Opinion
A143582
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RHOAN LUNA LAYUG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC077381A)
Defendant Rhoan Luna Layug was convicted of the sexual molestation of his cousin, K., a middle school student. The molestation first came to light when defendant was seen sitting next to K. in the back seat of a car while K.'s pants were unzipped. K. later told his brother defendant had molested him several times over an extended period of time, and K. recounted the molestation at trial.
Defendant contends the trial court erred (1) in allowing the prosecutor to elicit under the fresh complaint doctrine testimony from K.'s brother about K.'s description of the molestation, (2) in permitting testimony by a psychiatrist with respect to the child sexual abuse accommodation syndrome, and (3) in admitting improper character testimony about both K. and defendant. We affirm.
I. BACKGROUND
In this section, we present the general factual background for the issues defendant raises on appeal. Additional facts relating to the specific claims are recounted in the discussion of those claims.
In an amended information filed on August 20, 2014, defendant was charged with one count of aggravated sexual assault of a child by means of oral copulation (Pen. Code, § 269, subd. (a)(4)), three counts of forcible oral copulation of a child (id., § 288a, subd. (c)(2)(B)), and four counts of committing a lewd and lascivious act on a child under the age of 14 years (id., § 288, subd. (a)). With respect to three of the counts under section 288, it was alleged that the sexual contact was substantial.
The matter was first tried in January 2014 under a complaint having 10 counts. After the jury was unable to reach a verdict on nine of those counts, a mistrial was declared. Retrial under the amended information occurred the following August.
K. was between 10 and 12 years old and in the sixth and seventh grades at the time of the alleged sexual assaults. Defendant, K.'s cousin, was in his early 30's. K.'s grandmother, who is also the great-aunt of defendant, testified that from November 2011 through January 2012, during K.'s sixth grade school year, K. and defendant were frequently together at her home. Somewhat later, on a night in November 2012, she was riding in a minivan during a family outing. She was in the middle row, behind K.'s parents, while K. and defendant were in the third row. During the ride, K.'s grandmother noticed that he and defendant were not talking. When she turned around, she saw K.'s pants zipper was down. Although it is not entirely clear from the grandmother's description how defendant's hands were positioned, their position or movement caused her to believe he was having sexual contact with K. When, soon after, she asked K. privately what had happened, K. told her, " 'He touch[ed] me.' "
K. testified that he first came to know defendant well when he was in the sixth grade. That year, K. would stay at his grandmother's house after school, and defendant was sometimes there as well. While K. was in a bedroom doing homework one day, defendant came into the room, persuaded K. to get under the covers of the bed, and forced K. to orally copulate him. As K. described it, defendant put his hand on the back of K.'s head, pushed it toward his penis, and then pushed K.'s head up and down on the penis. Defendant also touched K.'s penis under his clothing. Although K. tried to resist, defendant was "bigger." K. described a series of other, similar assaults by defendant that occurred over a period of time. K. confirmed that, at the time of the incident described by his grandmother, defendant had been fondling K.'s genitals under his clothing.
In addition to the assaults by defendant, K. described a single sexual encounter with an uncle. One day while the pair were lying on the bed in K.'s grandmother's house, K. touched the uncle's pants in the area of his penis. The uncle "went along with it," pulling down his own pants and allowing K. to orally copulate him. According to K., he "thought [he] knew it was right" and had "learn[ed it] from the Defendant." By the time of trial, the uncle had admitted the conduct and pleaded guilty to associated criminal charges.
K.'s older brother testified that his parents told him about the incident in the vehicle and asked him to speak with K. About a week after the incident, K.'s brother took K. aside after breakfast and, in private, told him "that we needed to know everything that had happened between him and the Defendant." During the conversation, K. was "very scared, very nervous," and there was "very little eye contact." K. told him, "using as little words as possible," that defendant had "forced [K.'s] head onto [defendant's] own private parts." The prosecutor asked the brother about various details of the conversation, confirming the brother had no doubt K. was referring to defendant and exploring the exact words used by K. As the brother testified, K. said, " 'He forced my head,' " and described his head being pushed toward defendant's penis, with "the palm open," echoing K.'s testimony. The brother clarified with K. that this had happened "multiple" times. In response to the prosecutor's question, the brother said that oral copulation was "the only type of action" to which K. referred. During cross-examination, K.'s brother added that K. indicated the molestation had "been going on for a while."
