Opinion
H049485
01-30-2023
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 19CR001596
Wilson, J.
A jury convicted defendant Ignacio Ramirez of multiple sex offenses and several counts of first degree burglary against three different victims, two of whom were minors. Ramirez was sentenced to an aggregate indeterminate term of 230 years to life, consecutive to eight years eight months in state prison.
On appeal, Ramirez argues the trial court: (1) erred in admitting Childhood Sexual Abuse Accommodation Syndrome (CSAAS) evidence; and (2) erred in instructing the jury with CALCRIM No. 1193 because that instruction improperly allows the jury to use CSAAS evidence to assess witness credibility. He also contends that the trial court committed multiple sentencing errors, and that, pursuant to the recent amendment of Penal Code section 654, he is entitled to a remand for resentencing.
Unspecified statutory references are to the Penal Code.
The Attorney General denies that the trial court erred in admitting CSAAS evidence or instructing the jury with CALCRIM No. 1193. However, the Attorney General concedes that Ramirez is entitled to resentencing pursuant to the amended version of section 654 and that Ramirez's remaining claims of sentencing error may be addressed by the trial court on remand.
We agree that the trial court did not err, either in admitting CSAAS evidence or instructing the jury. We further agree that the amendments to section 654 require that we remand the matter for the sole purpose of resentencing. We therefore reverse the judgment and remand with directions.
I. Factual and Procedural Background
A. Procedural background
On June 21, 2021, the Monterey County District Attorney filed a second amended information charging Ramirez with multiple sex offenses against the victims, Jane Doe 1, Jane Doe 3, and Jane Doe 4, as follows: one count of sex or sodomy with a child 10 years old or under (§ 288.7, subd. (a); count 1); five counts of aggravated sexual assault or rape of a child under 14 years old (§§ 261, subd. (a)(2), 269, subd. (a)(1); counts 2-6); five counts of forcible lewd acts on a child (§ 288, subd. (b)(1); counts 7-11); four counts of forcible rape (§ 261, subd. (a)(2); counts 12-15); three counts of first degree burglary (§ 459; counts 16-18); one count of sexual battery by restraint (§ 243.4, subd. (a); count 19); and one count of committing a lewd act on a child (§ 288, subd. (a); count 20). The operative information named Jane Doe 1 as the victim in counts 1 through 11, Jane Doe 3 as the victim in counts 12 through 19, and Jane Doe 4 as the victim in count 20. The information further alleged, as to counts 7 through 11, that Jane Doe 1 was under 14 years of age (§ 667.61, subd. (j)(2)) and, as to counts 7 through 15 and 20, that Ramirez committed the offenses against multiple victims (§ 667.61, subds. (b), (e)).
Jane Doe 2 is Jane Doe 1's younger sister. She testified as a witness for the prosecution, but she was not herself a victim in the case.
A jury convicted Ramirez on all counts and found true the allegations that, as to counts 7 through 11, Jane Doe 1 was under 14 years of age and, as to counts 7 through 15 and 20, Ramirez committed the offenses against multiple victims.
On August 19, 2021, the trial court sentenced Ramirez to an aggregate indeterminate term of 230 years to life consecutive to an aggregate determinate term of eight years eight months. The indeterminate term consisted of: 25 years to life terms on counts 7, 8, 9, 10, and 11, pursuant to section 667.61, subdivision (j)(2); 15 years to life terms on counts 5 and 6; and 15 years to life terms on counts 12, 13, 14, 15, and 20 pursuant to section 667.61, subdivision (b). The trial court also imposed the following indeterminate terms, each of which was then stayed pursuant to section 654: a 25 years to life term on count 1; and 15 years to life terms on counts 2, 3, and 4. The determinate term consisted of: the upper term of six years on count 16, consecutive to terms of one year and four months each on counts 17 and 18, with a one year term on count 19 stayed pursuant to section 654. The trial court also imposed fines, fees, and assessments, none of which are at issue in this appeal.
The trial court stayed the multiple victim enhancement (§ 667.61, subd. (b)) on each of these counts pursuant to section 654.
Ramirez timely appealed.
B. Factual background
Jane Doe 3 began dating Ramirez when her oldest daughter, Jane Doe 1, was approximately three years old. They moved in together two to three weeks after they met and, while they were living together, Jane Doe 3 had two more children with Ramirez.
1. Offenses against Jane Doe 1
Jane Doe 1 was born in March 2006 and was 15 years old when she testified at trial.
Jane Doe 1 lived with Ramirez, along with her mother Jane Doe 3 and her sisters, in several different places, and during this time, Ramirez would sometimes hit her with an open hand on her legs, her arms, or her face. Jane Doe 1 said that Ramirez hit her more than once, but fewer than five times in all. Ramirez also struck her sisters on occasion, and she saw him hit Jane Doe 3 with an open hand in the face, on her legs, or on her hands. Ramirez hit Jane Doe 3 more than he hit her or any of her sisters, and she was afraid of him.
The first time Ramirez sexually assaulted Jane Doe 1 was when they were living in the garage of her uncle's residence (hereafter garage apartment) in Salinas. One night when Jane Doe 3 was at work, Jane Doe 1 was sleeping on the floor of the garage apartment while her three sisters slept in the one bed. Jane Doe 1 woke up when Ramirez got on top of her. He removed his pants and pulled her pants and underwear down. Jane Doe 1 tried to push him away, but Ramirez moved her hands so she could not. Ramirez put his penis inside her vagina and it was painful.
