Opinion
E065030
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ROBERT BLACKBURN, Defendant and Appellant.
Corona & Peabody and Jennifer Peabody for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1100658) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Corona & Peabody and Jennifer Peabody for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Michael Robert Blackburn, in two counts of committing lewd acts against his biological daughter, Doe 1. (Pen. Code, § 288, subd. (a); counts 1-2.) The same jury found defendant guilty in 10 additional counts of committing sex offenses against his stepdaughter, Doe 2: lewd acts in counts 3, 4, and 5 (§ 288, subd. (a)) and aggregated sex offenses in counts 6 through 12, namely, forcible oral copulation in counts 6, 7, 8, and 9 (§ 269, subd. (a)(4)), forcible rape in counts 10 and 11 (§ 261, subd. (a)(2)), and forcible sodomy in count 12 (§ 286, subd. (c)(2)(A)). The jury found true a "One Strike" law allegation that defendant committed a qualifying sex offense against more than one victim in the present case. (§ 667.61, subd. (e)(4).) Defendant was sentenced to 180 years to life, comprised of 12 consecutive 15-year-to-life terms.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant claims: (1) insufficient evidence supports his convictions involving Doe 2 in counts 3 through 9; (2) the People advanced a legally erroneous theory of liability to support the charges in counts 3 through 9; (3) the jury was erroneously instructed that it could consider offenses occurring "reasonably close" to the dates charged in counts 3 through 9; (4) his motion to sever counts 1 and 2 from counts 3 through 12 was erroneously denied; (5) the jury was erroneously instructed it could consider his statements to his defense expert, Dr. Jody Ward, as indicating his consciousness of guilt; (6) large amounts of prejudicial and inflammatory domestic violence and uncharged sex offense evidence was erroneously admitted; (7) the expert testimony of Dr. Ward was erroneously limited; and (8) his 180-year-to-life sentence is cruel or unusual. We find no merit to any of these claims and affirm the judgment in all respects.
II. FACTUAL BACKGROUND
A. Prosecution Evidence Concerning the Sex Offenses Against Doe 2 (Counts 3-12)
1. Doe 2's Family Background and Fear of Defendant
Doe 2 was born in March 1988 and was age 26 at the time of trial in December 2014. Doe 2's mother, C., met and began dating defendant around 1990 when C. was age 19 and defendant was around age 24. At that time, C. also had another child from a prior relationship, A., born in 1990. C. and defendant married when Doe 2 was age four or five. C. worked during the daytime and would arrive home between 5:00 and 6:30 p.m. Defendant worked nights, and during the daytime was home with Doe 2 and A. Defendant was jealous and controlling and later became physically abusive toward C.
When Doe 2 was around age five, the family moved into a home in Fontana and lived there for around one year. During this time, Doe 2 began to fear defendant. Defendant had a loud and "scary" voice, was intimidating, and when he spoke Doe 2 and A. would "freeze" and "listen." Doe 2 testified that the first incident that made her fear defendant occurred in the Fontana home one night when C. ran into the bedroom Doe 2 and A. shared. C. closed the door and got into the bottom bunk bed with Doe 2 and A. Defendant "slamm[ed]" the bedroom door open and dragged C. out of the room by her hair as C. screamed.
Later, defendant became physically aggressive toward Doe 2 and A., causing Doe 2 to continue to fear defendant. When Doe 2 was age five and in kindergarten, she brought the wrong amount of change home from school. Defendant put her in the corner, "nudged" or "forced" her head against the wall, yelled at her, and used profanity. When Doe 2 was in first grade, defendant was cooking rice but went to take a shower and asked Doe 2 and A. to let him know if the rice began to boil over. Doe 2 forgot about the rice and it boiled over. When defendant came out of the shower, he yelled at Doe 2 and A., twisted his towel, and flung it at Doe 2 and A., causing either Doe 2 or A. to suffer a bloody nose.
Doe 2 testified defendant was not always angry, but when he was he had "no regard" for C., Doe 2, or A. He would yell and swear at them, physically hit them, and spank Doe 2 and A. "beyond the point of discipline." He would call C. a "bitch," "slut," and "whore" in front of Doe 2 and A. Once, when A. was only three years old, defendant disciplined A. by spanking him with a belt, causing "big welts on his bottom." Doe 2 overheard A. being hit with the belt and crying. According to A., defendant often spanked and whipped A., and once "smack[ed]" A. in the head when he was only three years old. Doe 2 saw defendant slam A.'s head into the wall at least twice in the Fontana home, including once after A. urinated on himself.
When Doe 2 was age seven, the family moved to a home in Perris, and when Doe 2 was age 10 the family moved to another Perris home. In the first Perris home, defendant's physical violence toward the family became worse. Defendant and C. fought more often and defendant became more violent toward C. When defendant and C. argued, Doe 2 would hear C. yell to Doe 2 and A. to "call the cops," but defendant would threaten the children and C. if they called the police. Doe 2 believed defendant would retaliate against herself, A., or C. if the police were called. A. testified defendant was violent toward C. at least once every two weeks when the family lived in the first Perris home.
When Doe 2 was between the ages of seven and 10 or 11, defendant would kick C. under the table at restaurants. One time, the family was at a sushi restaurant in Moreno Valley when defendant kicked C. under the table and began arguing with restaurant employees. The family was asked to leave the restaurant. Another time during this period, defendant was driving the family and his nephew, R., to Hemet in a red Mitsubishi Eclipse to visit defendant's sister, J., and J.'s children when defendant and C. began to argue. Defendant stopped the car near J.'s house, locked the doors, and pulled C.'s hair. While trying to get defendant off of her, C. kicked the dashboard and broke the radio with her foot.
2. Defendant's Uncharged Acts Against Doe 2 Before Doe 2 Turned Age Nine
Defendant began doing sexual things with Doe 2 when she was age seven. The first of these incidents occurred in the first Perris home. In the living room, while C. was at work and A. was either outside or napping, defendant put a blindfold on Doe 2 and told her "it was going to be a taste test." He gave her several things to taste, including a Starburst candy, and asked how they tasted. Last, he put his penis on Doe 2's lip, ejaculated into her mouth, and told Doe 2 not to tell C. The incident made Doe 2 uncomfortable, but she did not tell C. about the incident because she feared defendant would "retaliate."
Another time, when Doe 2 was age seven or eight, defendant had Doe 2 put on her cheerleading uniform in A.'s bedroom. Doe 2 put on her red sequined cheer skirt, and defendant rolled her underwear into a thong and rolled her skirt up to make it shorter—while he groped Doe 2's "butt and . . . vagina" over and under her underwear. He then lay on the floor, had Doe 2 stand on the steps of the bunk bed, and looked up her skirt. The incident made Doe 2 feel scared, nervous, and uncomfortable. Following the red skirt incident, defendant's sexual abuse of Doe 2 became "more and more frequent" and "more and more . . . sexual." When Doe 2 was still age seven or eight, she and defendant were sitting on the living room couch when defendant told her they were going to watch something "really cool." Defendant began playing a pornographic movie involving a woman and two men, sat down, pulled his penis out of his boxer shorts, and led Doe 2's hand to stroke his erect penis until he ejaculated. The incident frightened Doe 2 and made her uncomfortable.
When Doe 2 was still age seven or eight, defendant began forcing Doe 2 to orally copulate him. The first such incident occurred in the upstairs bedroom in the first Perris home. Defendant called Doe 2 up to the room, had her put on fake red fingernails, and told her to get on her knees, close her eyes, and open her mouth. He put his penis into Doe 2's mouth and led her head back and forth to give him oral sex. He ejaculated in her mouth, made her swallow, then told her to rinse her mouth and not to tell C. Doe 2 always did as defendant instructed because she feared him.
When Doe 2 was age eight, defendant drove Doe 2 to Toys "R" Us to get a toy. On the way there, they pulled over at a housing complex, and defendant pulled out his penis and grabbed Doe 2's head to give him oral sex. The oral sex continued until defendant ejaculated. Defendant then took Doe 2 to Toys "R" Us and bought her a game for her PlayStation.
Another time, when Doe 2 was age seven or eight, she was playing hide and seek with defendant and A. Doe 2 and defendant hid in the closet where defendant made Doe 2 touch his erect penis. Doe 2 testified defendant had her touch his penis in the car 10 to 15 times when she was between the ages of seven and 10. Another time, when Doe 2 was age eight, she was lying in defendant's bed and defendant put his hand inside her underwear and penetrated her vagina.
A. testified that when he was around age six (and Doe 2 was around age eight), A. saw Doe 2 and defendant in the guest bedroom of the first Perris home. The room was dark, but A. could see defendant lying on his back on the floor and Doe 2 sitting next to him with her hand by his private area. Defendant yelled at A. to go back and watch television.
3. The Charged Offenses in Counts 3 Through 9 (Occurring Between March 23, 1997, and March 22, 1999, When Doe 2 Was Ages Nine to 11)
Doe 2 testified defendant made her orally copulate him at least once each week from the time she was age seven or eight until the family moved out of the first Perris home when she was age 10 or 11. Doe 2 specifically testified that defendant had her orally copulate him at least once each week when she was between ages nine and 11.
When asked whether she recalled the times defendant "touched" her from the ages of nine to 11, Doe 2 said she did not have a "specific memory" of "where we were or what we were doing or what I had to do, but it was often that I did have to touch him and he would touch me." Doe 2 testified that each time defendant had Doe 2 touch him, he would touch Doe 2 in a sexual manner either over or under her clothes.
When Doe 2 was between ages nine and 11, defendant put his hand in Doe 2's underwear and penetrated her vagina at least 10 times. Doe 2 also recalled that defendant kissed her with his tongue around once each week, beginning when she was age seven and continuing until she was age 10 or 11. The first such kissing incident occurred in defendant and C.'s bedroom. Defendant told Doe 2 to open her mouth, put his tongue into her mouth, and kissed her.
Defendant's domestic violence toward the family continued while Doe 2 was ages nine through 11. Doe 2 feared that if she said "no" to defendant "for [any] reason" and refused to participate in the molestations or disclosed them to anyone, defendant would physically discipline her and "it would be worse."
4. Defendant's Sexual Abuse of Doe 2 Stopped When Doe 2 Turned Age 11
Defendant's sexual abuse of Doe 2 stopped when Doe 2 turned age 11 and the family moved to the second Perris home. Around this time, C. and defendant began attending church and defendant stopped hitting C. Doe 2 began to feel "comfortable" and not "afraid anymore."
5. The Charged Offenses Against Doe 2 in Counts 10 Through 12 (Occurring Between March 23, 2002, and December 1, 2004, When Doe 2 Was Ages 14 to 16)
Defendant began sexually molesting Doe 2 again when she was age 14 or 15. By this time, the family was living in Moreno Valley, but defendant and C. had separated and were living in separate bedrooms. C. was often out of town on business while defendant was at home with Doe 2 and A.
