Opinion
H048752
02-28-2023
THE PEOPLE, Plaintiff and Respondent, v. ERIC DAVID BLOOMER, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 19CR009240
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Defendant Eric David Bloomer was convicted by jury of the following 11 counts: two counts of oral copulation or sexual penetration with a child aged 10 or younger (Pen. Code, § 288.7, subd. (b)), seven counts of forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1)), one count of sexual intercourse or sodomy with a child aged 10 or younger (§ 288.7, subd. (a)), and one count of failure to register multiple residences (§ 290.010). The trial court found true the allegations that defendant was a habitual sex offender, that he had suffered a prior serious felony conviction, and that he had suffered a prior strike conviction (§§ 667.71, 667, subd. (a)(1), 1170.12, subd. (c)(1)). The trial court sentenced defendant to an aggregate term of 391 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that expert testimony regarding child sexual abuse accommodation syndrome (CSAAS) should have been excluded and that his trial counsel rendered ineffective assistance of counsel by eliciting testimony unfavorable to the defense during cross-examination of the expert witness. Second, defendant argues that the matter should be remanded for resentencing so that the court may exercise its discretion under recently amended section 654 to determine which counts to stay. Third, defendant contends that his sentence constitutes cruel and unusual punishment under the state and federal Constitutions and that his trial counsel rendered ineffective assistance of counsel to the extent this claim has been forfeited.
For reasons that we will explain, we will affirm the judgment but order clerical errors in the abstract of judgment corrected.
II. BACKGROUND
A. Pretrial Motions
Prior to trial, the prosecutor filed a motion to admit expert testimony regarding "common myths and misconceptions" about child sexual abuse victims. Defendant filed a pretrial motion to exclude CSAAS evidence. The trial court granted the prosecutor's motion and indicated that a limiting instruction would be given regarding the testimony. The court also granted defendant's request for a bifurcated trial on the alleged prior conviction allegations, and defendant waived his right to a jury trial on those allegations. The evidence presented to the jury included the following.
B. The Prosecution's Case
1. Defendant's Sexual Abuse of the Victim
The 10-year-old victim was sexually abused by defendant, who was her mother's boyfriend, while they all lived together in Monterey County for about six weeks during the summer of 2019. Also living at the residence were the victim's younger sister, an adult uncle, and a teenage cousin. The uncle regularly worked all day, the victim's mother worked for a few hours a day, and the teenage cousin was usually in his room, in the backyard, or out with friends. Defendant stayed at the property, working on bicycles in a backyard shed or working on his truck. According to the victim, when her mother went to work, the mother let defendant watch the victim or her sister.
The victim, who was 11 years old at the time of trial, testified that the first incident of abuse occurred when defendant told her to sit on his lap in the kitchen. He proceeded to put his hand down her pants and touch her vagina. Her uncle or her cousin was in the backyard, but she did not yell. The victim was shocked and panicked.
Several incidents occurred in the backyard shed. The victim testified that in one incident, defendant put his pinky finger into her vagina. His other arm was wrapped around her chest. The victim did not yell for help because she was scared and thought defendant would hurt her.
In a separate incident in the shed, the victim held the back of a chair while her knees were on the end of the seat. She was not wearing pants. When asked why she went onto the chair, the victim testified that she "felt like [she] couldn't say no" to defendant and that she "felt like [she] had no voice." Defendant did something that caused her to have a "terrible stabbing-ish feeling" on the inside of her body in the area of her buttocks. The victim was scared, and told defendant to stop. She cried in the chair after the incident.
Another incident occurred in the shed when the pair were standing back to back. Defendant put his hand down her pants and touched her vagina. His other hand was "doing something" with his penis while his arm was moving up and down.
During a further incident in the shed, the victim, who felt threatened by defendant, lay down on bedding or a towel. Defendant took off her pants. She covered her eyes with a stuffed animal because she "didn't want to see anything" and was "grossed out." Defendant was lying on top of her, with his penis in his hand and rubbing against her vagina. The victim was scared and did not know what to do.
In a similar incident in the living room, the victim was lying on her back on the floor with her pants off. She testified that defendant was positioned "in the same way" as the incident in the shed when she was lying down. During the incident in the living room, her younger sister and her mother were asleep in a different room. The victim testified that "there were a couple of different things" that happened in the living room, but that was all she could remember at trial.
Another incident occurred in the house on a bed. Defendant took off the victim's pants and used his tongue to touch her vagina. She testified that this might have happened twice.
On another occasion when she was sleeping on the top of a bunk bed, she was awakened by defendant's arm in her pants. She moved over so he could not reach her.
In a bathroom incident, defendant was seated on the toilet. He was not wearing pants, and he forced the victim to take off hers. The victim heard defendant opening and closing a tube, and then he sat her on his lap. She felt his penis rubbing against her. During the incident, the victim tried to look away. She "was trying to distract [herself] with other things, because [she] didn't want to believe what was happening." After defendant stopped and left the bathroom, the victim used toilet paper to wipe off the "clear" "stuff" that he had put on his penis and that had rubbed off on her.
At trial, the victim testified that she could not "really remember how any of [the incidents of abuse] started or ended," meaning "what [she] was doing beforehand, and how [she] got into the situation, and how [she] got [herself] out of the situation." The victim indicated that sometimes during the incidents she covered her eyes with a stuffed animal. If she did not have a stuffed animal, she covered her eyes with her arm. The victim explained that she "didn't want to see anything" and "didn't want to believe . . . what was happening."
The victim acknowledged that she sometimes went bike riding with defendant and nothing bad happened and that she also went in his truck alone.
The teenage cousin who lived with the victim's family testified that defendant commented to the cousin that "eventually, [the victim] is going to grow up, and [the cousin is] going to have to beat . . . on the individuals that find her attractive."
In late August 2019, after defendant had been gone from the house for a few days, the victim told her mother about the abuse. The victim testified that she did not disclose the abuse earlier because she was afraid something bad might happen or that someone else would get hurt. Defendant had threatened her not to tell anyone. Within a day or two of the victim disclosing the abuse to her mother, the police were also notified.
Two days after the sexual abuse was reported to the police, a forensic interview of the victim was conducted. During the interview, the victim disclosed that during the first incident in which defendant used his pinky finger to touch her vagina, she dug her nails into his arm but he would not stop. During the incident in which he orally copulated her, defendant held her legs down and told her to "[s]top it" when she wiggled her legs. The victim covered her eyes during the incident. Regarding the bathroom incident, the victim disclosed that defendant used one hand to rub his penis against her where she "poop[s]," and he used the other hand to hold her so she would not get up. She covered her eyes and refused to look at his penis. Before the incident began, the victim saw that defendant had a "tube of lube." After he left the bathroom, she cleaned the "lube" off of her. The victim reported that this same bathroom incident also happened a second time. The victim also reported during the forensic interview that defendant rubbed his penis against her buttocks in the living room. The victim further disclosed that in the shed, while she was on her knees on a chair in a "doggy position," defendant pulled down her pants, put lube on his penis, and put his penis in her anus. It hurt the victim badly. She felt sick, was shaking and crying, and screamed, "No!"
