disclosures were probative of that determination. The first disclosure occurred
after Doe had been caught engaging in inappropriate sexual behavior, in response to her
mother’s demand for an explanation. The second disclosure occurred when Doe sought
out her aunt’s assistance in determining whether defendant’s father was Doe’s own
father. When Doe made the first disclosure, she was told it was too late to report the
12
sexual assault. But when Doe made the second disclosure, it led to her calling the police.
The circumstances of both disclosures helped “shed light” on why Doe made the
disclosures “as well as the reasons for her substantial delay in doing so.” (Id. at p. 764.)
The circumstances of the disclosures also “tended to forestall any erroneous inferences
that might have arisen in the absence of that evidence.” (Ibid.)
The evidence of Doe’s disclosures “fell within the limits appropriately governing
the admissibility of such statements.” (Brown, supra, 8 Cal.4th at p. 764.) “[T]he
testimony was limited to the timing of [the] complaint[s] and the circumstances under
which [they were] made, omitting the content of the statements and specifically any
description of the molestation itself.” (Ibid.)
We also find no abuse of discretion under Evidence Code section 352, because the
probative value of the fresh complaint evidence was not “outweighed by the risk that the
jury [would] consider it for impermissible hearsay purposes” (Brown, supra, 8 Cal.4th at
p. 763), nor was it “substantially outweighed by the probability that its admission [would]
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
The fresh complaint evidence in this case was brief and did not include any details
of the sexual assault. The fact that Doe made prior complaints was probative of Doe’s
credibility in eventually reporting the sexual assault to the police in 2016. On this record,
the trial court did not abuse its discretion by declining to exclude the fresh complaint
evidence pursuant to Evidence Code section 352.
C. Anabella Doe’s Testimony
Defendant contends the trial court erred by permitting the prosecution to call
Anabella Doe as a live witness for the purpose of establishing that Anabella had been five
years old when defendant molested her. Defendant points out that he was willing to
stipulate to admission of the conviction records, which included the fact that Anabella
13
Doe was five years old at the time of the crime, and he contends the trial court’s ruling
violated Evidence Code section 352.
1. Proceedings Below
Defendant’s motions in limine included a motion to exclude evidence of his 2010
sexual offense involving Anabella Doe, pursuant to Evidence Code section 352.
Defendant acknowledged he had been convicted of violating section 288, subdivision (a)
but argued that the incident was remote in time and that presenting evidence of the
offense would involve an undue consumption of time and confuse the jury.
The People filed a motion in limine seeking to admit evidence of the Anabella Doe
incident pursuant to Evidence Code sections 1101 and 1108. The People asserted that the
victims were “almost exactly the same age,” that the conduct involving Anabella Doe
was “less inflammatory” because it involved oral copulation instead of rape, and that the
prior incident was not remote in time. The People further argued that not only were
certified documents showing defendant’s conviction admissible, but that evidence of the
underlying offense was also admissible.
During the hearing on motions in limine, the trial court ruled that “the prior”
would be admitted. At trial, a certified copy of defendant’s conviction was admitted into
evidence. Defendant’s trial counsel subsequently requested that the exhibit be redacted
to remove a reference to Anabella Doe’s age. He argued that the record of conviction
“should only include facts and circumstances that were actually found beyond a
reasonable doubt by a jury in that matter,” and he pointed out that the jury only had to
find that Anabella Doe was under the age of 14.
The prosecutor offered to call Anabella Doe as a witness to testify as to her age at
the time of the prior offense. Defendant objected that if Anabella Doe was called as a
witness, her own testimony about her age would be hearsay because she would have “no
personal memory or knowledge of the day that she was born.” The trial court indicated it
14
could redact the exhibit and take judicial notice of court records showing Anabella Doe’s
age, or it could leave her age in the exhibit.
Ultimately, defendant withdrew his objection to the exhibit and objected instead to
Anabella Doe being brought in as a live witness, asserting that it would be “unduly
prejudicial,” involve an “undue consumption of time,” and be “duplicative.” Defendant
noted that Anabella Doe was “a little distraught” as she waited in the witness room.
The prosecutor indicated he would only ask Anabella Doe her birthdate, then
excuse her. He would then present the officer who had investigated both of defendant’s
cases and show some still photographs from a 2010 interview of Anabella Doe, when she
was five years old. The trial court ruled that the prosecutor could not present the
photographs, but that the live testimony of Anabella Doe would be permitted.
When Anabella Doe took the stand, she was accompanied by her grandmother, as
a support person. She was asked her name, her age, and her birthday. Her testimony
took up less than one page of the reporter’s transcript.
2. Legal Principles
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence is
substantially more prejudicial than probative “if, broadly stated, it poses an intolerable
‘risk to the fairness of the proceedings or the reliability of the outcome.’ ” (Waidla,
supra, 22 Cal.4th at p. 724.) As noted above, we apply the abuse of discretion standard
of review to “any ruling by a trial court on the admissibility of evidence.” (Ibid.)
