Opinion
C085265
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JOSEPH BATOR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCYKCRF20150384)
Defendant Anthony Bator was convicted by jury of 12 counts of aggravated sexual assault of a child under 14 years of age (Counts 1-12) and one count of stalking (Count 13). The victim was defendant's niece. She was between the ages of 8 and 13 years when the charged assaults occurred; one act of oral copulation (Counts 1-6) and one act of sexual penetration (Counts 7-12) was charged for each of those six years. The verdicts resulted from two trials. In the first, the jury convicted defendant of stalking and could not reach a verdict with respect to the sexual assault counts, resulting in a mistrial as to those counts. In the second trial, the jury convicted defendant of all sexual assault counts. The trial court sentenced defendant to serve an aggregate indeterminate term of 180 years to life in state prison.
On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights by admitting expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS); (2) the trial court prejudicially erred and also violated defendant's constitutional rights by instructing the jury with CALCRIM No. 1193, the standard instruction regarding the proper use of such testimony; (3) the trial court also abused its discretion and further violated defendant's constitutional rights by admitting evidence of uncharged sexual offenses; (4) the trial court further erred and violated the federal constitution by instructing the jury with CALCRIM No. 1191, the standard instruction regarding the proper use of such evidence; (5) the cumulative prejudicial effect of the foregoing claims of error requires reversal; (6) defendant's sentence of 180 years to life violates the state and federal constitutional proscriptions against cruel and/or unusual punishment; and finally, (7) relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant claims the trial court violated his constitutional right to due process by imposing various fines, fees, and assessments without first determining his ability to pay.
We affirm. As defendant acknowledges in his briefing on appeal, "a line of cases has [held] CSAAS evidence is admissible when offered to show that the victim did not act inconsistently with abuse, to dispel common misconceptions about a child's reaction to abuse, or to rebut a defendant's attack on the victim's credibility." That is precisely the use made of the CSAAS testimony admitted in this case. We also reject defendant's argument such evidence is subject to scrutiny under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) as a new scientific technique. Nor did the trial court err or violate defendant's constitutional rights by instructing the jury regarding the proper use of CSAAS testimony.
Turning to the challenged evidence of uncharged sexual offenses, defendant acknowledges we are bound by precedent from our Supreme Court to reject his facial challenge to Evidence Code section 1108, authorizing the trial court to admit such evidence to prove a propensity to commit sexual offenses so long as the evidence is not inadmissible pursuant to section 352. Nor has defendant persuaded this court the trial court abused its discretion or violated his constitutional rights by admitting the evidence under the latter section. Defendant further acknowledges we must also reject his challenge to CALCRIM No. 1191. We do so. Having rejected each of the foregoing claims of error, we must further reject defendant's assertion of cumulative prejudice. Defendant's cruel and/or unusual punishment claim is forfeited. And finally, we also reject defendant's Dueñas claim.
Undesignated statutory references are to the Evidence Code.
FACTS
The victim lived in Nevada with her mother, grandmother, and defendant, who is her maternal uncle, until she was eight years old, at which point the family moved to Siskiyou County, where the offenses charged in this case were committed. Evidence of sexual offenses committed against the victim in Nevada was admitted against defendant under section 1108. We provide the details of these offenses in the discussion portion of the opinion. For present purposes, we simply note the abuse that began in Nevada continued in California.
When the family moved to California, they lived in an apartment in Siskiyou County for about a year and then moved onto a mining property near Copco Lake, just south of the Oregon border, so that defendant could operate a gold mine. The apartment had two bedrooms; the victim's mother and grandmother shared one of the rooms while defendant took the other room. The house they moved into on the mining property (Copco Lake house) was also very small, containing two upstairs bedrooms. These rooms were claimed by defendant and the victim's mother, respectively, while the victim's grandmother made part of the downstairs living room into her living space. The victim did not have her own bedroom at either location and spent most nights sleeping with defendant in his room. Defendant often referred to the victim as his daughter, picked out her clothes, and had her do various things for him, such as "bring him food or water or anything that he wanted," making her feel "kind of like a slave a lot of the time."
The victim did not go to school. Instead, defendant purported to homeschool her, buying her various school books to read and do work out of; however, no regular instruction took place and no records were kept. Defendant punished the victim when she made mistakes, such as mispronouncing a word, as the victim explained, "yelling at me for hours" and "keeping me in a room where he'd block the door and prevent me from leaving." The victim also described physical and emotional abuse defendant inflicted on her as punishment for mistakes, "sometimes he would hit me, sometimes he would just make threats to hurt me or hurt my animals . . . a lot of demeaning comments." Defendant often told the victim she was "too stupid to amount to anything" and called her "a worthless hooker," among other derogatory names we do not repeat here.
Sexual abuse was also used as punishment, as we describe below. Before doing so, we note the victim was not completely isolated. The family regularly attended a church in Yreka, where the victim made friends, including M. As we shall describe more fully, the victim would eventually run away from the Copco Lake house and successfully petition the Siskiyou County Superior Court to appoint M.'s parents to be her legal guardians. As we also describe more fully, doing so triggered defendant to engage in stalking behavior subjecting him to further criminal liability.