In the forensic interview, the victim reported that defendant told her to "keep it down" when others were around in order to keep her quiet. When she told him that he was "not the boss," he responded, "Yes, I am." She also reported that defendant would not let her leave the shed until he was done doing what he wanted. If she tried to leave, he would threaten to tell her mother that she destroyed one of his drills or something similar.
2. Misconceptions About Victims of Child Sexual Abuse
Dr. Blake Carmichael testified about misconceptions regarding victims of child sexual abuse. Dr. Carmichael was a clinical psychologist, a professor, and the director of a clinic that treated children who had experienced trauma, including sexual abuse. He had provided direct client services, such as counseling, or supervised the provision of those services to more than 1,000 children who had experienced physical or sexual abuse.
Dr. Carmichael testified that it is a misconception that a child will readily talk about the abuse. Instead, it is common for victims to delay reporting the abuse and the disclosure may occur incrementally. Dr. Carmichael indicated that generally, the closer the relationship between the child and the perpetrator, the longer the delay in reporting and/or the more reluctant the child is to talk about it. Further, it is a misconception that kids are often sexually abused by strangers when the "vast majority of kids are sexually abused by people they know, people they trust, and those that they have an ongoing relationship." Another misconception is that during abuse, children will make noise or reach out to someone in the next room. To the contrary, even if a child has a way to stop the abuse, sometimes the child does not take that opportunity due to fear or embarrassment for example.
Dr. Carmichael also testified about various coping behaviors utilized by children. He explained that "dissociation" is one of the cognitive coping strategies often used by children where they are "trying to block out or keep thoughts out of what's happening even when the abuse is occurring." Because of that dissociation, the children "don't recall some of the things that have happened to them." Dr. Carmichael stated that another misconception is that children will bite, kick, scream, or somehow ward off their perpetrator. Instead, children may engage in various behaviors that are "ineffective" in making the abuse stop, such as shutting the door at night, wearing an extra pair of pajamas, or pretending to be asleep.
Dr. Carmichael also explained that if something happens multiple times, it is more difficult for a person to have those distinct times clear in the person's mind and to give accurate details. Instead, the events "kind of, merge[] together, in some way."
There is no profile for a sexual abuse victim, nor is there a profile for an offender. Dr. Carmichael explained that there is "variability" among children. In testifying that there is no checklist that can determine whether a child has been abused, he explained, "[T]hat's why we have social services, law enforcement, and the legal process, to carry that determination out. That's why we have the jury." Dr. Carmichael testified that he did not have any knowledge regarding the facts or allegations in defendant's case.
On cross-examination, defense counsel asked Dr. Carmichael whether all the "child victims" that he sees "are documented as being victims of abuse." Dr. Carmichael indicated that it depends. Some children may disclose sexual abuse during treatment, in which case he refers the matter to child welfare services and to law enforcement for investigation. Defense counsel proceeded to ask, "Do you ever have any children that falsely accuse somebody?" Dr. Carmichael responded, "I don't recall having a case where I either referred for child welfare to get involved to investigate. I don't recall having a case like that -- um -- maybe in a custody dispute, or something like that, but I would say rarely." Defense counsel then turned to different topics of inquiry, including regarding the ability of children to remember details.
3. Defendant's Prior Sexual Abuse of Other Children
In the mid-1990's, a female relative of defendant's wife was visiting the same house as defendant. The female relative was 13 years old at the time. By the time of trial, she was in her 30's. Defendant sat next to her on the couch and made comments that caused her to feel awkward. The female relative was wearing shorts, and defendant began licking her leg from the ankle up. The female relative was scared and asked him to stop. Another person came down the stairs, and the female relative immediately exited the room. Later, the female relative was awakened in bed when defendant tried to unbutton her shorts under the blankets. She told him to stop and pushed his hands away. Defendant started rubbing her legs and tried to lick them. After she told him to stop in a louder voice, defendant left the room. In 1996, defendant was convicted of a misdemeanor violation of section 647.6, subdivision (a), annoying or molesting a minor.
In 2005, when defendant's niece was a teenager, she went to live with defendant, his wife at the time, and their children. The niece was in her early 30's at the time of trial. She testified that she fell asleep on a bed, but she was awakened by defendant moving his hand under her pajamas and underwear and inserting his finger inside her vagina. Defendant stopped after approximately 10 or 15 minutes. The niece later disclosed the incident, and law enforcement was notified. In 2007, defendant was convicted of a felony violation of section 289, subdivision (h), sexual penetration of a minor under 18.
One of defendant's daughters, who was in her early 20's at the time of trial, testified that defendant sexually abused her when she was around five years old. The daughter testified that defendant "was a good father, but at night he was a monster." In one incident, she was sleeping on her stomach in her parents' bed when she felt somebody pull off her underwear. She was too scared to do anything. She felt something being "shoved" into her buttocks from behind. It hurt, and she froze. The daughter testified that during another incident, she was sleeping until defendant rubbed her on top of her underwear "on the front part," and then he proceeded to "mess with [her]" inside her underwear. The daughter eventually disclosed the abuse. Defendant was charged with two counts of a felony violation of section 288, subdivision (a), lewd and lascivious act on a child under 14, with respect to two daughters. In 2008, he pleaded guilty to one count, and the other count was dismissed pursuant to a plea agreement.
4. Defendant's Failure to Register
A sex offender must register all addresses where the sex offender resides, which may result in the obligation to register multiple residences in multiple jurisdictions. A sex offender must register within five days of changing residence. In 2018, defendant registered a Fresno address with the Fresno Police Department. Defendant never registered with the local police department the Monterey County address where he resided with the victim and her family during the summer of 2019.
C. The Defense Case
Defendant and the victim's mother had a relationship as teenagers. They reconnected in 2017, and began living together, along with her children, in Fresno in December of that same year.
According to the victim's mother, the relationship "[m]ore or less" ended in 2018, when child protective services "showed up at the house and said that [defendant] could not have children living in his proximity." The victim's mother testified that she was unaware of this restriction until informed by child protective services although she knew defendant was a convicted child molester. Defendant told the victim's mother that "he wasn't an actual offender," that he was "falsely accused," that he "just pled to the charges," and that he "was trying to get his record expunged."
The victim and her family eventually moved to Monterey County to live at the uncle's residence. For approximately a six-week period during the summer of 2019, defendant stayed at the residence almost every single night. The victim's mother testified that she worked "a couple of hours, here and there." She left both children-the victim who was 10 years old and a younger daughter who was six years old-at the house, but she did not actually designate the uncle or cousin to babysit. She denied leaving defendant in charge of her children. Defendant was ultimately "kicked out of the house" in August 2019.