After the family moved to Moreno Valley, defendant began making inappropriate remarks to Doe 2 like, "I usually get what I want." This made Doe 2 have the "same nervous feelings" she had when defendant was sexually molesting her several years earlier. One time, before the molestations resumed, defendant apologized to Doe 2 for the sexual abuse. He told Doe 2 how beautiful she was and how "sexy [she] danced" and said he could not help himself. He was crying and said, "I'm so sorry. I know this is wrong." But after his apology, defendant began acting as if he were Doe 2's jealous boyfriend. When he would see Doe 2 talking to a boy, he would get "really mad" and call Doe 2 a "slut." At some point, defendant began asking Doe 2 to dance for him like she danced with her group in school. Doe 2 would try to tell defendant "no" and reminded him of his apology. Defendant told Doe 2: "If you aren't going to, I'm just going to have to break you. You're going to crack."
After midnight one night when C. was away from home, defendant made Doe 2 hold two thick textbooks in her hands with her arms extended "straight out to [her] sides." Defendant was lying on the bed in C.'s room. He told Doe 2 he was going to take a nap and she was "going to stand right there." Earlier, he told Doe 2 she was going to have to "break" and "give in." Doe 2 was too afraid to put the books down or leave the room even though her arms were numb and she was physically hurting. Doe 2 was crying and prayed out loud. Defendant said: "Praying is not going to help you. Nobody can help you." After this incident, Doe 2 felt "very mentally weak" and too afraid to tell defendant "no," and defendant began sexually molesting Doe 2 again.
Doe 2 testified that the first new molestation occurred either the summer before or during her sophomore year in high school when she was age 14 or 15. Defendant and Doe 2 were in A.'s room where defendant had Doe 2 get on her knees and give him oral sex. Another time, in C.'s room, while C. was away from home working, defendant lit candles and told Doe 2 to take a shower. Defendant was naked and told Doe 2 to get into bed with him. Defendant touched and kissed Doe 2 and then inserted his penis into her vagina and climaxed. Doe 2 did not say anything because she was afraid.
After the intercourse, defendant was very angry and told Doe 2 she was "a slut, a whore" because she did not bleed and she was supposed to bleed. The sexual intercourse with defendant occurred "very often" if not every night defendant was home. One time, defendant had Doe 2 dress up in short jean shorts, told her to dance for him, and pretend she was washing a car. Defendant masturbated while she danced and bent over as if she were washing a car.
After Christmas in 2003, when Doe 2 was age 15, defendant went through all of Doe 2's possessions and found letters she had exchanged with friends in which someone was saying "someone was cute . . . ." Defendant "got really, really upset," and "cut up" all of the new clothes and "keyed" or marred all of the new shoes Doe 2 had received for Christmas. This made Doe 2 and C. "really upset." Defendant responded by telling C. that Doe 2 was "going to be a slut just like you."
Around this time, defendant was physically violent toward A. and Doe 2, and was increasingly violent toward C. In February 2004, defendant got into a physical fight in a car with C. in the presence of A. and Doe 2. He punched C.'s leg and pulled her hair. C. called the police after the family returned home. Defendant was arrested, but C. allowed him to return home the next day. C. felt sorry for defendant because he had nowhere to go and no one to help him. Doe 2 was too afraid to tell the police about "anything," including defendant's sexual abuse of her or his physical violence toward C. Doe 2 believed defendant's strained relationship with C. made it easier for him to molest Doe 2.
After he began having sexual intercourse with Doe 2, defendant would often force Doe 2 to sleep in his room at night. One night, when Doe 2 tried to sleep in her own bed, defendant came into her room, started to choke her, and told her she needed to sleep in his room and to not "play . . . games." Generally, defendant would call Doe 2 into his room, would massage her feet and would then have sexual intercourse with her. A. once overheard defendant tell Doe 2 to go to his room in the Moreno Valley house. A. saw that Doe 2 "pretty much" slept in defendant's room when C. was out of town.
Doe 2 testified defendant forced her to have sexual intercourse with him multiple times each week for at least a year in the Moreno Valley home, beginning when she was age 14 or 15. Defendant also forced Doe 2 to orally copulate him at least two to three times each week when she was age 14 to 15. When Doe 2 was age 15 or 16, defendant shaved her vagina and orally copulated her. Doe 2 also recalled that when she was age 15 or 16, defendant once forced her to orally copulate him on the way to defendant's sister's house.
Defendant last molested Doe 2 by sodomizing her in April or May 2004 when she was age 16. That day, defendant made Doe 2 stay home from school. He put Doe 2 against the wall, pulled her pants down, and stuck his penis in her butt. Doe 2 was crying, very afraid, and in pain. While defendant's penis was moving in and out of her anus, Doe 2 defecated, and defendant said, "you're not done, you're not done." Doe 2 washed herself, then defendant anally penetrated her again, causing her to defecate again. Defendant said, "[i]t feels good when you do that." Doe 2 washed herself again, defendant penetrated her again, and Doe 2 defecated a third time. Defendant finished and Doe 2 washed herself again. When she returned to the room, defendant was angry, called her a "bitch," and slapped her.
6. Defendant's Removal from the Home and Doe 2's Disclosure of the Abuse
The day defendant sodomized her, Doe 2 told A. defendant had slapped her and called her a bitch. The next day, Doe 2 told C. that defendant had slapped her and called her a bitch because A. told Doe 2 that he would tell C. about the incident if Doe 2 did not. That day, C. kicked defendant out of the Moreno Valley home.
That year, when Doe 2 was still age 16, Doe 2 told her close friend, B., that defendant had sexually abused her but she did not disclose the details of the abuse. B. was Doe 2's husband at the time of trial in December 2014. Doe did not tell anyone other than B. about the sexual abuse until 2012, when she finally told C. In 2012, Riverside County District Attorney's Investigator Ronald Braasch attempted to contact C. at C.'s home. Before C. spoke with the investigator, C. asked Doe 2 whether defendant had done "anything" to her, and Doe 2 nodded her head yes. Investigator Braasch later contacted Doe 2 and interviewed her about the molestations. The interview was the first time Doe 2 had discussed the molestations in detail with anyone.
At trial in December 2014, C. testified she had last seen defendant shortly after she kicked him out of the Moreno Valley home in 2004. Defendant was "bragging" to C. about how young his new girlfriend was. During their marriage, defendant at times had C. dress "like a school girl" during sex. B. Prosecution Evidence Concerning Doe 1 (Counts 1-2)
1. Doe 1's Trial Testimony
Doe 1 was born in July 2006 and was age eight at the time of trial. When she was a "little girl" she visited her "real dad," defendant, at the home defendant shared with his sister, T., and his parents. Doe 1 did not like to visit defendant because he made her feel "scared." Defendant did not hit or yell at Doe 1, but he touched her where he "wasn't supposed to"—in her "front" "private spot" where she "go[es] pee." When Doe 1 was age three and visiting at defendant's house, defendant touched her front private spot with his hand when she was in bed and touched her in the same place when she was in the bath. The two touching incidents could have occurred on separate days, but Doe 1 was unsure.
When the bed touching occurred, Doe 1 believed her "pants were down" and she was pulling her pants up. According to Doe 1, she and defendant shared a room in defendant's house. Sometimes defendant would sleep on the floor and sometimes he would sleep in the bed with Doe 1. Doe 1 did not like it when defendant slept with her because she felt he would touch her again. When the bath touching occurred, defendant's sister, T., may have been in the bathroom with defendant and Doe 1. Doe 1 liked to wash herself with her hand and soap when she was in the bath. When she was about to wash herself, defendant touched her front private spot.
Doe 1 did not remember whether defendant had touched other parts of her body, but she was certain he was not just washing her when he touched her in the bath because he did not have soap in his hands. Doe 1 did not have "rules" during bath time, and if someone said she had rules that would be a lie. Doe 1 did not recall defendant touching her when she was eating or when she was in her doll house. The doll house was in defendant and Doe 1's bedroom in defendant's home. If someone said defendant had touched Doe 1 in the doll house, that would be a lie.
Doe 1 testified that H., her mother M.'s best friend, was the first person she told about the bed and bath touchings. Doe 1 did not recall testifying three years earlier that her mother, M., was the first person she told about the touchings, and she did not recall testifying that she did not tell H. about the touchings. M. never said anything mean about defendant to Doe 1, and Doe 1 did not recall testifying three years earlier that M. said mean things about defendant. M.'s husband, S., also never said mean things about defendant, and Doe 1 did not recall testifying that S. told Doe 1 that her "old dad" (defendant) was a "bad" dad.
2. Doe 1's Earlier Statements to H. and the Actions that Followed
Around September 1, 2010, when Doe 1 was age four, M.'s best friend, H., babysat Doe 1 overnight at H.'s home. While Doe 1, H., and H.'s boyfriend were driving in a car, Doe 1 was wearing a large pair of sunglasses and pretending she could see through things. When asked what she could see, Doe 1 said she could see defendant's house, and when asked what defendant was doing, Doe 1 said, "I don't know. I can't see what he is doing. I don't like him because he is mean to me." When asked why or how defendant was mean to her, Doe 1 said defendant hit her, pulled her hair, yelled at her, and called her names. Doe 1 told H. she did not want to go to defendant's house anymore, and she soon would not have to go there anymore.
Later that night, H. prepared a bath for Doe 1. As Doe 1 undressed, she told H. not to watch her because she had "rules" at bath time. Doe 1 said her rules were that she could bathe herself and she did not want other people to bathe or touch her. She said defendant had broken her rules, and when asked to explain, said: "He touches me, and I don't like it." When asked how defendant touched her, Doe 1 pointed toward her vagina and indicated defendant had touched her there more than once. When H. tried to explain to Doe 1 that defendant was probably just bathing her and it was normal for a father to bathe his daughter, Doe 1 said, "No, I can bath[e] myself," and "I don't like how he touches me there."
When H. put Doe 1 to bed that night, H. asked Doe 1 whether she wanted H. to lie down in the bedroom with her. Doe 1 said she did not want anyone in her room and she wanted the door closed. H. thought this was "odd" because children usually like to be with people. Doe 1 also seemed "guarded" when H. put her to bed; Doe 1 watched to make sure H. closed the door.
The next day, H. told M. what Doe 1 had said about defendant touching her. At the time, M. and defendant were engaged in a "custody battle" over Doe 1. After M. and Doe 1 left her home that day, H. called child protective services (CPS) and asked questions but did not make a report. When H. later told M. she had called CPS, M. was "scared." M. immediately called her attorney in her child custody case because defendant had an overnight visit scheduled for the next weekend. Around one week later, H. called CPS again and reported what Doe 1 had told her.
On September 7, 2010, before going to the police on September 10, M. asked Doe 1 about what had happened with defendant. Doe 1 told M. that defendant touched her in the bathtub and in her bed. M. asked Doe 1 this question twice and recorded the second conversation. H. also wrote a statement and provided it to M.'s attorney for use in the custody dispute. M. "hated" defendant, felt he was an unfit father, and told H. defendant was having sex with underage girls. H. also hated defendant.
In October 2010, the Riverside County Assessment Team (RCAT) conducted a forensic interview of Doe 1. The interview was played for the jury. After providing her name and age, Doe 1 told the interviewer: "[G]uess what? [¶] . . . [¶] . . . My old dad hit me." She said defendant hit her in the face at his house, and while she was sleeping he touched her "right here [pointing to her vaginal area]. [¶] . . . [¶] . . . With one finger." Regarding the bed touching, Doe 1 said she opened her eyes after defendant touched her "private" where she "pee[s]" while he was standing. Doe 1 recalled she was wearing her "monkey" pajamas and underwear, but defendant touched her under her clothes. Doe 1 told defendant to "stop" 10 times, but he did not stop, said "no," and "just [kept] doing it." Defendant finally stopped when Doe 1 said "stop" loudly. Doe 1 recalled that defendant's nails were "long" and he "kind of scratched" her.