Charged Sexual Assaults (Counts 1-12)
As mentioned, defendant's sexual abuse of his niece began in Nevada and continued after the family moved to California. At the first apartment they moved into, defendant penetrated the victim's vagina with his fingers once every couple of weeks. He also forced her to orally copulate him once every couple of months. The victim tried to resist the latter conduct, but "it was pointless" because defendant was much larger than the victim. The same conduct occurred at the Copco Lake house, except defendant also occasionally forced the victim to masturbate his penis until he ejaculated. Typically, these sex acts were preceded by the victim being summoned to defendant's room "because [she] was in trouble for something." Defendant would yell at her for an extended period of time, as the victim explained, "until I was crying and I couldn't breathe and I was very upset and I didn't know what to do," at which point defendant "would have me do one of the sexual acts." The acts of oral copulation often took place while defendant sat at his computer watching pornography. Defendant "would be angry and demeaning" and told the victim "it was punishment" for whatever it was she supposedly did wrong.
Defendant also frequently touched the victim's breasts while they lay in bed together at night. Sometimes the touching would last only a short period of time until he fell asleep; other times it would lead to additional sex acts, such as digital penetration of the victim's vagina or forcing her to masturbate his penis. While these acts were not couched in terms of punishment, when the victim "was doing really well and . . . hadn't gotten in trouble for a while," defendant allowed her to sleep in her mother's room. Defendant also promised other rewards for the victim's compliance with sexual requests, such as buying her an animal or allowing more time with her friends. Often, the victim would initially refuse, but defendant would yell at her and the sexual activity would occur anyway as punishment. When she complied, defendant would follow through with the promised reward.
Defendant's sexual abuse of the victim ended when she was 13 years old. He never explained why it suddenly stopped, and the victim did not care; she "just didn't want it to happen anymore." As mentioned, defendant was convicted of one act of oral copulation (Counts 1-6) and one act of sexual penetration (Counts 7-12) for each of the six years (between age 8 and age 13) he sexually assaulted her in Siskiyou County.
Stalking (Count 13)
The victim ran away from the Copco Lake house when she was 15 years old. Her departure was precipitated by her desire to attend school. When she expressed this desire to defendant, he told her "that wouldn't be necessary because [she] wasn't going to leave" and "was going to work at the mine for the rest of her life." This made the victim feel "hopeless." Eventually, after the victim was allowed to stay the night at a friend's house, she walked from that house to a Child Protective Services (CPS) office. The victim did not disclose any physical or sexual abuse, but informed CPS that her family was not allowing her to attend school. After the victim left the office, she went to a different friend's house and stayed there for a couple of days before going to M.'s house. The victim told M.'s parents the same thing she told CPS. M.'s mother was a former Siskiyou County assistant district attorney. She provided the victim with information concerning her legal rights and encouraged her to have another conversation with her family about "how important [an education] was to [the victim] to be able to have a life and be independent."
The victim stayed with M.'s family for a few days and then returned home and researched legal guardianships. A couple of weeks later, she returned to M.'s house with renewed determination; thereafter, the victim consulted with an attorney, secured M.'s parents' agreement to serve as her legal guardians, and filed a petition to have them so appointed. When defendant found out about the guardianship petition, he called M.'s family. As M.'s mother described the call, "it was yelling and screaming and anger and venom." Defendant also repeatedly called and sent text messages to the victim. The phone calls typically began with defendant "begging [the victim] to come back" and then transitioned to threats. Defendant threatened to "get [the victim] back" and added, "if he couldn't get [the victim], he would get [her] children some day." The text messages from defendant accused the victim of "ruin[ing] the family" and also threatened: "I'm going to get you back." Defendant further harassed the victim at M.'s family's house by sending packages containing "hateful, angry" letters.
After M.'s parents were appointed to be the victim's legal guardians, they immediately enrolled her in the church boarding school their daughter M. attended. She was enrolled as a sophomore because of her age, but was not testing at that grade level and had to work hard to catch up to her peers. The victim continued to receive letters from defendant during her first year at the boarding school. On one occasion that year, the victim's mother and grandmother showed up on campus. The victim saw them from across campus and ran to her dorm room. She was afraid defendant was with them and thought they were there to follow through on defendant's threats to take her back. The victim also testified that throughout her childhood defendant told her that if she ran away, "he would hunt [her] down." When the victim got to her dorm room, she "started crying" and had "a panic attack." The school was notified of the situation and made sure the victim's family was no longer on campus before she left her dorm room.
After spending two years at the boarding school, the victim transferred to Yreka High School for her senior year. That year, she also worked at a Subway restaurant located inside a Wal-Mart. Defendant showed up at her work "10 to 15 times" that year. As the victim described his conduct: "He would stand at the other side of the registers in Wal-Mart or just stare at Subway or walk by repetitively." Each time, the victim would retreat to the back of the restaurant until he left. On several occasions, she called M.'s family to tell them about defendant's behavior. On one occasion, she also called the police. One or both of M.'s parents would always pick the victim up from work; they did so to protect her from defendant. Finally, on one occasion during the victim's senior year, while she was at the county fair with friends, she saw defendant and her mother from a distance and left abruptly when they made eye contact with her and appeared to be "[c]oming straight for [her]."