Defendant testified in his own behalf. He admitted that he had been convicted by plea three times for child molestation. Regarding the incidents involving the female relative of his wife, defendant testified that he was "extremely inebriated" when he made "advances at a 13-year old girl, that were extremely inappropriate." At trial, he admitted the incidents, but he acknowledged that at the time it was being investigated by law enforcement, he denied the incidents twice. Likewise, defendant at trial admitted putting his finger in his niece's vagina yet he denied it to the police at the time. He similarly admitted at trial to inappropriately touching his two daughters yet he denied the allegations when it was being investigated by law enforcement at the time.
Defendant testified that he went to prison and that he completed five years of sex offender treatment and parole by 2015. He acknowledged pursuing a relationship with the victim's mother and allowing her to move in with him in Fresno with her children. After "CPS required" the victim's mother to move out, defendant "tried multiple sources to get ahold of her." He was eventually able to "get back with" the victim's mother while the family was living in Monterey County. He admitted that he failed to register in Monterey County after moving in with the victim's family.
Defendant testified that he and the victim's mother had discussed, even prior to the visit by child protective services in Fresno, that he was not to be alone with the victim or her younger sister. He admitted that he was alone with one or both girls but he testified that that occurred only in public areas for bike rides, walking the dog, or going to the store. Defendant denied being in the shed alone with the victim and testified that he had only "momentarily" been alone with her in the living room.
At trial, defendant generally denied touching the victim inappropriately or having sexual contact with her and specifically denied the incidents that she described in the living room and in the shed. He admitted touching his niece and daughter while they were sleeping, but he denied touching the victim while she was sleeping.
Defendant testified that he left the residence when asked by the victim's mother. He admitted that although he had been living at the residence for about six weeks, he told law enforcement that he was only staying there for two or three days at a time. Defendant testified that he lied because he did not want the victim's mother to get in trouble.
D. The Charges, Verdicts, and Sentencing
Defendant was charged by third amended information with the following 11 counts: two counts of oral copulation or sexual penetration with a child aged 10 or younger (§ 288.7, subd. (b); counts 1 &3), seven counts of forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1); counts 2, 4 &6-10), one count of sexual intercourse or sodomy with a child aged 10 or younger (§ 288.7, subd. (a); count 5), and one count of failure to register multiple residences (§ 290.010; count 11). The information also alleged that defendant had previously been convicted of a lewd act on a child and was a habitual sex offender as to counts 2, 4, and 6 through 10 (§ 667.71); that he had suffered one prior serious felony conviction as to counts 1 through 10 (§ 667, subd. (a)(1)); and that he had suffered one prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
The jury found defendant guilty on all counts. In a bifurcated proceeding, the trial court found true the allegations that defendant was a habitual sex offender and that he had previously been convicted of a violation of section 288, subdivision (a), which qualified as a prior serious felony conviction and a prior strike conviction (§§ 667.71, 667, subd. (a)(1), 1170.12, subd. (c)(1)).
At the January 8, 2021 sentencing hearing, the trial court denied defendant's Romero motion. Before imposing defendant's sentence, the trial court stated to defendant: "When the jury and this Court heard from brave, strong young women who were abused by you, Mr. Bloomer, they were from within your own family and people close to your family, and they came here to face you and publicly describe the monster that you, indeed, are. [¶] It is shocking that you managed to amass a record of three prior sex convictions and yet, you are able to abuse a child yet again repeatedly, taking advantage of her families' vulnerability after they had gone through a harrowing time with another man. [¶] This time, you were in our county. I don't know how or why the system failed, but it did fail. It failed by not locking you up forever. The system will not fail today."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court proceeded to impose consecutive terms of 55 years to life on counts 2, 4, and 6 through 10, resulting in an indeterminate sentence of 385 years to life. In announcing the term for each of these counts, the court indicated that it was exercising its discretion to impose a five-year serious felony enhancement (§ 667, subd. (a)(1)). Regarding the determinate sentence for count 11, failure to register, the court stated: "There is no reason to treat this as anything other than an additional crime that requires an additional punishment even in light of the heavy sentence handed down today. [¶] Considering the factors in aggravation versus those in mitigation, the upper term of three years is imposed. That term is doubled based on the prior strike for a term of six years in state prison for a determinate term of six years." The sentence on counts 1, 3, and 5 were stayed pursuant to former section 654. Defendant's aggregate sentence was 391 years to life.
The abstract of judgment regarding the indeterminate term does not reflect that the sentences on counts 2, 4, and 6 through 10 are to run consecutively. The abstract of judgment also reflects that a five-year serious felony enhancement (§ 667, subd. (a)(1)) was imposed on only six counts, but the court imposed the enhancement on seven counts, that is, counts 2, 4, and 6 through 10. We will order the abstract corrected accordingly.
III. DISCUSSION
A. Expert Testimony Regarding Child Sexual Abuse Misconceptions
On appeal, defendant contends that "the CSAAS evidence was not probative" and was "unduly prejudicial, in the absence of a dispute as to witness credibility based on delays in reporting the alleged sexual abuse." Second, defendant argues that the prosecutor "failed to demonstrate that the principles of CSAAS - that victims can recant and deny prior statements - were outside the juror's common knowledge," and therefore the testimony "effectively reduced the government's burden of proof in violation of due process." Third, defendant contends that although trial counsel made a pretrial motion to exclude the testimony, counsel rendered ineffective assistance of counsel by failing to object at trial to the specific testimony rendered by Dr. Carmichael and for eliciting testimony about the infrequency of false accusations. Fourth, defendant argues that the "CSAAS evidence unfairly bolstered the testimony of [the victim], detracted from [defendant's] testimony, and was highly prejudicial in light of Dr. Carmichael's claim that the abused do not make false allegations in sexual abuse criminal cases," and therefore the "evidence rendered the trial fundamentally unfair" and "diluted the prosecution's burden to prove the offense beyond a reasonable doubt." Fifth, defendant contends that the error was prejudicial under either the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, or the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson).
The Attorney General contends that defendant cannot show error in the admission of the evidence and that any error was harmless.
1. Trial Court Proceedings
Prior to trial, the prosecutor filed a motion to admit "CSAAS expert testimony" regarding "common myths and misconceptions" about child sexual abuse victims, such as the failure to immediately report the molestation and the failure of the victim to protect against the molestation. The prosecutor contended that such evidence was relevant "if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting [the] molestation." In providing a factual summary of the case, the prosecutor indicated that multiple incidents of sexual abuse had occurred over several weeks, including in a bedroom, bathroom, living room, and shed, before the victim finally disclosed the abuse to her mother.
