Opinion
H049468
03-27-2024
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL MORALES-CORONA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1893251)
BROMBERG, J.
A jury convicted defendant Victor Manuel Morales-Corona of sexual offenses against his de facto stepdaughter when she was between six and 12 years old, and he was sentenced to an aggregate indeterminate term of 110 years to life plus full consecutive determinate terms totaling 24 years. On appeal, defendant challenges the admission of expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) and several related matters as well the exclusion of evidence that the complaining witness applied for a crime victims' immigration visa. Defendant also challenges various aspects of the sentence imposed on him. We affirm.
I. Background
Defendant was initially charged in a felony complaint in June 2018. After a preliminary examination in November 2018, the People filed an information, which was amended at trial. In the amended information, defendant was charged with nine offenses: two counts of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a) ); four counts of aggravated sexual assault (rape) on a child under 14 and seven or more years younger than the defendant (§ 269); and three counts of lewd or lascivious acts on a child by force, violence, duress, menace, or fear (§ 288, subd. (b)(1)).
Subsequent undesignated statutory references are to the Penal Code.
A. The In Limine Motions
Before trial, the prosecutor filed a motion in limine seeking permission to present an expert witness on CSAAS. The prosecutor represented that this testimony would be used to dispel common myths and misconceptions about the reactions of sexually abused children. Defendant acknowledged that CSAAS evidence is admissible for that purpose, but argued that testimony about the percentage of false child sexual abuse reports is not admissible as CSAAS evidence and sought an order prohibiting such testimony. The trial court granted the prosecutor's request to admit CSAAS expert testimony on the common reactions of child molestation victims. In addition, the prosecutor obviated the need for the order defendant requested by representing that she was not seeking to present any statistical evidence and had so informed her expert.
The prosecutor also moved to exclude evidence that the complaining witness had applied for a U visa, which is available to crime victims who provide testimony helpful in the prosecution of a crime. The trial court granted this motion. The court reasoned that the probative value of the visa application was limited because the complaining witness reported defendant's alleged sexual abuse to the police in early June 2018 and testified at the preliminary examination in November 2018, months before submitting the application to the district attorney in April 2019. As a consequence, the court concluded that the probative value of the visa application was outweighed by its prejudicial impact and potential for misleading the jury.
B. The Trial
The trial began on May 17, 2021 and ended with a jury verdict on June 8, 2021.
1. The Complaining Witness (Doe)
The first witness called at trial was I.D. (Doe). Doe testified that she was born in 2005 and was 15 years old at the time of trial. (Defendant, by contrast, was born in 1981 and 39 years old at trial.) With the exception of an approximately one-year period from 2012 to 2018, Doe, her mother, and younger brother(s) lived with defendant. Although defendant did not marry Doe's mother, he lived and had two sons with Doe's mother, and Doe referred to defendant as her stepfather.
Doe testified that defendant began sexually abusing her when she was six or seven years old. In one of the earliest incidents Doe awoke in her bed to find defendant's penis touching her face. When she asked what it was, defendant told her to "play with it," which Doe did.
On another occasion, when she was seven or eight years old, Doe was in the family's bedroom under a blanket when defendant asked her for a hug and placed his hand on her thigh, touching her vagina and buttocks on the outside of her underwear. Around the same time, defendant took a shower with Doe, during which he bathed her, scrubbing between her legs and touching her "private part" with a sponge.
Doe also testified that one day she fell on the playground at school and hurt herself between her legs. Defendant picked her up and took her home. There, after telling Doe that he was going to check that she was okay, he had her lay down on the bed, pulled down her pants and underwear, and put his fingers over the lips of her vagina and touched her there for several minutes. After Doe went to the bathroom, defendant said he wanted to check if she was still bleeding, had Doe lay on the bed again, pulled her pants down, and again touched her vagina.
One night, when Doe was around age nine or 10, defendant removed her pants and underwear, told her to put a pillow over her face, and said that he was "going to do something quick." While Doe's legs were on his shoulders, she felt something pressing on the outside of her "private part" trying to go in. Doe thought at first that it was defendant's finger, but later realized it was his "private part." Doe told defendant it was hurting her, but defendant said "hold on" and tried to do it again. Doe again said it was hurting, and this time Defendant let go of her.
Another time, when Doe was around the same age, defendant told her that he was going to check her to make sure she was growing normally. Defendant told Doe to put a pillow over her face, pulled her pants down, and laid her on the bed. Doe felt him put his private part on hers. Doe also testified that when she was between third and fourth grade, defendant put his private part against hers two or three times.
A year or so later, when Doe was 10 or 11 years old, defendant and Doe's mother separated for a period, and defendant moved into a "house behind a house," where Doe would sometimes stay with him. One of these times, Doe and defendant were lying down in the dark, and he asked her to play a game with him, but Doe "knew it was bad" and said no. Another time Doe fell asleep next to defendant and woke up to hear him trying to open a little package like a wrapper, she felt his hands between her thighs, and "he was just trying to put it there." Doe knew that what defendant was doing was bad, but did not say or do anything out of concern for how her mother would react if defendant ended up in jail.