Doe 1 also told the RCAT interviewer that after defendant touched her in the bed, he touched her when she "took a bath." She said defendant touched her "hiney" where "poop is" with one finger when she was taking a bath. When she told defendant to stop, he said "[s]hut up" and told her not to tell anyone. Doe 1 also said defendant once hit her in her face and called her stupid. Doe 1 described two additional times defendant touched her inappropriately: on her private area over her clothes when she was sitting in a chair eating noodles, and on her private area and butt when she was in her doll house. When asked at the close of the RCAT interview what she thought should happen to defendant, Doe 1 responded, "Uh, go in jail."
3. Defendant's Domestic Violence Toward M.
M. and H. were best friends and met defendant when they were ages 15 to 16 and sophomores in high school. M. began dating defendant in December 2004 when she was age 17. At the time, defendant told M. he was age 21, but he was age 37. M. and defendant began living together during the summer of 2005, and had a child, Doe 1, in 2006, when M. was still in her teens.
Defendant was very controlling and manipulative toward M. There was domestic violence in their relationship from 2004 until 2007, when M. finally called the police, reported the violence, and ended the relationship. The night M. left defendant, defendant wanted to have anal sex, but M. did not, defendant accused M. of cheating, and choked her. Defendant became angrier after Doe 1 awoke and choked M. again. Defendant and M. fought through the night and into the next morning.
At one point, defendant held a knife to M.'s chest, threatened to kill her, and told her he would push the knife in if she was stubborn again. He hit M. with Doe 1's shoes, broke M.'s cell phone, and placed a large piece of wood in front of the apartment door to prevent M. from leaving. When defendant finally fell asleep, M. removed the wood blocking the front door, ran out of the apartment, and called the police. M.'s face was bruised and she had "choke rings" on her neck. Defendant had beaten M. "[c]ountless" times before. He was arrested and convicted of domestic violence, and M. obtained restraining orders. Following this incident, M. and defendant engaged in a heated custody dispute over Doe 1, and M. fought to keep Doe 1 away from defendant. C. Defendant's Uncharged Sex Acts With Three Other Teenage Girls: M., K., and Doe 3 (Evid . Code, § 1108)
When M. and defendant had sex, defendant often had M. "dress like a school girl" and talk and act as if she were an eight-year-old child. Defendant would play the part of M.'s friend's "dad." He would also force M. to perform oral and anal sex, and if she refused—or if she was "stubborn," meaning she was not "doing it right"—he would "smack" her.
Around 2004 to 2005, when M. was still age 17, defendant told M. he had had sex with his stepdaughter, Doe 2, when Doe 2 was age 14, and that he had raised Doe 2 from the time she was three to four years old. Defendant said that Doe 2 "came on" to him and "wanted it" from him, and he did not believe she was a virgin even though she said she was because of the way she "came." M. had never met Doe 2 and had still not met her at the time of trial.
Defendant also told M. he had had sex with "K." when K. was 16 years old. M. knew defendant had dated K. and had sex with her when she was 15 years old. Defendant also told M. he had had sex with another underage girl, Doe 3, when Doe 3 was age 15, before defendant began dating M.
Doe 3 testified she met and began dating defendant when she was age 15. Defendant told Doe 3 he was age 21. Their relationship lasted a couple of months, and defendant was Doe 3's second sexual partner. Doe 3 hung out with defendant in his apartment and they regularly had intercourse. Defendant requested oral sex, but Doe 3 was uncomfortable with that and defendant did not force her to have oral sex. Defendant never hit or threatened Doe 3, and he had no sexual fetishes. D. Defense Evidence
Investigator Braasch began investigating the case in April 2012. The district attorney had asked him to locate C. and find out whether "there was any weird, kinky type of sex" between defendant and C. and whether defendant had "any type of attraction to children." Investigator Braasch contacted C., then interviewed C. and Doe 2 in April 2012. Investigator Braasch did not attempt to obtain any of Doe 2's school or medical records to corroborate her allegations of sexual abuse.
Riverside County Sheriff's Deputy Dawn Blair met with M. at the Jurupa Valley Sheriff's Department on September 10, 2010. M. was alone and reported that, on September 1, Doe 1 told "the babysitter" (H.), and later told M. in response to questioning, that defendant had touched Doe 1 in her vaginal area. M. said Doe 1 told M. that defendant touched her while she was in the bed, in the bath, and getting dressed. M. also said she and defendant were in a child custody dispute concerning Doe 1. Deputy Blair did not recall M. telling her that defendant had also sexually assaulted M., Doe 2, or Doe 3.
Defendant's niece, J., who was age 30 at the time of trial and four years older than Doe 2, saw Doe 2 almost every weekend when Doe 2 was between the ages of three and 16. J. and Doe 2 were like sisters. Doe 2 was very outgoing, bubbly, happy, and was always laughing. Doe 2 and A. would sing and dance for the family. J. often spent the night at defendant's house with Doe 2, but Doe 2 never spent the night at J.'s house unless her entire family was spending the night. J. never saw any injuries on Doe 2 or A.
Defendant's nephew, R., also saw Doe 2 and her family every week from the time Doe 2 was age three or four until she was age 16. R. never saw any injuries on Doe 2 or A., and they were "always happy." R. was never in the back of the red Mitsubishi Eclipse with Doe 2 and A., and it would have been impossible for him to fit into the back of the car with Doe 2 and A. R. recalled that defendant drove the car to R.'s house with C., A., and Doe 2, and when they arrived, C. was angry because it was late and she wanted to go home. R. rode in the car with defendant around the block. After the drive, C. got into the car and pounded the stereo with her fists, and she did not seem frightened of defendant. Defendant's sister, J., also described A. and Doe 2 as "very, very happy . . . kids" and said C. and defendant spoiled them a lot.
Defendant lived with his sister, T., and their parents during August and September 2010. Doe 1 would visit defendant in T.'s home for court-ordered visitation. According to T., Doe 1 loved defendant and was happy when she visited him. Defendant took Doe 1 to places like Disneyland, Chuck E. Cheese's, the San Diego Zoo, and other places, and T. often joined them.
Doe 1 had her own room at T.'s house and a dollhouse she could fit inside, but an adult could not fit inside. T. never saw defendant play with Doe 1 when Doe 1 played in her dollhouse. Doe 1 appeared happy at T.'s home and did not want to leave when it was time to go. Doe 1 never complained that she did not want defendant to bathe her. Either T. or T. and defendant's mother were usually with defendant when he bathed Doe 1, and they would talk to Doe 1 as she played with her toys. T. never saw or suspected defendant of doing anything inappropriate with Doe 1 in the bath. Defendant sometimes slept on the floor in Doe 1's room because there was a television there.
Forensic psychologist Dr. Jody Ward reviewed sheriff's department records, the preliminary hearing transcript, and a district attorney report. She then met with defendant, interviewed him, and conducted psychological testing. Defendant had significant problems in reading and an IQ of 69—more than two standard deviations below the main and on "the extremely low range" of intelligence. Defendant showed a normal, heterosexual interest in adult and adolescent females, did not show a sexual interest in prepubescent females, and did not suffer from pedophilia. Pedophiles commit 95 percent of all sex acts committed against minors. Dr. Ward saw nothing in defendant that is typically seen in persons who sexually molest children.
Dr. Ward testified concerning suggestibility and contamination in mistaken or false allegations of child abuse. Preschool age children are more susceptible to suggestion and contamination than children over age six. Children under age six do not have a "strong hold on what is fantasy versus reality" and lack source memory, which is the ability to determine where a memory originates and whether the memory is of an event that actually occurred or something they were told about. In "stereotype induction," a child who has been told a person is bad will interpret things the person does in a more malevolent way. In her practice, Dr. Ward had come across cases involving false allegations of sexual abuse, and all but one of these cases involved a child custody dispute. E. Prosecution Rebuttal Evidence
San Bernardino County Sheriff's Deputy Ericson Dominick interviewed M. on September 28, 2010. M. said there were other persons defendant had victimized and gave the deputy Doe 3's name.
III. DISCUSSION
A. Substantial Evidence Supports Defendant's Convictions in Counts 3 Through 9
Defendant claims his convictions in counts 3 through 9 must be reversed because insufficient evidence supports them. Defendant was convicted in counts 3, 4, and 5 of lewd acts with Doe 2. (§ 288, subd. (a).) In counts 6, 7, 8, and 9, he was convicted of aggravated sexual assault against Doe 2, specifically, oral copulation by means of force or duress. (§§ 269, subd. (a)(4), 288a, subd. (c)(2)(A).) The information alleged that counts 3 through 9 occurred between March 23, 1997, and March 22, 1999, when Doe 2 was between the ages of nine and 11. At trial, the parties agreed that any sex offenses against Doe 2 which occurred before she turned age nine on March 23, 1997, were barred by applicable limitations periods. During closing argument, the prosecutor told the jury that all of the charges involving Doe 2 were based on conduct occurring after Doe 2 turned age nine and that all prior offenses against Doe 2 were time-barred.
Defendant claims the evidence is insufficient to support his convictions in counts 3 through 9 because Doe 2 had "no specific recollections" of any lewd acts or oral copulations that occurred when she was between the ages of nine and 11. Additionally, he argues insufficient evidence showed he used "force, violence, duress, menace, or fear of immediate and unlawful bodily injury" on Doe 2 or another person, in having Doe 2 orally copulate him as charged in counts 6 through 9. (§§ 269, subd. (a)(4), 288a, subd. (c)(2)(A).) We reject these claims and conclude substantial evidence supports defendant's convictions in counts 3 through 9.
1. Applicable Legal Principles
In reviewing a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence of reasonable, credible, and solid value—such that a reasonable trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241; People v. Johnson (1980) 26 Cal.3d. 557, 576.) "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." (People v. Combs (2004) 34 Cal.4th 821, 849.)
A lewd act, as charged in counts 3, 4, and 5, means "a touching of the body of a child under the age of 14, with the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. [Citations.]" (People v. Raley (1992) 2 Cal.4th 870, 907; People v. Warner (2006) 39 Cal.4th 548, 557; § 288, subd. (a).) Aggravated sexual assault on a child under age 14, as charged in counts 6, 7, 8, and 9, includes forcible oral copulation. (§§ 269, subd. (a)(4), 288a, subd. (c)(2)(A).) The oral copulation must be committed "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288a, subd. (c)(2)(A).)
2. Doe 2's Testimony Was Sufficiently Specific to Support Counts 3 Through 9
Defendant first claims that Doe 2's testimony was too generic and nonspecific to support his convictions in counts 3 through 9. He argues Doe 2 "admitted she had no specific memory of the [sexual] acts" that occurred when she was between the ages of nine and 11, the period alleged in counts 3 through 9. This argument understates the specificity and legal sufficiency of Doe 2's testimony.
