Opinion
G055902
12-13-2019
THE PEOPLE, Plaintiff and Respondent, v. ALVARO CARRANZA, JR., Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Arlene A. Sevidal and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
The opinion filed December 13, 2019, is ordered modified as follows:
1. On page 8, before the last sentence (beginning, "In sum, . . . .") of the second new paragraph on the page, insert the following new sentence:
As in Eccleston, "Our independent review of the record has produced no basis for disputing the factual findings relevant to the constitutional issue of reliability carefully made by the trial court." (Eccleston, supra, 89 Cal.App.4th at p. 449.)
2. On page 13, modify the first sentence of the third new paragraph on the page so that it reads:
We note that defense counsel's general objections asserting a lack of "foundation" for Ward's testimony regarding CSAAS do not support Carranza's suggestion on appeal that an observer at trial—the jurors—would conclude Ward was implicitly testifying about Carranza.
These modifications do not affect the judgment.
The petition for rehearing filed December 30, 2019, is DENIED.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF0345) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Arlene A. Sevidal and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Alvaro Carranza, Jr., of 12 sexual offenses against his two young nieces: eight counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a); further undesignated statutory references are to this code), three counts of oral copulation or sexual penetration of a child who is 10 years old or younger (§ 288.7, subd. (b)), and one count of sexual intercourse with a child age 10 or younger (count 10; § 288.7, subd. (a)). The jury also found true sentencing enhancements for committing a sex offense against more than one victim on all but one of the counts on which the enhancements were alleged. (§ 667.61, subds. (b) & (e)(4) as to several counts, subds. (b) & (e)(5) as to one count.) The lone exception was the lewd act count, on which the jury was unable to reach a verdict. The trial court sentenced Carranza to 145 years to life in prison, consisting of 25 years to life on count 10, and eight consecutive terms of 15 years to life on the other counts.
Carranza seeks reversal based on numerous alleged evidentiary errors and two claims of instructional error. He also challenges the sufficiency of the evidence to support his conviction on three counts. Finally, he contends the trial court's sentence violates the state and federal constitutions because it serves no penological purpose since no person could live long enough to serve it. As we explain, these contentions are without merit. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Carranza's brother and his brother's wife had three children together, including two daughters A.C. and P.C. The girls were 11 and 9 years old, respectively, at the time A.C. first disclosed that Carranza had sexually abused her. Beginning when A.C. and P.C. were in the fourth and second grades, they would go to their grandparents' house every day after school because their parents worked. Before that, once they had turned five years old, A.C. and P.C. often spent the night at their grandparents' house. Carranza, who was 32 years old at the time of trial, lived at the house with his mother and father, the girls' grandparents.
In fifth grade, A.C. disclosed to her friend that her uncle did something "that she didn't like." In the context of A.C. also telling her friend that a different "long lost" uncle had raped her in a garage, and her father had rescued her, A.C.'s friend encouraged her to reveal the abuse to A.C.'s parents. A.C.'s father had apparently not ever rescued her from an unrelated assault; he testified at trial there had been no such incident involving a long lost relative. But A.C.'s friend affirmed at trial that she had counseled A.C. to report the abuse she was suffering, and A.C. did so within a few days.
In late January 2016, A.C. pulled her mother aside to go for a walk while the rest of the family was eating dinner at a shopping center. Crying, A.C. told her mother that Carranza had been touching her. The family drove home and A.C.'s father called his mother to report Carranza's actions; however, concerned they might lose the children, A.C.'s parents did not report the abuse to the police until a few days later. A police officer came to the house that night, and A.C. told him about the abuse. Both A.C. and P.C. subsequently spoke to a Child Abuse Services Team (CAST) social worker in separate videotaped interviews that were played for the jury.
The day after the interviews, the police arrested Carranza. After being read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, he spoke to detectives at the police station. He denied any abuse but admitted there were times when he played with the girls that he "might've popped a boner or something." When asked if it were possible that A.C. felt it, he responded, "Could've been." Carranza admitted he occasionally had erections around the girls. When they noticed and would ask, "what's that," he would tell them "don't worry about it, nothing."
Carranza conceded only that he might have "grazed" A.C.'s breast while hugging her. He claimed the girls were not allowed in his room. He admitted euphemistically that he "pitched a tent" or got an erection when playing with A.C., and he claimed she was curious about it, but he "just tried to push her off" and "get away." He claimed A.C. playfully swiped at his erection through his clothes. He denied he ever ejaculated on A.C. He admitted that three or four years earlier when he was watching the Playboy Channel in his room, A.C. walked in while when he was masturbating and he ejaculated into a towel.