K. testified that he also told his parents about the molestation, but there was no testimony to that effect by the parents.
Defendant testified at length, denying K.'s claims of molestation.
The jury convicted defendant on all counts and the allegations of substantial sexual contact were found true. He was sentenced to a total term of 33 years to life in prison.
II. DISCUSSION
Defendant contends (1) the trial court erred in allowing the prosecutor to question K.'s brother about the details of the sexual conduct revealed by K. during their conversation, (2) an expert on child sexual abuse accommodation syndrome was improperly questioned about the particular facts of this case, and (3) the prosecution was erroneously permitted to introduce character evidence regarding K. and defendant. A. K.'s Brother's Testimony
Prior to the commencement of trial, the prosecutor asked the trial court to admit the testimony of K.'s brother under the fresh complaint doctrine. Defense counsel argued K.'s disclosure did not qualify under that doctrine because it was made some four months after the last molestation charged, with the exception of the incident in the vehicle. The prosecutor responded that a complaint need not be made soon after the alleged sexual assault to qualify under the doctrine. The trial court allowed the testimony. At the time, defense counsel made no request to limit the scope of the brother's testimony in any manner, nor were any relevant objections made to the brother's testimony during trial.
On appeal, defendant does not appear to dispute the fresh complaint doctrine was properly invoked to permit the introduction of evidence that K. told his brother about the assaults, but he contends that the trial court improperly permitted the brother to provide details from K.'s description of the assaults.
To the extent defendant does challenge the applicability of the fresh complaint doctrine, we find no merit to the claim. As noted below, the circumstances surrounding K.'s complaint to his brother are materially indistinguishable from those in the leading Supreme Court case, in which such testimony was found admissible.
The leading case governing the fresh complaint doctrine is People v. Brown (1994) 8 Cal.4th 746 (Brown). The circumstances in Brown were materially indistinguishable from those here. A child was alleged to have been sexually assaulted by her mother's boyfriend on repeated occasions over an extended period of time. The victim told no one about the assaults until after the boyfriend ceased living with her family, at which time she told a young friend. (Id. at pp. 750-751.) For reasons that are not explained in the record, an adult friend of the victim spoke with the victim two to three months later, painstakingly coaxing a description of the abuse from the reluctant victim over the course of a long conversation. (Id. at pp. 751-752.) Under the fresh complaint doctrine, the trial court admitted evidence of the circumstances of the victim's conversation with her adult friend, but there was no testimony about the victim's description of the alleged assaults. (Id. at pp. 751-753.)
The Supreme Court accepted review in Brown to consider the continued viability of the fresh complaint doctrine. The court noted the long-accepted justification for the doctrine, the belief sexual assault victims would naturally complain about such an assault, had been discredited by studies of the behavior of such victims. (Brown, supra, 8 Cal.4th at p. 758.) Nonetheless, the court reasoned, exclusion of evidence of such reports as hearsay could lead jurors to the mistaken inference no report had been made, which some jurors might see as an indication the assault had not actually occurred. In order to prevent such a mistaken assumption, the court held, evidence that a sexual assault was reported could be admitted for the limited nonhearsay purpose of demonstrating that the victim had, indeed, told others about the alleged assault. (Id. at pp. 760-761.) At the same time, the court recognized, the hearsay rule would be violated if the jury relied on the victim's statements about the assault, provided during the complaint, as proof of the nature of the assault. (Id. at p. 760.) Accordingly, evidence admitted under the fresh complaint doctrine must be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose." (Id. at p. 762.) "Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault." (Id. at p. 763.)
Brown also held, consistent with the trial court's ruling admitting the testimony of K.'s brother, that a report of sexual assault need not be spontaneous or occur close in time to the assault to qualify under the doctrine. (Brown, supra, 8 Cal.4th at p. 763.)