Doe testified to additional assaults when she was 11 or 12, by which time defendant had reunited with her mother. One night defendant laid over Doe, pulled her pants and underwear down, and tried to put his "private part" inside her. Doe tried to push defendant off and make noise to wake her mother, who was asleep in the neighboring bed. After a few minutes, defendant went back to his bed. Another time, defendant entered Doe's room, laid down next to her, slowly got on top of her, pulled down her pants and underwear, started kissing her on the mouth, and then moved to her neck and breasts. The next day, Doe had a hickey on her breasts. Still another time, defendant entered Doe's room, got on top of her, and tried to put his "private part" into her.
Doe testified that, while living in one house, these visits happened "[m]ostly every day." On one occasion, after defendant left, Doe went to the bathroom and saw "white stuff" on her underwear.
Doe testified that in addition to checking her vagina to see if she was growing defendant would check her breasts and asked to check her body about every other week. When Doe initially refused to show him her bra or underwear, defendant threatened to slap her. If Doe refused to kiss defendant, defendant would "take it out on" her eldest younger brother, hitting him.
In June 2018, Doe got into a fight with her mother who screamed at Doe and told Doe how ungrateful she was. Doe "popped," said that she went through stuff too, and told her mother what defendant had been doing to her. The police subsequently came to Doe's house, defendant was arrested, and Doe gave a statement to the police.
At trial Doe testified that she had made previous disclosures as well. For example, Doe testified that, when she was in fifth grade, she had told a teacher that defendant touched her in inappropriate ways. However, Doe recanted when questioned by her school principal. Doe also testified that she disclosed to her mother around this same time, but nothing came of it. Finally, when she was in sixth grade, Doe disclosed defendant's conduct to two of her friends.
2. CSAAS Evidence
Dr. Anna Washington, a psychologist at UC Davis, testified for the prosecution as an expert in CSAAS. At the outset of her testimony the trial court instructed the jury that Dr. Washington's testimony about CAAS was "not evidence that the defendant committed any of the crimes charged" and was to be considered "only in deciding whether or not . . . Doe's conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of her testimony."
Dr. Washington testified that CSAAS "aims to dispel some common myths that people may have about child sexual abuse" and "helps people better understand the reactions that children may have following sexual abuse and the way they might disclose or tell about sexual abuse after it occurs." Dr. Washington further testified that there are five components in CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, conflicted and unconvincing disclosure; and recantation.
With respect to secrecy, Dr. Washington testified that abusers often rely on secrecy to maintain ongoing access to being alone with the child. The relationship may initially involve special attention and one-on-one time, and then over time sexual abuse is introduced. In addition, perpetrators are commonly family members, extended family members, or someone with an ongoing relationship with the child.
With respect to delayed or unconvincing disclosure, Dr. Washington testified that children may wait months, years or even until they are adults to tell someone about the abuse, and some children will never tell anyone. Children also tend to disclose incrementally, and the initial responses to their disclosures may impact whether they share additional information. When children do disclose the abuse, it may be challenging for them to recall and share specific details and to distinguish specific details, and they may disclose different parts of the abuse at different times. Additionally, a child may take back or retract a previous true statement of sexual abuse, especially in families where the perpetrator continues to have access to the child.
During cross-examination, defense counsel asked Dr. Washington whether she "believe[d] that false allegations occur." Dr. Washington responded that "[w]hile false allegations of child sexual abuse can occur, they are very rare." Defense counsel moved to strike Dr. Washington's answer concerning the frequency of false allegations. After an unrecorded colloquy, the trial court struck the explanation on the ground that it was not responsive to the question, which asked for a "yes-no" answer. On redirect, after cautioning Dr. Washington not to provide any statistics or numbers, the prosecutor asked Dr. Washington for her explanation. Defense counsel, however, objected, and the trial court sustained the objection.
3. Verdict
After the prosecution rested, defendant chose not to present any evidence. The jury therefore began deliberating on May 27, 2021, and on June 8, 2021 it rendered its verdict, finding defendant guilty on all counts.
4. Sentencing
On September 10, 2021, the trial court sentenced defendant to consecutive indeterminate terms of 25 years to life on two counts of sexual intercourse with a child 10 years old or younger, consecutive indeterminate terms of 15 years to life on four counts of aggravated sexual assault on a child under 14 years old, and full consecutive determinate terms of 8 years (the middle term) on three counts of lewd or lascivious acts with a child. The total aggregate term was 110 years to life consecutive to 24 years in prison.
On September 22, 2021, defendant filed a timely notice of appeal.
II. Discussion
A. Child Sexual Abuse Accommodation Syndrome
Defendant asserts three errors in connection with Dr. Washington's Child Sexual Abuse Accommodation Syndrome, or CSAAS, testimony. We address each in turn.
1. Admissibility in General
First, defendant argues that CSAAS testimony is inadmissible in general. The admission of expert testimony is reviewed for abuse of discretion. (People v. McDowell (2020) 54 Cal.4th 395, 426.) We find no abuse here.