Defendant filed a pretrial motion in limine to exclude CSAAS evidence. He argued that such evidence may only be used to "rebut a defendant's attack on the credibility of the alleged victim based on a specific 'myth' or 'misconception' suggested by the evidence," and that the prosecutor must identify the myth or misconception. Defendant contended that in this case, he would not be raising the issue of delayed reporting, and therefore the jury would not be relying on any myth pertaining to delayed reporting. He also argued that the evidence was inadmissible to prove that abuse occurred, may be misapplied by the jury, and that a limiting instruction would not be sufficient to resolve these problems.
At a hearing on the motions, the trial court granted the prosecutor's motion after determining that the misconceptions identified by the prosecutor were "appropriate subjects for expert testimony." The court indicated that the prosecutor could not use the evidence as a diagnosis about whether the molestation occurred and that a limiting instruction would be given regarding the testimony.
At trial, the jury was instructed as follows: "You have heard testimony from Dr. Blake Carmichael regarding child sexual abuse counterintuitive behavior.
[¶] Dr. Blake Carmichael's testimony about child sexual abuse counterintuitive behavior is not evidence that the defendant committed any of the crimes charged against him.
[¶] You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." (See CALCRIM No. 1193.)
2. Analysis
a. Admission of expert testimony regarding counterintuitive behavior by child sexual abuse victims
First, defendant contends that "the CSAAS evidence was not probative" and was "unduly prejudicial, in the absence of a dispute as to witness credibility based on delays in reporting the alleged sexual abuse."
Dr. Carmichael testified about certain concepts that are associated with CSAAS, such as delayed disclosure, but he did not specifically testify about the "five stages involved in CSAAS" or otherwise inform the jurors about what the syndrome entailed. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1742 (Patino); see id. at pp. 17421743 [describing expert's CSAAS testimony].)
California courts have held that CSAAS evidence, which consists of expert testimony on common reactions of child molestation victims, is admissible to disabuse jurors of commonly held misconceptions about child sexual abuse. (See, e.g., People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Gonzales (2017) 16 Cal.App.5th 494, 503; Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Such expert testimony is admissible "if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (Patino, supra, at pp. 1744-1745.)
" 'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.' [Citation.]" (People v. Brown (2014) 59 Cal.4th 86, 101.) "[W]e will not disturb the court's exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner [citation]." (People v. Jones (2013) 57 Cal.4th 899, 947.)
In this case, the prosecutor's pretrial motion to admit expert testimony regarding counterintuitive behavior by child sexual abuse victims included a description of the evidence the prosecutor intended to present at trial. The proffered evidence included multiple incidents of defendant sexually abusing the victim over the course of several weeks before the victim finally disclosed the abuse to her mother. As "the victim's credibility [was] placed in issue due to the paradoxical behavior, including a delay in reporting a molestation," the trial court properly determined that the expert testimony was admissible to "disabus[e] a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.]" (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
Further, at trial, in addition to evidence reflecting the victim's delay in reporting the abuse, there was also evidence of other paradoxical behavior, such as the victim failing to call out for help from a family member who was in the house or otherwise on the property at the time of the abuse, and the victim deliberately looking away or covering her eyes in an apparent attempt to block what was happening or as an ineffective effort to stop the abuse. Relevant to this evidence, Dr. Carmichael testified that common misconceptions include that children will readily report the abuse and that they will make noise or reach out to someone in a nearby room. Dr. Carmichael also explained that coping measures by children may include "dissociation," meaning "trying to block out or keep thoughts out of what's happening even when the abuse is occurring" and trying to "ward off their perpetrators" with behaviors that are "ineffective" in making the abuse stop.
On cross-examination, the victim acknowledged that she sometimes went bike riding with defendant and that she also went in his truck alone. In closing argument, defendant's trial counsel expressly challenged the victim's credibility concerning the occurrence of any abuse. Counsel also referred to the victim's testimony that she had closed her eyes during the abuse and therefore she "didn't see anything." Counsel suggested that the victim was "imagining things, or assuming things" had occurred.
The record thus reflects that the victim's credibility was at issue, both due to defendant's express argument to the jury and the evidence of seemingly paradoxical behavior, including a delay in reporting the abuse until after numerous incidents had occurred, failing to call out for help to nearby family, and continuing to associate with defendant despite the ongoing abuse. As the victim's credibility was at issue, defendant fails to demonstrate error in the trial court's pretrial ruling admitting expert testimony about counterintuitive behavior of child sexual abuse victims, and he fails to demonstrate ineffective assistance of trial counsel in failing to raise a further objection to the expert testimony at trial. (See Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez) [ineffective assistance of counsel claim requires a showing of deficient performance and prejudice].)
Defendant contends that the victim reported the sexual abuse within one week of him moving out of the house, and therefore there was no need for expert testimony to explain apparently counterintuitive behavior such as a delay in reporting. The evidence reflects, however, that the victim did not report the abuse until after numerous incidents had occurred. Moreover, as defendant acknowledges, the victim engaged in other apparently paradoxical behavior, such as failing to yell out for help during the incidents. In addition, defense counsel cross-examined the victim about her continuing to be alone with defendant, such as for bike rides or being in his truck, during the timeframe when she was being abused. The evidence and argument by defense counsel implicated the victim's credibility.
Under similar circumstances, the appellate court in Patino determined that expert testimony was properly admitted about misconceptions concerning how a child reacts to a molestation. In Patino, the expert testimony was offered to explain why, among other things, the victim "did not immediately inform anyone of her molestation," where the victim waited two weeks before reporting two incidents. (Patino, supra, 26 Cal.App.4th at p. 1745; see id. at pp. 1740-1742.) Defense counsel "also queried [the victim] on cross-examination about why she returned to [the defendant's] house the day after the first molest. Thus, the [defendant] did place at issue [the victim's credibility]." (Id. at p. 1745.) In concluding that the expert testimony was properly admitted, the appellate court explained: "Denying the prosecution the opportunity to introduce CSAAS testimony as part of its case-in-chief rather than in rebuttal could lead to absurd results. Regardless of how or by whom [the victim's] delay in reporting the molests was introduced to the jury, an obvious question was raised in the minds of the jurors. It would be natural for a jury to wonder why the molestation was not immediately reported if it had really occurred. In this case, the jury could further ask why [the victim] went back to [the defendant's] home a second time after the first molestation. If it were a requirement of admissibility for the defense to identify and focus on the paradoxical behavior, the defense would simply wait until closing argument before accentuating the jurors' misconceptions regarding the behavior. To eliminate the potential for such results, the prosecution should be permitted to introduce properly limited credibility evidence if the issue of a specific misconception is suggested by the evidence." (Ibid.) In the present case, given that the victim's credibility was implicated based on the evidence as well as the argument by defendant's trial counsel, defendant fails to establish error in the admission of expert testimony regarding counterintuitive behaviors by child sexual abuse victims.
b. Whether the expert testimony was outside jurors' common knowledge
Defendant next argues that "the prosecution failed to demonstrate that the principles of CSAAS-that victims can recant and deny prior statements-were outside the juror's common knowledge," and therefore the expert's testimony "effectively reduced the government's burden of proof in violation of due process." Defendant fails to provide a record citation showing that the prosecutor sought to introduce expert testimony regarding recantation or the denial of prior statements, let alone a record citation showing that such evidence was admitted at trial.