"In Jones, our Supreme Court articulated 'the minimum quantum of proof necessary to support a conviction on one or more counts based on . . . generic testimony' from victims of child molestation. ([People v. Jones (1990) 51 Cal.3d 294, 314].) 'The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., "twice a month" or "every time we went camping"). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., "the summer before my fourth grade," or "during each Sunday morning after he came to live with us"), to assure the acts were committed within the applicable limitation period.' (Id. at p. 316, italics in original.) Compliance with these three minimum prerequisites is essential to preserve the defendant's right to a unanimous jury verdict. (Id. at p. 321.)" (People v. Hiscox (2006) 136 Cal.App.4th 253, 260; see also People v. Garcia (2016) 247 Cal.App.4th 1013, 1019-1020.)
The jury was given CALCRIM No. 3501 (Unanimity: When Generic Testimony of Offense Presented), which told the jury that (1) the People had presented evidence that defendant committed more than one act for each charge in counts 3 through 9, and (2) the jury could not convict defendant in any of these counts unless it unanimously agreed either that (a) defendant committed at least one act for each charged offense, or that (b) defendant committed all of the acts alleged to have occurred between March 23, 1997, through March 22, 1999, and that defendant committed at least the number of offenses charged.
Doe 2's testimony concerning counts 3 through 9 satisfied the three minimum prerequisites for generic testimony articulated in Jones: Doe 2 testified to (1) the kinds of sex acts defendant committed (lewd acts, oral copulation), (2) the number of times the acts occurred (approximately once each week), and (3) the general time period in which these acts occurred (from the time Doe 2 was age seven or eight until she was age 10 or 11). (People v. Jones (1990) 51 Cal.3d 294, 315-316.)
Regarding the oral copulation convictions in counts 6 through 9, Doe 2 testified defendant made her orally copulate him at least once each week from the time she was age seven or eight until the family moved out of the first Perris home when she was age 10 or 11. This testimony was sufficient to support the oral copulation convictions in counts 6 through 9. Doe 2 further testified that each time defendant had Doe 2 touch him, he would touch Doe 2 in a sexual manner either over or under her clothes. Doe 2 also testified that when she was between the ages of nine and 11, defendant put his hand in her underwear and penetrated her vagina at least 10 times. Doe 2 also recalled that defendant kissed her with his tongue around once each week, beginning when she was age seven and continuing until she was age 10 or 11. This testimony was sufficient to support the lewd act convictions in counts 3 through 5.
Defendant argues Doe 2's inability to recall the circumstances of the touchings or the oral copulations that occurred when she was between ages nine and 11 means her testimony is insufficient to support any of the convictions in counts 3 through 9. We disagree. To be sure, when asked whether she recalled the times defendant "touched [her]" when she was between the ages of nine and 11, Doe 2 said she did not have a "specific memory" of "where we were or what we were doing or what I had to do, but it was often that I did have to touch him and he would touch me." But as Jones explained, the victim's failure to specify the date, time, place, or circumstance of a sex offense does not render the victim's testimony insufficient to support a conviction for the offense, as long as the victim specifies the kind of act or acts committed, the number of acts committed with sufficient certainty to support each count, and the general time period in which the act or acts occurred. (People v. Jones, supra, 51 Cal.3d at pp. 315-316.) These standards were met here.
Defendant further argues that Doe 2's "inability to recall any details of the charge[d] crimes in counts 3-9 is inherently improbable given her memory of events before and after the period from ages 9-11." (Italics added.) Defendant thus suggests Doe 2's testimony was not credible, but as Jones explained, "it is not a proper appellate function to reassess the credibility of the witnesses." (People v. Jones, supra, 51 Cal.3d at pp. 314-315.) Rather, generic testimony is sufficient to support a conviction if, as here, it meets the three minimal prerequisites articulated in Jones. (Id. at pp. 315-316.)
Based on Doe 2's testimony and the unanimity instruction, the jury reasonably could have concluded that defendant committed at least three lewd acts on Doe 2 when she was between ages nine and 11, as charged in counts 3 through 5. The jury reasonably could have based its convictions in counts 3 through 5 on any of the three acts of oral copulation, lewd kissing, lewd touching, or vaginal penetration that Doe 2 testified occurred after she turned age nine and before she turned age 10 or 11. In addition, the jury reasonably could have based its convictions in counts 6 through 9 on any four of the weekly acts of forcible oral copulation that Doe 2 testified occurred from the time she was age nine until she was age 10 or 11—apart from the acts of oral copulation, if any, underlying the convictions in counts 3 through 5.
See footnote 2, ante.
3. Substantial Evidence Shows Defendant Used Fear and Duress in Counts 6 Through 9
Defendant was convicted in counts 6 through 9 of having Doe 2 orally copulate him when she was between ages nine and 11, "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288a, subd. (c)(2)(A).) Defendant argues "no evidence" shows he committed counts 6 through 9 by any of these means. We disagree. Substantial evidence shows defendant committed counts 6 through 9 by means of fear and duress.
In closing, the People argued defendant used fear and duress in counts 6 through 9 but did not argue defendant used force. Oral copulation "by force" occurs when the defendant "uses force" to commit the act against the victim's will. (People v. Guido (2005) 125 Cal.App.4th 566, 576.) "Force" in this context means "'"physical force substantially different from or substantially in excess of that required for the lewd act."'" (People v. Senior (1992) 3 Cal.App.4th 765, 774.) In this appeal, the People consistently argue that defendant used fear and duress, but do not argue he used force, in committing counts 6 through 9.
First, the jury was correctly instructed that "[a]n act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it." (CALCRIM No. 1015 [Oral Copulation By Force, Fear, or Threats].) The jury was also correctly instructed that "[d]uress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether that act was accomplished by duress, consider all of the circumstances, including the age of the other person and her relationship to the defendant." (CALCRIM No. 1015; People v. Cochran (2002) 103 Cal.App.4th 8, 14, overruled on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248 & fn. 12 [holding that the consent of the victim is not a defense to the crime of aggravated lewd conduct on a child under age 14].)
Substantial evidence shows, and the jury reasonably could have concluded, that Doe 2 actually and reasonably feared defendant, and that defendant knew of her fear and took advantage of it in demanding that she orally copulate him on at least four occasions when she was between ages nine and 11, as charged in counts 6 through 9. The record shows Doe 2 began to fear defendant when she was age five and in kindergarten, and she orally copulated him at least once each week beginning when she was age seven or eight and continuing until she was age 10 or 11—precisely because she feared that if she did not, he would severely punish her or he would similarly retaliate against A. or C.
As defendant observes, the jury was instructed it could only use the evidence that defendant committed domestic violence against C. and M. "for the limited purpose as to how it related to the mental state" of C. and M. "and for no other purpose." But the jury reasonably could have concluded that defendant used fear and duress in counts 6 through 9—without relying on any of the evidence of defendant's acts of domestic violence against C. or M.
Indeed, the domestic violence against M. occurred years after defendant molested Doe 2, and Doe 2 testified about several incidents which caused her to actually and reasonably fear defendant which did not involve his domestic violence toward C. When she was age five and in kindergarten, Doe 2 brought the wrong amount of change home from school, and defendant punished her by putting her in a corner, "forcing" her head against the wall, yelling at her, and using profanity. And when she was in first grade, defendant flung a twisted towel at her and A., causing one of them to suffer a bloody nose. Doe 2 also generally testified she feared defendant because he would yell and swear at her and A., physically hit them, and spank them "beyond the point of discipline." Doe 2's fear of defendant continued through the time she was age 10 or 11, when the family moved into the second Perris home and defendant stopped molesting Doe 2 for several years.
Defendant maintains there is no evidence that any of his "acts of violence" against Doe 2 or A. occurred "at or near the specific acts of forcible oral copulation" charged in counts 6 through 9, and there is therefore no evidence he used or expressly threatened to use force or violence (as opposed to implied threats of force or violence) against Doe 2 to gain her compliance in the charged acts of forcible oral copulation. This argument disregards the effects of defendant's long-term violence toward Doe 2, which would cause her to submit to defendant's unlawful conduct. The argument also disregards the substantial evidence that defendant used both fear and implied threats of force, violence, danger, hardship, or retribution—duress, that is—in committing the charged acts of oral copulation.
Doe 2 testified that the red skirt incident, the taste test incident, and the pornography incident—all of which occurred before the charged acts of oral copulation occurred—made Doe 2 feel scared, nervous, and uncomfortable. Doe 2 testified she first orally copulated defendant when she was age seven or eight, and she always did as defendant instructed her because she feared he would "retaliate" or punish her, C., or A. if she did not comply with his demands. Doe 2's fear of retaliation was an understandable response to defendant's prior acts of violence toward her. This evidence amply demonstrates defendant's use of fear and duress—that is, implied threats of force, violence, danger, hardship or retribution—in counts 6 through 9. (People v. Cochran, supra, 103 Cal.App.4th at pp. 13-14 ["The fact that the victim testifies the defendant did not [expressly] use force or threats does not require a finding of no duress . . . ."]; cf. People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1321 [insufficient evidence of duress where no evidence showed the victim's fear of the defendant, her father, was based on anything the defendant had done].) B. The Prosecution Did Not Advance Erroneous Theories of Liability in Counts 3 Through 9
When a jury is presented with a legally invalid theory to support a charge, such as a theory which "'"fails to come within the statutory definition of the crime"'" reversal generally is required unless "'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.'" (People v. Perez (2005) 35 Cal.4th 1219, 1233, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1128, 1130.) "Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place." (People v. Guiton, supra, at p. 1131.) When, however, the court's instructions correctly state the law, but the prosecutor arguably misstates the law during closing argument, the error is prosecutorial error only, not trial court or instructional error, and the defense forfeits the claim of prosecutorial error on appeal unless it timely objects to the error in the trial court. (See People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Defendant claims the prosecutor prejudicially erred during her closing argument in urging the jury to rely on two legally invalid theories to support convictions in counts 3 through 9: lewd acts or oral copulations that occurred before Doe 2 turned age nine and after she turned age 14. The parties agree that the acts that occurred before Doe 2 turned age nine were barred by the statutes of limitations, and acts that occurred after Doe 2 turned age 14 did not fall within the definitions of the crimes charged in counts 3 through 9. (§§ 288, subd. (a) [lewd act on child under age 14], counts 3-5, 269, subd. (a)(4) [aggravated sexual assault on child under age 14], 288a, subd. (c)(2)(A) [forcible oral copulation with child under age 14], counts 6-9.) Defendant additionally claims that the court erroneously failed to give a curative instruction sua sponte, telling the jury it could not rely on acts occurring before Doe 2 turned age nine or after she turned age 14 to convict him in counts 3 through 9. Third, and alternatively, defendant claims his counsel rendered ineffective assistance in failing to object when the prosecutor urged the jury to rely on the two legally invalid theories of conviction. All of these claims are unavailing.