Based on the foregoing events, defendant was convicted of one count of stalking (Count 13).
Disclosure of the Abuse
The victim disclosed the sexual abuse described above when she was 17 years old. She did not disclose the abuse while it was happening because she was both ashamed and afraid she would be punished if she told anyone. The victim explained: "I didn't want anybody to think something was wrong with me. . . . I always felt like it was my fault. And I would be told that it was my fault by the defendant. And so I felt like it was because of me." The victim also loved her family, including defendant despite what he was doing to her, and did not want to get them in trouble. Defendant also told the victim that disclosing "any problems" in the family would "alienate" them from people he needed to borrow money from to operate his gold mine. For these reasons, rather than disclose the abuse, the victim endured it, along with feelings of confusion, anger, and shame. She eventually became depressed and attempted suicide on three occasions prior to running away from home and obtaining guardianship from M.'s parents. After two years in their care, while receiving counseling, the victim disclosed the abuse because she believed it was responsible for many of her emotional problems and she "finally felt safe" enough to disclose the abuse.
Additional Prosecution Evidence
The foregoing recitation of facts is based primarily on the victim's testimony and that of M.'s mother. We need not recount the remainder of the evidence adduced against defendant in any detail. For our purposes, two additional notes on this evidence will suffice. First, Dr. Anthony Urquiza testified as an expert in CSAAS. We provide a brief summary of his testimony in the discussion portion of the opinion. Second, defendant confessed to sexually abusing the victim while awaiting trial at the Siskiyou County Jail. He told another inmate, L., that he was in jail for "molesting his niece" and offered to pay L. $5,000 to "lie against [M.'s mother]." L. testified he initially agreed to do so, but changed his mind after defendant admitted "he actually did it." L. explained: "I thought it was okay at first. And then he started getting in more detail and saying that he . . . was having oral sex with his niece. And watching porn. And doing it on a daily basis ever since she was [five] until a couple years before he got busted. And that just didn't sit right with me. So I had to speak up and tell the truth."
DISCUSSION
I
Admission of CSAAS Testimony
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by admitting Dr. Urquiza's expert testimony regarding CSAAS. We disagree.
A.
Admissibility under Section 801
"If a witness is testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his [or her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him [or her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates, unless an expert is precluded by law from using such matter as a basis for his [or her] opinion." (§ 801.)
In People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), our Supreme Court held expert testimony concerning the behavior of rape victims to be admissible under section 801 "to rebut misconceptions about the presumed behavior of rape victims," but not "as a means of proving—from the alleged victim's post-incident trauma—that a rape in the legal sense had, in fact, occurred." (Id. at pp. 248, 251.) Following Bledsoe, a line of Court of Appeal decisions held "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—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. . . .' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, internal fn. omitted (McAlpin); see, e.g., People v. Bowker (1988) 203 Cal.App.3d 385, 390-394; People v. Gray (1986) 187 Cal.App.3d 213, 217-220; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097-1100.) This line of cases has been repeatedly cited with approval by our Supreme Court. (McAlpin, supra, 53 Cal.3d at p. 1300-1301; People v. Brown (2004) 33 Cal.4th 892, 906-907 (Brown); People v. Ward (2005) 36 Cal.4th 186, 211.)
In accordance with these principles, Dr. Urquiza testified regarding CSAAS, explaining that the syndrome has five components: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction or recantation. Before going into each of the components in some detail, Dr. Urquiza testified that he did not know any of the details of this particular case and was there simply to "provide information about what the research journals or the research books or projects say about children who have been sexually abused and what their responses are to having been sexually abused." Dr. Urquiza also explained CSAAS was developed initially for therapists, and later used by others, to "get rid of any myths or misperceptions that they have about sexual abuse." One such myth is that a child who has been sexually abused would immediately disclose the abuse; another is that a child would not submit to sexual abuse without attempting to protect himself or herself from the abuse. During cross-examination, defendant elicited testimony from Dr. Urquiza that it would not be appropriate for a mental health professional to use CSAAS to "make a determination as to whether a child has been abused."
Defendant first argues Dr. Urquiza's testimony was not relevant to this case. Not so. The victim testified she was sexually abused by defendant when she was a child. She did not disclose this abuse while it was occurring and delayed disclosure until four years after it stopped, and two years after she was no longer living with defendant. The defense strategy was to challenge the victim's credibility, in part because of this delayed disclosure. As defendant acknowledges in his briefing in this appeal, "a line of cases has [held] CSAAS evidence is admissible when offered to show that the victim did not act inconsistently with abuse, to dispel common misconceptions about a child's reaction to abuse, or to rebut a defendant's attack on the victim's credibility." Dr. Urquiza's testimony was relevant and admissible for these purposes. (McAlpin, supra, 53 Cal.3d at p. 1300-1301; Brown, supra, 33 Cal.4th at pp. 906-907; People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; In re S.C. (2006) 138 Cal.App.4th 396, 418.)
