People v. Villanueva CA5 ( 2022 )

Filed 4/11/22 P. v. Villanueva CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080726
Plaintiff and Respondent,
(Super. Ct. No. DF012944A)
v.
ARMANDO VILLANUEVA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C.
Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Armando Villanueva was convicted by jury of 10 counts of sexually abusing
minor girls at a daycare operated by his wife. He raises a single issue on appeal: Did the
trial court err in excluding evidence he was sexually interested in “adult Caucasian
women, not children?”
We conclude the court did not err and, even had it erred, the error would be
harmless based on other evidence presented indicating Villanueva was neither sexually
deviant nor suggestive of pedophilia. Accordingly, we affirm the judgment.
BACKGROUND
Charges
The Kern County District Attorney charged Villanueva with 10 crimes: lewd act
on a child under age 14 (Pen. Code,1 § 288, subd. (a); Count 1), oral copulation on a
minor under age 14 (§ 288a, subd. (c)(1); Count 2), lewd act on a child under age 14
(§ 288, subd. (a); Count 3), oral copulation on a minor under age 14 (§ 288a, subd. (c)(1);
Count 4), lewd act on a child under age 14 (§ 288, subd. (a); Count 5), lewd act on a child
under age 14 (§ 288, subd. (a); Count 6), lewd act on a child under age 14 (§ 288,
subd. (a); Count 7), lewd act on a child under age 14 (§ 288, subd. (a); Count 8), lewd act
on a child under age 14 (§ 288, subd. (a); Count 9), and lewd act on a child under age 14
(§ 288, subd. (a); Count 10).2 Counts 1, 3, 5, 6, 7, 8, 9, and 10 included multiple victim
special circumstance allegations (§ 667.61, subd. (e)(4)).
Trial Evidence3
Villanueva’s wife operated a daycare for many years out of the family home.
Sometimes, Villanueva’s wife would leave to run errands, leaving Villanueva as the only
1 Undesignated statutory references are to the Penal Code.
2 The offenses in this case occurred before section 288a was renumbered to
section 287. The current section proscribing the acts constituting Counts 2 and 4 is
section 287, subdivision (c)(1).
3 We summarize the evidence presented at trial because we largely believe the
details are immaterial to the issue on appeal. To the extent the details are relevant, for
example when considering prejudice, Villanueva can rest assured we have read and
considered the entire record.
2.
adult at the daycare. Eight victims ultimately came forward and disclosed sexual abuse at
the daycare.
Victim one estimated Villanueva sexually abused her more than 100 times
(Counts 1 & 2). She also saw him abuse victims two, four, and five.
Victim two described various sexual abuse perpetrated by Villanueva (Counts
3 & 4).4 Victim three testified Villanueva sexually abused her on five distinct occasions
(Count 5). Victim four described at least five incidents in which Villanueva sexually
abused her, and stated she witnessed him abuse victims two and three (Count 6).
Victim five testified to approximately six instances of sexual abuse committed by
Villanueva (Count 7). She also saw Villanueva abuse victim four. Victim six described
Villanueva sexually abusing her “[e]very day” (Count 8).
Victim seven explained she was twice sexually abused by Villanueva (Count 9).
She once saw Villanueva take victim one into a room and close the door. Victim eight
testified to numerous and various acts of sexual abuse perpetrated by Villanueva
(Count 10). She claimed victim one witnessed one of the incidents but victim one did not
corroborate the specific act.5
Several expert witnesses also testified at the trial. One expert testified he
performed several tests on Villanueva and opined Villanueva was not “impulsive,” not a
“risk taker,” disorganized, lacked “cognitive flexibility,” did not exhibit “deviant sexual
interest or sexual behaviors,” and not consistent with pedophilia.6
4Victim two described being abused with victim one. Victim one partly
corroborated that testimony.
5 This is just one example of several inconsistencies in the evidence. The
inconsistencies were of varying significance. Villanueva focused on inconsistencies
throughout the trial as part of his defense.
6Other experts testified about “child sexual abuse accommodation syndrome” and
“children suggestibility and forensic interviewing.”
3.
Verdict and Sentence
Villanueva was found guilty as charged. The multiple victim special
circumstances were found true. He was sentenced to serve 190 years to life in prison.
DISCUSSION
The sole issue in contention is whether the trial court abused its discretion in
excluding expert opinion testimony Villanueva did “not have a sexual interest in children,
therefore his character [was] not consistent with that of a typical child molester ….” The
People contend the court properly excluded the evidence and if not, “any error was
harmless ….”
We conclude the court did not abuse its discretion in excluding the evidence. We
also explain why any error would be harmless based on this record.
Additional Background
Two expert witnesses testified about the Abel test. The first expert, at an Evidence
Code section 402 hearing outside the jury’s presence, explained, “The Abel test really
only has one purpose and that is to determine what someone’s sexual interest is.”
The test is based on “laws of attraction ….” Essentially, 80 photographs are
displayed one by one on a computer screen. The subject must “imagine being sexual
with the model [in the picture]” and then “hit enter when” finished. The computer
measures the time spent in “milliseconds for each of the categories” of photographs. The
test also involves a “history” or “questionnaire” about “drug abuse, psychological issues[,
and] any sexual interest or problems in the past.”7
The test is scored and then compared against “community norms ….” When the
scores exceed “community norms,” the subject’s sexual interest is identified.
7 This testimony was presented at an Evidence Code section 402 hearing by an
expert that did not testify before the jury.
4.