Defendant contends that CSAAS lacks the reliability required of expert testimony under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772, and urges this court to follow decisions from other states excluding CSAAS evidence in criminal proceedings. (See, e.g., State v. J.L.G. (2018) 234 N.J. 265, 272; Blount v. Commonwealth (Ky. 2013) 392 S.W.3d 393, 396; Steward v. State (Ind. 1995) 652 N.E.2d 490, 499; State v. Stribley (Iowa 1995) 532 N.W.2d 170, 174; Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830, 832.)
The Attorney General argues that defendant forfeited this challenge by failing to object to the admissibility of CSAAS evidence in the trial court. We agree. In the trial court, the prosecution filed a motion in limine seeking admission of, among other things, CSAAS expert testimony. Rather than challenge the admissibility of CSAAS testimony in general, defendant moved to limit the testimony of the CSAAS expert in various ways. Indeed, at the hearing on the motion, defense counsel expressly "submit[ted]" as to the admissibility of CSAAS testimony. As a consequence, defendant failed to raise his current objection to the reliability of CSAAS in the trial court, and the objection is not cognizable on appeal. (See, e.g., People v. Partida (2005) 37 Cal.4th 428, 434 [" 'the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable' "].)
Defendant acknowledges that he failed to challenge the general admissibility of CSAAS testimony in the trial court, but argues that his failure to do so is excusable because it would have been futile to object under the law in effect at the time at trial. It is true that the admissibility of CSAAS testimony was well-established at the time of trial: Since at least the Supreme Court's 1991 decision in People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), courts repeatedly have held that CSAAS expert testimony is "admissible in California for the limited purposes of dispelling commonly held myths or misconceptions about child sexual abuse and aiding the jury in 'evaluating the credibility of an alleged child victim of sexual abuse.'" (People v. Sedano (2023) 88 Cal.App.5th 474, 479; see People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch); People v. Perez (2010) 182 Cal.App.4th 231, 245; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956 (Housley); People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1387.) This Court is not free to reconsider and reject the Supreme Court's decision in McAlpin. To the contrary, absent new studies or other evidence of change in the scientific knowledge on which the Supreme Court's decision was premised (see McAlpin, supra, 53 Cal.3d at p. 1303), the Supreme Court's determination on the admissibility of CSAAS testimony in general is binding on this court. (People v. Johnson (2012) 53 Cal.4th 519, 528; Munch, supra, 52 Cal.App.5th at p. 468.) As a consequence, even if Defendant had raised his challenge properly, we would have to reject it.
2. Jury Instruction
Defendant also argues that the trial court erred in instructing the jury on the use of CSAAS testimony. Although defendant did not object to the instruction in the trial court, we nevertheless consider it based on defendant's contention that the erroneous instruction affected substantial rights. (§ 1259.) Reviewing the instruction de novo (People v. Posey (2204) 32 Cal.4th 193, 218, we examine" '" 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." '" (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We conclude that there was no error in the instruction and no reasonable likelihood that the jury would apply it improperly.
The trial court gave the jury the standard instruction on CSAAS testimony, CALCRIM No. 1193. At the start of Dr. Washington's testimony, the court instructed the jury that this testimony concerned the credibility of the complaining witness' testimony, not whether the crimes charged were committed: "Dr. Washington's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [Doe's] conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of her testimony." At the close of evidence, the trial court reiterated this instruction, informing them once again that Dr. Washington's testimony was "not evidence that the defendant committed any of the crimes charged against him" and that it should be used "only in deciding whether or not [Doe's] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
CALCRIM No. 1193 states in full: "You have heard testimony from___<insert name of expert> regarding child sexual abuse accommodation syndrome. "Child sexual abuse accommodation syndrome relates to a pattern of behavior that may be present in child sexual abuse cases. Testimony as to the accommodation syndrome is offered only to explain certain behavior of an alleged victim of child sexual abuse. "___ 's <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her) [or any conduct or crime[s] with which (he/she) was not charged]. "You may consider this evidence only in deciding whether or not___ 's <insert name of alleged victim of abuse> conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of the alleged victim."
Defendant contends that, by allowing jurors to consider CSAAS testimony in evaluating the credibility of the complaining witnesses' testimony, CALCRIM No. 1193 effectively permits jurors to treat CSAAS testimony as supporting the truth of allegations against defendant. It is true that CSAAS expert testimony is admissible only to show that certain conduct by the complaining witnesses, such as delayed or incremental disclosure, is not inconsistent with having been molested, and it may not be used to prove the complaining witness has in fact been sexually abused. (McAlpin, supra, 53 Cal.3d at p. 1300; Housley, supra, 6 Cal.App.4th at p. 959.) There is, however, no reasonable likelihood that the jury understood the instructions given in this case to use CSAAS evidence as proof that sexual abuse occurred. The trial court twice instructed the jury that Dr. Washington's testimony about CSAAS "is not evidence that the defendant committed any of the crimes charged against him." (Italics added.) Moreover, far from urging the jury to do otherwise, in closing argument the prosecutor said that Dr. Washington's testimony "doesn't tell you whether [Doe] is lying or telling the truth." Similarly, Dr. Washington testified that CSAAS is not "a tool to determine whether a child had or had not been sexually abused," that CSAAS "applies to children who are known victims of child sexual abuse" and is not applicable to "determining whether a child is telling the truth," and that she knew nothing about the facts of the instant case and was not testifying as to whether Doe was sexually abused.