3. Analysis
Defendant first contends Anabella Doe’s testimony was cumulative of other
evidence—the record of his prior conviction, which established her age at the time of that
offense—and thus that her testimony consumed an undue amount of time. As noted
15
above, however, Anabella Doe’s testimony was extremely brief and limited. Although
her testimony added little to the prosecution’s case, the trial court’s ruling permitting the
testimony was well within its discretion, particularly after the defense had raised an
objection to the statement of Annabella’s age in the record of conviction.
Defendant further notes that Anabella Doe was distraught prior to her testimony,
and he posits that she remained “extremely upset when she testified,” such that any
probative value of her testimony was substantially outweighed by its potential for
prejudice. “Evidence is prejudicial within the meaning of Evidence Code section 352 if it
‘ “uniquely tends to evoke an emotional bias against a party as an individual” ’ [citations]
or if it would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause on the basis of
extraneous factors.” ’ ” (People v. Cowan (2010) 50 Cal.4th 401, 475.)
Although the record shows that Anabella Doe was “a little distraught” as she
waited in the witness room, nothing indicates that she was upset when she testified in
front of the jury, such that her testimony would evoke an emotional bias against
defendant. Her testimony was, as noted, extremely brief and limited. The trial court did
not abuse its discretion by finding that Anabella Doe’s live testimony would not pose “an
intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome.’ ”
(Waidla, supra, 22 Cal.4th at p. 724.)
D. Admission of Child Abuse Accommodation Syndrome Evidence
Defendant contends CSAAS evidence “should be inadmissible in California for all
purposes” because it is “easily misapplied by a jury.” Defendant asserts that the primary
use of CSAAS evidence is to “bolster the complaining witness’s credibility.”
1. Proceedings Below
Defendant’s motions in limine included a request to exclude CSAAS evidence.
Defendant asserted that expert testimony about CSAAS is insufficiently reliable, lacks
probative value, and is highly prejudicial. He argued that if admitted, the CSAAS
evidence should be limited to an identified “myth” specific to this case.
16
In response, the People argued that because “[Doe’s] disclosures were piecemeal,
conflicted, and substantially delayed,” CSAAS testimony was “both apt and necessary to
address preconceived ideas regarding such conduct and regarding the nature of sexual
assault disclosure.” The People requested the trial court read CALCRIM No. 1193,
which instructs the jury how to consider CSAAS evidence.
The trial court ruled that the expert testimony on CSAAS would be admitted, and
it instructed the jury pursuant to CALCRIM No. 1193 that the CSAAS testimony was
“not evidence that the defendant committed any of the crimes charged against him” and
could be considered “only in deciding whether or not [Doe’s] conduct was not
inconsistent with the conduct of someone who has been molested and in evaluating the
believability of her testimony.”
2. Analysis
In People v. McAlpin (1991) 53 Cal.3d 1289, our Supreme Court did not directly
address the admissibility of CSAAS testimony. However, in finding that expert opinion
regarding a parent’s delay in reporting child molestation was admissible, the court opined
that such evidence is analogous to evidence of CSAAS. “ ‘Such expert 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. [¶] The great majority of courts approve such expert rebuttal testimony.’ ” (Id.
at p. 1301.)
A number of Court of Appeal decisions, including this court in People v. Perez
(2010) 182 Cal.App.4th 231, have held that CSAAS evidence is admissible for the
purpose of dispelling common misperceptions a jury may have about how children react
to sexual abuse. (See, e.g., People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People
v. Patino (1994) 26 Cal.App.4th 1737, 1744; People v. Bowker (1988) 203 Cal.App.3d
385, 393-394 (Bowker).) Based on these authorities, we find no error in the admission of
CSAAS evidence.
17
E. CALCRIM No. 1193 (CSAAS Instruction)
Defendant challenges CALCRIM No. 1193, which tells the jury how to consider
CSAAS evidence. He contends the instruction violates due process by stating that jurors
may consider CSAAS evidence in determining the credibility of the alleged victim, rather
than only to explain that the alleged victim’s response is not necessarily inconsistent with
having been molested.
1. Proceedings Below
The trial court instructed the jury with CALCRIM No. 1193 as follows: “You
have heard testimony from Dr. Anthony Urquiza regarding Child Sexual Abuse
Accommodation Syndrome. [¶] Dr. 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 [Doe’s] conduct was not inconsistent with the conduct of someone who has been
molested and in evaluating the believability of her testimony.” (Italics added.)
2. Standard of Review
“We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review.” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088.) The pertinent inquiry is whether the instructions as a whole “ ‘fully and
fairly’ ” set forth the applicable law. (Ibid.) Where a jury instruction is ambiguous, we
assess “ ‘whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S.