Jane Doe 1 could not recall dates or even the year(s) that any of this occurred. Jane Doe 3 testified that it was around August 2015 when they all lived in the garage apartment and Ramirez watched her daughters when she worked at night. They moved to a second residence (hereafter second residence) in Salinas around November 2015. Jane Doe 1 was therefore nine years old when she lived in the garage apartment.
Ramirez subsequently withdrew his penis, got off of her, and went to lie down in bed, warning Jane Doe 1 not to say anything. Jane Doe 1 was frightened that if she told anyone what happened, Ramirez "would hurt . . . [her] sisters or [her] mom."
Jane Doe 1 testified that Ramirez had vaginal intercourse with her a second time under similar circumstances. Jane Doe 3 was at work, and Jane Doe 1 was sleeping on the floor while her sisters slept in the bed. Jane Doe 1 again tried to push him off, but could not. Jane Doe 1 testified that, while they lived in the garage apartment, Ramirez had vaginal intercourse with her more than twice but fewer than five times.
In addition, Ramirez touched Jane Doe 1's vagina more than one time, but fewer than five times, in the garage apartment. The first instance, Jane Doe 1 was sitting on the bed, covered by a blanket, with her sisters watching a movie. Ramirez was sitting next to Jane Doe 1 when he put his hand under the blanket and penetrated her vagina, moving his hand in circles. Ramirez also touched Jane Doe 1's breasts at least once, but she could not recall how many times or where she was living when this occurred, other than it occurred before she moved to Colorado.
Jane Doe 1 and the others later moved from the garage apartment to the second residence in Salinas. Ramirez again had vaginal intercourse with her at the second residence on more than one occasion. Jane Doe 1 tried to push him off each time he did so.
Jane Doe 1's sister, A.L., testified that, when she was seven years old she got hungry and started to look for something to eat. She saw Ramirez and Jane Doe 1 doing the "nasty thing." Ramirez had unzipped his pants and asked Jane Doe 1 to take off her pants. When she did not comply, Ramirez removed them himself along with her underwear. A.L. testified that Jane Doe 1 looked angry, and unsuccessfully tried to push Ramirez's hands off her legs when he grabbed them. A.L. could see Ramirez touch his penis to Jane Doe 1's vagina. At some point, Ramirez looked towards A.L. and he looked "nervous" as his face was red. Jane Doe 1 put her clothes back on, and looked as if she "wanted to cry."
A.L. was 12 at the time of trial.
A.L. later said that Jane Doe 1 was wearing shorts.
In May 2018, when Jane Doe 1 was 12 years old, she and her sisters and Jane Doe 3 moved to Colorado to live with her aunt. Ramirez came with them, but left after just two days.
In December 2018, Jane Doe 1 had a stomachache and was worried she was pregnant so she went to the nurse at her school. The nurse sent Jane Doe 1 to see the school's counselor, Jennifer Trainor. Jane Doe 1 was upset and was switching speaking between English and Spanish, so the school psychologist, Daryl Trujillo, came in to help translate. Trujillo observed that Jane Doe 1 was crying, "shaking and trembling" as she spoke and she told Trujillo and Trainor that her mother's ex-boyfriend had sexually assaulted her the previous summer. Trujillo notified the principal, who called the police.
Trujillo testified she is fluent in Spanish.
In February 2019, a nurse practitioner at a rape treatment center examined Jane Doe 1. The nurse observed that Jane Doe 1 had missing hymenal tissue, which indicated that something had caused the hymen to tear. According to the nurse, the missing hymenal tissue was consistent with repeated penile penetration of the vagina.
Following the initial investigation and Ramirez's arrest related to the sexual assaults, law enforcement interviewed him on February 10, 2019. The interview was recorded and that video was played in front of the jury. When first informed about the allegations regarding Jane Doe 1, Ramirez said that he had not seen her in four years and denied touching her. Eventually, Ramirez told the officers that he touched Jane Doe 1's vagina on one occasion.
2. Offenses against Jane Doe 3
Jane Doe 3 testified that Ramirez physically abused her and raped her several times beginning in November 2014, while she was pregnant with Ramirez's second child. On that occasion, Ramirez hit her, choked her, and pushed her backwards. She lost consciousness and fell to the floor. When she woke up, Jane Doe 3 called police to report the assault and Ramirez was arrested. Jane Doe 3 obtained a restraining order and Ramirez was subsequently convicted of battery (§ 243, subd. (e)(1)).
As the birth of their child got closer, however, Jane Doe 3 started talking to Ramirez again. Ramirez brought Jane Doe 3 and their newborn daughter home from the hospital. Ramirez told Jane Doe 3 he wanted to have sex with her, but Jane Doe 3 refused due to her recent C-section. Ramirez said she was "[his] woman and [she had] to fulfill [him]." He said he would not "go hard." Jane Doe 3 continued to refuse, but Ramirez removed her clothes and forced her to have sex.
After that day, Ramirez started bringing his clothing and belongings over to Jane Doe 3's residence. He eventually began living there with Jane Doe 3 and the (now) four girls, even though he and Jane Doe 3 never discussed resuming their relationship.