On a recent visit, he was playing a game with P.C. in which they licked each other's cheek, which he suggested made A.C. jealous. He admitted he got an erection, and both girls climbed on top of him, but his mother entered the room and made them leave.
When the detectives told Carranza that A.C. was pregnant (she was not), he said he did not know how the baby could be his, but offered to help out however he could. He denied he had "done anything to her." He admitted the "five or six" occasions he had gotten an erection while playing with the girls were "slip ups," but claimed he stopped each time before things went any further, and that he would not "horse around" with them anymore.
In her trial testimony, A.C. recounted numerous acts of abuse. Among other acts, she testified Carranza often took her into his room alone, where he would touch her or have her touch him. The abuse began when she was four or five years old. The first time, Carranza woke her, led her into his room, took off her clothes, and showed her his penis. Once when she was six years old or older, Carranza, wearing only a shirt, turned her over and put his penis in her "butt." This happened on more than one occasion.
Another time, Carranza showed her a pornographic movie depicting oral sex, put his penis in her mouth, and made her drink something that came out of his penis, causing her to gag. Then he gave her Gatorade to drink. On other occasions, he would put "white stuff" from his penis on her stomach or back, which he would wipe off with a towel.
Carranza had been kissing A.C. on the mouth, sometimes using his tongue, since she was seven or eight years old. She estimated he had her orally copulate him beginning when she was eight years old, which continued until she was 10. When she was nine years old, Carranza put his fingers in her vagina, asking her if she liked it. When he put her hands on his penis, if she refused to move them, he would move her hands for her. On her 11th birthday, he told her he had a present for her. When she went into his room, he took off her pants and put his penis in her vagina, then inside her buttocks. The abuse continued until a final incident when he took her into his room, put his penis in her vagina and buttocks, touched her breasts and vagina, and made her kiss his mouth.
P.C. also testified at trial. Beginning in second grade and on more than one occasion, Carranza would lift her dress and touch her "private[s]." Other times he would take her into his room, pull down her pants, and "check [her] inside the private." He would place a pillow on her chest so she could not see what was happening, but she felt something hard touching her.
P.C. claimed Carranza "raped" her, by which she meant he abused her. He would touch her vagina under her clothing, moving his hand around. Sometimes he would touch her chest and her butt, both over and under her clothing. He would sit her on his lap, and she could feel his penis on her butt through his clothing. He would similarly seat A.C. on his lap. On one occasion when he was in bed next to A.C., he made her (P.C.) leave the room. P.C. initially denied abuse when her mother asked her about it, but later disclosed it because she did not want him to hurt her anymore.
A.C.'s and P.C.'s testimony did not differ substantially from their CAST interviews, which had been recorded nearly two years earlier. The jury convicted Carranza as noted above, and he now appeals.
DISCUSSION
1. Alleged Evidentiary Errors
A. CAST Interviews
Carranza argues A.C.'s and P.C.'s respective CAST interviews lacked the reliability necessary under Evidence Code section 1360 for the trial court to admit them. He also argues admission of the tapes violated his right to due process because it enabled the witnesses to—in effect—testify twice. Neither claim has merit.
Further statutory references in this subsection are to the Evidence Code.
In an in limine motion, Carranza sought to preclude the prosecutor from playing the CAST recordings at trial. Following a hearing, the trial court largely denied the motion, allowing the jury to view the videotapes after each girl testified. The court, however, granted Carranza's motion to redact interview statements related to the girls' older stepsister and A.C.'s statement that she thought she saw a gun in Carranza's room.
Carranza contends the CAST interviews should have been excluded because they were unreliable. Section 1360 provides for the admission of CAST interviews. It exempts from the hearsay rule statements of victims under age 12 describing child abuse if the court finds "the time, content and circumstances of the statement provide sufficient indicia of reliability" and the child either testifies or other evidence corroborates the statement describing the abuse. (In re Cindy L. (1997) 17 Cal.4th 15, 29 (Cindy L.).)
Evidence Code section 1360 provides in relevant part: "(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child."
Factors that may aid the trial court in assessing reliability include, but are not limited to, the spontaneity of the disclosure and whether the child consistently recounts the abuse; his or her mental state; use of terminology unexpected of a child of a similar age; lack of motive to fabricate; and the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity. (Cindy L., supra, 17 Cal.4th at pp. 29-30.) "'[A]ny factor bearing on reliability may be considered.'" (People v. Eccleston (2001) 89 Cal.App.4th 436, 445 (Eccleston).) A trial court has "broad discretion" in determining whether a party has established the foundational requirements for application of a hearsay exception. (People v. Martinez (2000) 22 Cal.4th 106, 120; People v. Pirwani (2004) 119 Cal.App.4th 770, 787.)