To begin with, "the court did not present to the jury a case that was premised on a legally incorrect theory." (People v. Morales, supra, 25 Cal.4th at p. 43.) The unanimity instruction (CALCRIM No. 3501) correctly told the jury that defendant was charged in counts 3 through 5 with lewd acts "during the period of 3/23/97 to 3/22/99," and with forced oral copulation in counts 6 through 9 during this same period. The court also instructed the jury it "must follow the law" as the court explained it, even if the jury believed the attorneys' "comments on the law" conflicted with the court's instructions. (CALCRIM No. 200.) The court's instructions were sufficient to disabuse the jury that it could convict defendant in counts 3 through 9 based on any acts occurring before Doe 2 turned age nine or after she turned age 14.
Further, defendant has forfeited his claim of prosecutorial error by failing to object to the prosecutor's now-complained of closing remarks in the trial court. (People v. Morales, supra, 25 Cal.4th at pp. 43-44.) The claim of prosecutorial error also fails on its merits, as we explain, and it is unnecessary to consider defendant's third and alternative claim of prejudicial ineffective assistance of counsel for failing to object to the prosecutor's remarks.
Defendant's claim of prosecutorial error is based on the prosecutor's closing remarks appearing on pages 1069 through 1072 of the reporter's transcript. There, the prosecutor initially told the jury: "So Counts 3 through 5 are for (Jane Doe 2), that he touched her inappropriately. And I want you to be very clear that the counts that we have charged for (Jane Doe 2) only start from age nine. Okay. [¶] The law allows us to go back until she is nine years old." (Italics added.) Consistent with the unanimity instruction, this remark made it clear to the jury that counts 3 through 5 could only be based on lewd acts occurring when Doe 2 was ages nine to 11.
Defendant claims the prosecutor's next remarks allowed the jury to base counts 3 through 5 on three acts that occurred before Doe 2 turned age nine. In this passage, the prosecutor discussed Doe 2's testimony about the red skirt, taste test, and pornography incidents—all uncharged lewd acts occurring before Doe 2 turned age nine. The prosecutor observed that the red skirt incident was the "the first time that [defendant] touched [Doe 2] [in a sexual way]," and acknowledged the incident occurred when Doe 2 was "age six or seven." This underscored for the jury that it could not rely on the red skirt incident to convict defendant in counts 3 through 5.
Further, when viewed in their wider context, the record shows the prosecutor was using Doe 2's specific recollections of the red skirt, taste test, and pornography incidents to show that Doe 2's testimony concerning counts 3 through 9 was credible. Before she mentioned the red skirt, taste test, and pornography incidents, the prosecutor told the jury: "The details in her testimony are profound," then focused on Doe 2's recollection of the details of the three incidents, and concluded by saying: "The details in her testimony, you know she is telling the truth." The prosecutor next discussed Doe 2's "demeanor" while testifying, and told the jury it could take that into consideration in evaluating her testimony and credibility.
After emphasizing Doe 2's credibility, the prosecutor turned to the evidence supporting counts 3 through 5: "[Doe 2] talked about lots of incidents involving oral copulation. Okay. So you can use times where he orally copulated her under Count 3 or 5 [sic]. She said it happened almost every single week, or every week, at least one time from age seven or eight until 11. [¶] There are at least three. She talked about the touching. She talked about the digital penetration. There are at least three types of touching[s] that she described from age 9 to 11 that followed in Counts 3 through 5." (Italics added.)
Given the prosecutor's reference to oral copulations occurring "from age seven or eight until 11," defendant claims the argument allowed the jury to base its convictions in counts 3 through 5 on (1) oral copulations that occurred when Doe 2 was age seven or eight, and on (2) the same acts underlying the incidents of forced oral copulation charged in counts 6 through 9. We disagree.
"'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.'" (People v. Seumanu (2015) 61 Cal.4th 1293, 1337.) Defendant has not made this showing. Given her initial admonition to the jury to base counts 3 through 5 on acts that occurred when Doe 2 was ages nine to 11, the jury must have understood the prosecutor's reference to the weekly oral copulations that occurred when Doe 2 was ages seven and eight as a reference to Doe 2's testimony that the oral copulations occurred on a weekly basis, beginning when Doe 2 was age seven or eight, until she was age 10 or 11. It is not reasonably likely that the jury construed the remarks as allowing it to base counts 3 through 5 on oral copulations that occurred before Doe 2 turned age nine. The unanimity instruction told the jury it had to base counts 3 through 5 on acts occurring between March 23, 1997, and March 22, 1999, when Doe 2 was ages nine to 11, and that the jury could not use the same act to support more than one charge in counts 3 through 9.
See footnote 2, ante.
Following her discussion of counts 3 through 5, the prosecutor turned to counts 6 through 9: "Counts 6 through 9, aggravated sexual assault, forced oral copulation . . . . The law recognizes sometimes that different acts equate to different crimes, and sometimes the same type of act can equate to a greater crime as well . . . . [¶] So you can count three instances of forced oral cop[ulation] for the Counts 3 through 5. You can think about the touching of him, or him on her. [¶] Counts 6 through 9, you have to come together and agree on three [sic, four] specific instances, or you agree that they all took place, where he forced her to orally copulate him and she was under the age of 14. And again she testifies that it happened at least once a week until she was 11 years old." (Italics added.)
Although defendant does not complain about this part of the prosecutor's argument, it is apparent that the prosecutor misspoke in suggesting that counts 6 through 9 could be based on oral copulations that occurred when Doe 2 was "under the age of 14." (Italics added.) This is apparent because, immediately after this remark, the prosecutor told the jury that Doe 2 testified that the oral copulations "happened at least once a week until she was 11 years old." (Italics added.) In view of the unanimity instruction and Doe 2's testimony, it is not reasonably probable that the jury based counts 6 through 9 on any oral copulations that occurred when Doe 2 was under age nine or between ages 11 and 14. Indeed, Doe testified that the oral copulations stopped when she was age 10 or 11 and did not resume again until after she had turned age 14. Thus, there was no evidence that any oral copulations occurred when Doe 2 was over age 11 and under age 14.
Next, the prosecutor mentioned three incidents of oral copulation that occurred before or after Doe 2 was ages nine to 11: (1) an incident in the "play room," when defendant was "looking outside" to make sure C. wasn't coming home. Doe 2 testified this incident occurred when she was age "[e]ight or nine, maybe ten"; (2) the incident in which defendant drove Doe 2 to the Toys "R" Us store, and Doe 2 was age eight; and (3) the incident in which defendant pulled off of Interstate 60 on the way home from the Ontario Mills mall, when the family was living in Moreno Valley and Doe 2 was age 14 or 15. Defendant claims the prosecutor thus invited the jury to base its convictions in counts 6 through 9—a total of four counts—on these three incidents.
Again, we disagree. Like the red skirt, taste test, and pornography incidents, the prosecutor mentioned these three incidents as examples of the detail Doe 2 testified to and to show that Doe 2's entire testimony was credible. In discussing these incidents of oral copulation, the prosecutor noted Doe 2 "even recalls the exact video game" defendant bought for her at the Toys "R" Us store. It is not reasonably likely the jury construed the prosecutor's references to these incidents as allowing it to base counts 6 through 9 on any of these incidents. As discussed, the unanimity instruction told the jury that it had to base counts 6 through 9 on acts occurring when Doe 2 was ages nine to 11, and CALCRIM No. 200 told the jury it had to follow the court's instructions "even if" it believed the attorneys' comments conflicted with the instructions. In sum, given the court's instructions and the prosecutor's argument as a whole, it is not reasonably likely that the jury construed any part of the prosecutor's argument as allowing it to base its convictions in counts 3 through 9 on any invalid legal theories—namely, acts occurring when Doe 2 was under age nine or age 14 or older. C. Any Error in Giving CALCRIM No. 207 Was Harmless
Defendant next claims the trial court erroneously instructed the jury pursuant to CALCRIM No. 207 (Proof Need Not Show Actual Date) that it could base its verdicts in counts 3 through 9 on any acts that occurred "reasonably close" to the dates Doe 2 was ages nine to 11. CALCRIM No. 207 told the jury, in relevant part: "It is alleged that the crimes alleged in . . . Counts 3-9 occurred on or about 3-23-97 to 3-22-99 . . . . The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day."
Defendant complains that CALCRIM No. 207 erroneously allowed the jury to base its convictions in counts 3 through 9 on acts that occurred before Doe 2's ninth birthday, and argues this was error because any such acts were barred by the statutes of limitations. He claims the error thus lessened the prosecution's burden of proof in counts 3 through 9, and must therefore be, but is not, harmless beyond a reasonable doubt.
We conclude any error in giving CALCRIM No. 207 in counts 3 through 9 was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Doe 2 did not testify to any lewd acts or forcible oral copulations that occurred "reasonably close to" but before her ninth birthday. (CALCRIM No. 207.) Instead, she testified defendant had her orally copulate him at least once each week beginning when she was age seven or eight until she was age 11, without recalling any specific dates. She also testified to multiple lewd acts that occurred when she was between ages nine and 11, without recalling any specific dates.
Because Doe 2 did not testify to any acts that occurred "reasonably close to" but before her ninth birthday, the jury could not have based any of its convictions in counts 3 through 9 on any such acts. Rather, the jury must have based its convictions in counts 3 through 9 on acts that occurred after Doe 2 turned age nine and before she turned age 11, as the unanimity instruction required. Thus, any error in instructing the jury pursuant to CALCRIM No. 207 that it could base its convictions in counts 3 through 9 on acts that occurred "reasonably close to" March 23, 1997, the date Doe 2 turned age nine, was harmless beyond a reasonable doubt. (See People v. Seabourn (1992) 9 Cal.App.4th 187, 194 [error in giving former CALJIC No. 4.71, the predecessor instruction to CALCRIM No. 207, harmless beyond a reasonable doubt where there was no likelihood the instruction confused the jury].) D. The Motion to Sever Counts 1 and 2 from Counts 3 Through 12 Was Properly Denied, and the Joinder Did Not Deprive Defendant of Due Process or a Fair Trial
Before trial, the court denied defendant's motion to sever counts 1 and 2, the counts involving Doe 1, from the then-alleged counts involving Doe 2. Defendant claims the court abused its discretion in denying his severance motion, and that the failure to sever counts 1 and 2 from the counts involving Doe 2 violated his rights to due process and a fair trial on counts 1 and 2, and for this reason counts 1 and 2 must be reversed. We find no abuse of discretion in the denial of the severance motion, and defendant has not shown that the joinder denied him due process or a fair trial.
1. Relevant Background
The initial information, filed in December 2011, charged defendant in two counts of committing lewd acts on Doe 1. (§ 288, subd. (a).) Subsequent amendments realleged counts 1 and 2, added a multiple-victim allegation, and added seven counts involving Doe 2—namely, four forcible oral copulations, two forcible rapes, and one forcible sodomy—the counts that were ultimately charged in the operative third amended information as counts 6 through 12. The third amended information, filed on December 16, 2014, and operative at trial, included three additional counts of lewd acts against Doe 2, as counts 3, 4 and 5.
In a prior appeal, we reversed the trial court's order granting defendant's section 995 motion to dismiss counts 1, 2, and 3 of the second amended information, which had charged defendant with lewd acts against Doe 2. (§ 288, subd. (a).) The trial court granted the motion on the ground the lewd act counts involving Doe 2 were time-barred. We concluded the counts were not time-barred and ordered the trial court to reinstate the counts. (People v. Blackburn (Apr. 22, 2014, E058295) [nonpub. opn.].) The lewd act counts involving Doe 2 were realleged in the operative third amended information as counts 3, 4, and 5.