When their second child was approximately six months old, Jane Doe 3, Ramirez, and the four girls moved into the second residence. The six of them slept on the same bed.
While living at the second residence, Ramirez forced Jane Doe 3 to have sex with him on many occasions. Jane Doe 3 would tell him she did not want to have sex with him, but he would grab her around the waist, carry her to the bed, and remove her clothing. The sex was painful to Jane Doe 3 and it would cause her to bleed.
Jane Doe 3 and Ramirez broke up at some point but he kept his key to the second residence and would enter the house without her permission. Once, Ramirez was trying to enter the house, but Jane Doe 3 was pushing the door closed. Ramirez pushed on the door and put his foot on the threshold to prevent her from closing it.
Jane Doe 3 ended her relationship with Ramirez and moved with her daughters to a residence in Prunedale. Regardless, Ramirez would come over, enter her house, and have sex with her without her consent. Ramirez would tell her that "it didn't matter that [they] were[] no longer together," because she would "always . . . be his woman" and she "would need to fulfill him . . . whenever he wanted." Ramirez would enter the house by using the numerical code to open the garage. Jane Doe 3 had not given him that code, but Ramirez obtained it from his oldest daughter.
On one occasion, Jane Doe 3 was sleeping and woke up with Ramirez naked in bed, hugging her. Ramirez began fondling her vagina before forcing her to have sex with him in spite of her telling him she did not want to.
At some point, Jane Doe 3 moved from the Prunedale residence to a bedroom in an apartment in Salinas. Jane Doe 3 had a key to the front door of the apartment, and a separate key for the bedroom she rented. Ramirez knew where she lived, because he helped Jane Doe 3 move her furniture to the apartment.
Jane Doe 3 testified that she did not give Ramirez keys to her new residence but that her landlords, believing him to be her partner, gave him copies. However, she also testified that he handed her those keys when he brought the last load of her belongings from the Prunedale residence. When Ramirez subsequently entered her bedroom without her consent, she did not know how he gained entry to either the apartment or her room.
On one occasion, Jane Doe 3 was ignoring Ramirez's phone calls. Jane Doe 3 was lying in bed, when she noticed that Ramirez had entered her apartment and come into her bedroom. She pretended to be asleep, and Ramirez turned around and left.
On a separate occasion, Ramirez came over after he learned that his mother had died. After Jane Doe 3 comforted him, Ramirez tried to have sex with her, but she told him it was "not the moment." Ramirez ignored her refusal, took off her clothes, and had sex with her.
When asked why she never reported Ramirez for raping her, Jane Doe 3 said that she did not trust the police because they released him so quickly after he was arrested for choking her in 2014.
3. Offenses against Jane Doe 4
Jane Doe 4 was born in February 1995 and was 26 at the time of trial. Ramirez is one of Jane Doe 4's paternal uncles and she recalled meeting him first when she was five or six years old. When she was five years old, she lived in Salinas with her family, but spent nearly every weekend at her paternal aunt's house.
When Jane Doe 4 was 10 years old, she was with her aunt and Ramirez at her aunt's apartment. While her aunt was in the kitchen, Ramirez asked Jane Doe 4 if she could help him reach something high up in a closet. Ramirez lifted her up, but also pressed her against his body and she could feel his penis slowly rubbing against her butt in a circular motion. Ramirez said the object was not in the closet and lowered her, pressing his penis against her in the same way. He said that it was in a different location and again lifted her, rubbing himself against her with a circular motion.
Ramirez then took Jane Doe 4 by the hand and led her to the couch in the living room. He put her on his lap and moved her buttocks in a circle over his penis. He stopped when Jane Doe 4's aunt walked in, asking why the door was closed and what they were doing. Ramirez said" '[N]othing,'" and the aunt left the room.
Jane Doe 4 stopped going over to her aunt's house because she was scared of Ramirez and was afraid he would "try something." She was also worried her aunt would not believe her if she said anything about what Ramirez had done to her. After Jane Doe 4 got married, she tried to tell her aunt but was physically unable to speak about it.
Before police initially reached out to her, Jane Doe 4 had decided that she would never report it to anyone. She had never had a close or consistent relationship with either Jane Doe 1 or Jane Doe 3. However, when Jane Doe 4's grandmother died, Jane Doe 3 messaged her on Facebook asking how she was. In the course of their exchange, Jane Doe 3 mentioned that Ramirez was no longer in her life, and Jane Doe 4 replied that she was glad he was not around her daughters anymore because "he had done [something] to me . . . when I was a little girl." Jane Doe 4 did not share any details of the incident with Jane Doe 3 though.
4. CSAAS testimony
Dr. Anthony Urquiza, a psychologist, testified as an expert in the psychological effects of child sexual abuse. Dr. Urquiza said that he had not met Jane Doe 1 or Jane Doe 4 and had not reviewed any of the police reports or other materials in this case. He testified it would be improper for him to offer an opinion as to whether the girls were in fact sexually abused or whether Ramirez was guilty. The purpose of Dr. Urquiza's testimony was to provide "context in which abuse happens and then how given that context, . . . [children] respond to that [sexual] abuse." Dr. Urquiza testified that victims of childhood sexual abuse often delay reporting the abuse, usually because of fear. The abuser is often someone with whom the child has an ongoing relationship, as opposed to a stranger. The abuser thus occupies a position of authority and power in relation to the child and is older, bigger, stronger, and more knowledgeable. The abuser may threaten the child, implicitly or explicitly, in order to keep them quiet. Alternatively, an abuser may groom a child-showing them affection, praising them, and giving them gifts-before starting to touch the child more sexually.
