Opinion
D069516
07-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN FERNANDO ACEVEDO, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD252448) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Juan Fernando Acevedo of committing a lewd act upon a child under 14 years of age (Pen. Code, § 288, subd. (a); count 1: penis touching S.G.) and of committing a lewd act upon a child 14 or 15 years of age by a person more than 10 years older than the child (§ 288, subd. (c)(1); count 7: touching buttocks of V.H.). The court sentenced Acevedo to consecutive prison terms of six years for count 1 and eight months for count 7.
Further statutory references are to the Penal Code unless otherwise stated.
The jury acquitted Acevedo of committing a lewd act upon a child under 14 years of age (§ 288, subd. (a); count 2: touching the vagina of S.G.). It found not true allegations of substantial sexual conduct (§ 1203.066, subd. (a)(8)) with respect to counts 1 and 2. The court declared a mistrial as to the following counts, upon which the jury could not reach a verdict: count 3 (§ 288, subd. (c)(1); lewd act upon a child 14 or 15 years of age [kiss] as to V.H.), count 4 (§ 288, subd. (c)(1); lewd act upon a child 14 or 15 years of age [touched breast of V.H.]), count 5 (§ 288, subd. (c)(1); lewd act upon a child 14 or 15 years of age [touched vagina, first time] as to V.H.), count 6 (§ 288, subd. (c)(1); lewd act upon a child 14 or 15 years of age [touched vagina, last time] as to V.H.), and count 8 (§§ 288, subd. (c)(1), 664; attempted lewd act upon a child 14 or 15 years of age [penis touching] as to V.H.). The court granted the People's motion to dismiss counts 3, 4, 5, 6, and 8 in the interests of justice.
Acevedo contends his convictions should be reversed because the court erred in (1) not granting a motion for mistrial when the prosecutor commented upon Acevedo's decision not to testify at the preliminary hearing, (2) allowing expert testimony regarding misconceptions regarding child abuse victims, and (3) denying the defense request to introduce a DVD of one of the victims during the People's case-in-chief. We disagree with these contentions and conclude there was no reversible error. We affirm the judgment.
BACKGROUND
A
V.H., who lived with her aunt, met Acevedo because he was one of her aunt's employees. V.H. became acquainted with Acevedo's wife and stepdaughter, S.G. V.H. is two years older than S.G. and they quickly became best friends.
When V.H. was 13 or 14 years old, she decided to run away from home because she was not getting along with her aunt. V.H. exchanged text messages through a social media account with S.G., S.G.'s mother, and Acevedo about her desire to run away.
Eventually, S.G.'s mother picked up V.H. and took V.H. to the home she shared with S.G. and Acevedo. S.G.'s mother left V.H. at the house and said Acevedo was at work.
When Acevedo came home, he gave V.H. a long hug, which started to feel weird to V.H. V.H. testified Acevedo pulled her down to sit on top of him on the couch, facing away from him. He kissed her neck and ear and tried to kiss her mouth. He started grabbing her breast under her clothes and bra. He grabbed her vagina over her jeans. Acevedo also touched and grabbed her buttocks.
At some point, V.H. was behind the couch. Acevedo came up behind her and tried to bend her over the couch. He tried to get his hand under her pants. He pulled her zipper down and reached inside her pants and underwear, but she was moving and he could not penetrate the vagina. Acevedo unzipped his own pants.
V.H. moved away from him and went to sit on the couch. Acevedo came toward her with his penis out and asked her to look at it and touch it with her hand and mouth. When she did not respond, he put his penis away. Acevedo told V.H. he wanted her to lose her virginity with him. V.H. did not tell S.G. or S.G.'s mother what happened when they came home.
After a discussion about where V.H. could go, S.G.'s mother and Acevedo gave V.H. some choices. V.H. chose to go to Acevedo's mother's house in Mexico. Acevedo drove V.H. to the border and had her walk across the border alone. He and S.G. met V.H. on the other side of the border and drove her to his mother's house.