The second expert witness testified both at an Evidence Code section 402 hearing
and before the jury. At the hearing, the expert acknowledged he did not administer the
entire Abel test. Instead, he gave the history or questionnaire portion and then relied on
the first expert’s results related to the photographs. In response to the court’s question
whether the expert “gave questionable validity to [the questionnaire] results,” the expert
answered, “That’s correct.”
The court ruled the expert opinion based on the Abel test lacked foundation
because it was not “designed … to be diagnostic.” The court primarily based its ruling
on People v. Fortin (2017) 12 Cal.App.5th 524 (Fortin) where the appellate court found,
in part, the Abel test “has not gained acceptance as a way to prove or disprove an
accused’s sexual interest in children during the guilt phase of a criminal trial.” (Id. at
p. 534.)
Subsequent to the ruling, the second expert testified at the trial. He explained
performing various tests on Villanueva and related several facts and opinions based on
those results. One opinion was the various testing could be used to diagnose pedophilia8
but Villanueva’s results were not suggestive of it.9 He also explained Villanueva’s
reported sexual history was “mild and unremarkable” with no “deviant sex acts.”10 Other
testing, too, did not “generate any red flags about deviant sexual interest or sexual
behaviors.”
8 For the jury’s benefit, pedophilia was defined, partially, as a persisting, recurring
sexual interest in prepubescent minors.
9 The expert did not actually form a diagnosis. Instead, he suggested it was
possible to do so based on some of the testing provided, and stated none of those results
indicated pedophilia.
10 The expert acknowledged Villanueva was defensive in his responses but the
expert believed “that was actually appropriate given” the circumstance the interview was
not entirely private.
5.
Analysis
“ ‘The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion.’ ” (People v.
Duong (2020) 10 Cal.5th 36, 60.) A decision to exclude expert testimony “ ‘ “ ‘will not
be reversed merely because reasonable people might disagree [with it]. “An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.” ’ ” ’ ” (People v. McDowell (2012) 54 Cal.4th 395, 429-430.) “ ‘[A]
trial court … abuse[s] its discretion [only when] its decision is so irrational or arbitrary
that no reasonable person could agree with it.’ ” (Id. at p. 430.)
We discern no abuse of discretion in this case. The expert that testified at trial did
not conduct the entire Abel test and conceded the portion he did administer yielded
questionable results.11 A decision to exclude incomplete testing with questionable results
is not patently unreasonable.12 (Cf. Fortin, supra, 12 Cal.App.5th at p. 534 [Abel test
11 Not only did the second expert base his Abel-test-result opinions on the first
expert’s testing, but that expert in turn relied on the Abel Institute to score the test.
Indeed, that is the only way to score the test.
12A primary argument in the trial court and on appeal is whether the Abel test has
gained acceptance for use in a criminal jury trial. We need not decide the issue because
we find the court properly excluded the evidence for a different reason. (People v. Geier
(2007) 41 Cal.4th 555, 582 [“ ‘[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for the wrong reason.’ ”].)
To be fair, we agree the Abel test could, under certain circumstances, function
properly as proffered in this case, i.e., for use in a criminal jury trial. As acknowledged
by the trial court in this case, the Abel test was admitted into evidence in the trial
underlying People v. Saldana (2018) 19 Cal.App.5th 432 (conviction reversed for
Miranda error). In that case, there was no objection that the test was not generally
accepted in the relevant scientific community. (See People v. Nieves (2021) 11 Cal.5th
404, 444.) Again, we need not decide the issue because we find the evidence was
properly excluded on separate grounds, i.e., the incompleteness and questionable validity
of the testing.
6.
properly excluded where witness is surrogate rather than “providing his ‘individual
interpretation’ of the test.”].)
In any event, if error, the exclusion of evidence was harmless. The jury listened to
the expert testify Villanueva denied sexual deviance, no test raised a concern about
sexual deviance, and the overall test results were not suggestive of pedophilia.
Additional testimony Villanueva was sexually interested in “adult Caucasian women”
adds nothing to these points. Indeed, it is quite obvious the test results and opinions
presented to the jury showed Villanueva was neither sexually interested in minors nor
sophisticated enough to perpetrate continuous, widespread abuse.13
Evidence Villanueva was sexually interested in “adult Caucasian women” is
immaterial because it does not make more persuasive the evidence he was neither
sexually deviant nor pedophilic.14 We do not believe specific evidence Villanueva
preferred adults to minors would alter the outcome of the trial because there was already
significant evidence he was not sexually deviant, i.e., interested in minors.15 (See
People v. Jones (2012) 54 Cal.4th 1, 67-68 [applying reasonable-probability-for-more-
favorable-result standard to an assumed erroneous exclusion of expert testimony].)
13 The jury, of course, was free to disregard the opinion evidence.
14 On this point, Villanueva argues “the single most important test, which would
have advised the jury that [his] sexual interest was in adult Caucasian women … was
excluded from evidence. As a result, allowing appellant to introduce ‘some’ evidence in
his defense was no panacea for precluding him from introducing one of the most
important points in his defense.” We simply disagree it was meaningfully different from
the evidence presented to the jury. Whether victim testimony was “ ‘overwhelming’ ” or
not is irrelevant to why the court’s ruling was not prejudicial.
15 For the same reasons, we reject Villanueva’s contention the trial court denied
his “right to present a full defense” or his right “to due process.” “[A]pplication of the
ordinary rules of evidence … does not ‘impermissibly infringe on [the] right to present a
defense.’ ” (People v. Dworak (2021) 11 Cal.5th 881, 899.) The same is true for due
process.
7.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
LEVY, ACTING P. J.
POOCHIGIAN, J.
8.