Dr. Urquiza further testified that a child's ability to recall details of sexual abuse can depend on its frequency. A single instance of abuse can be easier to recall in detail than multiple instances. Children also usually do not keep a calendar in which the events are noted, and so dates and times are difficult for a child to remember. It is easier for a victim to remember core details, such as what is physically happening to the child, rather than peripheral details, such as what color shoes the abuser was wearing.
After Dr. Urquiza was excused, the court instructed the jury that his "testimony about the psychological effects of child sexual abuse is not evidence that the defendant committed any of the crimes charged against him or any conduct with which he was not charged. [¶] You may consider this evidence only for the limited purpose in deciding whether or not the conduct of Jane Doe [No.] 1 and Jane Doe No. 4 was consistent or inconsistent with the conduct of someone who has been sexually assaulted and in evaluating the believability of their testimony. Do not consider this evidence as proof that claims of sexual assault made by the alleged victims in this case were true."
II. Discussion
A. Admissibility of CSAAS testimony
Ramirez contends that the CSAAS evidence was inadmissible for several reasons and should have been excluded by the trial court. First, he argues that the evidence was irrelevant and not sufficiently beyond common experience to warrant expert opinion. Second, he argues that the CSAAS evidence should have been excluded under Evidence Code section 352. Third, Ramirez contends that the CSAAS evidence should have been excluded because it does not meet the reliability test in People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Fourth, Ramirez asserts that his constitutional rights to due process were violated because the admission of CSAAS evidence rendered his trial fundamentally unfair. To the extent his trial counsel failed to preserve these claims for review on appeal, Ramirez argues his counsel rendered ineffective assistance of counsel. As we discuss below, we conclude the trial court did not err in admitting the CSAAS testimony and reject Ramirez's arguments in their entirety. Accordingly, we need not and do not address Ramirez's ineffective assistance of counsel claims.
1. The parties' motions in limine
Prior to trial, the prosecutor filed a motion in limine to admit expert testimony regarding CSAAS to address misconceptions about sexually abused children and to assist the jury in evaluating their testimony. Specifically, the prosecutor sought to admit expert testimony regarding common misconceptions regarding childhood sexual abuse, such as: (1) the victim's failure to disclose the molestation immediately means some of the described incidents did not occur or they are less believable; (2) the victim falsely denied the molestation, some of the described incidents did not occur or they are less believable; (3) since the victim did not appear frightened, upset, or traumatized by the abuser's conduct, the molestation did not occur; (4) since the victim does not know specifics regarding dates and times of the molestations, the molestations did not occur; (5) the victim should have been able to do something to protect herself from being molested; (6) since the victim did not show obvious trauma when disclosing the molestation to adults, the molestation did not occur; and (7) since the victim gradually disclosed the abuse and did not come out with each and every detail to the first adult, some of the molestations did not occur.
Ramirez filed a pretrial motion to exclude CSAAS expert testimony, arguing: (1) it "does not meet the Kelly-Frye standard," for admissibility; (2) that the evidence was only admissible if the prosecution first showed that the misconceptions CSAAS is intended to address still persist; (3) the evidence "can easily be misapplied by the jury" even with a cautionary instruction; (4) the evidence is inflammatory; and (5) the admission of the evidence violates due process by reducing the prosecution's standard of proof. The trial court found that the evidence was admissible and that it was more probative than prejudicial under Evidence Code section 352.
At a pretrial hearing on the motions, the trial court stated that the CSAAS testimony "will be permitted in the People's case in chief if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation or falsely denying that a molestation occurred. And the testimony is limited to explaining why the victim's behavior is not inconsistent with abuse." Having "evaluated evidence about the sexual assault victim's counter-intuitive behavior and evidence about [CSAAS] pursuant to Evidence Code [s]ection 352," the court expressly found that the evidence's "probative value significantly outweighs the potential for undue prejudice." Finally, the court stated: "The jury will be immediately admonished about the testimony-or after the testimony that it shall consider it only for the limited purpose of showing, if it did, that the victim's reactions were not inconsistent with having been molested and shall be further admonished on the burden of proof of guilt beyond a reasonable doubt. The jury will also be told not to consider the evidence as proof that the victim's molestation claim was true."
2. Standard of review
It is well established that "the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.'" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
3. The CSAAS testimony was relevant
First, Ramirez contends that CSAAS evidence was irrelevant to explaining the delays in reporting by Jane Doe 1 and Jane Doe 4 because they themselves explained those delays to the jury. Jane Doe 1 testified Ramirez told her not to tell anyone, and she was afraid he would "hurt [her] sisters . . . or [her] mom" if she reported his assaults. In her testimony, Jane Doe 4 explained she was scared she would not be believed and that she would alienate her aunt, Ramirez's sister, if she told another adult or the police what Ramirez had done to her.