Unlike the CALJIC No. 10.64 instruction, CALCRIM No. 1193 does tell jurors that they may use CSAAS testimony "in evaluating the believability of [the complaining witness'] testimony." There is, however, nothing improper about considering CSAAS testimony in determining whether a witness' testimony is believable; indeed, the very purpose of such testimony is" '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.'" (McAlpin, supra, 53 Cal.3d at p. 1301.) Moreover, courts repeatedly have rejected the suggestion that jurors will infer from CALCRIM No. 1193's reference to believability that, contrary to the instruction's express prohibition against doing so, it permits CSAAS testimony to be considered as evidence that the defendant committed the charged crime. (See Munch, supra, 52 Cal.App.5th at pp. 473-474; Lapenias, supra, 67 Cal.App.5th at pp. 175-176; People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504.) Especially in light of the prosecutor's admonition in closing argument, we do so as well.
3. Prosecutorial Misconduct
Defendant's final claim of error relating to CSAAS testimony is that the prosecution committed misconduct by failing to prevent Dr. Washington from testifying regarding the rarity of false allegations of child sexual abuse. We review the trial court's rulings concerning prosecutorial misconduct for abuse of discretion. (See, e.g., People v. Peoples (2016) 62 Cal.4th 718, 792-793.) We conclude that the trial court did not abuse its discretion and defendant suffered no prejudice.
a. The Testimony
During pretrial motions in limine, the defense requested an order precluding the prosecution's CSAAS expert from "offer[ing] any opinion about what percentage of child sexual abuse allegations have been proven to be false, how often alleged child sexual abuse victims are telling the truth, how often an abuser is someone a child knows, or any other statistical testimony." The prosecutor did not oppose this request and instead represented that she would not seek any statistical testimony from Dr. Washington. Nonetheless, on cross-examination, in response to a question concerning whether false allegations occur, Dr. Washington stated that false allegations by children are "very rare":
"Q: Generally, do you believe that false allegations occur?
"A: While false allegations of child abuse can occur, they are very rare. And in situations where we see false allegations, they tend to be made by adults rather than children."
Defense counsel moved to strike this answer, and the trial court granted the motion, instructing the jury that Dr. Washington was asked for a "yes-and-no" response and that the explanation that she provided was non-responsive and should be disregarded.
On subsequent redirect examination, the prosecutor asked Dr. Washington to explain her answer without giving any statistics:
"Q: I just want to follow up with something [the defense] asked you, Dr. Washington. He asked you, you know, yes or no, do you agree that false allegations can occur?
"A: Yes.
"Q: And then you were trying to provide an explanation. Without giving us statistics - I don't want to get into numbers, percentages, none of that. What's your explanation for your answer?"
Defense counsel objected, and the trial court sustained the objection on the ground that it was outside the scope of Dr. Washington's testimony as an expert on CSAAS.
b. Forfeiture
The Attorney General argues that defendant forfeited his prosecutorial misconduct claim by failing to request that the jury be admonished to disregard the impropriety of Dr. Washington's response to his counsel's question. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 952 [" 'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety' "].) Defendant responds that it was not possible to request an admonition because the testimony was provided during his cross-examination, and that any such admonition would not have cured the error. We need not resolve this issue because, as detailed below, we find no prosecutorial misconduct or prejudice.
c. Misconduct
Prosecutorial misbehavior "violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) However, if the prosecutor's conduct does not render a criminal trial fundamentally unfair, under California law it constitutes prosecutorial misconduct "only if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."' [Citations.]" (Ibid.) Here, there is no suggestion that the prosecutor engaged in a pattern of misconduct so egregious that it deprived defendant of due process. In addition, while it was inappropriate for Dr. Washington to testify that false allegations are rare (People v. Wilson (2019) 33 Cal.App.5th 559, 568-571 (Wilson); People v. Julian (2019) 34 Cal.App.5th 878, 885-887 (Julian)), the prosecutor did not use deceptive or reprehensible tactics. As a consequence, we conclude that there was no prosecutorial misconduct.
There is no evidence that the prosecutor intentionally elicited improper testimony. To the contrary, it was defense counsel, not the prosecutor, who asked Dr. Washington whether false allegations occur and elicited the impermissible testimony that false allegations are rare. "[A] prosecutor cannot be faulted for a witness's nonresponsive answer that the prosecutor neither solicited nor could have anticipated." (People v. Tully (2012) 54 Cal.4th 952, 1035; see also People v. Valdez (2004) 32 CAl.4th 73, 124 [no prosecutorial misconduct where witness volunteered nonresponsive information after being instructed by the court not to disclose such information]; People v. Leonard (2007) 40 Cal.4th 1370. 1405 [no misconduct where witness disclosed evidence the parties stipulated to exclude and where prosecution had no reason to anticipate such disclosure].)