We are also not persuaded by defendant's contention that Dr. Carmichael's testimony should have been excluded because the prosecutor failed to show that expert testimony was needed to explain why a sexually abused child does not always report abuse immediately. Expert opinion testimony is admissible when the opinion is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) As we have explained above, "CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citation.]" (Patino, supra, 26 Cal.App.4th at p. 1744.) Such expert testimony is admissible "if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (Id. at pp. 1744-1745.) Although a jury might have sufficient common experience regarding the general concept of, for example, delayed disclosure due to a threat of harm, it is not necessarily the case that a jury would have sufficient common experience in a situation involving delayed disclosure of sexual abuse.
In the analogous context of a parent of an abused child, the California Supreme Court has observed that "[m]ost jurors, fortunately, have been spared the experience of being the parent of a sexually molested child. Lacking that experience, jurors can rely only on their intuition or on relevant evidence introduced at trial." (McAlpin, supra, 53 Cal.3d 1289 at p. 1302.) Expert opinion testimony is permitted "to explain to lay jurors conduct that may appear counterintuitive in the absence of such insight. [Citations.]" (People v. Ward (2005) 36 Cal.4th 186, 211.) Indeed," '[t]he jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission ....It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men [or women] of ordinary education could reach a conclusion as intelligently as the witness."' [Citation.]" (McAlpin, supra, 53 Cal.3d at pp.1299-1300.)
Given that the expert testimony in this case sought to explain behaviors by the victim that may appear counterintuitive, and given that the California Supreme Court has observed that most jurors lack personal experience with child molestation victims, we believe the trial court could have properly determined that Dr. Carmichael's testimony, including regarding delayed reporting, was admissible even in the absence of a showing by the prosecutor regarding the current state of public perception about the behaviors of child abuse victims. (See People v. Munch (2020) 52 Cal.App.5th 464, 466, 468 [explaining that "the reasoning of McAlpin," which recognized the admissibility of CSAAS evidence, "is as valid today as it was in 1991" and that the McAlpin "decision is binding on all lower courts in this state"].)
c. Whether trial counsel rendered ineffective assistance of counsel by eliciting testimony about the infrequency of false accusations
Defendant contends that although his trial counsel made a pretrial motion to exclude expert testimony regarding child sexual abuse, counsel was ineffective for failing to object to the specific testimony rendered by Dr. Carmichael at trial and for eliciting and/or failing to object to his testimony on cross-examination about the infrequency of false accusations. As we have explained, Dr. Carmichael's testimony on direct examination was properly admitted to disabuse jurors of misconceptions about child sexual abuse victims, where the victim's credibility was at issue due to paradoxical behavior, such as a delay in reporting. (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Defendant therefore cannot establish a claim of ineffective assistance of counsel based on trial counsel's failure to object to the testimony of Dr. Carmichael on direct examination during trial. We therefore turn to defendant's contention that trial counsel was ineffective for eliciting and/or failing to object to testimony on cross-examination about the infrequency of false accusations.
On cross-examination, defendant's trial counsel asked Dr. Carmichael whether all the "child victims" that he sees "are documented as being victims of abuse." Dr. Carmichael indicated that it depends. Some children may disclose sexual abuse during treatment, in which case he refers the matter to child welfare services and to law enforcement for investigation. Defense counsel proceeded to ask, "Do you ever have any children that falsely accuse somebody?" Dr. Carmichael responded, "I don't recall having a case where I either referred for child welfare to get involved to investigate. I don't recall having a case like that -- um -- maybe in a custody dispute, or something like that, but I would say rarely." Defense counsel then immediately turned to other topics of inquiry, such as the ability of children to remember details.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating . . . that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] . . . If a defendant meets the burden . . ., he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (Lopez, supra, 42 Cal.4th at p. 966.)
In this case, the prosecution's expert, Dr. Carmichael, responded on cross-examination to the question of whether he "ever [has] any children that falsely accuse somebody" by stating that he "rarely" has such a case. On appeal, defendant contends that there was "no reasonable justification for counsel's invitations to Dr. Carmichael to tell the jury that victims rarely lie about sexual abuse in criminal . . . cases after counsel previously objected to such testimony." Defendant argues that "[t]he failure to object, and elicitation of inadmissible evidence on cross-examination, was ineffective assistance." In support of this argument, defendant relies on, among other cases, People v. Julian (2019) 34 Cal.App.5th 878 (Julian), People v. Lapenias (2021) 67 Cal.App.5th 162 (Lapenias), and People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson).
As an initial matter, defendant fails to provide a record citation showing that his trial counsel "previously objected" to the specific testimony he now challenges, that is, testimony regarding the rarity of false accusations of sexual abuse in criminal cases. Moreover, defendant's reliance on Julian, Lapenias, and Wilson is not helpful to his ineffective assistance of counsel claim.
In Julian, the appellate court determined that statistical evidence presented by the prosecution's expert witness went beyond the permissible scope of CSAAS evidence and that defense counsel provided ineffective assistance by not objecting to it. (Julian, supra, 34 Cal.App.5th at p. 880.) The expert made more than 10 statements referring to the small percentage or rarity of false reports of abuse based on various studies or articles. (Id. at pp. 883-885.) The statistics included testimony that false allegations of sexual abuse by children" 'don't happen very often,'" and that" '[t]he range of false allegations that are known to law enforcement or [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.'" (Id. at pp. 883, 885, italics omitted.) The appellate court found that the expert's "92 to 99 percent probability evidence invited jurors to presume [the defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886.) In determining that the defendant's trial counsel rendered ineffective assistance of counsel, the appellate court found that there was "no justification for counsel's failure to object to [the expert's] statistical evidence on false allegations. It was inadmissible and it improperly suggested [the defendant] was guilty based on statistical probabilities that were irrelevant to this case." (Id. at p. 888.) Further, the evidence was "highly prejudicial" because there was a "credibility dispute between [the victim's] testimony and [the defendant's]" and "[i]t was a heavily contested case with strong defense evidence." (Ibid.) The court stated, however, that statistical evidence "may not be prejudicial where it occurs in a slight passing reference by the expert. But here the jury was bombarded with it." (Ibid.)