Only relevant evidence is admissible. (Evid. Code, § 350.)" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) In this case, the issue of Jane Doe 1 and Jane Doe 4's delayed disclosure of Ramirez's sexual assaults was pertinent to their credibility. The fact that they both may have offered explanations as to why they delayed reporting the assaults did not make the CSAAS evidence regarding delayed disclosure any less relevant. Expert opinion testimony is admissible when the opinion is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).)
" 'The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men [or women] of ordinary education could reach a conclusion as intelligently as the witness." '" (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)
Although a jury might have sufficient common experience regarding the general concept of delayed disclosure due to a threat of harm or a child's imperfect recollection of details, it is not necessarily the case that a jury would have sufficient common experience in a situation involving sexual abuse. Given the" 'commonly held misconceptions'" about sexual abuse victims (McAlpin, supra, 53 Cal.3d at p. 1301; see id. at p. 1300), the trial court could reasonably conclude that expert testimony regarding delayed disclosure and inconsistencies in the witnesses' testimony would "assist" the jury (Evid. Code, § 801, subd. (a)), even if the jury was not" 'wholly ignorant'" of the subject matter. (McAlpin, supra, at p. 1299; see People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino) [CSAAS testimony "admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation"].) We conclude the CSAAS testimony offered here was relevant and the trial court did not abuse its discretion in admitting it on relevancy grounds.
As it was not an abuse of discretion for the trial court to admit the evidence, Ramirez cannot show ineffective assistance of counsel based on his trial counsel's failure to object on the ground raised here. (See McAlpin, supra, 53 Cal.3d at p. 1299 [admission of expert testimony analyzed under abuse of discretion standard]; People v. Lopez (2008) 42 Cal.4th 960, 966 [ineffective assistance of counsel claim requires a showing of deficient performance and prejudice].)
3. The CSAAS evidence was not more prejudicial than probative
Ramirez next contends that the CSAAS evidence should have been excluded under Evidence Code section 352 as unduly prejudicial and due to a "substantial danger of jury confusion." Specifically, he argues (1) that the CSAAS evidence lacked probative value, as set forth in his relevance arguments, ante, and (2) that the CSAAS evidence was prejudicial, because "there was a strong likelihood the jury would misuse the CSAAS evidence as a diagnostic tool of [Jane Doe 1 and Jane Doe 4] having been sexually abused" and thus the CSAAS evidence "had the potential to improperly bolster her credibility." Ramirez further argues that "[t]his danger" was "not lessened by" instructing the jury with CALCRIM No. 1193, which he claims is defective in any event.
We discuss below his claim that CALCRIM No. 1193 is prejudicially defective.
Evidence Code section 352 provides that a "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We are not persuaded by Ramirez's contention that the evidence should have been excluded under Evidence Code section 352. As we have explained, ante, his arguments that the CSAAS evidence lacked probative value and should have been excluded as irrelevant are without merit. CSAAS evidence has long been admissible in California to disabuse jurors of commonly held misconceptions about child sexual abuse. (See, e.g., McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch); People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450 (Harlan); People v. Bowker (1988) 203 Cal.App.3d 385, 393-394 (Bowker).)
Regarding Ramirez's claim concerning undue prejudice and potential juror confusion about the proper use of CSAAS evidence, the jury in this case was instructed that testimony about CSAAS "is not evidence that the defendant committed any of the crimes charged against him" and that the jury "may consider this evidence only for the limited purpose in deciding whether or not the conduct of Jane Doe [No.] 1 and Jane Doe No. 4 was consistent or inconsistent with the conduct of someone who has been sexually assaulted and in evaluating the believability of their testimony." (See CALCRIM No. 1193.) We must presume the jury followed this instruction. (See People v. Cain (1995) 10 Cal.4th 1, 34.) Accordingly, we conclude that the trial court did not err in finding the CSAAS evidence was more probative than prejudicial under Evidence Code section 352.
4. CSAAS evidence is not subject to the Kelly test
Ramirez next argues that all CSAAS evidence should be "subject to Kelly/Frye analysis because, in the over 35 years since the CSAAS model has been established, the model has not gained wide acceptance in the scientific community." He argues that this lack of general acceptance "renders the approach functionally equivalent to a 'novel' approach, for which the Kelly[/]Frye test should apply." In his view, CSAAS evidence "fails to satisfy Kelly/Frye's standard of reliability," and therefore the trial court abused its discretion in admitting the evidence in this case. We disagree.
Under the Kelly rule, "evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community." (Bolden, supra, 29 Cal.4th at p. 544.)
The Kelly rule was formerly known as the Kelly/Frye rule. As explained by the California Supreme Court, "[u]ntil 1993, this rule was generally known in this state as the Kelly Frye rule because this court in [People v.] Kelly [(1976) 17 Cal.3d 24] had relied on the reasoning of a federal appellate court decision, Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye). In 1993, the United States Supreme Court held that the Federal Rules of Evidence had superseded Frye [citation], and our state law rule is now referred to simply as the Kelly test or rule." (People v. Bolden (2002) 29 Cal.4th 515, 545 (Bolden).)
"The second prong [of the Kelly rule] requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures." (Bolden, supra, 29 Cal.4th at pp. 544-545.) Ramirez does not argue that Dr. Urquiza's testimony failed to satisfy these other two elements of the Kelly rule, so we do not discuss them further.