Defendant asserts that the prosecutor had reason to anticipate that Dr. Washington might opine on the rate of false claims of sexual abuse in light of two past cases in which such testimony was offered by CSAAS experts. The decisions in those cases, however, were issued in 2019, more than four years ago, and in both cases the testimony concerning false claims was excluded. (See Wilson, supra, 33 Cal.App.5th at pp. 568-571; Julian, supra, 34 Cal.App.5th at pp. 885-887.) Defendant does not explain why those cases should have led the prosecutor to anticipate that Dr. Washington, who did not testify in either case, would seek to offer similar testimony. Moreover, it is undisputed that the prosecutor told Dr. Washington that the prosecution was not seeking to offer any statistical evidence: During the hearing on the in limine motions, the prosecution agreed with defendant that testimony concerning the frequency of false allegations is inadmissible and represented to the Court that "I've already told Dr. Washington that." As a consequence, there is no basis for concluding that the prosecutor either deliberately sought to elicit impermissible testimony about the infrequency of false allegations or failed to adequately safeguard against it.
The prosecution's redirect examination does not suggest otherwise. On redirect, the prosecution asked Dr. Washington to explain her testimony that false allegations can occur. But in so doing, the prosecution expressly told Dr. Washington to answer "[w]ithout giving us statistics."
d. Prejudice
Finally, defendant did not suffer any significant prejudice from Dr. Washington's testimony about the infrequency of false allegations. Dr. Washington's testimony about false allegations of child sexual abuse was brief, and the trial court ordered the testimony stricken. We presume that the jury followed this instruction (People v. Melendez (2016) 2 Cal.5th 1, 33; People v. Ervine (2009) 47 Cal.4th 745, 776), and therefore" 'absent evidence to the contrary the error is deemed cured.'" (People v. McNally (2015) 236 Cal.App.4th 1419, 1429.) Defendant has not presented such evidence, and we are not persuaded by his assertion that this testimony was so prejudicial that it was impossible to disregard.
4. Cumulative Error
Defendant asserts that "the erroneous admission of CSAAS testimony, the improper jury instruction on that subject, and the expert's inappropriate and highly prejudicial opinion regarding the rarity of false claims, all combined to deprive [defendant] of a fair trial." We reject this argument because we found no error and there is no prejudice to cumulate. (People v. Ortiz (2023) 96 Cal.App.5th 768, 816.)
B. Exclusion of Evidence Concerning the U Visa Application
Before trial, defendant requested permission to present evidence that Doe had applied for a U visa. The U visa program provides temporary immigration benefits to victims of serious crimes if a law enforcement agency certifies the victim was helpful in prosecuting the crime. (8. U.S.C. § 1101 et seq.; see Lee v. Holder (9th Cir. 2010) 599 F.3d 973, 974 [discussing general qualifications for and benefits of U visas].) Defendant sought to present evidence of Doe's application in order to show that she had a motive for accusing him of criminal activity. The trial court, however, excluded the evidence on the ground that its probative value was outweighed by its prejudicial impact and the danger of misleading the jury. Such evidentiary rulings are reviewed for abuse of discretion. (See, e.g., People v. Williams (2013) 58 Cal.4th 197, 267; People v. Ledesma (2006) 39 Cal.4th 641, 705.) We find no abuse.
As the First District recently explained, with respect to cross-examination trial court discretion is circumscribed. (See, e.g., People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1278-1284 (Castaneda-Prado).) Because "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested" (Davis v. Alaska (1974) 415 U.S. 308, 316), it is a fundamental aspect of the adversarial process. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279.) Indeed, the opportunity to conduct effective cross-examination is part of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution. (Delaware v. Fensterer (1985) 474 U.S. 15, 19-20; Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279.) Moreover, impeaching witnesses and, in particular, exposing any bias or any motive to fabricate testimony is one of the most important functions of cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 (Van Arsdall); Alford v. United States (1931) 282 U.S. 687, 693.) Consequently, while trial courts have "wide latitude . . . to impose reasonable limits" on cross-examination, their discretion to exclude evidence of significant impeachment value and thereby impede effective cross-examination is restricted. (Van Arsdall, supra, 475 U.S. at p. 680; Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1282-1283.)
In particular, while trial courts may" 'impos[e] reasonable limits on defense counsel's inquiry based on concerns about harassment, confusion of the issues, or relevance,'" in doing so they must give" 'wide latitude'" to cross-examination testing the credibility of a prosecuting witness. (People v. Brown (2003) 31 Cal.4th 518, 544-545.) Accordingly, a trial court may exclude evidence of bias under Evidence Code section 352 "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." (Evid. Code, § 352; see People v. Villa (2020) 55 Cal.App.5th 1042, 1051 (Villa).) However, in dealing with evidence concerning bias, section 352 balancing "must begin . . . with a sharp tilt in favor admissibility." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1285.) And" 'absent highly unusual circumstances,'" testimony concerning bias should be admitted over a section 352 objection if" 'the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference.'" (Ibid.)