Before trial, on December 1, 2014, defendant moved to sever counts 1 and 2 from the then-alleged counts involving Doe 2, namely, the forcible or aggravated sex offenses involving Doe 2, as alleged in the then-operative second amended information. Defendant argued that although all of the charges involved sex offenses against minors, counts 1 and 2, the counts involving Doe 1, were "qualitatively" and "totally dissimilar" to the counts involving Doe 2 in that the counts involving Doe 2 involved force and violence, were highly inflammatory, and occurred much earlier than the counts involving Doe 1.
The People argued that even if the charges were severed, the testimony of Does 1 and 2, and other evidence of the offenses involving each of them, would be cross-admissible in separate trials, and this would dispel any prejudice resulting from the joinder. The court denied the motion after concluding that all of the charges involved the same class of crimes, and the evidence concerning all of the counts would be cross-admissible in separate trials. (Pen. Code, § 954; Evid. Code, § 1108.) The court acknowledged that the evidence involving Doe 2 was "slightly more inflammatory" than the evidence involving Doe 1, but observed that some jurors might be more offended by Doe 1's young age of four years at the time of the offenses against her. The court also noted that Doe 2 was also young; she was only in second grade when defendant began molesting her, and the offenses against both girls occurred when they were in defendant's care.
2. Applicable Legal Principles and Analysis
Section 954 permits an accusatory pleading to charge "'two or more different offenses of the same class of crimes or offenses, under separate counts . . . .'" (People v. Cook (2006) 39 Cal.4th 566, 581.) The joinder of the offenses involving Doe 1 and Doe 2 was statutorily permitted under section 954 because the offenses were of the same class. "'Offenses of the same class are offenses which possess common characteristics and attributes.' [Citations.]" (People v. Landry (2016) 2 Cal.5th 52, 76.)
Section 954 also authorized the court, acting "in the interests of justice and for good cause shown," to order that offenses of the same class, or connected together in their commission, be tried separately. The court may sever such charges where necessary to preserve the defendant's due process right to a fair trial. (People v. Earle (2009) 172 Cal.App.4th 372, 386-387; People v. Hill (1995) 34 Cal.App.4th 727, 734 ["[E]ven where joinder is statutorily authorized, severance may be required if joinder results in prejudice so great as to deny the defendant a fair trial."].) We review the denial of a pretrial severance motion for an abuse of discretion, based on the record before the court at the time the motion was made. (People v. Stitely (2005) 35 Cal.4th 514, 531.)
In determining whether the court abused its discretion in denying severance, the first factor we consider is whether evidence of each of the offenses would be cross-admissible in "'hypothetical separate trials.'" (People v. Armstrong (2016) 1 Cal.5th 432, 456; People v. Soper (2009) 45 Cal.4th 759, 774.) "If the evidence is not cross-admissible, we then consider 'whether the benefits of joinder were sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes" evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses.'" (People v. Armstrong, supra, at p. 456; People v. Bean (1988) 46 Cal.3d 919, 938.) In making this assessment, "we consider three additional factors, any of which—combined with our earlier determination of absence of cross-admissibility—might establish an abuse of the trial court's discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state." (People v. Soper, supra, at p. 775.) But if the evidence is cross-admissible, "'that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges.'" (People v. Armstrong, supra, at p. 456.)
Here, defendant has not shown that the court abused its discretion in denying his severance motion. Nor has he shown that the joinder of all of the charges involving Does 1 and 2 resulted in gross unfairness, denying him due process or a fair trial. This is principally because all of the evidence supporting the forcible sex offenses involving Doe 2—the only charges involving Doe 2 that were alleged at the time the severance motion was made—would have been cross-admissible in a separate trial on counts 1 and 2, the lewd act charges involving Doe 1.
In a sex offense prosecution, evidence that the defendant committed prior sex offenses is admissible to show that the defendant had a propensity to commit the charged sex offenses, provided the evidence is not inadmissible under Evidence Code section 352. (Evid. Code, § 1108; People v. Abilez (2007) 41 Cal.4th 472, 501-502.) Prior sex offense evidence is inadmissible under Evidence Code section 352 only if it is unduly prejudicial. (People v. Avila (2014) 59 Cal.4th 496, 515.) "The evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132.)
But "[r]ather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 917, italics added.)
Defendant argues that the more inflammatory details of the charges involving Doe 2 would not necessarily have been admitted in a separate hypothetical trial on counts 1 and 2, involving Doe 1. This argument disregards the similarities in the facts underlying the offenses against Doe 1 and Doe 2, together with the highly probative nature of the evidence concerning Doe 2 on defendant's guilt in counts 1 and 2. (People v. Falsetta, supra, 21 Cal.4th at p. 917.) No court would have abused its discretion in admitting all of the evidence of defendant's forcible sex offenses against Doe 2 in a separate trial on the lewd act charges in counts 1 and 2 involving Doe 1. Thus, the court was justified in denying the severance motion, as the cross-admissibility of the evidence dispelled any prejudicial effect resulting from the joinder. (People v. Armstrong, supra, 1 Cal.5th at p. 456.)
As the trial court noted in denying the severance motion, the forcible sex offenses against Doe 2 were similar to the lewd act offenses against Doe 1 because all of the crimes were committed against young girls in defendant's care. As the court also pointed out, defendant's sexual molestation of Doe 2 began when Doe 2 was around age seven, and, Doe 1, who was age four when defendant allegedly committed the lewd acts against her as charged in counts 1 and 2, was not significantly younger. Further, the "inflammatory" evidence that defendant forcibly orally copulated Doe 2, on a weekly basis, beginning when she was age seven or eight and ending when she turned age 10 or 11, and that defendant twice forcibly raped and once forcibly sodomized Doe 2 when she was ages 14 to 16, was highly probative of whether defendant harbored lewd intent when he allegedly twice touched Doe 1's vaginal area in 2010—a necessary element of the lewd act charges in counts 1 and 2. (§ 288, subd. (a).)
Defendant argues that the evidence concerning Doe 2 allowed the prosecution to "fill holes" in and bolster its weak case involving Doe 1 with the "spillover effect" from the inflammatory and stronger evidence involving Doe 2. We disagree. The evidence defendant committed the forcible sex crimes against Doe 2 was highly probative of whether he had a propensity to commit sex crimes against young girls—particularly in view of the additional evidence that defendant had sexual intercourse with three other underage girls—namely, M., K., and Doe 3—beginning around 2004 after he was kicked out of the Moreno Valley home and no longer had access to Doe 2. As the People point out, the evidence that defendant committed forcible sex crimes against Doe 2, in combination with the evidence that he subsequently had sexual relations with three other underage girls—M., K., and Doe 3—showed he had "an unabated propensity" to commit sex offenses against underage girls, including Doe 1, and that he harbored a lewd intent when he twice touched Doe 1's vaginal area as charged in counts 1 and 2. Thus, the evidence of defendant's forcible sex crimes against Doe 2, which occurred between 1997 and 2004, was not too remote from the offenses against Doe 1, which occurred in 2010, to be admissible in a separate trial on counts 1 and 2. E. CALCRIM Nos. 358, 359, and 362 Were Properly Given
Defendant claims the court erroneously instructed the jury pursuant to CALCRIM Nos. 358, 359, and 362 that it could consider statements defendant made to Dr. Ward to infer he had a consciousness of guilt. Defendant claims no evidence showed he made any pretrial statements, with the exception of his statement to Dr. Ward, that he was only sexually interested in adult women.
The jury was instructed pursuant to CALCRIM No. 360 that it could only consider defendant's statements to Dr. Ward in evaluating Dr. Ward's testimony, but not as evidence of the truth of the statements. Defendant claims CALCRIM Nos. 358, 359, and 362 undermined his defense because they allowed the jury to infer he had a consciousness of guilt based on his statements to Dr. Ward. As we explain, defendant has forfeited this claim, and in any event the claim lacks merit.
1. The Challenged Instructions and CALCRIM No. 360
CALCRIM No. 358 (Evidence of Defendant's Statements) instructed the jury: "You have heard evidence that the defendant made oral or written statements before the trial while the court was not in session. You must decide whether the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give the statements. [¶] Consider with caution any statement made by a defendant tending to show his guilt unless the statement was written or otherwise recorded."
CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime) instructed the jury: "The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant's out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person who committed the crime may be proved by the defendant's statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
CALCRIM No. 362 (Consciousness of Guilt: False Statements) instructed the jury: "If the defendant made a false or misleading statement before the trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude the defendant made this statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
CALCRIM No. 360 (Statements to an Expert) instructed the jury: "Jody A. Ward, Phd. testified that in reaching her conclusions as an expert witness, she considered statements made by the defendant. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."
2. Applicable Law and Analysis
First, defendant has forfeited his claim that CALCRIM Nos. 358, 359, and 362 were erroneously given, or should have been clarified to state that they did not apply to any statements defendant made to Dr. Ward. "'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'" (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.) Defendant did not ask the court to clarify to the jury that CALCRIM Nos. 358, 359, and 362 had nothing to do with his statements to Dr. Ward. In discussing final jury instructions, defendant did not object to or ask the court to modify CALCRIM Nos. 358, 359, and 362. Thus, defendant has forfeited his claim that the challenged instructions were erroneously given, undermined his defense, or prejudicially misled the jury.
Second, the claim of instructional error lacks merit. "'When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.'" (People v. Jennings (2010) 50 Cal.4th 616, 677.)
In view of CALCRIM No. 360, there is no reasonable likelihood that the jury understood CALCRIM Nos. 358, 359, and 362 as allowing it to infer that defendant had a consciousness of guilt based on his (false or misleading) statement to Dr. Ward that he was only sexually interested in adult women. CALCRIM No. 360 told the jury it could not consider defendant's statements to Dr. Ward as proof the statements were true, but only to evaluate Dr. Ward's expert opinions. This effectively told the jury that CALCRIM Nos. 358, 359, and 362 had nothing to do with any statements defendant made to Dr. Ward, and we presume the jury followed CALCRIM No. 360. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 455 [appellate courts presume jury followed trial court instructions].)
Additionally, CALCRIM Nos. 358, 359, and 362 were ostensibly based on defendant's pretrial statements to M. that he had had "consensual" sex with Doe 2 when she was age 14, and that Doe 2 "wanted it from him" and "came on to him." Based on Doe 2's testimony, the jury reasonably could have inferred that defendant's statements to M. about Doe 2 were false or misleading, and showed that defendant had a consciousness of guilt for having forcibly raped Doe 2 when she was age 14. (CALCRIM No. 362.) It was therefore appropriate to instruct the jury that it could infer defendant has such a consciousness of guilt based on his statements to M. (CALCRIM Nos. 358, 362), but that it could not convict defendant of any crime based solely on his statements to M. (CALCRIM No. 359). In sum, there is no reasonable likelihood the jury misconstrued CALCRIM Nos. 358, 359, or 362 as allowing it to infer that defendant had a consciousness of guilt based on any statements he made to Dr. Ward. F. The Evidence of Defendant's Domestic Violence Toward Doe 1, C., A., and M., His Uncharged Sex Offenses Against Doe 2, His Sexual Relations With Underage Girls, and His "Deviant Bedroom Practices" Was Either Properly Admitted or Harmless
Defendant claims the court violated his rights to a fair trial and due process in admitting "large amounts of irrelevant and highly inflammatory evidence," namely, the evidence of (1) Doe 2's extensive testimony about defendant's specific acts of domestic violence; (2) his acts of domestic violence toward C. and A., not witnessed by Doe 2; (3) his acts of domestic violence toward M.; (4) his uncharged sex offenses against Doe 2 before Doe 2 turned age nine; (5) his sexual relations with underage girls, M., K. and Doe 3; and (6) his having C. and M. dress and act as eight-year-old children during sex and his use of "Jungle Juice" or inhalants during sex with C. and M. As we explain, all of this evidence was either properly admitted, or its admission was harmless.