Here, Carranza asserts A.C.'s CAST statements were unreliable because they were not spontaneous since her interview occurred "a full nine days" after her first disclosure to her mother. Carranza observes that in the interim, A.C. spoke to others, including her aunt, mother, and P.C., and that the officer she gave her initial report to told her she was "brave." Carranza also observes that "while one might not typically assume" a girl "going on [age] 12" like A.C. "could describe the sexual acts she related . . . unless it had happened, reliability cannot be based on general assumptions of what pre-teens may or may not know . . . ." Carranza notes as an alternate source of A.C.'s sexual knowledge that she had walked in on him watching "porn," which he further implies she may have sought out because "[t]here is also something called the internet."
Carranza disagrees with the trial court's finding the girls' interviews showed no motive to fabricate because he argues the CAST interviewer "had no interest in finding out if there was [such a motive]," and instead simply "assumed the girls were telling the truth." Carranza argues the girls had ample reason to invent allegations where P.C. perceived intra-family strife in which Carranza "lied to my dad" and "betrayed our family." Carranza also argues that P.C. was "exposed to what A.C. was telling her," and that while some of P.C.'s allegations were different than her sister's, Carranza argues they "could easily have been confused for innocent conduct
The issue, however, was not whether there were apparent grounds to cross-examine the girls and argue Carranza's view of the facts to the jury, but rather the threshold issue of whether their statements had "sufficient indicia of reliability" (§ 1360) for the court to admit them. At the outset of their separate interviews, each girl demonstrated she knew the difference between the truth and a lie and each promised to tell the truth. Witness competency supports admission of the statements for the jury to consider. (Cindy L., supra, 17 Cal.4th at p. 30.)
The court found the girls' description of sex acts and "the mental state of the declarants" supported admission since their statements reflected first-hand experience rather than information derived from the Internet or other sources. The girls' statements also corroborated each other and were consistent with their testimony; A.C.'s statement was consistent with what she told her mother and the police interviewer; and the CAST interview appears to have been P.C.'s first disclosure. These factors reinforced the reliability of the girls' claims with overlapping consistency and spontaneity—subject to, as the court observed, the fact that they "will be available for cross-examination." In sum, the trial court did not abuse its discretion in admitting the CAST interviews.
We find no merit in Carranza's claim that admission of the interviews violated due process because it enabled his accusers to testify twice. As the court in Eccleston observed, section 1360 exceeds constitutional requirements for due process by requiring, in addition to indicia of reliability in the child's statements, that the child actually must testify or that his or her out-of-court statement must otherwise be corroborated. (Eccleston, supra, 89 Cal.App.4th at p. 449.) Due process does not require that the child testify (ibid.), but here both did. Hence, both were subject to cross-examination. There was no due process violation.
B. Inflammatory statements
Carranza contends the trial court erred by admitting particular statements A.C. made during her CAST interview, specifically that: (1) she pleaded to God to kill her; (2) she thought Carranza drugged her; and (3) she thought Carranza might touch her toddler cousin, O. Carranza contends these statements were irrelevant, inflammatory, and more prejudicial than probative, requiring exclusion under Evidence Code section 352 (hereafter section 352).
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Our high court has emphasized that "[e]vidence is not inadmissible under section 352 unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (People v. Holford (2012) 203 Cal.App.4th 155, 167, citing People v. Tran (2011) 51 Cal.4th 1040, 1047.) We review evidentiary rulings under the deferential abuse of discretion standard. (People v. Loza (2012) 207 Cal.App.4th 332, 345.) We review each of the challenged statements in turn.
First, when the CAST interviewer asked A.C. if she kept a journal, she responded that she did not, but indicated she wrote on a paper, "God please kill me because I didn't, I didn't tell my dad." A.C. said she burned the paper. Over Carranza's objection, the trial court found this evidence more probative than prejudicial because it reflected truthfulness in a plea to a higher authority. The court did not err in admitting the statement. It was brief and relevant to provide context to A.C.'s delayed disclosure of the molestations. The evidence was also relevant to demonstrate her helplessness and the secret nature of the crimes, two components of child sexual abuse accommodation syndrome, which we discuss more fully below.
Second, the court did not err in declining to exclude A.C.'s statement that she believed Carranza drugged her water because it made her dizzy and fall asleep. She felt Carranza touch her stomach and later awoke in her grandparents' room. Carranza was not charged with sexually assaulting an intoxicated person, but the court properly admitted the statement as evidence related to A.C.'s ability to perceive her surroundings and to explain the gap in her recollection when she awoke in another room. The statement corroborated A.C.'s other statements that Carranza touched her and that he often carried her from room to room. It was the jury's responsibility to determine her credibility.