Here, the evidence at issue-Doe's U visa application and the motive it created to incriminate defendant-related to a critical issue. Doe was the primary witness concerning defendant's alleged sexual abuse. Defendant, however, denied any such abuse, there was no physical evidence of the abuse, and there was no eyewitness testimony besides Doe's beyond some limited testimony from her younger brother. As a consequence, the trial effectively required the jury to decide between the credibility of defendant and Doe.
But the U visa application cast little doubt on Doe's credibility. As the trial court pointed out, Doe's U visa application was not submitted until April 2019, long after Doe had accused defendant of sexual abuse. Doe initially reported to the police that defendant sexually abused her in early June 2018, 10 months before submitting the U visa application, and she testified under oath at the preliminary hearing in November 2018, more than five months before. Moreover, as defendant acknowledged at oral argument, Doe's testimony at trial did not materially differ from her earlier testimony. In addition, defendant presented no evidence that Doe was aware of U visa applications when she initially reported his sexual abuse. Nor do we see any basis for inferring such knowledge. Doe was only 13 years old at the time, and while defendant asserted that the application was submitted on behalf of Doe's biological father as well as herself, Doe was living with defendant and her mother when she reported defendant's abuse to the police, and at that time she rarely saw her father. Furthermore, before reporting defendant's abuse to the police, she disclosed the abuse to a teacher and two friends, even though doing so did not aid her U visa application. Under these circumstances, the trial court reasonably concluded that Doe's U visa application had little impeachment value.
In addition, defendant had other, stronger grounds for challenging Doe's credibility. Most significantly, there was evidence that defendant verbally and physically abused Doe as well as her mother and younger brother, and on cross-examination defendant was able to obtain an admission from Doe that at times she hated defendant and wanted him dead-which created a much stronger motive to fabricate allegations against him than the U visa application. In addition, defendant was able to attack Doe's credibility on cross-examination by questioning her about statements she made to social workers denying that defendant sexually abused her and about coaching her brother to corroborate her accusations.
Under these circumstances, we cannot say that the trial court abused its discretion in finding the probative value of Doe's U visa application substantially outweighed by the danger of misleading the jury. On the one hand, as just discussed, evidence of the application had limited probative value in light of Doe's similar testimony at the preliminary examination prior to the application and her earlier disclosures in which the application provided no incentive to be untruthful. On the other hand, to show the U visa application created any motive to lie, defendant would have had to explain how the program works, the likelihood that Doe's application would be approved, the practical benefit approval of an application, and Doe's understanding of that benefit. In these circumstances it was reasonable for the trial court to conclude that the limited probative value of the U visa application was substantially outweighed by the danger that such evidence could mislead and confuse the jury (whether or not, as urged by defendant, that potential could be mitigated by an admonition to the jury).
Villa, supra, 55 Cal.App.5th 1042, affirmed the exclusion of similar testimony. In Villa, the defendant sought to present evidence that his former girlfriend, who testified against him, had submitted a U visa application. (Id. at p. 1047.) The trial court excluded this evidence on the ground that it had only limited probative value, which was outweighed by the danger of confusing the jury and undue consumption of time. (Id. at p. 1048.) The Court of Appeal affirmed. (Id. at pp. 1050-1054.) It reasoned that evidence of the U visa application had little probative value because the witness had testified at a preliminary examination before learning about the U visa program, and her testimony at trial did not materially differ from her earlier testimony. (Id. at pp. 1052-1053.) The court also determined that trial court had well-founded concerns that evidence concerning the application would be unduly time-consuming to present, would create a substantial risk of distracting and confusing the jury, and would create at least some potential for prejudicing the jury against the witness. (Id. at p. 1054.) Similarly, here, Doe's testimony at trial did not materially differ from her earlier preliminary examination testimony, there is no evidence that she learned about the U visa program before the examination, and there is some danger of bias against the witness based on her immigration status.
Defendant nonetheless contends that Villa is distinguishable because, unlike the prosecutor here, the prosecutor in that case certified the witness' U visa application. Defendant, however, fails to explain how this fact renders unnecessary "detailed or potentially confusing" testimony concerning the U visa process and the likelihood of Doe obtaining a visa. If anything, the prosecutor's failure to certify Doe's application adds another complication and makes evidence concerning the U visa application even more potentially confusing. Defendant also points out that there was physical evidence of abuse in Villa corroborating the witness' testimony. While there was no such physical evidence here, as noted above, Doe's testimony was corroborated by her earlier disclosures of defendant's abuse to her teacher and to two friends. In addition, defendant had other, stronger impeachment evidence, which does not appear to be the case in Villa. (See Villa, supra, 55 Cal.App.5th at pp. 1050-1054 [noting no other impeachment evidence].) As a consequence, the impeachment value of the U visa evidence in this case is no greater than it was in Villa.