Nevertheless, defendant argues CSAAS testimony is no longer needed to disabuse jurors of such misconceptions because "[c]hild sexual abuse and delayed reporting has been addressed in the press, on television, on the internet, on every type of media to the point where expert testimony regarding the behavior one can expect to see in a child who has been sexually abused is unnecessary." In making this argument, he relies primarily on cases from other states. We are unpersuaded. Authority from other states is not controlling. (People v. Williams (1997) 16 Cal.4th 153, 195.) We are, however, bound by precedent from our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see People v. Perez (2010) 182 Cal.App.4th 231, 245 [reasoning of McAlpin, supra, 53 Cal.3d 1289 and Brown, supra, 33 Cal.4th 892 regarding admissibility of CSAAS testimony binding on Courts of Appeal].) Moreover, even if the Supreme Court's reasoning in McAlpin and Brown is properly characterized as dicta because those cases did not involve the use of CSAAS evidence, we nevertheless consider this precedent to be persuasive authority supporting the trial court's ruling allowing Dr. Urquiza's testimony in this case. (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 835, abrogated by statute on other grounds [Supreme Court dicta "should be considered persuasive"]; Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 784 [Supreme Court dicta "should not be disregarded by an intermediate appellate court without a compelling reason"].)
The trial court neither abused its discretion nor violated defendant's constitutional rights by admitting Dr. Urquiza's testimony in this case.
B.
The Kelly Test Does Not Apply
We also reject defendant's argument the challenged testimony was admitted in violation of Kelly, supra, 17 Cal.3d 24. This argument conflicts with established precedent.
In California, the Kelly, supra, 17 Cal.3d 24 test governs "the admission of expert testimony regarding new scientific methodology." (People v. Leahy (1994) 8 Cal.4th 587, 591.) Under that test, the proponent of such evidence must establish: (1) the new methodology is reliable by showing it has gained general acceptance in the relevant scientific community; (2) the witness furnishing the testimony is qualified as an expert to give an opinion on the subject; and (3) correct scientific procedures were used in the particular case. (Kelly, supra, 17 Cal.3d at p. 30.) However, as our Supreme Court has explained, this test "is applicable only to 'new scientific techniques,' " that is, " 'to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.' " (People v. Leahy, supra, 8 Cal.4th at p. 605, quoting People v. Stoll (1989) 49 Cal.3d 1136 (Stoll).)
Previously referred to as the Kelly/Frye test, after our Supreme Court's decision in Kelly, supra, 17 Cal.3d 24 and the seminal federal decision in Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye), the latter decision was held to have been abrogated by rule 702 of the Federal Rules of Evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. Thereafter, in Leahy, supra, 8 Cal.4th 587, our Supreme Court held the Kelly test remained the rule in California.
For example, in Stoll, supra, 49 Cal.3d 1136, a molestation case, our Supreme Court held the Kelly, supra, 17 Cal.3d 24 test did not apply to proposed expert psychological testimony, based in part on the administration of certain psychological tests, that one of the defendants did not possess "any 'pathology' in the nature of 'sexual deviation.' " (Stoll at pp. 1146-1147.) The Stoll court first explained the "narrow 'common sense' purpose" behind the Kelly rule is "to protect the jury from techniques which, though 'new,' novel, or ' "experimental," ' convey a ' "misleading aura of certainty." ' [Citations.]" (Stoll at pp. 1155-1156.) Under Kelly, the jury must be protected from such techniques until "the pertinent scientific community no longer views them as experimental or of dubious validity," particularly where "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible." (Stoll at p. 1156; see, e.g., People v. Leahy, supra, 8 Cal.4th at p. 606 [horizontal gaze nystagmus (HGN) test for probable intoxication subject to Kelly test as a new scientific technique]; see also People v. Shirley (1982) 31 Cal.3d 18, 51-52 [listing cases in which the Kelly test has been applied to polygraph examinations, "truth serum," experimental systems of blood typing, voiceprint analysis, identification of human bite marks, and microscopic identification of gunshot residue particles].) The Stoll court also acknowledged the Kelly test "has been applied to less tangible new procedures which carry an equally undeserving aura of certainty," citing Shirley, in which the court applied the test to bar the admission of " 'post-hypnotic' testimony of a rape complainant," but explained that "absent some special feature which effectively blindsides the jury, expert testimony is not subject to Kelly/Frye." (Stoll, supra, 49 Cal.3d at pp. 1156-1157.) The court then concluded the expert psychological testimony proffered in Stoll raised none of the concerns underlying the Kelly test, explaining: "The methods employed are not new to psychology or the law, and they carry no misleading aura of scientific infallibility." (Stoll at p. 1157.)
California courts have long held that the Kelly, supra, 17 Cal.3d 24 test does not apply to the admission of CSAAS testimony. (See People v. Gray, supra, 187 Cal.App.3d at pp. 218-220; People v. Harlan (1990) 222 Cal.App.3d 439, 448-450.) Dr. Urquiza was simply not relying on any scientific methods or procedures, let alone new methods or procedures, to establish any facts specific to this case or to defendant's guilt. Instead, he provided opinion testimony addressing misconceptions regarding the conduct of sexually abused children in general. "The Kelly/Frye rule does not apply to this type of evidence." (Harlan, supra, 222 Cal.App.3d at p. 449.)