Lastly, the court properly admitted A.C.'s statement that she disclosed Carranza's abuse to her mother so he would not touch her cousin O. The statement explained A.C.'s delayed disclosure and addressed Carranza's claim A.C. fabricated her claim of abuse to impress a new friend at a new school. As the prosecutor argued, this brief statement explained that A.C. only disclosed the fact she was being molested because she did not want it to happen to someone else. The court did not err in leaving the parties' competing factual explanations for the jury to evaluate.
C. CSAAS Evidence and Corresponding Jury Instruction
Carranza contends the trial court abused its discretion by failing to limit the testimony of the prosecution's child sexual abuse accommodation syndrome (CSAAS) expert, Dr. Jody Ward. He also argues the standard CSAAS instruction the trial court gave the jury, CALCRIM No. 1193, violates due process because it authorizes an inference of guilt from CSAAS testimony. Neither argument has merit.
Carranza contends Ward exceeded the bounds of permissible CSAAS testimony, and the court therefore erred by failing sua sponte to exclude the testimony at trial. We review a trial court's decision to admit or exclude expert CSAAS testimony for abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
Ward's testimony was brief. She testified that CSAAS is a pattern of behaviors exhibited by some children who report having been sexually abused. She explained that recognizing the behaviors can help therapists and lay persons understand that children may sometimes respond to sexual abuse in unexpected ways. Those behaviors may include secrecy, helplessness, entrapment and accommodation, delayed or halting disclosure, and retraction or recantation.
Ward explained that CSAAS cannot be used to diagnose whether sexual abuse occurred. She testified she knew nothing about the specifics of the case, had not reviewed any case-specific material or spoken to anyone involved, and was unaware of the charges or allegations against Carranza. She gave no opinion on his guilt or innocence.
Before trial, Carranza had filed a motion to preclude CSAAS testimony, which the trial court overruled. The court explained Ward's testimony would be admissible "solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." At trial, Carranza did not renew or otherwise assert any objection to Carranza's testimony.
In People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), one of the first cases to consider CSAAS testimony, the court emphasized, "It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter—given the current state of scientific knowledge—clearly is not." (Id. at p. 393.)
In Bowker, the psychologist's testimony overstepped these bounds because it "was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed." (Bowker, supra, 203 Cal.App.3d at p. 394.) There, "the picture painted by [the psychologist] happened to be of the two children in the case," exemplified by direct overlap between details like the child being removed from the parental home based on sex abuse allegations and the psychologist suggesting that child sex abuse victims may ask questions like, "'Why are they taking me away from my mom?'" (Ibid.) The expert spoke of the alleged child victims in the case as if he knew they had been abused, stating "how frightening it was 'for a child to come into this courtroom, and I know they have to, and tell their story.'" (Ibid., original italics.) Against this backdrop, the Bowker court observed that, "by delineating each stage of the CSAAS theory, [the expert] constructed a 'scientific' framework into which the jury could pigeonhole the facts of the case. Thus, even though [the psychologist] was precluded from using CSAAS as a predictor of child abuse, the jury was free to superimpose these children on the same theory and conclude abuse had occurred." (Id. at p. 395.)
Other courts have suggested CSAAS evidence must address itself to a specific myth or misconception rooted in the case; for instance, that sexual abuse of a child is so transgressive it would immediately be reported if it actually occurred. In such cases, CSAAS testimony properly explains that delayed reporting is not necessarily inconsistent with the secretive environment often created by abusers who occupy a position of trust. (See, e.g., People v. Housley (1992) 6 Cal.App.4th 947, 955.)
Nevertheless, "[i]dentifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) Moreover, there is a tension between guidelines suggesting CSAAS testimony should be tailored to rebut specific myths or misconceptions rooted in the case and the concern expressed in Bowker that at point-by-point overlap in the victim's allegations and the CSAAS testimony invites misuse of the testimony.
Here, Carranza argues the overlap was too complete, based on Ward's testimony that, of children who are sexually abused, 90 percent of the abuse is by family members; children may fall prey to abuse "very easily" where there is a power differential between the victim and the abuser; children may keep abuse secret for long periods of time; it may appear to outsiders there is nothing unusual going on; and children may forget details or experience inconsistent memory recall "as a way of coping" with the abuse.