1. Relevant Background/The Domestic Violence Evidence
(a) The Court's Initial Rulings
Before trial, the prosecution moved to admit evidence of two incidents in which defendant committed violence, pursuant to Evidence Code section 1109: (1) an incident in which defendant attacked C. and C. later told police that defendant had assaulted her around 25 times in their 12-year relationship, and (2) an incident in which defendant attacked M. and was convicted of violating Penal Code section 243, subdivision (e)(1), a misdemeanor. The defense argued that admitting evidence of specific acts of defendant's domestic violence against C. or M. would be more prejudicial than probative. (Evid. Code, § 352.)
The defense agreed it was proper for Doe 2 to testify that she delayed reporting defendant's sexual abuse of her because he physically abused her and she feared him, but argued there was no evidence defendant used any force or violence in sexually abusing Doe 1. The court ruled the domestic violence incidents against C. and M. were inadmissible under Evidence Code section 1109, because there was no issue of whether defendant had a propensity to commit domestic violence, but ruled that any violence the victims witnessed was relevant and admissible to show they feared defendant. (Evid. Code, § 1101, subd. (b).) The court also ruled any such domestic violence incidents were not too remote and were more probative than prejudicial. (Evid. Code, § 352.) The court further ruled that C. could corroborate any testimony by A. and Doe 2 concerning any domestic violence A. and C. had witnessed, but ultimately concluded that no domestic violence evidence was relevant to the charges involving Doe 1.
(b) Doe 2's Domestic Violence Testimony
Doe 2 gave extensive, percipient testimony about defendant's acts of domestic violence toward herself, C., and A. Doe 2 testified about the time C. ran into A. and Doe 2's bedroom and defendant dragged C. out of the room, screaming; the time Doe 2 brought the wrong amount of change home from school, when Doe 2 was age five, and defendant "forced" her head against the wall, yelled at her, and used profanity; the time defendant flung a towel at A. and C., causing one of them to have a bloody nose, after they allowed the rice to boil over; the times defendant would spank Doe 2 and A. "beyond the point of discipline"; the times defendant would call C. a "bitch, "slut," and "whore" in front of Doe 2 and A.; the time Doe 2 overheard defendant spanking A. with a belt, causing "big welts" on A.'s bottom; the two times Doe 2 saw defendant "slam" A.'s head into the wall; and the time C. kicked the dashboard in the red Mitsubishi, attempting to get defendant off of her. Doe 2 also testified that defendant was violent toward C. at least once every two weeks after the family moved to the first Perris home, and that defendant would "kick" C. under the table at restaurants.
(c) A.'s and C.'s Domestic Violence Testimony
During A.'s testimony, the defense objected that A. was beginning to testify about an incident of domestic violence against A. that Doe 2 had not witnessed. The court sustained the objection, and agreed that A. could not testify about defendant's acts of domestic violence against A., which Doe 2 did not witness and which did not corroborate any acts of domestic violence against Doe 2.
During C.'s cross-examination, the court noted it had "some concerns" and "regrets" that C. had testified on direct examination about incidents of domestic violence against C. that A. and Doe 2 did not witness. The court said, "I think it went beyond what [C.'s] limited purpose questioning should have been," and offered to give a limiting instruction. The defense noted that it sought to exclude the domestic violence evidence for "this very reason" and the defense would now have to "ferret out those issues and those facts that we believe will show the opposite," that is, that defendant was not a domestic violence abuser. After C.'s cross-examination resumed, the defense elicited testimony from C. concerning a 1998 incident in which she called the police after defendant injured her jaw. On redirect examination, C. testified that in 2004 she told the police that defendant had abused her over 25 times.
(d) M.'s Domestic Violence Testimony
Before M. testified, the prosecutor asked the court for permission to ask M. about defendant's 2007 domestic violence conviction, arguing it was relevant to M.'s and H.'s motives in reporting defendant's sexual molestation of Doe 1. The court reaffirmed its pretrial ruling that the prosecutor could not elicit testimony in its case-in-chief about defendant's domestic violence toward M.
During M.'s direct examination, when asked when she and defendant separated after Doe 1 was born, M. responded that Doe 1 was nearly 18 months old in November 2007 when M. "finally called the cops" on defendant. The prosecutor said, "I don't want to talk about that," and redirected M. by asking whether there was "a heated dispute or fight" about Doe 1's custody. M. responded that she fought "tooth and nail" to keep Doe 1 away from defendant.
On cross-examination, the defense elicited testimony from M. concerning why she left defendant and fought to keep Doe 1 away from him. M. testified she was age 18 when she discovered defendant was 20 years her senior; this made M. "feel" like defendant was "sick"; but she did not leave the relationship at that point because he was "manipulative and controlling." In response to further cross-examination, M. said she told the family court she believed defendant had had sex with minors when he was in his 30's; she believed he "was a sexual predator"; and he had sexually abused her. The defense then asked M. if defendant had sexually abused her, and M. said defendant would force her to perform oral sex on him and to have anal sex, and would "smack" her if she refused. Despite the abuse, M. stayed with defendant and had Doe 1 with him.
On redirect examination, M. testified that there was domestic violence during her entire relationship with defendant, which lasted from 2004 to 2007. Defendant beat M., threatened to kill her, and she was afraid to leave him. The night she finally "called the cops" on defendant, he was "sniffing the Jungle Juice," as he always did before having sex. M. "always had to do oral first," and if she did not do that the way defendant wanted, he would "slap" her. This happened "[c]ountless" times over the three years they were together.
That night and the next morning, M. and defendant argued about M. not performing oral sex the way defendant wanted. Defendant accused M. of cheating, choked her, threatened to kill her with a knife, broke her cell phone, hid the house phone, and blocked her from leaving the apartment by placing a thick piece of wood in front of the door. After defendant fell asleep, M. got out of the apartment, went to the front office, and called the police. M. got Doe 1 from the apartment, and the police took defendant away. Defendant later "[took] responsibility" for the incident and was convicted of domestic violence. The incident was "the beginning" of the custody battle for Doe 1, and it explained why M. fought "tooth and nail" to keep Doe 1 away from defendant.
2. Analysis/The Domestic Violence Evidence
(a) Doe 2's Testimony
We first address defendant's claim that the trial court prejudicially erred in allowing Doe 2 to testify about his specific acts of domestic violence toward Doe 2, C., and A. Although defendant concedes Doe 2 "could arguably offer some generic or limited testimony" about his domestic violence, he claims her testimony about his specific acts of domestic violence was unduly prejudicial. We disagree.
The evidence defendant committed specific acts of domestic violence against Doe 2, and against C. and A., which Doe 2 witnessed, was relevant to show that defendant committed the charged offenses against Doe 2 by force and duress, and to explain why Doe 2 delayed reporting the sexual abuse for many years. The evidence was inadmissible only if its probative value was substantially outweighed by the probability that its admission would, as defendant argues, create a substantial danger of undue prejudice. (Evid. Code, §§ 352, 1101, subd. (b); see People v. Garcia (2001) 89 Cal.App.4th 1321, 1332-1334 [evidence of defendant's prior acts of domestic violence admissible pursuant to Evid. Code, § 1109 in prosecution for spousal rape, an offense involving domestic violence, to show the rape was committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person].) We review a trial court's decision to admit other crimes or bad acts evidence for an abuse of discretion. (People v. Roldan (2005) 35 Cal.4th 646, 705.)
The trial court did not abuse its discretion in concluding that Doe 2's testimony about defendant's specific acts of domestic violence toward herself, C., and A. was not unduly prejudicial and therefore admissible. (Evid. Code, § 352.) "Prejudice" in this context does not mean "damaging"; it means evidence which tends to evoke an emotional bias against the defendant as an individual, which has very little effect on the issues (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119) or which invites the jury to "prejudge" the defendant or the case "on the basis of extraneous factors" (People v. Johnson (2010) 185 Cal.App.4th 520, 534). Although the fact defendant was not punished for his domestic violence against Doe 2, C., or A. tended to heighten the inherently prejudicial effect of the domestic violence evidence (see People v. Ewoldt (1994) 7 Cal.4th 380, 405), Doe 2's testimony about defendant's specific acts of domestic violence toward herself, A., and C. was highly probative of why Doe 2 feared defendant, complied with his sexual demands, and delayed disclosing his sexual abuse for so many years. The trial court reasonably concluded that generic, nonspecific testimony, rather than testimony about defendant's specific acts of domestic violence, would have withheld highly probative evidence from the jury on the critical issue of whether defendant committed the charged offenses against Doe 2 by means of force and duress.
(b) A.'s and C's Testimony
In light of Doe 2's extensive, percipient, and admissible testimony about defendant's specific acts of domestic violence against herself, C., and A., any error in allowing C. and A. to testify about defendant's acts of domestic violence toward them, not witnessed by Doe 2, could not have affected the verdicts and was therefore harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) Doe 2's testimony showed Doe 2 feared defendant because defendant committed domestic violence toward Doe 2, C., and A. In contrast to Doe 2's extensive testimony, C.'s and A.'s testimony concerning defendant's domestic violence—not witnessed by Doe 2—was minimal and served to corroborate Doe 2's testimony about defendant's domestic violence.
(c) M.'s Testimony
Defendant claims M.'s testimony concerning defendant's domestic violence toward M. was irrelevant and unduly prejudicial. Again, we disagree. M.'s testimony about defendant's domestic violence and sexual abuse of her between 2004 and 2007 was relevant and admissible to explain M.'s state of mind—that is, why M. engaged in a custody battle with defendant over Doe 1's and M.'s motives in reporting defendant's lewd acts toward Doe 1. (Evid. Code, § 1101, subd. (b).) The record also shows that M.'s testimony about defendant's domestic violence and sexual abuse of M. was not admitted during the prosecution's case-in-chief, but was admitted after the defense opened the door to the evidence, and rendered it admissible on the question of M.'s state of mind, by asking M. during cross-examination why she left defendant and fought to keep Doe 1 away from him.
Defendant argues that M.'s state of mind was not relevant to the charged offenses involving Doe 1. But M.'s state of mind on the charged offenses involving Doe 1 was highly relevant in light of defendant's suggestion that those charges were fabricated or suggested to Doe 1 in the context of M.'s custody dispute with defendant over Doe 1. Whether M. fabricated or caused Doe 1 to fabricate the allegations of sexual abuse was a material question in the case.