Acevedo came to Mexico for visits. On one occasion he took V.H. alone in a car to get food. Acevedo passed the store where they were going to get food and then began acting strange. He took his penis out and asked her to touch him and to put her mouth on his penis. When she told him she did not want to do it and tried to get out of the car, he would not let her. He took out some magazines and started masturbating. He asked her to help him finish. When she tried to get out of the car, he pulled the door shut. Later, on a street closer to the house, he tried to put his hand inside her vagina and tried to get on top of her. She became emotional and wanted to get out of there. She eventually was able to get out of the car and walk back to his mother's house. During this incident, Acevedo asked why he could masturbate in front of S.G. and not in front of V.H.
Acevedo was not charged with the conduct in Mexico. It was offered as corroborating evidence of his predisposition to commit the charged crimes. --------
V.H. did not tell anyone about this incident. She did not want to cause problems and thought people would not believe her. When V.H. returned to the house, S.G. asked where the food was, V.H. responded that they did not buy any food and told her Acevedo was "an asshole." V.H. said she would tell S.G. the next day. The next day, V.H. asked S.G. if it was true she would pretend to sleep while watching him grab his own penis. S.G. said it was not true.
After that incident, V.H. did not want to be around Acevedo. She tried to keep her distance, but tried not to make it obvious. V.H. denied waking Acevedo while he was sleeping.
V.H. eventually surrendered to the police as a runaway. When she turned herself in, she did not initially tell anyone about Acevedo touching her. Several weeks after V.H. returned to the United States, V.H.'s aunt asked if Acevedo had ever touched her. V.H. broke down and told her what Acevedo had done.
V.H. and her aunt went to the police. V.H. gave an officer a letter she wrote with her statement. V.H. said Acevedo kissed her neck and ear and tried to kiss her mouth. She also said that he squeezed her breasts under her clothes as he held her on the couch. She said he touched her vagina over her clothing. She said he unzipped her pants and touched her below her belly button, but above her clitoris. She also said Acevedo told her he would leave her alone if she touched or kissed his penis. V.H. said Acevedo bent her over a couch. V.H. identified S.G. as a second possible victim.
B
Acevedo met S.G.'s mother and started living with them when S.G. was six years old. Acevedo is the only father figure S.G. has ever known.
After V.H. identified S.G. as another possible victim, police officers went to S.G.'s home where they found Acevedo and S.G.'s mother. When they determined S.G. was not at home, the officers asked about her school and said they wanted to speak to S.G. at the police station.
S.G. and her mother came to the station later that evening. S.G. sat next to her mother as S.G.'s mother reported that S.G. told her in the car why the police wanted to talk to S.G. S.G. told her mother that Acevedo would ask her to get in bed and watch movies with him when she was 11 years old. S.G. said Acevedo would start tickling her in the bed. He would then bear hug her from behind and she could feel his penis on her buttocks near her legs. S.G.'s mother also said S.G. mentioned one morning when she woke up to find Acevedo rubbing her crotch on the outside of her pajama pants.
S.G. confirmed to the police what her mother reported. She said Acevedo would bear hug her and hold her with his hard penis pressed against her buttocks or legs. She also said she awoke to Acevedo rubbing her crotch over her pajamas.
A social worker from the County of San Diego's Child Protective Services interviewed S.G. and her mother after receiving a report from the police. S.G. told the social worker she did not tell about the abuse earlier because she did not want to cause problems for her mother or to stress her mother out. She also did not know how to tell her mother. S.G. said she felt safer now that her stepfather was not living with them because it was no longer a secret and he did not do it anymore. The social worker denied threatening to take S.G. away from the mother if she supported her husband. He determined the child was safe in her current living situation in the home of another family member.
At trial, S.G. testified Acevedo would play fight or wrestle with S.G. but, when she was about 11 years old, she began to feel as though she was too old for wrestling. She stated she felt uncomfortable when his hard penis would brush against her back when they wrestled.
S.G. testified she met and became friends with V.H. when S.G. was 10 years old and V.H. was 12 years old. V.H. stayed one night with them before Acevedo took V.H. and S.G. to stay in Mexico with Acevedo's mother.