II
Instruction Regarding CSAAS Testimony
Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with CALCRIM No. 1193, the standard instruction regarding the proper use of CSAAS testimony. Defendant did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) There was no error, much less a miscarriage of justice.
As given to the jury in this case, CALCRIM No. 1193 states: "You have heard testimony from Anthony Urquiza regarding [CSAAS]. [¶] Dr. Urquiza's testimony about [CSAAS] 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 [the victim]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
This is a correct statement of the law. As previously stated in our discussion regarding the admissibility of CSAAS testimony, "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]" (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, fn. omitted.) Thus, contrary to defendant's argument on appeal, expert testimony regarding CSAAS is admissible to assist the jury in evaluating the believability of the alleged victim's testimony. The trial court neither erred nor violated defendant's constitutional rights by so instructing the jury.
III
Admission of Evidence of Uncharged Sex Offenses
Defendant further asserts the trial court abused its discretion and violated his constitutional rights by admitting evidence of uncharged sexual offenses, i.e., similar offenses committed against the victim prior to the charged offenses. He is mistaken.
A.
The Challenged Evidence
Over defendant's objection, the trial court admitted the following evidence under sections 1108 and 352.
The victim testified that defendant sexually abused her as far back as she could remember, estimating the abuse began when she was three years old. At the time, she lived with her mother, grandmother, and defendant at her grandmother's house in Reno. As in California, the victim slept with defendant because she "was supposed to sleep there." The first time defendant sexually assaulted the victim, as she described, "it was nighttime and he took his finger and put it inside my vagina after feeling around that area for a little bit." The victim added: "It hurt a lot, I was in pain, I was crying, and I wanted it to stop." She tried to get away from defendant, but he put his arm over her so she could not get up. Defendant repeated this penetration of the victim's vagina "every couple weeks" while the family lived in Reno.
Eventually, the house in Reno was sold and the family moved into a small trailer in the Nevada desert so that defendant could operate an alligator farm. At the trailer, the victim's mother and grandmother shared a bed and the victim slept on a fold-out couch, sometimes by herself, but often with defendant. Defendant continued penetrating the victim's vagina with his finger at the trailer. The victim did not understand why defendant did so and thought she "must have done something wrong and that it was a punishment."
B.
Analysis
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).)
One such exception is found in section 1108. This section provides in relevant part: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a).) This provision "permits ' " 'consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.' " ' [Citation.] As this court has previously observed, ' "[i]n enacting section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of . . . section 1101." [Citation.]' [Citations.]" (People v. Holford (2012) 203 Cal.App.4th 155, 182 (Holford).) However, the admission of evidence under section1108 is expressly subject to the limitations of section 352. (§ 1108, subd (a).) Indeed, this provision "passes constitutional muster if and only if section 352 preserves the accused's right to be tried for the current offense. 'A concomitant of the presumption of innocence is that a defendant must be tried for what he [or she] did, not for who he [or she] is.' [Citations.]" (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
Defendant acknowledges we are bound by our Supreme Court's decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) to reject his facial due process challenge to section 1108. As we explained in Holford, "in People v. Loy (2011) 52 Cal.4th 46 . . . , our high court was asked to reconsider its holding in Falsetta. Finding no good reason to do so, the court declined. [Citation.] We are bound by our high court's decisions in Falsetta and Loy. [Citation.]" (Holford, supra, 203 Cal.App.4th at 183.)
Nor has defendant persuaded this court the trial court abused its discretion or violated his constitutional rights by admitting the challenged evidence under section 352. That section 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." (§ 352.)
The probative value of the challenged evidence is undeniable. The uncharged sex offenses involved the same victim and were quite similar to the current crimes. Evidence of these offenses was therefore highly probative of defendant's propensity to commit the charged offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch) ["if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses"].) Nor is this high level of probative value undercut by remoteness, as the uncharged and charged offenses constituted a continuous span of sexual abuse.
"In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, . . . significant similarities between the prior and the charged offenses may 'balance[ ] out the remoteness.' [Citation.]" (Branch, supra, 91 Cal.App.4th at p. 285.)
Weighed against the probative value is the inevitable prejudice flowing from the admission of prior crimes evidence. In assessing prejudice, we begin by observing " ' "[t]he prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " [Citations.]' [Citation.]" (Holford, supra, 203 Cal.App.4th at p.167.) Moreover, "[e]vidence is not inadmissible under [this provision] unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (Ibid.)
Here, we cannot conclude the nature of the uncharged crimes was "more inflammatory than the charged offenses" (Branch, supra, at p. 283), and therefore likely to evoke such an emotional bias against defendant. Although the victim was younger during the abuse that occurred in Nevada, she was still quite young when defendant continued that abuse in California. Defendant also engaged in a wider variety of sexual offenses over a longer period of time in committing the charged offenses. Thus, it is unlikely the jury would have been so prejudiced against defendant because of the victim's testimony regarding the abuse she endured in Nevada that he was denied a fair trial. (Id. at pp. 283-284.) Finally, we cannot conclude the evidence would have misled the jury or caused it to be confused as to the issues before it. The trial court did not abuse its discretion under section 352.