Additionally, the trial court gave a limiting instruction, precluding the jury from considering any evidence of defendant's domestic violence toward M. and C. for any purpose other than M.'s and C.'s states of mind. Specifically, the jury was instructed to consider the evidence that defendant committed domestic violence toward C. and M. "for the limited purpose as to how it related to the mental state" of C. and M. "and for no other purpose." We presume the jury followed this instruction. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 455.) The instruction told the jury not to consider the evidence of defendant's domestic violence toward M. for any purpose other than to explain M.'s state of mind—that is, M.'s motives for fighting to keep Doe 1 away from defendant, and her reporting of defendant's sexual abuse of Doe 1. The instruction also told the jury not to consider the evidence of defendant's domestic violence toward C. for any purpose other than C.'s state of mind. Although we agree with defendant that C.'s state of mind was not relevant to any material issues in the case, this part of the instruction was harmless in view of Doe 2's extensive, percipient testimony about defendant's domestic violence toward Doe 2, which explained why Doe 2 feared defendant and delayed reporting his sexual abuse. (See People v. Cross (2008) 45 Cal.4th 58, 67 [errors in giving instructions not supported by evidence are generally technical errors, not requiring reversal].)
The written version of the limiting instruction was slightly different, in that it stated, "for no other purpose related to those witnesses," namely, C. and M. We discern no material discrepancy between the oral and written limiting instructions; both versions told the jury to consider the evidence of defendant's domestic violence toward C. and M. only as it related to these witnesses' states of mind.
H. testified on direct examination that she hated defendant, and when asked why, explained she saw bruises on M. throughout M.'s relationship with defendant, and defendant was possessive and controlling. Although this testimony was relevant to explain H.'s motives in reporting defendant's lewd acts toward Doe 1 to M. and CPS, the limiting instruction told the jury not to consider the evidence for this purpose, but only for the purpose of explaining M.'s state of mind, or motives for fighting to keep Doe 1 away from defendant and reporting his sexual abuse of Doe 1. --------
3. Analysis/The Prior Sex Offense Evidence
Defendant also claims the court prejudicially erred in allowing (1) Doe 2 to testify about uncharged sex offenses defendant committed against her before she turned age nine, (2) M., K., and Doe 3 to testify about his sexual relations with them when they were underage girls, (3) his having C. and M. dress and act as eight-year-old children during sex, and (4) his use of "Jungle Juice" or inhalants during sex with C. and M. As we explain, all of this evidence was either properly admitted (Evid. Code, §§ 1108, 352) or harmless.
As we explained in concluding that defendant's severance motion was properly denied, in a sex offense prosecution, evidence of the defendant's commission of another sex offense "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova, supra, 62 Cal.4th at p. 132.) In determining whether to admit prior sex offense evidence, courts consider such factors as "its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta, supra, 21 Cal.4th at p. 917, italics added.) We review the trial court's decision to admit uncharged sex offense evidence for an abuse of discretion. (People v. Cordova, supra, at p. 132.)
Doe 2's detailed testimony about defendant's uncharged sex offenses against her was not unduly prejudicial, in light of its probative value in showing defendant had a propensity to commit the charged offenses in counts 3 through 12. Doe 2's uncharged sex offense testimony was also highly probative of her credibility in testifying about the charged sex offenses in counts 3 through 9. Doe 2 recalled many details of the earlier, uncharged molestations, including the taste test, red skirt, and pornography incidents, and the first time defendant had her orally copulate him, all of which occurred when Doe 2 was ages seven and eight. Although Doe 2 did not recall "when or where" she was during the charged oral copulations that occurred when she was between ages nine and 11, her detailed recollections of the earlier, uncharged molestations lent credibility to her testimony that defendant had her orally copulate him around once each week, beginning when she was age seven or eight, through the time she was age 10 or 11.
The evidence that defendant had sexual relations with three other underage girls—M. when she was age 17, K. when she was age 16, and Doe 3 when she was age 15—and the evidence defendant had C. and M. dress and act as young children during sex, was not unduly prejudicial in light of its highly probative value in showing that defendant had a propensity for having sex with underage girls, and acted in conformity with that propensity in sexually molesting both Doe 1 and Doe 2. (Evid. Code, § 1108.) Last, in light of the overwhelming evidence of defendant's propensity to have sex with, or a sexual interest in, underage girls, any error in allowing C. and M. to testify he used "Jungle Juice" or an inhalant while having sex with them was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) G. Dr. Ward's Expert Testimony Was Properly Limited to Exclude Evidence of False Childhood Molestation Allegations in Custody Disputes
The defense expert, forensic psychologist Dr. Ward, testified she had come across cases involving false allegations of child sexual abuse, and all but one of those cases involved a child custody dispute. Dr. Ward also testified that, based on the literature and training she had had, "the most common characteristic" of false allegation cases is that they occurred in child custody disputes.
The court sustained the prosecutor's objection when the defense asked Dr. Ward whether there were any "studies" concerning "suggestibility and contamination relating to child-custody disputes." The defense later argued that Dr. Ward should have been allowed to testify that "[r]esearch has shown that 35 to 55 percent of allegations coming out of custody dispute are false. But outside of custody disputes, the rate of false accusations is very low." The court denied the request, indicating there was no offer of proof concerning the basis of that research, or "where that opinion [or statistic] comes from."
Defendant claims the court prejudicially erred in refusing to allow Dr. Ward to testify that "35 to 55 percent" of false child abuse allegations involve child custody disputes, and to further testify that this "research" was based on "studies" which experts frequently rely upon "to support their psychological conclusions." Defendant argues that the "nature or quality" of the "research" or "studies," or the basis of the 35 to 55 percent statistic, "would have then been subject to cross-examination." We review a trial court's decision to admit or exclude evidence for an abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) The ruling must be "so irrational or arbitrary that no reasonable person could disagree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) No abuse of discretion occurred here.
Simply put, expert opinion based on speculation or conjecture is inadmissible. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770.) "[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. . . . '[T]he expert's opinion may not be based "on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors . . . . [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?"'" (Ibid.) Additionally, Evidence Code section 802 permits the trial court to find that an expert is precluded "'by law' from using the [proffered] reasons or matter as a basis for the opinion. . . . This means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert's reasoning. 'A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' [Citations.]" (Sargon Enterprises, Inc. v. University of Southern California, supra, at p. 771.)
Here, the trial court reasonably refused to allow Dr. Ward to testify that 35 to 55 percent of all false allegations of child abuse involve child custody disputes. The expert was unable to identify the "research" or "studies" that supported this statistic. Thus, the matter might just as well have been based on speculation or conjecture, and was reasonably withheld from the jury during Dr. Ward's direct examination. The court was not required to allow Dr. Ward to testify that unidentified "research" or "studies" supported the 35 to 55 percent statistic, then leave it to the prosecution to show, in cross-examining Dr. Ward, that she could not identify the "research" or "studies" that supported the 35 to 55 percent statistic.
Further, any error in excluding the testimony was harmless. In light of Dr. Ward's other testimony, there is no reasonable probability that the exclusion of the proffered testimony that 35 to 55 percent of all false allegations of child abuse occur in child custody disputes affected any of the verdicts. (People v. Cudjo (1993) 6 Cal.4th 585, 611 [applying standard of prejudice for state law error articulated in People v. Watson (1956) 46 Cal.2d 818, 836 to erroneous exclusion of defense evidence].)
As noted, Dr. Ward testified that, in her experience, all but one of the cases she had come across involving false allegations of child abuse involved a child custody dispute, and that "the most common characteristic" of false child abuse allegation cases is that they occur in child custody disputes. This testimony told the jury that, when an allegation of child abuse is made in a case involving a child custody dispute, the child abuse allegation may well be false. This is the point the defense was trying to make with the 35 to 55 percent statistic, and Dr. Ward's admitted testimony made the point more powerfully than the 35 to 55 percent statistic could have. Thus, the exclusion of the testimony did not deprive defendant of his constitutional right to present a defense. (People v. Cudjo, supra, 6 Cal.4th at p. 611 ["'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to represent a defense.'"].) The harmlessness of any error in excluding the 35 to 55 percent testimony is further underscored by Dr. Ward's additional testimony that children under age six are "more susceptible" to "suggestion and contamination" than children over age six. The jury heard that Doe 1 was age four in 2010 when she first accused defendant of sexually molesting her. H. Defendant's Sentence of 180 Years to Life Is Not Cruel or Unusual Punishment
Lastly, defendant claims his 180-year-to-life sentence—12 consecutive terms of 15 years to life on his convictions in counts 1 through 12—constitutes cruel or unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We find no merit to this claim.
The Eighth Amendment of the federal Constitution is violated when a sentence is "'grossly disproportionate'" to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Similarly, article I, section 17 of the California Constitution is violated when the punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted; People v. Dillon (1983) 34 Cal.3d 441, 478.)
Under Lynch, as refined in Dillon, we generally apply a three-pronged test in determining whether a sentence constitutes cruel or unusual punishment. (People v. Cuevas (2001) 89 Cal.App.4th 689, 702.) We (1) examine the nature of the offense and offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) measure the punishment to the penalty for the same offense in different jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.)
The Lynch/Dillon analysis "merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case. [Citation.] Determinations whether a punishment is cruel or unusual may be made based on the first prong alone. [Citations.]" (People v. Ayon (1996) 46 Cal.App.4th 385, 398-399, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
In applying the first prong of the Lynch analysis, we examine the defendant's personal characteristics, including his or her age, prior criminality, and mental capabilities. (People v. Lucero (2000) 23 Cal.4th 692, 739.) We also consider the circumstances of the current offenses, including the defendant's motive in committing the offense, the manner in which the crime was committed, and the consequences of the defendant's acts. (Ibid.; People v. Dillon, supra, 34 Cal.3d at p. 479.)
Defendant's cruel and unusual punishment claim fails solely on the first prong of the Lynch/Dillon analysis: his 180-year-to-life sentence is justified based solely on the nature of his offenses and himself, the offender. Although defendant was found to have only a 2.8 percent chance of reoffending within five years, the crimes he committed against his stepdaughter, Doe 2, shock the conscience. These include three forcible lewd acts, four forcible oral copulations, two forcible rapes, and one forcible sodomy, which occurred when Doe 2 was ages nine to 11 and 14 to 16. Defendant had raised Doe 2 since she was age four, and Doe 2 looked up to defendant as a father. Defendant's ongoing emotional abuse of Doe 2 was as horrific as his sex offenses against her.
Then, in 2010, six years after he no longer had access to and could no longer abuse Doe 2, defendant committed two lewd acts on his biological daughter, Doe 1, when Doe 1 was age four. As at least one court has recognized, even nonforcible lewd acts on a child may have lifelong consequences to the child's well-being. (People v. Christensen (2014) 229 Cal.App.4th 781, 806.) At the time he abused Doe 1, defendant had a history of pursuing and having sex with underage girls. Between 2004 and 2007, he had sexual intercourse with three underage girls—Doe 1's mother M., K., and Doe 3—even though he was around 20 years older than these girls. In light of the horrific nature of his offenses and his history of pursuing sex with underage girls, the fact that defendant had not previously been sentenced to prison, and was age 48 when sentenced, does not change our analysis.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.