During a visit to Mexico, Acevedo told the girls he would go get tacos around the corner because S.G. and V.H. were hungry. Acevedo said only one girl could go because police officers in Mexico might stop a car with two young girls. V.H. volunteered to go and got into the car with Acevedo. S.G. fell asleep because they were gone a long time. When V.H. returned, she barged into the room and appeared angry. S.G. asked what happened and where was the food. V.H. said she would tell S.G. in the morning. The next day V.H. said Acevedo tried to molest her. V.H. said Acevedo tried to have sex with her and, when he did not achieve that, he masturbated in front of her with a pornographic magazine. S.G. testified at the preliminary hearing she had seen a pornographic magazine in Acevedo's car in Mexico. V.H. asked S.G. not to tell anyone.
V.H. told S.G. that Acevedo said he did this with S.G. so V.H. should let him do it with her. S.G. denied she let Acevedo touch her. S.G. told V.H. that when she wrestled with Acevedo, she felt his genitals graze against her back.
S.G. testified at trial that she was not sure he touched or rubbed her vagina over her pajama pants as she initially reported. S.G. told the police she felt someone touch her and when she opened her eyes she saw Acevedo standing next to her and her mother lying next to her. She assumed it was Acevedo who touched her. However, at trial S.G. said what happened to V.H. influenced negative thoughts about Acevedo and caused her to think he touched her.
S.G. testified she believed her mother patted her in that area to check to see if she had wet the bed. She said she realized it could have been her mother who touched her after she talked to the police and the forensic interviewer. She first said her mother could have touched her at the preliminary hearing. This was after she had met with the defense attorney and the investigator at her home, with her mother watching. S.G.'s mother testified she would check S.G. when she was sleeping to see if she had urinated when S.G. was nine or 10 years old.
C
Acevedo testified S.G. would wake him up and they would play fight in his bedroom. He admitted having physical contact with S.G. when they wrestled. He denied intentionally touching S.G. with his penis and denied his penis would become erect because he was playing with S.G. He said he always has an erection when he awakes. He admitted one time he pretended to be asleep when she was trying to bother him and then grabbing S.G. and pulling her close to him while his penis was erect. He denied touching S.G. on her vagina.
Acevedo denied attempting to kiss V.H. when she came to his home after running away. He denied hugging her too long, pulling her on top of him on the couch, or touching her breast area. He denied touching her vaginal area or trying to bend her over the couch. He said hello to her when he arrived and kissed her on the cheek. He denied saying he wanted to take her virginity or any other sexually suggestive comments.
Acevedo said on the night in Mexico the girls were hungry, he took V.H. because she was the first one in the car. He said they drove several blocks, but the shops were closed. When he turned around, she became angry. He did not want to drive farther into town in case the police were looking for her. He said she hit the dashboard and tried opening the door as they were driving. Acevedo denied asking V.H. to touch him in a sexual way. He also denied climbing on top of her or putting her hand on his penis. He denied exposing his penis or masturbating in front of her. Acevedo admitted he had pornographic magazines in his car.
DISCUSSION
I
Acevedo first contends his convictions should be reversed because the court did not grant a mistrial based on prosecutorial error for asking Acevedo whether he testified at the preliminary hearing. " 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' " (People v. Clark (2011) 52 Cal.4th 856, 990.) We conclude the court did not abuse its discretion.
A
Acevedo chose to testify in his own defense at trial and denied the allegations of V.H. and S.G. During cross-examination, Acevedo stated he was present when S.G. and V.H. testified in the preliminary hearing. He said he knew V.H. testified and accused him, but he did not remember the details of what she said. The prosecutor asked, "Now, you did not testify at the preliminary hearing, did you?" Acevedo said, "No." Defense counsel did not object to the question at the time.
Acevedo then admitted he heard at the preliminary hearing all the things V.H. said he had done to sexually abuse her. He also admitted that was not the first time he heard what V.H. said had occurred.