While we are inclined to agree with defendant that the testimony at trial exceeded the limits on incident detail imposed by Brown, we need not resolve the issue because defendant failed to attempt, through in limine motion or contemporaneous objection, to limit the brother's testimony in this regard. Any claim of error is therefore forfeited. (E.g., People v. Simon (2016) 1 Cal.5th 98, 139 (Simon) [defendant forfeited claim of improper admission of evidence by failing to object at trial].)
Defendant asks us to exercise our discretion to consider this and other forfeited claims of error, but we decline to do so. These are not questions of law, but issues of discretion that should have been addressed in the first instance to the trial court. We find nothing to suggest that objection would have been futile with respect to these claims of error. --------
Alternatively, defendant contends trial counsel's failure to object constituted ineffective assistance of counsel. "To prevail on [a claim of ineffective assistance due to the failure to object at trial], defendant must show both: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. [Citations.] To establish prejudice, defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. [Citations.] A reasonable probability is ' "a probability sufficient to undermine confidence in the outcome." ' " (People v. Davis (2005) 36 Cal.4th 510, 551 (Davis).)
We need not consider whether counsel's performance was deficient because we find no reasonable probability of a different result if the trial court had excluded details of the sexual assault from the brother's testimony. The primary concern of Brown, that testimony about the nature of the sexual assault could be used for hearsay purposes, was of limited concern here, since K.'s account to his brother was not materially different from his own testimony at trial. The same evidence provided as hearsay in the brother's testimony was eventually admitted in admissible form. For the same reason, the details were not intrinsically prejudicial. They merely reflected the testimony provided as direct evidence by K. Although the brother's account did provide corroboration for K.'s testimony, the same is true of any testimony properly admitted under the fresh complaint doctrine, regardless of whether express testimony about the nature of the assault is allowed. If the content of the victim's complaint did not generally reflect the victim's account at trial of the assault, the complaint could be excluded as irrelevant or would be subject to cross-examination about the discrepancies. (See Brown, supra, 8 Cal.4th at p. 762.) In the absence of such cross-examination, the jury would naturally assume the account provided by the victim at the time of the complaint was generally consistent with his or her account at trial. In addition, of course, other corroborating testimony was introduced, such as K.'s grandmother's observations in the vehicle and K.'s confirmation to his grandmother that defendant had " 'touch[ed]' " him. For these reasons, we do not believe that excluding the detail from the brother's testimony was likely to have changed the outcome of the trial.
Defendant relies on People v. Loy (2011) 52 Cal.4th 46 in arguing for prejudice, but that case is readily distinguished. In Loy, the fresh complaint was made by a victim who did not testify at trial, having been found dead about a week after making the complaint. (Id. at pp. 53-54.) The third party testimony, which detailed the victim's claim of having been sexually assaulted by the defendant in the weeks preceding her death, was therefore the only evidence supporting the defendant's conviction on certain of the charges. Its use for hearsay purposes was therefore unmistakable. Further, the trial court expressly instructed the jury it could use the third party testimony for the truth of the matter asserted. Consistent with Brown, the Supreme Court held that, under these circumstances, the fresh complaint doctrine could not be used to justify admission of the testimony. (Loy, at p. 65.) In this case, K.'s brother's testimony was not the only evidence supporting defendant's convictions, and the jury was not instructed it could use his testimony for hearsay purposes. B. The Expert Testimony
In its case-in-chief, the prosecution presented testimony by Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome (CSAAS). As Dr. Urquiza described it, CSAAS is a series of factors that often characterize the response of children to sexual abuse, including secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation. Throughout Dr. Urquiza's testimony about CSAAS, the prosecutor, apparently seeking to avoid a direct reference to K.'s testimony, periodically asked questions involving a "hypothetical" 12-year-old boy whose circumstances reflected those of K. Following the doctor's explanation of helplessness, for example, the prosecutor hypothesized a 12-year-old boy who was taught to respect his elders and asked, "how would that play into potentially a response or the lack of a response?" Dr. Urquiza responded generally, stating that the more the child perceives the perpetrator as having power and control, the more likely the child's behavior will be consistent with CSAAS. Following the doctor's explanation of entrapment and accommodation, the prosecutor, again referring to the hypothetical 12 year old, asked whether it ever happened that, following an initially coercive encounter, a child would cooperate in later incidents without coercion. Dr. Urquiza responded generally that, the child has "to go along with it," since he or she has no other choice. Other similar questions followed, in which the prosecutor cited circumstances presented by K.'s testimony and asked, in effect, whether Dr. Urquiza was familiar with victims of child abuse who responded as K. did. Included among the other circumstances were acting out with a different adult, an inaccurate initial disclosure, a subsequent confession of cooperation with the perpetrator, and others. Each time, the doctor responded generally that the circumstances were not uncommon among victims of child abuse, at times using the question as a premise for expanding upon various aspects of CSAAS.