The California Supreme Court has explained that the "additional scrutiny" under Kelly, which "imposes certain preconditions on the admission of evidence derived from a novel scientific technique or procedure,"" 'is justified because "[l]ay jurors tend to give considerable weight to 'scientific' evidence when presented by 'experts' with impressive credentials. We have acknowledged the existence of a' . . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.'" '" (People v. Peterson (2020) 10 Cal.5th 409, 457 (Peterson).)
However, in contrast to evidence that is based on a new scientific technique or procedure, expert opinion testimony is not necessarily subject to Kelly. The California Supreme Court has explained as follows: "[I]n most cases no similar caution is required before a jury considers expert opinion testimony. Unlike results 'produced by a machine,' to which jurors may 'ascribe an inordinately high degree of certainty,' jurors presented with the personal opinion of a witness, even an expert witness, 'may temper their acceptance of his [or her] testimony with a healthy skepticism born of their knowledge that all human beings are fallible.' [Citations.] For this reason,' "[a]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly[]."' [Citations.] Of course, some expert testimony may be 'based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law' [citation]; where the novel technique 'appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury,' additional scrutiny under Kelly is warranted." (Peterson, supra, 10 Cal.5th at pp. 457-458, some italics added.)
In the present case, Ramirez contends that the California Supreme Court applied Kelly to evidence regarding the rape trauma syndrome in People v. Bledsoe (1984) 36 Cal.3d 236. In Bledsoe, "expert testimony describing the [rape trauma] syndrome and applying it to [the] victim was used to prove that 'a rape in the legal sense had, in fact, occurred.'" (People v. Stoll (1989) 49 Cal.3d 1136, 1160 (Stoll), italics omitted.) However, the "rape trauma syndrome was not devised to determine . . . whether, in fact, a rape in the legal sense occurred-but rather was developed by professional rape counselors as a therapeutic tool, to help identify, predict and treat emotional problems experienced by the counselors' clients or patients." (Bledsoe, supra, at pp. 249-250.) In other words, the scientific literature regarding rape trauma syndrome did "not . . . purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred." (Id. at p. 251.) Significantly, none of the parties in Bledsoe disputed that the Kelly test was the appropriate standard in evaluating the syndrome evidence. (Stoll, supra, at p. 1160.) As a result, the California Supreme Court "[a]ssum[ed], like the parties, that the [Kelly] test did apply," and "simply concluded that the prosecution would not be able to prove that rape trauma syndrome was generally accepted by the counseling community to prove criminal guilt." (Id. at p. 1161, italics omitted.) The California Supreme Court has subsequently made clear that its opinion in "Bledsoe did not hold that the [Kelly] test applied to the expert opinion in that case" and that Bledsoe did not "discuss the test's relationship to 'syndrome' or other expert psychological evidence in general." (Ibid., some italics added.)
Significantly, subsequent to Bledsoe, the California Supreme Court in Stoll concluded that where psychological testimony is based on methods that "are not new to psychology or the law" and "carry no misleading aura of scientific infallibility," the testimony is not subject to the Kelly rule. (Stoll, supra, 49 Cal.3d at p. 1157.)
In the present case, Ramirez fails to demonstrate that CSAAS evidence is based on methods that are "new to psychology or the law" and that testimony about CSAAS carries a "misleading aura of scientific infallibility." (Stoll, supra, 49 Cal.3d at p. 1157; accord, Peterson, supra, 10 Cal.5th at p. 458.) To the contrary, with respect to CSAAS evidence, "we are not dealing with new experimental scientific evidence' "not previously accepted in court." '" (Munch, supra, 52 Cal.App.5th at p. 472.) In this case, the prosecution's expert, Dr. Urquiza, was a licensed psychologist, professor, and the director of the CARE Center, a child abuse treatment program. He had spoken to or worked with more than 1,000 child sexual abuse victims, and he had conducted research related to child abuse since the late 1980s. Dr. Urquiza's expert testimony was thus" 'based on [his] clinical experience with child sexual abuse victims and on [his . . .] . . . familiarity with professional literature in the area.' [Citation.] . . . Such expert testimony meets 'traditional standards for competent expert opinion, without need for additional screening procedures'" under Kelly. (Id. at p. 473.) In addition, CSAAS evidence "has been ruled to be properly admitted by the courts of this state for decades." (Id. at p. 472; see also id. at p. 468.)
Further, testimony about CSAAS does not purport to provide any" 'definitive truth'" (Peterson, supra, 10 Cal.5th at p. 458) about whether a child has been abused and instead simply attempts to rebut misconceptions about the conduct of child sexual abuse victims (see Munch, supra, 52 Cal.App.5th at pp. 468, 473; Lapenias, supra, 67 Cal.App.5th at p. 173). Indeed, in this case, Dr. Urquiza testified that he was not offering an opinion about whether Ramirez was guilty and that he knew nothing about the case aside from defendant's name. The California Supreme Court has rejected the notion that the "use of 'syndrome' . . . terminology by a mental health professional makes the [testimony] seem 'scientific' to a jury, and thus invokes [Kelly]." (Stoll, supra, 49 Cal.3d at p. 1161, fn. 22 [court was "not persuaded that juries are incapable of evaluating properly presented references to psychological . . . 'syndromes' "].)