The next day, defense counsel asked for a mistrial saying it was error under Griffin v. California (1965) 380 U.S. 609, 615 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) to ask Acevedo if he testified at the preliminary hearing. Alternatively, counsel requested strong curative instructions, but stated he did not think instructions could cure the prejudice.
The court stated it did not find the error was sufficiently prejudicial for a mistrial. The court noted there was no objection to the use of Acevedo's statements to the police and Acevedo elected to forego his right to remain silent by testifying at trial. Nevertheless, the court gave a curative instruction about the right not to testify at the preliminary hearing. Before Acevedo's testimony resumed, the court instructed the jury as follows: "Yesterday before we recessed, there was a question asked of the witness Mr. Acevedo whether or not he testified at the preliminary examination hearing. [¶] A defendant, an accused, has a constitutional right not to testify. And so you may not consider the fact that he did not testify at the preliminary examination for any purpose whatsoever. It shouldn't even be discussed in your deliberations. That is a right, and it may not be considered for any purpose."
B
"The Fifth Amendment to the United States Constitution provides that '[n]o person ... shall be compelled in any criminal case to be a witness against himself,' and the high court has interpreted this provision to 'forbid[] either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' " (People v. Thompson (2016) 1 Cal.5th 1043, 1117 (Thompson), quoting Griffin, supra, 380 U.S. at p. 615; see Doyle, supra, 426 U.S. at p. 618 [it is "fundamentally unfair and a denial of due process to allow (a defendant)'s silence to be used to impeach an explanation subsequently offered at trial"].)
Article I, section 15 of the California Constitution contains a nearly identical provision. The California Supreme Court has held " ' "a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence[.]" ' " (Thompson, supra, 1 Cal.5th at p. 1117.) However, "short, isolated statements not clearly calling for improper consideration of a defendant's silence" are generally found harmless. (Id. at p. 1118.) " '[B]rief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.' " (People v. Turner (2004) 34 Cal.4th 406, 419-420.)
In this case, the prosecutor apparently was attempting to challenge Acevedo's credibility as a witness by establishing that Acevedo had several opportunities, in discussions with police officers and in the preliminary hearing, to learn and hear the allegations of his accusers thereby implying he had the opportunity to tailor his testimony before he chose to testify. The United States Supreme Court has determined such a line of inquiry is proper for testifying defendants. (Portuondo v. Agard (2000) 529 U.S. 61, 69, 73 ["when a defendant takes the stand, 'his credibility may be impeached and his testimony assailed like that of any other witness' "].)
Even if the prosecutor's isolated question in this context about the fact he did not testify at the preliminary hearing could be construed as improper use of Acevedo's postarrest silence " 'for impeachment purposes,' " the court did not actually permit such use to constitute Doyle error. (Greer v. Miller (1987) 483 U.S. 756, 763, 764.) As soon as defense counsel raised an objection, and before Acevedo's testimony resumed the next day, the court advised the jury of Acevedo's constitutional right not to testify at the preliminary hearing and admonished them not to consider in any way the fact he did not testify at the preliminary hearing. We presume the jury followed the instructions of the court absent any contrary indication. (People v. Gray (2005) 37 Cal.4th 168, 217.) Indeed, there appears to be no prejudice or a reasonable likelihood of a different verdict absent the isolated question. The jury took their responsibility seriously. They convicted Acevedo of only one count for each victim. They acquitted Acevedo of one count and did not reach a verdict on several others, indicating they did not discount his testimony entirely. Under these circumstances, we conclude the court did not abuse its discretion in denying the motion for mistrial based upon the prosecutor's question.
II
Acevedo next contends the court erred in allowing testimony from prosecution expert, Catherine McLennan, regarding child sexual abuse accommodation syndrome because it did not evaluate her testimony for scientific reliability and her testimony was not relevant. We review evidentiary rulings regarding admissibility of expert testimony for abuse of discretion. " 'A trial court's decision as to whether a particular subject is a proper one for expert opinion is reviewed for abuse of discretion.' " (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110 (Dejourney).) "[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
Expert testimony is admissible when it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality. A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand. An expert's testimony as to information generally accepted in the expert's area, or supported by his [or her] own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue." (People v. Sanchez (2016) 63 Cal.4th 665, 675.)