The prosecutor's final question on direct asked Dr. Urquiza whether he was "here to provide an opinion as to whether or not the hypothetical child that we have been discussing was, in fact, sexually abused or not?" The doctor responded, "No, that would be inappropriate. . . . I don't have any information about this case. But even if I did have information about this case, it would be inappropriate for an expert witness, myself, to have any opinion as to whether a child was abused or not . . . ." In cross-examination, Dr. Urquiza expanded on this response, acknowledging that CSAAS "should never be used to prove that a child has been molested or not" and agreeing with defense counsel's suggestion that "[CSAAS] is presented here to dispel the jurors' preconceived notions of what a child may or may not do if that child has been a victim of molestation." Defense counsel's thorough cross-examination focused on dispelling any impression that a child's conformance with the syndrome was probative of sexual abuse.
In closing argument, the prosecutor repeatedly cited Dr. Urquiza's testimony about CSAAS in an effort to demonstrate that conduct by K. that might appear inconsistent with sexual abuse—for example, K.'s failure to resist, his delayed and conflicting accounts of the abuse, his failure to recall details, and his continued cordial relationship with defendant throughout the period of abuse—was actually common among children who have been abused.
Trial counsel did not object to Dr. Urquiza's testimony generally, to any of the prosecutor's hypothetical questions, or to his references to CSAAS in the closing argument.
Defendant contends the CSAAS testimony was improperly admitted, the prosecutor asked improper hypothetical questions of Dr. Urquiza, and the prosecutor committed misconduct during closing argument by suggesting the CSAAS testimony supported K.'s testimony that he was abused.
These claims have been forfeited. As discussed above, a defendant must challenge the admission of evidence at trial in order to preserve the claim on appeal. (E.g., Simon, supra, 1 Cal.5th at p. 139.) Similarly, a defendant must register a contemporaneous objection to alleged prosecutorial misconduct to raise the issue on appeal. (People v. Covarrubias (2016) 1 Cal.5th 838, 893.) Because no objections were made, these claims have been forfeited.
Defendant claims the failure to object constituted ineffective assistance of counsel. Because, as discussed below, we find no impropriety in the evidence, examination, or argument, defense counsel's failure to object could not have constituted ineffective assistance.
To judge from the many reported decisions, CSAAS testimony is fairly common in child sexual abuse trials. As the applicable law was summarized in People v. Sandoval (2008) 164 Cal.App.4th 994, "CSAAS cases involve expert testimony regarding the responses of a child molestation victim. Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, CSAAS testimony 'is admissible to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]' [Citation.] ' "Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior. . . ." [Citation.]' [Citation.] 'For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past research that such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings.' " (Id. at pp. 1001-1002.)
Although early cases suggested CSAAS evidence could not be admitted in a prosecution's case-in-chief and should be narrowly tailored to address the identified misconceptions at issue in a particular prosecution, more recent decisions accept that an expert can testify generally about CSAAS in the prosecution's case-in-chief and need not limit his or her opinion to specific, identified misconceptions. (E.g., People v. Mateo (2016) 243 Cal.App.4th 1063, 1069-1070 [admission of such testimony not challenged]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 [CSAAS testimony can be introduced in case-in-chief and prosecution need not specify which conduct is inconsistent with a finding of molestation].)