62, 72.)
3. Analysis
Defendant argues that by telling jurors they may use expert testimony about
CSAAS “in evaluating the believability of” the complaining witness’s testimony,
CALCRIM No. 1193 “effectively . . . permits the jurors to consider this expert testimony
as supportive of the truth of the allegations,” which case law prohibits. (See Bowker,
18
supra, 203 Cal.App.3d at p. 394 [“the jury must be instructed simply and directly that the
expert’s testimony is not intended and should not be used to determine whether the
victim’s molestation claim is true”].)
CSAAS evidence is not admissible to prove that the alleged victim has in fact been
sexually abused. (Bowker, supra, 203 Cal.App.3d at p. 393.) But it is admissible to
rehabilitate an alleged victim’s credibility when the defendant suggests that the child’s
conduct after the incident—i.e., recanting or a delay in reporting—is inconsistent with his
or her testimony claiming molestation. (See People v. Housley (1992) 6 Cal.App.4th
947, 956.) Here, there was evidence that Doe engaged in conduct that might appear to be
inconsistent with having been molested, including a delayed disclosure of the incident.
That evidence placed Doe’s credibility in issue. Dr. Urquiza testified that CSAAS is
designed to dispel myths about child sexual abuse, such as that an abused child will
disclose the abuse in a timely fashion. He testified that CSAAS is not used to determine
whether sexual abuse actually occurred, and he offered no opinion as to the veracity of
the allegations in this case. CALCRIM No. 1193 specifically informed the jury that Dr.
Urquiza’s testimony was “not evidence that the defendant committed any of the crimes
charged against him.”
In view of the foregoing, there is no reasonable likelihood that the jury understood
CALCRIM No. 1193 as allowing it to use the CSAAS evidence to determine that
defendant sexually abused Doe. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 503
[“the instruction must be understood in the context of” the expert’s testimony].) Rather,
it is likely the jury properly understood CALCRIM No. 1193 as permitting it to use the
CSAAS evidence in evaluating the believability of Doe’s testimony that the molestation
occurred, in light of the evidence that she engaged in conduct seemingly inconsistent with
the conduct of a child who had been molested. (See id. at p. 504.) Therefore, we reject
defendant’s challenge to the instruction.
19
F. Fees and Fines
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant
contends the trial court erroneously imposed certain fees and fines without finding he had
an ability to pay.
1. Proceedings Below
The probation report prepared for defendant’s sentencing hearing reflected that he
had last worked in 2010, when he had been employed doing “general labor” for a
janitorial service. Defendant had been in custody since his 2010 arrest for the Anabella
Doe case. If released from custody, defendant planned to work as an electrician. He
suffered from spondylolisthesis, a condition that caused him back pain and for which he
took medication. The probation report recommended imposition of a $10,000 restitution
fine (§ 1202.4, subd. (b)), a $30 court facility fee (§ 1465.8, subd. (a)(1)), and a $30 court
operations assessment (Gov. Code, § 70373).
At the sentencing hearing held on December 10, 2018, the trial court stated it
would “reduce” the restitution fine to “the minimum” and set that fine at $200.5 The trial
court also imposed a $60 court facility fee and a $60 court operations assessment.
2. Forfeiture
Defendant’s sentencing occurred in 2018, prior to the Dueñas decision. Defendant
argues that his failure to object at sentencing does not forfeit his appellate claim because
the sentencing hearing predated Dueñas. This position is in accord with this court’s
opinions in People v. Petri (2020) 45 Cal.App.5th 82, 88-89 (Petri), where this court
assumed that there was no forfeiture of a Dueñas argument, and People v. Santos (2019)
38 Cal.App.5th 923, 933 (Santos) and People v. Adams (2020) 44 Cal.App.5th 828, 831
(Adams), where this court found no forfeiture of a Dueñas argument. Based on the
reasoning stated in those cases, we will find defendant’s Dueñas claim was not forfeited.
5
In 2018, the minimum restitution fine was $300. (Stats 2017, ch. 101, § 1.)
20
3. The Dueñas Case
The defendant in Dueñas was indigent, homeless, and unemployed due to a
disability. She was convicted of driving with a suspended license, placed on
misdemeanor probation, and ordered to pay a $150 restitution fine, a $40 court facility
fee, and a $30 court operations assessment. (Dueñas, supra, 30 Cal.App.5th at p. 1162.)
The trial court found that the latter two fees were mandatory and that the restitution fine
could only be waived if there were “compelling and extraordinary reasons” as defined by
section 1202.4, subdivision (c), which excludes “inability to pay” as such a reason (ibid.).