In Lapenias, supra, 67 Cal.App.5th 162, the appellate court determined that the trial court erred in allowing the CSAAS expert to testify that it is" 'rare'" for children to make up a story that abuse occurred, but the error was harmless. (Id. at p. 166; see also id. at pp. 177, 180.) The appellate court found that the testimony "went considerably beyond the limited purpose of CSAAS evidence (to explain the typical behaviors of sexually abused children, such as delayed reporting)" and-"by implication and by inference-violated the general rule that an expert may not give an opinion as to whether another witness is telling the truth or the defendant is guilty." (Id. at p. 179.) The appellate court determined that there was" 'no meaningful distinction between giving a statistic that indicates that false allegations are rare and stating that children rarely make false allegations without explicitly quantifying the word "rare." The problem with both assertions is that [the] expert is vouching for the veracity of the' alleged victims." (Id. at pp. 179-180.) The appellate court nevertheless found the error harmless. (Id. at p. 180 [applying Watson test].) The appellate court reasoned that the expert's testimony was "brief" as were the references to the testimony by both counsel during argument; there was persuasive corroborative evidence of the defendant's guilt; and the jury was instructed regarding the limited purpose of CSAAS evidence, that they were not bound by an expert's opinion, and that they were the sole judge of witness credibility. (Id. at p. 180.)
Likewise, in Wilson, supra, 33 Cal.App.5th 559, the appellate court concluded that expert testimony that only a small percentage of child sexual abuse allegations are false should not have been admitted, but the error was harmless. (Id. at pp. 561, 572.) The expert's testimony included statements that false allegations occurred" 'very infrequently or rarely'" and that studies showed false allegations in 1 to 6 percent of cases. (Id. at p. 568.) The appellate court found that the testimony "had the effect of telling the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth." (Id. at p. 570.) The appellate court determined that "the practical result was to suggest to the jury that there was an overwhelming likelihood [the victims'] testimony was truthful," which "invaded the province of the jury." (Ibid.) The appellate court ultimately concluded that the error in admitting the evidence was harmless under Watson, supra, 46 Cal.2d 818. (Wilson, supra, at pp. 571572.) Among other reasons, the appellate court explained that the expert's testimony on the statistical evidence was "brief"; the defense rebutted the evidence; the prosecutor did not mention the statistical evidence in argument; the jury was instructed that it was the sole judge of the facts and of witness credibility; and the victims testified extensively and the jurors could assess their credibility. (Id. at p. 572.)
In this case, assuming that an objection would have been sustained to Dr. Carmichael's testimony that he "rarely" has had a case, other than involving a custody dispute, in which a child made a false accusation (and assuming the testimony would have been struck by the trial court), we determine that a plausible reason exists for trial counsel's failure to object.
In this regard, the California Supreme Court has "observed" that "whether or not to object to evidence at trial is largely a tactical question for counsel, and a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one. [Citation.] An attorney may well have a reasonable tactical reason for declining to object, and' "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation."' [Citation.] (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313 (Seumanu).)
A possible tactical reason for counsel to refrain from objecting or to refrain from moving to strike may be counsel's "desire[] not to highlight the evidence by making an objection. '[T]he decision whether to object, move to strike, or seek admonition regarding [undesired] testimony is highly tactical, and depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony.' [Citation.]" (Seumanu, supra, 61 Cal.4th at p. 1313.)
In this case, Dr. Carmichael's testimony that he had "rarely" had a case of false accusations by a child outside the custody context was limited to one sentence during cross-examination by defendant's trial counsel, and trial counsel immediately proceeded to examine Dr. Carmichael on a completely different topic. Given the brevity of the testimony about the rarity of false accusations seen by Dr. Carmichael, defendant's trial counsel may well have determined that an objection (accompanied by a motion to strike) would serve only to highlight the brief testimony that the jurors might otherwise not give much attention to. (See Seumanu, supra, 61 Cal.4th at p. 1313.) This case is therefore distinguishable from Julian, where the "jury was bombarded with" more than 10 statements by the prosecution's expert about the rarity of false reports of abuse and the appellate court found "no justification for counsel's failure to object." (Julian, supra, 34 Cal.App.5th at p. 888; see id. at pp. 883-885.) Instead, this case is analogous to Wilson and to Lapenias, where the expert's testimony was extremely "brief." (Wilson, supra, 33 Cal.App.5th at p. 572; Lapenias, supra, 67 Cal.App.5th at p. 180.) Accordingly, "[t]here being a plausible reason why counsel did not object, we cannot conclude on this record that counsel's inaction lacked a reasonable tactical basis." (Seumanu, supra, at p. 1313.)
To the extent defendant contends that his trial counsel should never have even asked the question in the first place, that is, whether Dr. Carmichael "ever ha[s] any children that falsely accuse somebody," we determine that defendant fails to demonstrate counsel's purported deficiency resulted in prejudice. (See Lopez, supra, 42 Cal.4th at p. 966.) Dr. Carmichael's testimony about the rarity of false accusations was "brief" (Lapenias, supra, 67 Cal.App.5th at p. 180; Wilson, supra, 33 Cal.App.5th at p. 572), and the jury was not "bombarded" on this point during Dr. Carmichael's testimony or during argument by counsel. (Julian, supra, 34 Cal.App.5th at p. 888; see Lapenias, supra, at p. 180.) Further, the jury was instructed regarding the limited purpose of Dr. Carmichael's testimony and that it was" 'not evidence that defendant committed any of the crimes charged against him,'" as well as instructed that they were not bound by an expert's opinion and that they were the sole judge of witness credibility. (Lapenias, supra, at p. 180; see CALCRIM Nos. 1193, 332, 226.) Indeed, even Dr. Carmichael testified that there was no profile or checklist that can determine whether a child has been abused and, instead, "[t]hat's why we have the jury." Significantly, both the victim and defendant testified, and the jurors could assess their credibility. (Wilson, supra, at p. 572.) In addition to testimony from the victim, the jury was also presented with evidence of defendant's prior convictions for sexually abusing three young female relatives, as well as testimony by them. On this record, defendant fails to establish" 'a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." '" (Lopez, supra, 42 Cal.4th at p. 966.)
d. Whether defendant's due process and fair trial rights were violated
Defendant contends that his due process and fair trial rights were violated by the admission of evidence regarding counterintuitive behavior of child sexual abuse victims. He argues that the "CSAAS evidence unfairly bolstered the testimony of [the victim], detracted from [his] testimony, and was highly prejudicial in light of Dr. Carmichael's claim that the abused do not make false allegations in sexual abuse criminal cases," and therefore the "evidence rendered the trial fundamentally unfair" and "diluted the prosecution's burden to prove the offense beyond a reasonable doubt."
We determine that the admission of evidence regarding child sexual abuse counterintuitive behavior did not violate defendant's due process and fair trial rights. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair. [Citations]." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) As we have explained, the evidence was relevant to the issues presented in the case and, as it was properly limited to the extent it was introduced by the prosecutor, it did not render defendant's trial fundamentally unfair. (See Patino, supra, 26 Cal.App.4th at p. 1747; see also Estelle v. McGuire (1991) 502 U.S. 62, 69-70 [the admission of relevant evidence of battered child syndrome does not violate the due process clause of the Fourteenth Amendment].) Further, as we have explained, to the extent defendant's claim of error is based on his trial counsel's elicitation of certain testimony on cross-examination of Dr. Carmichael, defendant fails to establish ineffective assistance of counsel.