This generic CSAAS testimony was proper. In our view, it does not trigger the concerns in Bowker about case-specific details like a child's removal from the home prompting the jury to regard CSAAS as a predictor of child abuse. Ward's testimony did not amount to declaring "in effect [that] regardless how inconsistent a child's accounts of abuse are, abused children give inconsistent accounts and are credible nonetheless." (Bowker, supra, 203 Cal.App.3d at p. 394.) To the contrary, when asked on cross-examination whether "false allegations can occur in sexual abuse cases," she answered, "Of course," and further testified that children lie and can be susceptible to "a false memory that never occurred."
We note that defense counsel did not object to any question or answer during Ward's testimony, which undermines Carranza's suggestion on appeal that an observer at trial—the jurors— would conclude Ward was implicitly testifying about Carranza. Ward testified she had not done any investigation in the case, did not "know anything about [it]," even "the case name," or whether the alleged victims were male or female. Instead she was present only to explain CSAAS based on her education and training. Viewed as a whole, Ward's testimony properly informed the jury of circumstances in which an abuse victim's reactions may not be inconsistent with abuse, but left the question of whether abuse occurred to the jury. We find nothing about Ward's testimony that would place it on par with the psychologist's testimony in Bowker.
The same is true for Carranza's challenge to CALCRIM No. 1193. He argues the instruction misstated the law by permitting the jury to use CSAAS testimony to infer his guilt. We review de novo whether an instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The court instructed the jury with CALCRIM No. 1193, as follows: "You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward's testimony about child sexual abuse accommodation syndrome 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 [P.C.] and/or [A.C.]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (their) testimony."
Carranza argues that "to instruct jurors they can use CSAAS testimony to determine the child's 'believability' is telling them they can use it to 'determine whether the victim's molestation claim is true,' which is precisely what Bowker teaches the testimony cannot be used for." (Carranza's italics.) Carranza conflates credibility evidence and evidence of guilt. They are related, but not the same thing. CSAAS evidence is not evidence of guilt because it does not provide a basis for conviction if no child witness testified. Dr. Ward's testimony highlighted this distinction when she acknowledged she knew nothing about the particulars of the case. Thus, the trial court properly instructed the jury in CALCRIM No. 1193 that "Ward's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him)."
The Supreme Court has recognized the distinction Carranza fails to make. In McAlpin, the high court explained that CSAAS evidence regarding typical reactions children may have to abuse, including initially denying the abuse or delay in reporting the abuse, "is not admissible to prove that the complaining witness has in fact been sexually abused," but "it is admissible to rehabilitate such witness's credibility." (McAlpin, supra, 53 Cal.3d at p. 1300.) The trial court and its instructions respected this distinction. Carranza's challenge therefore fails.
D. Cross-examination
Before trial, the prosecution sought to exclude evidence that after disclosing Carranza's conduct, A.C. reported that her father hit her. At a pretrial hearing, Carranza's counsel argued the evidence was relevant to show A.C. made allegations that were investigated and deemed unfounded. Carranza argued the accusation demonstrated "a pattern of her conduct and a pattern of her making false statements." The prosecutor disagreed with the defense characterization that the allegation was determined not to be true, while also observing that in the wake of her accusation there were "a lot of dynamics in this family and [a] lot of pain and suffering." The trial court excluded the evidence under Evidence Code section 352, finding it was more prejudicial than probative and that delving into it would involve an undue consumption of time.
The court did not abuse its discretion. Evidence is unduly prejudicial where it tends "to evoke an emotional bias against a party because of extraneous factors unrelated to the issues." (People v. Cortez (2016) 63 Cal.4th 101, 128.) Here, evidence that A.C. may have accused her father of physical abuse was tangential and, as the prosecutor indicated, would have resulted in a time consuming mini-trial.
Similarly, the trial court properly excluded evidence that A.C. allegedly told a friend her father used an ax on a supposed attacker. The jury learned that A.C. told her friend that she had been raped in her garage by a long lost uncle, a fact that her father testified was false. On cross-examination, A.C. denied telling her friend she was raped in a garage by a long lost uncle. A.C.'s friend, however, subsequently testified that A.C. told her a "long lost" uncle had raped her in the garage, she screamed, and A.C.'s father came out and stopped it. When called as a defense witness, A.C.'s father testified that this event never occurred. A.C.'s testimony was thus impeached by that of her own father. That A.C. also allegedly stated her father used an ax in repelling the attack would have added nothing of significant value to that impeachment. There was no error in excluding this detail.
Nor did the trial court err in excluding evidence concerning whether the girls' father asked his mother if he could use Carranza's truck, which was parked at the mother's house, after Carranza was arrested. Carranza asserts this information was necessary to impeach the girls' father by demonstrating his bias. This bias, Carranza argues, led the father to fabricate his mother's statement, soon after A.C. first disclosed the abuse, that, "If you want this [i.e., the abuse] to stop, don't bring the girls around." Carranza suggests his brother put these words in their mother's mouth to retaliate against her for rebuffing his request to use Carranza's truck.