Dueñas found it unconstitutional to “us[e] the criminal process to collect” fines
and fees that the defendant could not pay due to her poverty. (Dueñas, supra, 30
Cal.App.5th at p. 1160.) The court held “that due process of law requires the trial court
to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay
before it imposes court facilities and court operations assessments under Penal Code
section 1465.8 and Government Code section 70373” and “that although Penal Code
section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is
considering increasing the fee over the statutory minimum, the execution of any
restitution fine imposed under this statute must be stayed unless and until the trial court
holds an ability to pay hearing and concludes that the defendant has the present ability to
pay the restitution fine.” (Dueñas, supra, at p. 1164.)
The Dueñas court noted that the court facility fee and the court operations
assessment were intended to generate funds for courts rather than to be “punitive.”
(Dueñas, supra, 30 Cal.App.5th at p. 1165.) However, that revenue goal is not furthered
by imposing such fees on people who are unable to pay. (Id. at p. 1167.) Moreover, a
person who cannot pay court fees can face additional consequences, such as collections
actions, which the court described as “additional punishment” that, if imposed without a
finding of ability to pay, would be “fundamentally unfair.” (Id. at p. 1168.)
21
The restitution fine, in contrast, is intended to be “additional punishment for a
crime.” (Dueñas, supra, 30 Cal.App.5th at p. 1169.) However, imposition of even a
minimum fine on an indigent defendant can result in disparate treatment of indigent and
wealthy probationers, because someone who can pay off the restitution fine and fulfills
all the other obligations of probation can often obtain dismissal of the charges pursuant to
section 1203.4. (See Dueñas, supra, at p. 1170.)
4. Analysis
Courts of Appeal have not agreed whether Dueñas was correctly decided, and the
issue is pending before the California Supreme Court in People v. Kopp (2019) 38
Cal.App.5th 47, S257844, review granted November 13, 2019. In fact, members of this
court have reached different conclusions on the issue. (See Adams, supra, 44
Cal.App.5th at p. 831 [maj. opn]; id. at pp. 832-833 [dis. opn. of Premo, J.]; Petri, supra,
45 Cal.App.5th at pp. 91-92 [maj. opn]; id. at p. 95 [dis. opn. of Premo, J.]; Santos,
supra, 38 Cal.App.5th at p. 933 [maj. opn.]; id. at p. 935 [dis. opn. of Elia, J.].)
In the instant case, we need not decide whether Dueñas was correctly decided,
because any error in imposing the challenged fine and fees without conducting an
ability-to-pay hearing was harmless in this case.
We review federal constitutional errors under the
harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman
v. California (1967) 386 U.S. 18, 24. Here, any error was harmless if the record
demonstrates that defendant could not have established an inability to pay. (See People
v. Johnson (2019) 35 Cal.App.5th 134, 139-140 (Johnson) [finding Dueñas error
harmless under Chapman]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 (Jones)
[same].)
22
Defendant was sentenced to a prison term of 15 years to life, with 217 days of
presentence custody credit. Because defendant was convicted of a violent felony,6
defendant will accrue “no more than 15 percent of worktime credit” pursuant to
section 2933.1, subdivision (a). Thus, defendant will be required to serve at least 12
years in prison before becoming eligible for parole.
“Wages in California prisons currently range from $12 to $56 a month.
[Citations.] And half of any wages earned (along with half of any deposits made into [a
defendant’s] trust account) are deducted to pay any outstanding restitution fine.” (Jones,
supra, 36 Cal.App.5th at p. 1035.) Assuming defendant earns the minimum monthly
wages of $12, he can earn $1,728 in 12 years. Of that, $200 will be deducted to pay the
restitution fine, leaving $1,528 to pay the $120 in court facilities fees and court
operations assessments.
The record in this case shows that defendant would be able to engage in prison
work. Although defendant apparently suffered from spondylolisthesis, he took
medication for that condition, and he indicated that his condition would not prevent him
from working as an electrician if he was released from custody. He had previously been
employed doing labor.
On this record, we conclude that any error in failing to conduct an ability-to-pay
hearing was harmless. (See Johnson, supra, 35 Cal.App.5th at p. 140 [defendant
sentenced to eight-year prison term would have “ample time” and a “readily available
source of income” from which to pay $370 in fines and fees]; Jones, supra, 36
Cal.App.5th at p. 1035 [defendant sentenced to six-year prison term would have ability to
pay $300 restitution fine and $70 in assessments from prison wages]; People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837 [“defendant’s ability to obtain prison
6
“Any felony punishable by death or imprisonment in the state prison for life” is a
violent felony. (§ 667.5, subd. (c)(7).)
23
wages” is properly considered when determining whether ability to pay]; Santos, supra,
38 Cal.App.5th at p. 934 [same].)
DISPOSITION
The judgment is affirmed.
24
Cogliati, J.*
WE CONCUR:
Greenwood, P.J.
Elia, J.
People v. Smith
H046537
*
Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.