"Because admissibility of expert opinion is a question of degree, and a jury need not be wholly ignorant of the subject matter under the statutory rule, exclusion is only necessary where the opinion would add nothing at all to the jury's common fund of information. [Citation.] For example, courts have repeatedly recognized the appropriate use of expert testimony when an alleged victim's actions during or following a crime seem to contradict the victim's claims in cases of alleged molestation or abuse." (Dejourney, supra, 192 Cal.App.4th at p. 1110.)
The Supreme Court held long ago that "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; [but] it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.] '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.' " (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, citing People v. Bowker (1988) 203 Cal.App.3d 385 with approval.)
The expert testimony in this case was offered and admitted as permitted by McAlpin. Prior to trial, defense counsel objected to and sought to exclude the testimony of McLennan regarding child sexual abuse accommodation syndrome as unreliable to establish abuse of the victims in this case under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (1923) 293 F. 1013 (known as the Kelly/Frye standard) and as unnecessary to dispel myths or misconceptions under People v. Bowker (1988) 203 Cal.App.3d 385, 394. The court overruled the objection noting McLennan would not offer testimony about the alleged victims, but would be permitted to testify to general behaviors of individuals who may or may not have been molested. Defense counsel admitted the fact McLennan would not testify regarding case-specific details or vouch for any particular witness satisfied the Kelly/Frye standard. The court stated its belief that myths still linger in the minds of common laypeople about child abuse and stated McLennan's testimony would provide the jurors with information to analyze and evaluate the facts of the case, including delayed reports and recantation.
McLennan has a master's degree in social work with an emphasis in children and families. She both attended and taught classes regarding forensic interviewing and child sexual abuse. She has been a forensic interviewer for approximately 30 years and has interviewed over 3,000 children. McLennan did not interview the children in this case, knew nothing about their circumstances, and did not opine on whether or not the children had been abused. Rather, based upon her education, training, and knowledge of literature, McLennan dispelled general myths and misconceptions about child sexual abuse, particularly regarding delays in disclosure and the fact most individuals who were abused as children do not tell until they are adults. "The Kelly/Frye rule does not apply to this type of evidence." (People v. Harlan (1990) 222 Cal.App.3d 439, 449.) The court did not abuse its discretion in determining this evidence was relevant and admissible under Evidence Code section 801 to assist the jury.
III
Lastly, Acevedo contends the trial court improperly denied a defense request to use video clips depicting the victims laughing while playing with Acevedo as impeachment evidence. Contrary to Acevedo's contention, the court did not exclude the evidence and we conclude there was no prejudicial error.
During trial, several days after V.H. testified, defense counsel sought to introduce a DVD with two cell phone videos taken by S.G. and showing V.H. waking Acevedo up and laughing. The prosecution objected to the late production of the evidence. Defense counsel argued it was not untimely because it was impeachment evidence contradicting V.H.'s testimony about not wanting to be around Acevedo and about not waking him up. The court ruled the video was not impeachment evidence and expressed concern about the late production of discovery by the defense. However, the court ultimately stated the defense could use the evidence.
In his reply brief, Acevedo contends the trial court's ruling was improper because it "forc[ed] appellant to await to confront V.H. with the video after she had already testified for the government." The record does not support this contention in any way.
Defense counsel first offered the videos after V.H. completed her testimony for the prosecution. Thereafter, during the People's case-in-chief, defense counsel cross-examined S.G.'s mother regarding the content of the videos. She described the video, which showed V.H. and S.G. opening the bedroom door and trying to wake up Acevedo. They were laughing so loud they woke up S.G.'s mother who was sleeping on the couch. During the defense case, defense counsel recalled S.G. and played two videos, and confirmed S.G. took the videos on her cell phone. The videos depicted S.G. and V.H. "messing around" with Acevedo and waking him up with V.H. laughing. There was no error.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: NARES, J. AARON, J.