Opinion
D074697
03-27-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS CARLOS HUERTA ARCASI, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD259306) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Luis Carlos Huerta Arcasi appeals a judgment of conviction after a jury found him guilty of committing numerous sexual offenses against two minor siblings, including two counts of sodomy with J.H., a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); counts 1 and 2), two counts of oral copulation with J.H., a child 10 years of age or younger (id., subd. (b); counts 3 and 4), three counts of committing lewd and lascivious acts on J.H., a child under 14 years of age (§ 288, subd. (a); counts 5, 6, and 7), one count of aggravated sexual assault of M.H., a child under 14 years of age (§ 269, subd. (a); count 8), one count of forcible sodomy with M.H., a minor 14 years of age or older (§ 286, subd. (c)(2)(A), (C); count 9), and one count of sodomy with M.H., a person under 16 years of age (id., subd. (b)(2); count 10). The trial court sentenced Arcasi to a term of eight years, plus 125 years to life, in prison.
All further statutory references are to the Penal Code unless otherwise noted.
Arcasi contends the trial court erred when it allowed the People's expert witness to testify that children generally do not make false accusations of sexual abuse. We agree with Arcasi that the court erred in admitting the false allegation testimony, which usurped the traditional role of the jury in assessing the weight and credibility of the witnesses' testimony. However, Arcasi has not established a reasonable probability that he would have obtained a more favorable result in the absence of the false allegation testimony. Therefore, we conclude the admission of the false allegation testimony was harmless. We further reject Arcasi's arguments that his prison sentence violates his right to be free from cruel and unusual punishment and that the trial court violated his due process rights by imposing various fines and fees without conducting an ability-to-pay hearing.
Accordingly, we affirm the judgment.
II
BACKGROUND
A
The Prosecution Case
Arcasi coached a youth soccer team on which M.H. played. He became neighbors and developed a close friendship with M.H.'s parents, who had several children including M.H. and his younger brother, J.H. M.H. and J.H. often went to Arcasi's apartment to play with his children, and, in his role as friend, neighbor, and soccer coach, Arcasi sometimes drove M.H. and J.H. to and from soccer matches or school.
1
Assaults on J.H.
J.H. was 18 years old at the time he testified against Arcasi. He testified Arcasi began touching him inappropriately when he was eight or nine years old. He testified Arcasi started by touching his buttocks over his clothing, but then proceeded to touch him "everywhere," including on his legs, body, buttocks, and penis. J.H. recounted one incident in which Arcasi touched him, kissed him, and took pictures of him in the nude. He testified Arcasi forced him to engage in oral copulation on multiple occasions and in several locations, including Arcasi's car, Arcasi's residence, and J.H.'s residence.
J.H. testified Arcasi had anal intercourse with him "any time ... he got a chance to do something," and more than 20 times by the time he was 10 or 11 years old. According to J.H., Arcasi said the word "colita" when he wanted to engage in sex acts with J.H. J.H. "knew that something was going to happen" when Arcasi said "colita," but he was powerless to stop it. J.H. testified "colita" means "little butt" in Spanish.
According to J.H., Arcasi sometimes gave him money, video games, and clothing after engaging in sex acts with him. J.H. testified he "felt good" receiving these items from Arcasi, like he "was doing something to get what [he] wanted in return." However, he testified that the anal penetration "hurt" him. J.H. blamed himself for the sexual abuse, later experienced depression, and at one point contemplated suicide.
One morning J.H. told his mother that Arcasi touched him in an inappropriate manner and tried to get J.H. to orally copulate him. J.H. did not want to tell his mother about the sexual abuse because he was worried she would not believe him. J.H. thought "everybody always believes adults [rather] than kids." As J.H. feared, his mother did not believe him when he disclosed the sexual abuse to her. J.H.'s mother testified she herself was the victim of sexual abuse when she was a child, but nobody believed her when she disclosed the sexual abuse. According to the mother, J.H.'s disclosure forced her "to remember what had happened" and she "didn't want to remember it."
A few years after J.H. told his mother about the touching, J.H. committed an act of vandalism. During an interview to determine whether J.H. was eligible for a juvenile diversion program, a probation officer asked J.H. standard questions including whether he had been the victim of sexual abuse. Initially, J.H. answered "no." At the end of the interview, however, J.H. asked to speak with the probation officer outside the presence of his father, who had accompanied him at the interview. During the ensuing conversation with the probation officer, J.H. stated his brother's soccer coach had "bother[ed]" him since he was eight or nine years old. J.H. divulged that the soccer coach touched him and offered him money and gifts to keep him from disclosing the touching. The probation officer reported the disclosure to child protective services and cross-reported the disclosure to police.
2
Assaults on M.H.