B. Amended Section 654
Defendant contends that the matter must be remanded for resentencing so that the trial court may exercise its discretion under recently amended section 654 to determine whether to stay counts 2 and 4, instead of counts 1 and 3 as it did at sentencing. The Attorney General acknowledges that amended section 654 applies to defendant but argues that remand is unnecessary because "it is clear that the trial court would not have exercised its discretion under section 654 to stay the 25-years-to-life terms on counts 2 and 4" in view of the court's other discretionary sentencing choices and comments at sentencing.
Relevant here, defendant was convicted in counts 1 and 3 of sexual penetration or oral copulation with a child aged 10 or younger (§ 288.7, subd. (b)) and in counts 2 and 4 of forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1)). In a written statement for sentencing, the prosecutor explained that the forcible lewd act counts (counts 2 &4) were for the same conduct as counts 1 and 3 (sexual penetration or oral copulation with a child aged 10 or younger). The prosecutor further observed that defendant's "[e]xposure," based on the findings that defendant was a habitual sex offender and that he had a prior serious felony conviction and a prior strike conviction, was 55 years to life on each of counts 2 and 4, and 35 years to life on each of counts 1 and 3. The court imposed punishment on counts 2 and 4 and stayed the sentences on counts 1 and 3 pursuant to former section 654.
Section 654 prohibits multiple punishment for a single act or omission. (See People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of defendant's sentencing, section 654 required the trial court to punish defendant "under the provision that provide[d] for the longest potential term of imprisonment." (§ 654, former subd. (a).)
Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) to give the trial court discretion to select the provision under which the defendant would be punished. As relevant here, section 654 now provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.)
The amendment of section 654 effected an ameliorative change to the law as trial courts are no longer required to impose sentence under the provision that provides for the longest term of imprisonment when a defendant is convicted of multiple crimes for a single act or omission. Thus, as the parties agree, defendant is entitled to the retroactive application of amended section 654 because there is no indication that the Legislature intended the law to apply prospectively only, and this case is not yet final on appeal. (See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379-380; People v. Sek (2022) 74 Cal.App.5th 657, 673-674; People v. Mendoza (2022) 74 Cal.App.5th 843, 861 (Mendoza).)
The remaining question is whether is whether remand is required." 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) When the record shows that the trial court proceeded with sentencing on the assumption that it lacked discretion, remand for resentencing is necessary "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Ibid.) Thus, we must review the record to determine whether remand is required or if it "would be an idle act." (People v. Flores (2020) 9 Cal.5th 371, 432 (Flores).)
At sentencing, the trial court clearly expressed its intent to impose the maximum sentence permitted by law and indeed exercised its discretion accordingly. For example, in denying defendant's Romero motionto dismiss his prior strike, the trial court stated, "The defendant's history and the circumstances of that history and the present case are exactly what the [T]hree [S]trikes law was intended to address. It addresses recidivist conduct of a serious nature against several children, which is what we have here."
As defendant on appeal observes, he apologized at the sentencing hearing, by stating, "All I can do is apologize for my actions. What I did was horrible. I do love them, but I didn't know how to love them right, obviously. There is nothing I can really say here than tell all of them they never did anything wrong, and I did everything wrong and I apologize."
Notwithstanding defendant's apology, however, the trial court stated to defendant, "When the jury and this Court heard from brave, strong young women who were abused by you . . ., they were from within your own family and people close to your family, and they came here to face you and publicly describe the monster that you, indeed, are. [¶] It is shocking that you managed to amass a record of three prior sex convictions and yet, you are able to abuse a child yet again repeatedly, taking advantage of her families' vulnerability after they had gone through a harrowing time with another man. [¶] This time, you were in our county. I don't know how or why the system failed, but it did fail. It failed by not locking you up forever. The system will not fail today." (Italics added.)
The trial court then proceeded to impose consecutive terms of 55 years to life on counts 2, 4, and several other counts, resulting in an indeterminate sentence of 385 years to life. In announcing the term for each of these counts, the court further stated that it was exercising its discretion to impose a five-year serious felony enhancement on each count (§ 667, subd. (a)(1)).
Moreover, regarding the determinate sentence for count 11, failure to register, the trial court stated: "There is no reason to treat this as anything other than an additional crime that requires an additional punishment even in light of the heavy sentence handed down today. [¶] Considering the factors in aggravation versus those in mitigation, the upper term of three years is imposed. That term is doubled based on the prior strike for a term of six years in state prison for a determinate term of six years." (Italics added.) Defendant's aggregate sentence was 391 years to life.
We determine that the record" 'clearly indicate[s]'" (Gutierrez, supra, 58 Cal.4th at p. 1391) the trial court would have declined to stay the greater sentences on counts 2 and 4 in favor of the lesser sentences on counts 1 and 3 if the court had the discretion to do so when it originally sentenced defendant, in view of the court's expressed intent to "lock[] [defendant] up forever" and its refusal to exercise any discretion that it did have at sentencing to the benefit of defendant. (Cf. Mendoza, supra, 74 Cal.App.5th at p. 862 [determining that the record was not "sufficiently clear to render remand a meaningless exercise" under newly amended § 654 where "trial court purported to exercise its discretion in a manner beneficial" to the defendant with respect to a different sentencing issue]; People v. McDaniels (2018) 22 Cal.App.5th 420, 428 [remanded for trial court to exercise its discretion under new law allowing firearm enhancements to be stricken, where trial court at original sentencing "expressed no intent to impose the maximum sentence"].) As it "would be an idle act" on this record, we decline to remand for resentencing in this case. (Flores, supra, 9 Cal.5th at p. 432.)
C. Cruel and Unusual Punishment
Defendant contends that his aggregate sentence of 391 years to life constitutes cruel and unusual punishment under the state and federal Constitutions. Although his trial counsel did not object on this ground below, defendant contends that the claim is not forfeited because it constitutes an unauthorized sentence that may be corrected at any time. To the extent it has been forfeited, defendant contends that his trial counsel rendered ineffective assistance of counsel.
The Attorney General contends that defendant has forfeited the constitutional claim by failing to raise it below and that the claim also fails on the merits.
The trial court imposed consecutive terms of 55 years to life on counts 2, 4, and 6 through 10 (forcible lewd act on a child under the age of 14; § 288, subd. (b)(1)), resulting in an indeterminate sentence of 385 years to life. The 55-year-to-life term consists of 25 years to life based on the habitual sexual offender finding (§ 667.71), doubled due to the prior strike conviction, and a consecutive five-year term for the prior serious felony enhancement (§ 667, subd. (a)(1)). The determinate sentence consists of six years (the upper term, doubled) for count 11 (failure to register; § 290.010). The sentence on the remaining three counts were stayed pursuant to former section 654. Defendant's aggregate sentence was 391 years to life. He did not object to the sentence on the ground that it constituted cruel and unusual punishment.