Defendant also points to People v. Castaneda-Prado, supra, 94 Cal.App.4th 1260. While Castaneda-Prado concluded that the trial court in that case abused its discretion by excluding evidence that a complaining witness filed a declaration in support of her mother's U visa application, the facts in that case are considerably different. First, the U visa application in that case had great impeachment value because the witness in Castaneda-Prado filed a declaration supporting that application before making any accusation against the defendant in the preliminary examination. Castaneda-Prado, at p. 1272.) Furthermore, the witness "admitted she knew of and was motivated by potential U visa benefits when she first gave a sworn statement accusing Castaneda-Prado of abuse." (Id. at p. 1288; see id. at p. 1272.) Second, in Castaneda-Prado there was little countervailing concern over confusion and undue consumption of time. Indeed, in Castaneda-Prado it was "not at all clear that any inquiry into U visa practice and procedure, with attendant complexities requiring expert explanation, . . . was required" because the witness' testimony at the preliminary examination showed that she "apparently believed she was furthering her mother's interest in obtaining a U visa by giving damaging testimony about Castaneda-Prado." (Id. at p. 1288; see also id. at pp. 1288-1289 [finding no significant potential for prejudice because the witness was a United States citizen].) Accordingly, the Castaneda-Prado decision concluded that "the probative value of the evidence of bias here was weighty, and there was virtually nothing of significance on the other side." (Id. at p. 1290.)
This case is quite different. Here, the U visa application evidence had little impeachment value because the application was not submitted until long after the preliminary examination and Doe's testimony did not materially change after the application was submitted. In addition, the defendant in this case had other, stronger grounds for impeachment. And there was no evidence that Doe knew about the U visa program, much less believed that she could further an application, when she testified at the preliminary examination. Therefore in this case it would have been necessary to inquire into U visa practice and procedure "with attendant complexities requiring expert explanation" as well as probe Doe's understanding of the likelihood of obtaining immigration relief through the program. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1288.) In short, the considerations that led the Court of Appeal to conclude that there was an abuse of discretion in Castaneda-Prado are absent here.
We therefore conclude that the trial court did not abuse its discretion in excluding the evidence concerning the U visa application.
C. Sentencing
In addition to challenging the trial court's rulings relating to CSAAS evidence and the exclusion of evidence concerning Doe's U visa application, defendant also challenges his sentence on several grounds.
1. Cruel and Unusual Punishment
Defendant was sentenced to six consecutive indeterminate terms totaling 110 years to life plus three consecutive determinate terms totaling 24 years. He contends that this sentence is cruel and/or unusual punishment under both the California and United States Constitutions on two grounds: (1) he has been effectively sentenced to life imprisonment without the possibility of parole, which serves no legitimate penal purpose; and (2) the sentence is grossly disproportionate to his offenses. Independently reviewing these arguments (see People v. Wilson (2020) 56 Cal.App.5th 128, 166), we reject both.
Defendant's first argument is a challenge to life sentences without the possibility of parole in general. Relying on a concurring opinion by Justice Mosk (People v. Deloza (1998) 18 Cal.4th 585, 600-601 (conc. opn. of Mosk, J.) (Deloza) and a related law review article (Mosk, State's Rights-And Wrongs (1997) 72 N.Y.U. L.Rev. 552), defendant asserts that life sentences that exceed an individual's life span serve no rational legislative purpose and do not further the purposes of retribution, incapacitation, or deterrence. That is not the law in California. When Justice Mosk advanced these arguments in his concurring opinion in Deloza, no other justice joined his opinion. (Deloza, at p. 600.) In addition to noting that Justice Mosk's concurring opinion "has no precedential value," subsequent opinions have "respectfully disagree[d]" with the opinion's analysis and upheld life terms as long and longer than defendant's sentence. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383; see id. at p. 1382 [upholding sentence of 115 years plus 444 years to life]; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 (Retanan) [135 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375 years to life plus 53 years]; People v. Wallace (1993) 14 Cal.App.4th 651, 666 [283 years]; People v. Bestemeyer (1985) 166 Cal.App.3d 520, 532 [129 years].)
Defendant also argues that his sentence violates the California Constitution's prohibition against "[c]ruel or unusual punishment" (Cal. Const., art. I, § 17) because it is grossly disproportionate to his crimes under the Supreme Court's decision in In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch). Lynch instructed courts applying this prohibition to examine three factors: (1) the nature of the offense and the offender; (2) a comparison of the sentence with sentences for more serious offenses in the same jurisdiction (an intrajurisdictional comparison); and (3) a comparison of the sentence with sentences for the same offense in other jurisdictions (an interjurisdictional comparison). (Id. at pp. 425-427). Defendant asserts that each of these considerations shows that his sentence constitutes cruel or unusual punishment. We are not persuaded.