Lastly, in view of Ramirez's failure to demonstrate the applicability of the Kelly rule to the CSAAS evidence in this case, we find unpersuasive his reliance on out-of-state authority regarding whether CSAAS evidence meets a Kelly (or Frye) requirement regarding general acceptance within the scientific community. (See, e.g., State v. J.L.G. (N.J. 2018) 234 N.J. 265, 301 ["we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community"].)
Accordingly, because Ramirez fails to establish that CSAAS evidence is based on methods that are "new to psychology or the law" and that the evidence carried a "misleading aura of scientific infallibility" (Stoll, supra, 49 Cal.3d at p. 1157; accord, Peterson, supra, 10 Cal.5th at pp. 457-458), we conclude that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without subjecting it to analysis under Kelly. (See, e.g., Lapenias, supra, 67 Cal.App.5th at p. 173 ["expert CSAAS testimony is not '" 'scientific'" evidence' subject to the Kelly rule"]; Munch, supra, 52 Cal.App.5th at pp. 472-473 [CSAAS evidence not subject to Kelly analysis]; Harlan, supra, 222 Cal.App.3d at p. 449 [Kelly rule does not apply to expert testimony about the reactions of child molestation victims, where expert's "opinion was based on her clinical experience with child sexual abuse victims and on her familiarity with professional literature in the area"]; People v. Gray (1986) 187 Cal.App.3d 213, 218-220 [Kelly test not applicable to CSAAS testimony which addressed behavior of child molestation victims as a class, and which did not purport to prove molestation occurred]; see also Bowker, supra, 203 Cal.App.3d at p. 392 [notwithstanding Kelly, CSAAS evidence may be admissible "for the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse"].)
5. Admission of CSAAS evidence did not violate due process
Ramirez also contends that his state and federal constitutional rights to due process were violated because the admission of CSAAS evidence rendered his trial fundamentally unfair. In this regard, he contends that (1) the CSAAS evidence should have been excluded as set forth in his above-described arguments concerning the lack of relevance of the evidence; (2) the CSAAS evidence was more prejudicial than probative under Evidence Code section 352; and (3) the CSAAS evidence was unreliable for the same reasons that he contended the Kelly test should apply.
We have already rejected Ramirez's contentions that (1) the evidence should have been excluded as irrelevant; (2) the evidence should have been excluded under Evidence Code section 352 as unduly prejudicial and due to a substantial danger of jury confusion; and (3) CSAAS evidence is unreliable and that the Kelly test must be applied. The "rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised" on appeal. (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29.) Having rejected each of the underlying claims of error in admitting this evidence, we accordingly reject Ramirez's due process claim.
B. CALCRIM No. 1193
Ramirez contends that the trial court erred by using CALCRIM No. 1193 to instruct the jury regarding the proper use of CSAAS evidence and that his constitutional rights to due process were violated as a result. According to Ramirez, CALCRIM No. 1193 improperly states that the jury may consider CSAAS evidence "to assess the credibility of Jane Doe 1 and Jane Doe [4]." He argues that "by instructing the jury that the CSAAS testimony may be used to assess believability, it implies that the testimony, presented by the prosecution, may be used to bolster believability. The instruction allows the jury to find that, because a complaining witness's conduct after the fact was consistent with having been sexually abused, the complaining witness is more believable" and "therefore, that the complaining witness was in fact abused." We disagree.
1. Trial court proceedings
Prior to instructing the jury and outside of the jury's presence, the trial court went through each instruction contained in the packet individually and asked counsel if there was an objection. Defense counsel affirmed she had no objection to CALCRIM No. 1193.
At the conclusion of evidence, the court instructed the jury pursuant to CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. Dr. Urquiza's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him or any conduct or crimes with which he was not charged. [¶] You may consider this evidence only in deciding whether or not Jane Doe 1's conduct or Jane Doe 4's conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
2. No error in instructing with CALCRIM No. 1193
As a threshold matter, the Attorney General argues that Ramirez has forfeited his claim of instructional error by failing to object to CALCRIM No. 1193 at trial. Because Ramirez contends the challenged instruction was an incorrect statement of law and affected his substantial rights under section 1259, we decide that we can consider the merits of his claim in spite of his failure to object below. (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312; People v. Townsel (2016) 63 Cal.4th 25, 59-60.)
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) When we review a purportedly erroneous instruction, we consider" '" '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 (Richardson).) We consider the instructions as a whole and" 'assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (Ibid.)
We find that it is not reasonably likely jurors understood CALCRIM No. 1193 as permitting the use of CSAAS evidence for the improper purpose of proving that Jane Doe 1 and Jane Doe 4 were abused by Ramirez. (See Richardson, supra, 43 Cal.4th at p. 1028.) CALCRIM No. 1193 informs jurors that they may use CSAAS evidence to evaluate whether the alleged victim's behavior, which may appear inconsistent with being molested, was actually not inconsistent. To the extent that CALCRIM No. 1193 allows jurors to consider CSAAS evidence in their evaluation of the victim's credibility, the instruction was proper because such evidence is relevant and admissible when an alleged victim's credibility has been attacked. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Contrary to Ramirez's contention on appeal that jurors would interpret CALCRIM No. 1193 as allowing them to conclude "that the complaining witness was in fact abused," CALCRIM No. 1193 specifically instructs jurors that they must not consider CSAAS testimony as evidence that the defendant committed the charged crimes. Accordingly, we conclude that Ramirez's claim regarding CALCRIM No. 1193 is without merit. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 [rejecting contention that CALCRIM No. 1193 allows a jury to use CSAAS testimony as proof that the victim was molested]; accord, Munch, supra, 52 Cal.App.5th at pp. 473-474; Lapenias, supra, 67 Cal.App.5th at pp. 175-176.)