M.H. was 23 years old at the time he testified against Arcasi. M.H. testified Arcasi sexually abused him for the first time when he was 13 years old. According to M.H., he was playing video games in Arcasi's master bedroom and, afterwards, Arcasi removed M.H.'s clothing and placed his penis against M.H.'s buttocks.
M.H. testified Arcasi had anal intercourse with him 14 or more times over a five-year span, beginning when he was 13 years old. According to M.H., Arcasi had anal intercourse with him in public park bathrooms and Arcasi's apartments. M.H. testified Arcasi also punched him to try to coerce him into oral copulation. M.H. knew Arcasi intended to engage in sex acts with him when Arcasi said "colita," which M.H. testified means "butt" in Spanish. For example, Arcasi would state, "colita's happening today," or "colita, colita, colita," when he intended to sexually abuse M.H. The sexual abuse made M.H. feel "disgusting," "sad," and "miserable."
M.H. testified Arcasi threatened and bribed him to keep the sexual abuse a secret. For instance, he testified Arcasi threatened to physically harm him and his family. He testified Arcasi also offered him money, portable music players, phones, and video games to keep him silent. M.H. testified he disclosed the sexual abuse to his parents and the police when he learned that Arcasi sexually abused his younger brother, J.H.
After M.H. disclosed the sexual abuse, he placed a pretext call to Arcasi, who lived in Mexico at the time of the disclosure. In the audio recording of the call, M.H. identified himself to Arcasi as "colita" and stated he had a sexually transmitted disease. Then, he asked Arcasi to admit he went "too far when [he] was a kid," and Arcasi replied, "I do feel bad, dude.... I feel bad. Because I also have a son, dude." M.H. demanded that Arcasi explain why he "fucked [him in] the ass," to which Arcasi replied, "I don't know, dude, I don't, I don't know .... I mean, I don't know, truthfully .... [¶] ... [¶] [S]incerely, I don't know what, what to tell you, dude, really.... [¶] ... [¶] I feel like shit, dude.... I made mistakes, big mistakes, dude.... I should have never done it, dude ...." M.H. asked Arcasi why he raped him and Arcasi replied, "Sorry ... [¶] ... [¶] Forgive me, dude ... my life is all gone to shit, dude." At various points during the call, M.H. asked Arcasi why he did "it" to J.H., since J.H. was "really young[.]" Arcasi begged forgiveness from M.H. and stated he was "paying for it here."
3
Dr. Albert Killen-Harvey
The prosecution elicited expert testimony regarding child sexual abuse accommodation syndrome (CSAAS) from Dr. Albert Killen-Harvey of the Chadwick Center at Rady Children's Hospital in San Diego. Dr. Killen-Harvey trains medical professionals, educators, and court personnel across the nation regarding childhood trauma including physical and sexual abuse. Dr. Killen-Harvey testified he did not review case-specific materials and based his testimony on his "depth of experience in child sexual abuse but with no specific information on this case."
On direct examination, Dr. Killen-Harvey testified about several myths and misperceptions regarding the behaviors of child or adolescent victims of sexual abuse. According to Dr. Killen-Harvey, a victim may delay disclosure or not disclose sexual abuse because he or she feels responsible for the abuse, fears he or she will not be believed, or worries disclosure may break up his or her family. Further, a victim may delay disclosure or not disclose sexual abuse if he or she received a reward from the perpetrator and feels he or she consented to the abuse. A boy and male adolescent victim, in particular, may delay disclosure or not disclose sexual abuse because he believes the abuse reflects his sexual orientation or diminishes his masculinity.
Dr. Killen-Harvey testified there is a myth or misperception the family of a child or adolescent sexual abuse victim will always recognize that the victim has been abused. He testified sexual abuse is so horrible to imagine that families may attribute differences in the victim's demeanor to other factors. Child or adolescent victims may hide sexual abuse to protect the family or they may lack the ability to convey what has happened. Further, sexual abuse "is oftentimes incremental," so it can be difficult for a family member to discern signs of sexual abuse. According to Dr. Killen-Harvey, parents who themselves have experienced sexual abuse "may inadvertently pass on to their kids an inability to see and spot warning signs, and their kids may end up being sexually abused as well."
Dr. Killen-Harvey testified another myth or misperception is that a child or adolescent victim will always disclose sexual abuse in an emotionally cathartic manner. As Dr. Killen-Harvey explained, some children are emotional when they disclose sexual abuse, but others are not. Some victims do not even have the vocabulary to discuss sexual abuse. In short, Dr. Killen-Harvey testified there is no "right way" for a child or adolescent victim to disclose sexual abuse.
In addition to these topics, the prosecution asked Dr. Killen-Harvey whether "there are any myths or misconceptions that children will always make up sexual abuse" or that false allegations of sexual abuse are "very prolific or very commonplace." He responded, "I think that myth still does—it does exist.... [R]esearch shows us that children by and large do not make it up when they disclose .... [W]e are still so uncomfortable as a culture in talking about any aspect of sex and sexuality, we particularly don't want to talk about it with children, and we particularly don't want to talk about it with children when it involves something as egregious as sexual abuse or sexual trauma. [¶] So I think our way of avoiding the conversation is to say that kids must make it up ...." (Italics added.)