As to the first factor, Defendant argues that only four of his convictions involved "some degree of physical force or coercion" and there was no evidence of any physical violence. While that may be true, in examining the nature of an offense, courts evaluate the" 'totality of the circumstances,'" including "whether the punishment fits the criminal." (People v. Baker (2018) 20 Cal.App.5th 711, 724.) Here, defendant was convicted of nine counts of sexual offenses committed against his de facto stepdaughter when she was between six and 12 years of age. Recognizing that "persons under 14 years of age are in need of special protection" (People v. Olsen (1984) 36 Cal.3d 638, 647; see id. at p. 646) and that sex offenses "may have lifelong consequences to the well-being of the child" (People v. Christensen (2014) 229 Cal.App.4th 781, 806 (Christensen), courts repeatedly have upheld lengthy prison terms for defendants committing multiple sex offenses against children. (Id. at pp. 803-806 [upholding sentence of 27 years to life for five counts of lewd conduct upon three children under the age of 14; Retanan, supra, 154 Cal.App.4th at pp. 1222, 1230-1231 [upholding sentence of 135 years to life for conviction of 16 sex offenses involving four children].) Accordingly, we conclude that neither the nature of the offenses nor the offender renders defendant's sentence disproportionate.
The final two factors support the same conclusion. Defendant asserts that he received a much higher sentence than he would have received if he had been convicted of first degree, premeditated murder, which is only 25 years to life. (§ 190) But this is an inapt comparison because defendant was convicted of nine sex offenses spanning a multi-year period, and" 'penalties for single offenses . . . cannot properly be compared to those for multiple offenses . . . .'" (Christensen, supra, 229 Cal.App.4th at p. 808.). Defendant also notes that courts in other states have held that life imprisonment without the possibility of parole is an excessive punishment for rape or for lewd acts with a child. However, defendant does not present evidence of the sentences that these other states would impose for the multiple crimes for which he was convicted, which include not only lewd acts but also sexual intercourse and aggravated sexual assault on a young child that he should have been protecting. As a consequence, defendant fails to offer any meaningful interjurisdictional comparison, which we deem "a concession that his sentence withstands a constitutional challenge on [this] basis." (Retanan, supra, 154 Cal.App.4th at p. 1231.)
We therefore conclude that defendant has not demonstrated his sentence constitutes unconstitutionally cruel and/or unusual punishment.
2. Imposition of Lower Term
Defendant also contends that he should be resentenced on counts 8 and 9 of the amended information under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2020, ch. 731), which amended section 1170 to require sentencing at the lower term where the defendant has experienced "psychological, physical, or childhood trauma." (§ 1170, subd. (b)(6)(A).) In particular, defendant contends that the lower term should have been imposed on these counts because his older brother was "verbally and physically abusive" when they were children and because he suffered head injuries in a motorcycle accident at the age of 17 or 18. Defendant, however, was 30 years old by the time he began sexually abusing Doe, and he has not presented any evidence that his childhood trauma or his motorcycle accident while a teenager contributed to commission of the offenses for which he was convicted, as section 1170 requires. (§ 1170, subd. (b)(6) [requiring imposition of the lower term if any of the listed mitigated circumstances "was a contributing factor in the commission of the offense"].) Accordingly, defendant has failed to demonstrate that he was entitled to imposition of the lower term sentence. (See People v. Banner (2022) 77 Cal.App.5th 226, 241 ["Psychological trauma must attend the illness, and that trauma must contribute to the crime under section 1170, subdivision (b)(6)"]; People v. Fredrickson (2023) 90 Cal.App.5th 984, 992 ["[I]n order to trigger the presumption, there must be some initial showing that the defendant's [trauma] was a contributing factor, and only then must the record affirmatively show compliance with the statute."].)
3. Separate Occasions
Finally, defendant argues that the trial court violated his right to a jury trial by finding that the lewd and lascivious acts for which he was convicted occurred on separate occasions. Under Section 667.6, courts are required to impose "[a] full, separate, and consecutive term" for certain sex offenses, including lewd and lascivious acts, if they involve the same victim "on separate occasions." (§ 667.6, subd. (d)(1); see also id., subd. (e) [listing covered offenses].) Applying this provision, the trial court imposed "full separate consecutive sentences" on counts 7, 8, and 9 based on its finding that the offense charged in those counts involved the same victim on separate occasions. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and Alleyne v. United States (2013) 570 U.S. 99, defendant argues that the trial court lacked authority to impose consecutive sentences absent a finding by the jury that he committed the offenses on separate occasions. As defendant conceded at oral argument, this argument is no longer tenable because after the completion of briefing in this appeal, the California Supreme Court rejected the argument, holding that "the rule of Apprendi and Alleyne does not apply to section 667.6(d)." (People v. Catarino (2023) 14 Cal.5th 748, 750; see also id. at p. 755 ["' "the Sixth Amendment's restriction on judge-found facts" is "inapplicable" when a trial judge makes factual findings necessary to the imposition of consecutive terms' "].)
Neither party sought to file supplemental briefing following the Supreme Court's issuance of the Catarino decision. (See Cal. Rules of Court, rule 8.200(a)(4).)
III. Disposition
The judgment is affirmed.
WECONCUR: GREENWOOD, P. J., GROVER, J.