This alleged exchange, however, was duplicative of the evidence the trial court admitted to show a rift arose between the girls' parents and Carranza's mother after A.C. disclosed the alleged abuse. Carranza's mother testified the girls did not come to her house anymore following an "incident" at a family gathering at her home. Exclusion of evidence about a request to use a pickup truck did not infringe Carranza's confrontation rights. Even assuming error for the sake of argument, it cannot reasonably be said to have resulted in a "manifest miscarriage of justice" affecting the outcome of the trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) It therefore creates no basis for reversal.
E. Involuntary Statements
Finally, in the last of his challenges to the court's evidentiary rulings, Carranza renews his pretrial claim that his statements made to police officers following his arrest were involuntary. He claims he was coerced into responding to the detectives by their implicit promises of leniency as they implored him to tell the truth so he could "move on" in repairing his relationship with family. The trial court held an Evidence Code section 402 hearing at which one of the interrogating officers testified. The court also reviewed a transcript of the interview before it rejected Carranza's claim.
"It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it 'was "'extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight . . . .'"' [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.'" (People v. Neal (2003) 31 Cal.4th 63, 79.) We independently review questions concerning coercion and voluntariness, but defer to the trial court's findings of fact, if any. (People v. Holloway (2004) 33 Cal.4th 96, 114.)
"In general, "'any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law.'" [Citations.] In identifying the circumstances under which this rule applies, we have made clear that investigating officers are not precluded from discussing any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." (People v. Ray (1996) 13 Cal.4th 313, 339-340.) "[M]erely advising a suspect that it would be better to tell the truth, when unaccompanied by either a threat or a promise, does not render a confession involuntary." (People v. Davis (2009) 46 Cal.4th 539, 600.)
Here, Carranza faults the detectives for repeatedly describing his conduct as a "mistake" that he needed to "face" so that he could "move on." The officers told Carranza they wanted to hear his side of the story and if it was a "one-time mistake, you guys can move on" and "start fixing your relationship." Being "upfront" would enable "you guys" to move past what happened. Once the interview was over, Carranza could talk to his brother to "get it off [his] chest." Later in the interview, one detective said, "[S]ometimes you just got to let it out. Once you let it out it's done, it's over with, clear conscience, you move on and you start the healing process with the family. You know, everybody understands. Your parents know you're a good guy, your brother knows you're a good guy, your nieces and nephews know you're a good guy. You know, it's not like you're getting arrested every other week."
The detectives' suggestion that disclosure would enable Carranza to "move on" in an unspecified manner did not render his statements involuntary. Interrogation tactics which are impermissibly coercive include promises of a legal benefit and implied suggestions "of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one . . . ." (People v. Hill (1967) 66 Cal.2d 536, 549.)
An officer's "comment that it would 'behoove' [defendant] to disclose what he knew about [a] murder and that this was his 'last chance' to come forward does not amount to coercion." (United States v. Gamez (9th Cir. 2002) 301 F.3d 1138, 1144.) Nor does moral persuasion. Officers may "describe the moral or psychological advantages to the accused of telling the truth." (People v. Carrington (2009) 47 Cal.4th 145, 172 (Carrington).) For example, a detective's remark that "'it's about time you got this off your chest'" does not constitute an implied promise of a benefit beyond the psychological relief that would naturally flow from telling the truth. (People v. Spears (1991) 228 Cal.App.3d 1, 22, 27.)
Law enforcement officers may apply moral and psychological pressures (Oregon v. Elstad (1985) 470 U.S. 298, 304-305), including advising the suspect to tell the truth. (People v. Green (1987) 189 Cal.App.3d 685, 694.) As our Supreme Court has observed, "'The compulsion to confess wrong has deep psychological roots, and while confession may bring legal disabilities it also brings great psychological relief.'" (Carrington, supra, 47 Cal.4th at p. 176.) Nothing the officers said here suggested Carranza would be immune from legal consequences if he told the truth, only that he could begin to repair his relationship with his family. In any event, during his interview, Carranza made only minimal disclosures of behavior he seemed to believe was innocuous. The record does not reflect that his statements were involuntary.
2. Alleged Instructional Error Regarding Adoptive Admissions
Carranza argues the trial court erred by providing the jury an instruction regarding adoptive admissions (CALCRIM No. 357) because no reasonable juror could regard his responses to police accusations during his interview as adoptive admissions. Instead, he argues that uttering "uh-huh" or "right" as the officers detailed accusations against him could only be viewed as "'feedback markers, words that acknowledge one is listening, or, on occasion, that one is understanding so far.'"