Having concluded the evidence was admissible under section 352, "we must also reject defendant's argument that he was deprived of his constitutional right to a fair trial." (Holford, supra, 203 Cal.App.4th at p. 180.)
IV
Instruction Regarding Evidence of Uncharged Sex Offenses
We are also bound by precedent from our Supreme Court to reject defendant's challenge to CALCRIM No. 1191, the standard instruction regarding the proper use of evidence of uncharged sexual offenses. Defendant acknowledges as much and "raises the issue here to preserve it for possible federal review."
As we recently explained in People v. Phea (2018) 29 Cal.App.5th 583: "Our high court has held that CALJIC No. 2.50.01, the predecessor to CALCRIM No. 1191, is a correct statement of the law. [Citations.] For the purpose of evaluating defendant's claims, there is no material difference between CALCRIM No. 1191 and its predecessor CALJIC No. 2.50.01. [Citations.] Thus, relying on [People v. Reliford (2003) 29 Cal.4th 1007], the Courts of Appeal for the Second District and this district have concluded that CALCRIM No. 1191 is also a correct statement of the law and does not reduce the prosecution's burden of proof. [Citations.] Defendant's arguments here concerning CALCRIM No. 1191—purported reduction of the burden of proof, the instruction allows jurors to find a defendant guilty solely based on prior uncharged acts, and that the instruction is confusing and misleading because it employs a different standard of proof for the prior sexual offense findings than for the jury's ultimate determination of guilt—are all foreclosed by our high court's analysis and conclusions in Reliford. [Citation.] As this court noted in [People v. Schnabel (2007) 150 Cal.App.4th 83], '[w]e are in no position to reconsider the Supreme Court's holding in Reliford [citation], and by analogy to Reliford, we reject defendant's argument regarding the jury instruction on use of his prior sex offenses.' [Citation.]" (Phea, supra, 29 Cal.App.5th at pp. 608-609.) We further rejected an additional argument raised by the defendant in Phea, and also raised by defendant in this case, i.e., "the asserted confusion engendered by CALCRIM No. 1191 was compounded by CALCRIM No. 224, the instruction on circumstantial evidence." (Phea, supra, 29 Cal.App.5th at pp. 609-610.) For all of the reasons expressed in Phea, we also reject defendant's identical claim in this case.
The trial court neither erred nor violated defendant's constitutional rights by instructing the jury with CALCRIM No. 1191.
V
Cumulative Prejudice
Having rejected each of the foregoing claims of error, we must reject defendant's assertion of cumulative prejudice.
VI
Cruel and/or Unusual Punishment
Defendant's first assertion of sentencing error is that his sentence of 180 years to life violates the state and federal constitutional proscriptions against cruel and/or unusual punishment. The contention is forfeited for two reasons, his failure to raise it before the trial court and his failure to adequately brief it before this court. Nor has defendant raised ineffective assistance of counsel as an alternative vehicle to raise the claim now.
Because the determination of whether or not a sentence imposed in a particular case violates the constitutional proscription against cruel and/or unusual punishment is "fact specific, the issue must be raised in the trial court." (People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see also People v. Em (2009) 171 Cal.App.4th 964, 971, fn. 5.) Defendant did not do so.
Nevertheless, defendant argues applicability of the "unauthorized sentence" exception to the forfeiture rule. This exception does not apply. As our Supreme Court has explained, "the 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) "Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing. [Citation.]" (Ibid., italics added.)
Here, the sentence imposed upon defendant was authorized by the Penal Code. Whether or not that authorized sentence nevertheless amounted to cruel and/or unusual punishment in violation of the state or federal Constitutions is a fact-specific inquiry. (See In re Lynch (1972) 8 Cal.3d 410, 424-427 (Lynch) [one of the techniques for determining whether or not a punishment is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity" requires examination of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society]; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1008 [considering "the circumstances of the crime" in assessing whether or not the punishment was grossly disproportionate].) Because the constitutional error asserted by defendant is not clear and correctable independent of factual issues presented by the record at sentencing, we conclude he was required to present the issue below and his failure to do so forfeits the claim on appeal.
The claim is also forfeited for a second reason, defendant's failure to adequately brief the issue on appeal. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [points raised but unsupported by "reasoned argument and citations to authority" are deemed forfeited]; see also People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to specify how evidence failed to support verdict forfeited sufficiency of the evidence claim].) Although defendant cites the relevant state and federal constitutional provisions, he neither sets forth the three techniques provided by our Supreme Court in Lynch, supra, 8 Cal.3d at pages 425 to 427, nor does he offer any substantive analysis with respect to any of these techniques. Defendant also does not explain why, in his view, the overall sentence imposed is an " 'extreme sentence[] that [is] "grossly disproportionate" to the crime[]' . . ." under the federal standard. (Ewing v. California (2003) 538 U.S. 11, 23 .)
In Lynch, supra, 8 Cal.3d 410, our Supreme Court described three "techniques" the courts have used to administer the California Constitution's prohibition against cruel or unusual punishment: (1) an examination of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction, and (3) a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. (Id. at pp. 425-427.)