We find no error in the admission of Dr. Urquiza's testimony under the circumstances presented here. The primary issue at trial was the credibility of K.'s testimony versus defendant's denials. Various aspects of K.'s conduct could be seen as paradoxical or inconsistent with a claim of abuse, such as his failure to report the abuse in a timely manner, his eventual failure to resist defendant's advances, and K.'s own initiation of sexual conduct with his uncle. It is precisely the purpose of CSAAS evidence to place such conduct in the context of common juvenile responses to molestation.
Nor do we find error in the prosecutor's manner of questioning Dr. Urquiza. As explained in People v. Sandoval, supra, 164 Cal.App.4th 994, the primary risk in allowing CSAAS testimony is that the jury might erroneously conclude that a child's behavior consistent with the syndrome confirms abuse occurred. To the contrary, CSAAS testimony can only be used to suggest that superficially paradoxical behavior, consistent with the syndrome, does not necessarily indicate that abuse did not occur. Although the prosecutor's use of a not-so-hypothetical 12 year old may have been inept and unnecessary, nothing in the questions suggested K.'s conduct provided affirmative evidence of abuse. Similarly, Dr. Urquiza's answers to the prosecutor's "hypothetical" questions respected the proper role of CSAAS testimony, and he concluded his direct testimony by explicitly telling the jury that he was not expressing an opinion as to whether K. was sexually abused. In addition, the trial court instructed the jury on the proper use of such evidence.
Nor do we find misconduct in the prosecutor's closing argument. He cited Dr. Urquiza's testimony only to suggest that K.'s conduct, which might seem inconsistent with molestation, should not necessarily be viewed in that manner. This was a proper use of such evidence. Because the evidence and conduct were not objectionable, defense counsel did not provide ineffective assistance by not objecting. C. Evidence of K.'s Character
At various points, the prosecutor elicited testimony that K. was a good student, was respectful of adults, and was "a good boy." Defendant contends this was improper character evidence.
Because defense counsel did not object to the introduction of this evidence, any appellate claim is forfeited. (Simon, supra, 1 Cal.5th at p. 139.) Further, defendant cannot succeed in a claim for ineffective assistance of counsel because the admission of this testimony made no difference to the outcome. (Davis, supra, 36 Cal.4th at p. 551.) Wholly apart from the rote nature of these characterizations, the jury was able to judge for itself K.'s nature over the course of his testimony. That K. was viewed as a good student, respectful, or a good boy by various members of his family undoubtedly had little or no bearing on defendant's conviction, in light of the jury's opportunity to observe K.'s testimony directly, draw its own conclusions about his character and credibility, and weigh those impressions against its observations of defendant. D. Evidence of Defendant's Character
The prosecutor elicited testimony from defendant's sister and aunt, and a concession from defendant, that he had no history of romantic relationships. Defendant contends this was improper character evidence or, alternatively, should have been excluded as irrelevant.
Because defense counsel did not object to the introduction of this testimony, any appellate claim is forfeited. (Simon, supra, 1 Cal.5th at p. 139.) Again, defendant cannot succeed in a claim for ineffective assistance of counsel because the admission of this testimony made no difference to the outcome. (Davis, supra, 36 Cal.4th at p. 551.) In weighing the credibility of K.'s testimony against defendant's denials, evidence that defendant had no history of romantic relationships was unlikely to have made a difference in the outcome, given the otherwise significant evidence of his guilt. E. Cumulative Error
Defendant points out that the jury could not reach a decision at his first trial, suggesting the case was close, and contends the primary difference between the two trials was the prosecution's introduction of CSAAS evidence in the second trial. He argues the combination of erroneous fresh complaint evidence and the misuse of CSAAS evidence deprived him of due process in the second trial.
Putting aside defendant's forfeiture of these issues, we found no error in the prosecution's use of the CSAAS evidence. To the extent this evidence made a difference between the two trials, it provides no basis for a claim of cumulative error. Further, as discussed above, we conclude the admission of testimony about the details of K.'s report of sexual abuse under the fresh complaint doctrine, assuming it was error, did not have a prejudicial impact on the trial. Accordingly, we find no denial of due process through cumulative error. (See People v. Grimes (2016) 1 Cal.5th 698, 737.)
III. DISPOSITION
The judgment of the trial court is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.