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case, that is, "'"'those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 115.) But "[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
The Attorney General argues that by failing to object to the court instructing the jury on adoptive admissions, Carranza forfeited the challenge he now asserts. We address the issue because a defendant is entitled to appellate review of trial court instructions affecting his or her "substantial rights," even in the absence of an objection below (§ 1259).
The trial court instructed the jury with CALCRIM No. 357, as follows: "If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; AND [¶] 4. The defendant could have denied it but did not." (Italics added.)
The instruction concluded, "If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose."
The flaw in Carranza's argument is evident in the wording of the instruction. Carranza argues that, "[i]n the context of continuing conversation," the "feedback markers" he uttered "do not signal agreement or even knowledge of the event being described, and certainly not with sufficient certainty to constitute an 'adoptive admission' of what is being said." He asserts such utterances "are very much a part of . . . conversational habits which all of us use."
But the principle behind the hearsay exception for adoptive admissions (Evid. Code, § 1221) and the corresponding jury instruction (CALCRIM No. 357) is broader than the "Adoptive Admissions" name. It does not actually require affirmative admission, agreement, or adoption of a statement. Instead, "'[t]he theory underlying this rule is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.'" (People v. Wilson (1965) 238 Cal.App.2d 447, 457, italics added.) Thus, even if Carranza only intended his "right" and "uh-huh" statements as "feedback markers," in the absence of immediate denial of the accusations, it was for the jury to decide whether '"[h]is silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence."' (People v. Riel (2000) 22 Cal.4th 1153, 1189.) In giving CALCRIM No. 357, the trial court properly left this determination to the jury. There was no instructional error.
3. Sufficiency of the Evidence
Carranza challenges the sufficiency of the evidence to support his conviction on counts 10, 12, and 13. We address each count in turn.
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Solomon (2010) 49 Cal.4th 792, 811.) It is the trier of fact's exclusive province to assess witness credibility and to weigh and resolve conflicts in the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Consequently, an appellant "bears an enormous burden" in challenging the sufficiency of the evidence. (Ibid.) Carranza fails to meet that burden here.
Carranza contends the evidence does not support his conviction in count 10 for sexual intercourse with a minor who was 10 years old or younger. (§ 288.7, subd. (a).) The prosecutor clarified for the jury that this count was distinct from count 11, which was based on A.C.'s allegation Carranza had sex with her shortly before his arrest, when she was 11 years old.
Carranza premises his challenge on his interpretation of A.C.'s statements in her CAST interview, which he characterizes as "too confusing, conflicting and ambiguous" to constitute substantial evidence. He argues the evidence "only established the conduct while she was 11, not while she was 10 or younger." Not so.
A.C. in her CAST interview told Ball, the social worker, that Carranza "put his thing . . . inside here," referring to her vagina, when "I was 11." Although A.C. changed subjects several times, Ball steered her back to the abuse and questioned whether Carranza inserted his "thing in your vagina" more than once. A.C. responded, "like at least three times." When Ball asked how old A.C. was "the very, very first time," A.C. answered that she was "about eight years old."
Carranza argues that by inquiring about the "very, very first time" intercourse occurred after A.C. already had described the "awful thing" he did when she was 11 years old, Ball prompted A.C. to give an earlier age than age 11. He observes that A.C. testified at trial she was "not sure" how old she was when Carranza first attempted intercourse with her, could not remember what grade she was in, and did not remember telling the social worker she was eight at the time.
The jury, however, resolved these challenges against Carranza. It is the jury that must be convinced of guilt beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Crittenden (1994) 9 Cal.4th 83, 139.) Its verdicts demonstrate that it was. We will not second-guess the jury's decision to credit A.C.'s statement in her CAST interview that she was younger than 10 years old when Carranza began having intercourse with her.
Carranza's challenge to his conviction on counts 12 and 13 similarly fails. These counts were for, respectively, oral copulation and sexual penetration of a child 10 years old or younger. (§ 288.7, subd. (b).) The prosecutor explained that count 12 arose when Carranza placed Vaseline on A.C.'s vagina and licked it, as A.C. described in her CAST interview and trial testimony. Count 13 arose when Carranza placed his fingers in A.C.'s vagina when she was nine years old, which A.C. recounted in her trial testimony and CAST interview.