Instead, defendant purports to raise a purely legal question: "Can trial courts impose terms of sentences that are impossible to serve without running afoul of the state and federal Constitutions?" While acknowledging both state and federal decisions have held such functionally-equivalent life-without-parole sentences are not per se unconstitutional, defendant "believes that evolving standards of decency should require otherwise." Defendant's claim of cruel and/or unusual punishment requires a fact-specific showing defendant failed to make below and further failed to adequately brief in this appeal. The claim is forfeited.
VII
Dueñas Claim
In a supplemental brief filed with this court's permission following the Second Appellate District's recent decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant argues imposition of the following fines and fees violated his constitutional rights because the trial court did not determine his ability to pay before imposing them: (1) a restitution fine of $10,000 (Pen. Code, § 1202.4), (2) a stayed parole revocation restitution fine of the same amount (Pen. Code, § 1202.45), (3) a court operations assessment of $520 (Pen. Code, § 1465.8), and (4) a court facilities assessment of $390 (Gov. Code, § 70373). He asks this court to strike each of these fines and fees.
We conclude defendant's challenge to the restitution fine and parole revocation restitution fine are forfeited. Assuming, without deciding, his challenges to the other fines and fees have not been forfeited, we conclude Dueñas, supra, 30 Cal.App.5th 1157 was wrongly decided and therefore reject defendant's claim on that basis.
A.
Dueñas
In Dueñas, supra, 30 Cal.App.5th 1157, the defendant (Dueñas) was an indigent and homeless young mother with cerebral palsy who pleaded no contest to driving with a suspended license, a crime she committed after losing her license because she was unable to pay certain fines associated with three juvenile citations. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) The trial court granted Dueñas probation and, among other things, imposed various mandatory fines and fees. (Id. at pp. 1161-1162.) Dueñas asked the trial court to set a hearing to determine her ability to pay. (Id. at p. 1162.) At the hearing, the trial court found Dueñas lacked an ability to pay but nevertheless confirmed imposition of court facilities and court operations assessments, noting both were "mandatory regardless of Dueñas's inability to pay them," and also confirmed imposition of a restitution fine in the minimum amount, finding, "Dueñas had not shown the 'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving this fine." (Id. at p. 1163.) The trial court also rejected Dueñas's constitutional arguments that due process and equal protection prohibited imposition of these fines and fees without a determination that she possessed the ability to pay them. (Ibid.)
Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held, "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 [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1955) 351 U.S. 12, 17 (Griffin).) Analogizing the imposition of these mandatory assessments without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 (Bearden)), the court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, supra, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Id. at p. 1168.)
With respect to the minimum restitution fine, the appellate court held imposition of this fine without first determining ability to pay, while done in accordance with the statutory scheme, also violated due process; execution of such a fine "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, 30 Cal.App.5th at p. 1164.) The court noted the restitution fine is recognized to be "additional punishment for a crime" and concluded the statutory prohibition on considering ability to pay when imposing the minimum fine is fundamentally unfair because it "punishes indigent defendants in a way that it does not punish wealthy defendants." (Id. at pp. 1169-1170.)
B.
Forfeiture
There is presently a split of authority with respect to whether or not a defendant who did not object to the trial court's imposition of mandatory fines and fees based on inability to pay, like defendant in this case, forfeits a Dueñas claim. (Compare People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) [finding forfeiture] with People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano) [no forfeiture].) We conclude defendant's challenge to the restitution fine and parole revocation restitution fine are forfeited and decline to address the forfeiture issue with respect to the remainder of his Dueñas claim because, even if properly preserved for review, there was no constitutional violation.
Beginning with the restitution fine, as previously mentioned, Penal Code section 1202.4 allows consideration of a defendant's ability to pay when determining whether to increase the restitution fine above the statutory minimum. (Pen. Code, § 1202.4, subd. (c).) That statutory minimum is $300. (Pen. Code, § 1202.4, subd. (b)(1).) Here, the trial court imposed a restitution fine in the amount of $10,000, the statutory maximum. Thus, defendant could have objected to this fine based on inability to pay but failed to do so, forfeiting his challenge to this fine on those grounds in this appeal. (See People v. Avila (2009) 46 Cal.4th 680, 729 [challenge to restitution fine based on inability to pay forfeited where trial court imposed maximum fine and defendant did not object on that basis below]; Frandsen, supra, 33 Cal.App.5th at p. 1153; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033.)
We reach the same conclusion with respect to the parole revocation restitution fine imposed pursuant to Penal Code section 1202.45 because this fine must be imposed "in the same amount as that imposed pursuant to [Penal Code section 1202.4, subdivision (b)]." (Pen. Code, § 1202.45, subd. (a).) Failing to object to the $10,000 restitution fine resulted in the same amount being imposed pursuant to Penal Code section 1202.45. Moreover, because this fine was stayed pursuant to subdivision (c) of this provision, defendant will suffer no adverse consequences from imposition of this fine unless and until his postrelease parole is revoked. Moreover, with a sentence of 180 years to life, defendant will not likely be released at all.