Because there was no error in instructing the jury pursuant to CALCRIM No. 1193, we reject Ramirez's alternative argument that his trial counsel was ineffective for failing to object to that instruction. (People v. Poslof (2005) 126 Cal.App.4th 92, 99.)
C. Cumulative Error
Ramirez contends that the cumulative effect of the purported errors discussed above warrants reversal of the judgment. As we have found no individual error, we reject his cumulative error argument.
D. Ramirez is entitled to resentencing under amended section 654 [
As we discuss in this section, the Attorney General concedes that Ramirez is entitled to remand for resentencing due to the recent amendment to section 654. Ramirez raised several other purported sentencing errors in his brief. Because the trial court will be able to exercise its full discretion at his resentencing hearing, we will not discuss those claims of error in detail, though we list them here for the trial court's convenience. Specifically, Ramirez contends: (1) the trial court misunderstood its discretion to impose a concurrent term on count 20; (2) the trial court erred in failing to stay the sentences imposed on either the burglary counts or the intended crimes underlying those burglaries; (3) the trial court erred by unlawfully staying the terms on the section 661.67, subdivision (b) enhancements; and (4) in light of recent amendments to section 1170, subdivision (b)(2), the trial court improperly imposed an upper term on count 16. We express no opinion on the merit of these claims but presume the trial court will resentence Ramirez in accordance with current law.
Finally, Ramirez contends that the matter must be remanded for resentencing so that the trial court may exercise its discretion under recently amended section 654. At sentencing, in accordance with former section 654, the trial court imposed and stayed a 25 years to life term (count 1), three 15 years to life terms (counts 2, 3 &4), and a determinate one year term (count 19) as these offenses carried shorter terms. The Attorney General concedes the argument and we agree that the concession is well-taken.
Section 654 prohibits multiple punishment for a single act or omission. (See People v. Delgado (2017) 2 Cal.5th 544, 570.) At the time of Ramirez's sentencing, section 654 required the trial court to punish a defendant "under the provision that provide[d] for the longest potential term of imprisonment." (§ 654, former subd. (a).)
Effective January 1, 2022, section 654 was amended by Assembly Bill No. 518 to give the trial court discretion to select the provision under which a defendant would be punished. As relevant here, section 654 now provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.)
The amendment of section 654 was an ameliorative change to the law as trial courts are no longer required to impose a sentence under the provision that provides for the longest term of imprisonment when a defendant is convicted of multiple crimes for a single act or omission. Thus, as the parties agree, Ramirez is entitled to the retroactive application of amended section 654 because there is no indication that the Legislature intended the law to apply prospectively only, and this case is not yet final on appeal. (See, e.g., People v. Mani (2022) 74 Cal.App.5th 343, 379-380; People v. Sek (2022) 74 Cal.App.5th 657, 673-674; People v. Mendoza (2022) 74 Cal.App.5th 843, 861-862.)
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, . . . the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez(2014) 58 Cal.4th 1354, 1391 (Gutierrez).) The salient question is whether the trial court "express[ed] its intent to impose the maximum sentence permitted." (People v. McDaniels (2018) 22 Cal.App.5th 420, 427.) "When such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor." (Ibid.) Without a clear indication of the trial court's intent, remand is required. (Gutierrez, supra, at p. 1391.) Therefore, we must review the record to determine whether remand is required or if it "would be an idle act." (People v. Flores (2020) 9 Cal.5th 371, 432.)
In this case, the record does not" 'clearly indicate[]'" whether the trial court would have decided to impose the longer sentences and stay the shorter sentences had it the discretion to do so. (Gutierrez, supra, 58 Cal.4th at p. 1391.) When sentencing Ramirez, the trial court made no indication that it intended to impose the maximum possible sentence on Ramirez no matter what or that it would not impose a lesser, yet still lengthy, indeterminate sentence had it the discretion to do so.[ Section 654 as amended now permits the court to impose a lesser term and stay a longer one.
At sentencing, the trial court characterized Ramirez's conduct as described by Jane Doe 1, Jane Doe 3, and Jane Doe 4 as "absolutely abhorrent, egregious[,] and appalling." While this is certainly an indication of the trial court's sentencing intent, we cannot conclude it is a clear indication of how it would have exercised its discretion under the current version of section 654.
On this record, we determine that remand is necessary so that the trial court can exercise its sentencing discretion under section 654, as amended. We express no opinion on how the trial court should exercise its discretion.
III. Disposition
The judgment is reversed and remanded for the limited purpose of resentencing. At resentencing the trial court will have the opportunity to exercise its discretion under current Penal Code section 654. In addition, defendant may raise his other claims of sentencing error. We express no opinion on how the court should exercise its discretion under current law when it resentences defendant.
WE CONCUR: Bamattre-Manoukian, Acting, P.J., Danner, J.