Carranza highlights what he argues are weaknesses in A.C.'s CAST interview and trial testimony. He observes that in her CAST interview, A.C. "had said not a word to Ball about appellant licking her genitals or digitally penetrating her throughout the entire interview up until the break, which took place near the end." (Our italics.) Carranza contends that after Ball left the room to speak with detectives, she returned to discuss the "last time" with A.C., which Carranza interprets to mean Carranza's last sexual contact with her when she was 11 years old. In response to this questioning, A.C. asserted for the first time that Carranza put Vaseline on her vagina and then licked and digitally penetrated her. A.C. then told Ball that Carranza had been using his tongue on her "[s]ince I was 10. [¶] . . . [¶] So basically one year." Carranza emphasizes that this was inconsistent with A.C.'s trial testimony that oral copulation only occurred "one time," which, as noted, Carranza infers was when she was 11 years old.
Carranza also suggests that when testifying at trial about alleged oral copulation and digital penetration, A.C. gave her age as 10 or under only in response to the prosecutor's leading questions. He suggests it cannot be determined with certainty whether any sex acts occurred when she was younger than 11 years old. Again, however, it was the jury's job to weigh A.C.'s testimony. As respondent observes, "The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.) Substantial evidence supports the convictions.
4. Cruel and Unusual Punishment
Finally, Carranza contends his sentence of 145 years to life violates the state and federal constitutions because requiring him "to serve a term double that of his life expectancy" "makes no measurable contribution to acceptable goals of punishment." (Quoting Coker v. Georgia (1977) 433 U.S. 584, 592 (Coker).) Carranza invokes the late Justice Stanley Mosk's conclusion that "a sentence that on its face is impossible for a human being to serve is per se 'cruel or unusual' punishment under our state constitution and 'cruel and unusual' punishment under the Eighth Amendment to the United States Constitution." (Mosk, State's Rights—and Wrongs (1997) 72 N.Y.U. L.Rev. 552, 558.)
Whatever visceral appeal Justice Mosk's position may have, our Supreme Court has never adopted it. (See People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.); People v. Hicks (1993) 6 Cal.4th 784, 797-800 (dis. opn. of Mosk, J.).) Under the federal constitution, Coker is distinguishable because it involved the death penalty for rape—a disproportionality evident on its face in taking the defendant's life though he had taken none. As the high court has observed, in sentencing matters "death is different." (Gregg v. Georgia (1976) 428 U.S. 153, 188.)
In non-capital cases, judicial invalidation of sentences for a term of years "occur[s] with exquisite rarity in the case law." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) They are so rare because, "in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments." (In re Lynch (1972) 8 Cal.3d 410, 414.) Carranza focuses on the staggering number of years he faces. But the high court has upheld lengthy sentences for less serious offenses. (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [consecutive 25-years-to-life sentences for third strike petty theft of videotapes not invalid]; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [life without parole sentence for possessing 672 grams of cocaine found not to be cruel and unusual].)
Carranza incorrectly asserts there can be no valid penological purpose in the imposition of a sentence "a human being cannot conceivably complete." A sentence to a term of years exceeding a person's likely life span is, effectively, a life sentence without the possibility of parole. Although not common, such sentences are today not especially rare. Nor are they automatically suspect. Retribution, deterrence, and lifetime incapacitation are legitimate penal objectives. (See In re Nunez (2009) 173 Cal.App.4th 709, 730.)
The fact that a person commits multiple, heinous crimes resulting in a de facto life sentence does not by itself implicate constitutional concerns. For instance, a prison sentence exceeding 283 years, nearly twice as long as the sentence at issue here, for multiple rape and other sexual offenses was not cruel and unusual punishment in People v. Wallace (1993) 14 Cal.App.4th 651, 666.
Carranza suggests any sentence that cannot be served in its entirety is necessarily devoid of deterrent effect. He insists, "The deterrent value of punishment lies in the defendant's fear of future punishment for committing other crimes, which a life sentence renders moot." We disagree. A de facto life sentence incapacitates the defendant from ever again victimizing society and may also send a deterrent message. Both of these have been recognized as valid penological objectives. (People v. Mesce (1997) 52 Cal.App.4th 618, 632.) Consequently, Carranza's facial challenge to imposition of a sentence longer than his remaining lifespan fails under existing law.
We note that Carranza below also raised an as-applied challenge to his sentence based on his unspecified "redeeming qualities." But the thrust of his argument here is aimed at a categorical bar on longer-than-life sentences. On this record, there is no basis to suggest Carranza was immature emotionally or intellectually (see, e.g., People v. Dillon (1983) 34 Cal.3d 441, 482-483), or otherwise so lacking in culpability to compel finding his sentence constitutionally infirm as to him personally. Because his appellate argument focuses on his per se attack on sentences exceeding human life expectancy, we confine our holding to that challenge. We find no merit in appellant's argument.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.