Turning to the remainder of defendant's Dueñas claim, we note that in Frandsen, supra, 33 Cal.App.5th 1126, the appellate court rejected the defendant's argument that his challenge to the court facilities and court operations assessments was not forfeited because an objection to these assessments based on inability to pay would have been futile prior to Dueñas, supra, 30 Cal.App.5th 1157, an argument accepted by a different division of that same court in Castellano. (Compare Frandsen, supra, 33 Cal.App.5th at p. 1153 with Castellano, supra, 33 Cal.App.5th at p. 489.) We need not weigh in on this forfeiture issue here because, as we explain immediately below, even assuming the remainder of this claim is properly preserved for review, there was no constitutional violation.
C.
No Constitutional Violation
Reactions to the new constitutional principle articulated in Dueñas have been mixed. Although many courts have followed its reasoning, others have distinguished (see People v. Caceres (2019) 39 Cal.App.5th 917) or disagreed with the opinion (see People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946 (Hicks); People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Aviles (2019) 39 Cal.App.5th 1055, 1067-1068, review denied Dec. 11, 2019, S258563). We join the latter group and limit our discussion of the matter to rejecting Dueñas, supra, 30 Cal.App.5th 1157 outright.
In Hicks, our colleagues at the Second Appellate District rejected the Dueñas court's reliance on "two strands of due process precedent" in "fashioning" a new constitutional principle requiring an ability to pay determination before imposing the fine and assessments challenged therein. (Hicks, supra, 40 Cal.App.5th at p. 326.) The first strand, starting with Griffin, supra, 351 U.S. 12, 17 , "secures a due process-based right of access to the courts." (Hicks, supra, p. 325.) This strand of precedent, however, "does not dictate Dueñas's bar on imposing fees because the imposition of assessments, fines and fees does not deny a criminal defendant access to the courts." (Id. at p. 326.) The second strand of due process precedent relied upon by the Dueñas court (see, e.g., Antazo, supra, 3 Cal.3d 100 and Bearden, supra, 461 U.S. 660, described above) "erects a due process-based bar to incarceration based on the failure to pay criminal penalties when that failure is due to a criminal defendant's indigence rather than contumaciousness." (Hicks, supra, at p. 325.) This strand "also does not dictate Dueñas's bar on imposing fees because their imposition, without more, does not result in incarceration for nonpayment due to indigence." (Id. at p. 326.)
Pursuant to California Rules of Court, rule 8.1115(e)(1), we cite and discuss Hicks, supra, 40 Cal.App.5th 320 solely for its "persuasive value."
Finally, the Hicks, supra, 40 Cal.App.5th 320 court also concluded Dueñas, supra, 30 Cal.App.5th 1157 erred in expanding due process protections in the manner it did, explaining: "Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them. Our Supreme Court in Antazo, supra, 3 Cal.3d 100, . . . expressly declined to 'hold that the imposition upon an indigent offender of a fine [or] penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.' [Citation.] Antazo refused to prohibit the imposition of fines and assessments upon indigent defendants for good reason, which the United States Supreme Court explained best: 'The State . . . has a fundamental interest in appropriately punishing persons—rich and poor—who violate its criminal laws,' such that '[a] defendant's poverty in no way immunizes him [or her] from punishment.' (Bearden, supra, 461 U.S. at pp. 669-670 . . . .) To confer such an immunity, that Court has said, 'would amount to inverse discrimination [because] it would enable an indigent [defendant] to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other . . . .' (Williams[ v. Illinois (1970)] 399 U.S. [235,] 244[ (Williams)].) By adopting an across-the-board prohibition on the very imposition of assessments and fines on indigent defendants, Dueñas prohibits a practice that Antazo sanctioned (albeit under a different constitutional provision). What is more, Dueñas mandates the very type of 'inverse discrimination' condemned by the Court in both Bearden and Williams." (Hicks, supra, at p. 327.)
We agree with the Hicks, supra, 40 Cal.App.5th 320 analysis in its entirety. The strands of precedent relied upon by the Dueñas court in expanding due process protections to require an ability to pay determination before imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, such an expansion. Imposition of the challenged financial obligations has not deprived defendant of access to the courts. Nor has defendant been incarcerated because of his inability to pay. Rather, he is incarcerated because he sexually abused his niece over the span of several years while she was a child and then stalked her after she extricated herself from his control. He was sentenced to serve a lengthy prison sentence for these crimes and will have an opportunity to attempt to pay these obligations, e.g., from prison wages if he obtains employment while in prison. "Should they remain unpaid at the end of his [prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Hicks, supra, at p. 329.)
Nor has defendant persuaded this court imposition of the fines and fees in this case violated his Eighth Amendment right against excessive fines, as that right was recently described by the United States Supreme Court in Timbs v. Indiana (2019) ___ U.S. ___ . That case is so manifestly inapposite we decline to discuss it at all. Instead, we simply note defendant has cited us to no authority, nor have we discovered any on our own, supporting the position that the fines and fees imposed in this case are excessive in relation to either the gravity of defendant's offense or his economic situation. (Id. at p. ___ [688].)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MURRAY, J.