A defendant who fails to object below on the ground that the sentence constitutes cruel and unusual punishment forfeits the issue on appeal. (People v. Brewer (2021) 65 Cal.App.5th 199, 212; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583.) We therefore consider defendant's constitutional challenge in the context of his ineffective assistance of counsel claim.
"The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' [Citations.]" (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.).)" 'The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime.' [Citation.]" (Id. at p. 23 (plur. opn. of O'Connor, J.).)
The California Constitution similarly prohibits "[c]ruel or unusual punishment." (Cal. Const., art. I, § 17.) "Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
"The main technique of analysis under California law is to consider the nature both of the offense and of the offender. [Citation.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) This examination of the offense and the offender requires "particular attention to the degree of danger both pose to society." (In re Palmer (2021) 10 Cal.5th 959, 973 (Palmer).) Regarding the offense, we consider it "both in the abstract and in the totality of circumstances surrounding its actual commission" (People v. Martinez, supra, 76 Cal.App.4th at p. 494), including "motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' [Citation.]" (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) Regarding the offender, we consider "the defendant's individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. [Citations.]" (People v. Martinez, supra, 76 Cal.App.4th at p. 494.)
In analyzing disproportionality, we give "great deference" to the Legislature. (People v. Martinez, supra, 76 Cal.App.4th at p. 494; accord, Palmer, supra, 10 Cal.5th at p. 972.) "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]" (People v. Martinez, supra, at p. 494; see also Ewing, supra, 538 U.S. at p. 25.).)
Defendant had previously been convicted of molesting young female relatives in 1996, 2007, and 2008. Despite testifying that he had served prison time and completed five years of sex offender treatment, and despite the fact that the victim's family had previously moved out of defendant's Fresno residence because of his sex offender status, defendant followed the family to another county, moved in with them, failed to register, and proceeded to repeatedly sexually abuse the young victim, resulting in convictions for two counts of oral copulation or sexual penetration with a child aged 10 or younger (§ 288.7, subd. (b)), seven counts of forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1)), and one count of sexual intercourse or sodomy with a child aged 10 or younger (§ 288.7, subd. (a)). At the time of his most recent offenses in 2019, he was almost 51 years old. Defendant's most recent offenses were permanently life altering and traumatic for the victim, as described by her mother at sentencing. Based on "an examination of the nature of the offense and the offender, with particular attention to the degree of danger both pose to society," we cannot say that the lengthy sentence imposed on defendant, a habitual sex offender who repeatedly sexually abused a 10-year-old, constitutes cruel and unusual punishment. (Palmer, supra, 10 Cal.5th at p. 973; see People v. Martinez, supra, 76 Cal.App.4th at p. 494; People v. Martinez, supra, 71 Cal.App.4th at p. 1510; Ewing, supra, 538 U.S. at p. 23 (plur. opn. of O'Connor, J.).)
Defendant argues that his aggregate sentence of 391 years to life is a de facto sentence of life without possibility of parole (LWOP). Even assuming that were true, however, it does not render the sentence unconstitutional. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 845, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214; see, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [determinate term of 115 years plus indeterminate term of 444 years to life not unconstitutional].)
Defendant also undertakes an interjurisdictional analysis to contend that his punishment is cruel and unusual. A claim of excessive punishment under the California Constitution may be analyzed by comparing punishment imposed by other jurisdictions for the same offense. (See Palmer, supra, 10 Cal.5th at p. 968, fn. 2, 973.) Defendant acknowledges that a few other states provide comparable sentences to California for sex offenses where the defendant may or may not have prior convictions. Nevertheless, even if "California's punishment scheme [was] among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require 'conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide.' [Citation.]" Otherwise, California could never take the toughest stance ...." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
Defendant also generally refers to the laws of other countries, but his comparison is with countries that have "formal LWOP" or the death penalty. Defendant in this case was not sentenced to "formal LWOP" or the death penalty. Defendant also does not explain whether his international comparisons pertain to convictions for child sexual abuse for a defendant who has, as in his case, prior convictions. Nevertheless, defendant acknowledges that the United States is not the only country whose laws provide for LWOP.
Under the federal Constitution, we observe that in Harmelin v. Michigan (1991) 501 U.S. 957, which involved a defendant convicted of possessing 672 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole, the controlling opinion stated that "intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." (Harmelin v. Michigan, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.); see Graham v. Florida (2010) 560 U.S. 48, 60.) As we have explained, the gravity of the crimes committed by defendant against a 10-year-old girl, as well as his criminal history involving the molestation of several other girls, in comparison with his sentence do not give rise to an inference of gross disproportionality.
We observe that" '[f]undamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security.'" (People v. Cooper (1996) 43 Cal.App.4th 815, 826 (Cooper).) Considering the nature of the current offenses and the offender, we cannot say that the punishment imposed in this case is so disproportionate to the offenses committed that it shocks the conscience and offends fundamental notions of human dignity. (Mantanez, supra, 98 Cal.App.4th at p. 358; see People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1230-1231 [a 135-year-to-life sentence for 16 felony counts involving "numerous sex crimes against four young girls, including the rape of a 10-year-old" was not cruel and unusual punishment under state and federal Constitutions]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 522-523, 528-532 [a 129-year sentence for 25 counts involving the sexual abuse of a young girl was not cruel or unusual punishment under state and federal Constitutions]; People v. Wallace (1993) 14 Cal.App.4th 651, 657, 666-667 [a 283-year, eight-month sentence for 46 felony convictions that included sex offenses against multiple victims was not cruel or unusual punishment under state Constitution]; People v. Huber (1986) 181 Cal.App.3d 601, 610, 633-635 [a 106-year, four-month term for 26 felony counts, the majority of which were sexual offenses against multiple victims, was not cruel or unusual punishment under state and federal Constitutions].) Accordingly, as defendant's sentence does not constitute cruel or unusual punishment under the state or federal Constitutions, he cannot establish a claim of ineffective assistance based on his trial counsel's failure to object on this ground. (See Lopez, supra, 42 Cal.4th at p. 966.)
IV. DISPOSITION
The judgment is affirmed. The abstract of judgment regarding the indeterminate term is ordered corrected to indicate that the sentences on counts 2, 4, and 6 through 10 are to run consecutively. The abstract of judgment is also ordered corrected to reflect that a five-year serious felony enhancement (§ 667, subd. (a)(1)) was imposed on each of seven counts (counts 2, 4, and 6 through 10). The trial court is directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: DANNER, J. WILSON, J.