The prosecution asked Dr. Killen-Harvey whether he agreed "children can lie," to which he replied, "Yes." Then, it asked him to discuss the difference between children lying about sexual abuse and children lying about innocuous issues. He replied, "[Children] by and large lie about benign things, things that don't really matter that much.... When [the issue] is a big deal, what we tend to see is ... for a child to maintain a lie for any period of time is really very difficult. They're actually—by and large as a population, kids are not great liars. They can say the initial lie[,] but as soon as you ask a follow-up question or ask them to repeat the lie, even pretty quickly thereafter, it falls apart. They add another piece and then they subtract a key piece and then all of a sudden it's about something else. Kids just don't do a real good job with that over time, and then when you add to it something as significant as did somebody hurt you in some way or touch you in a way that was inappropriate and particularly if it might be somebody that you know or care about, the pressure around all of that to maintain a lie, we just by and large don't see kids able to do that for very long before it all just kind of falls apart for them." (Italics added.)
The prosecution asked Dr. Killen-Harvey whether research or studies indicated whether particular age groups are more likely to lie about sexual abuse and he responded as follows: "[T]here are a few studies out there, and the preponderance of those show[s] that [lying] tends to be a characteristic we see in younger-age[] children, meaning under the age of eight. We see—I know of very little evidence and research that supports [lying] for preadolescence or adolescence, it just doesn't manifest itself there. We don't see false allegations at that age level." (Italics added.) Dr. Killen-Harvey further testified that false allegations are most common when complicating factors such as separation, divorce, or custody disputes are present.
B
The Defense Case
Arcasi testified M.H. and J.H. sometimes came over to his apartments to play with his children and admitted he drove with J.H. in his car a few times, but denied ever being alone with M.H. or J.H. at his apartments. Arcasi denied engaging in intimate touching, oral copulation, or anal intercourse with M.H. or J.H.
Regarding the pretext call, Arcasi testified he received the call while en route to a casino and had trouble hearing M.H. He testified he did not initially understand the accusations M.H. was making against him when M.H. asked him to admit he took advantage of M.H. when he was younger. Although he understood the nature of M.H.'s accusations as the call progressed, he testified he was unsure whether M.H. was "joking" or "serious" when he accused Arcasi of rape. Arcasi testified M.H. "came at [him] from all different sides" during the call and Arcasi believed M.H. "was trying to get [him] confused[.]"
Arcasi offered various explanations regarding why he told M.H. he was "sorry" several times during the pretext call. According to Arcasi, he apologized to M.H. not because he had sexually abused M.H., but because he had used foul language during the call and was not giving M.H. his undivided attention. Arcasi testified he also apologized to M.H. because M.H. had just confessed that he had a sexually transmitted disease and Arcasi was powerless to help M.H. in his time of need.
The defense elicited testimony from several character witnesses, including Arcasi's family members, a former landlord, former roommates, and people who played soccer with Arcasi and his son. The character witnesses testified Arcasi never behaved in an inappropriate manner with them and they never witnessed Arcasi behave in an inappropriate manner with minors, including M.H. and J.H.
C
The Verdicts and Sentencing
After three hours of deliberations, the jury returned guilty verdicts on all charges. It also found true allegations that Arcasi had substantial sexual conduct with J.H. (§ 1203.066, subd. (a)(8)), and committed offenses specified in section 667.61, subdivision (c), against more than one victim (§ 667.61, subds. (b), (c), (e)).
The trial court sentenced Arcasi to a prison term of eight years, plus 125 years to life, as follows: two consecutive indeterminate terms of 25 years to life each for counts 1 and 2, five consecutive indeterminate terms of 15 years to life each for counts 3, 4, 7, 8, and 9, a consecutive determinate term of six years for count 5, and a consecutive determinate term of two years for count 6. The court imposed a prison sentence of eight months for count 10, but stayed punishment under section 654.
III
DISCUSSION
A
False Allegation Testimony
In child sexual abuse cases, the prosecution often elicits expert testimony concerning CSAAS, a framework that identifies common behaviors of children and family members who have reported sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1301 (McAlpin); People v. Bowker (1988) 203 Cal.App.3d 385, 391 (Bowker).) Such testimony is admissible "for the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse." (Bowker, at p. 392.) "For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust." (Id. at p. 394.) Or, "[w]here an alleged victim recants his story in whole or in part, a psychologist could testify ... such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings." (Ibid.)
CSAAS testimony is inadmissible, however, to establish that the complaining victim was in fact sexually abused. (McAlpin, supra, 53 Cal.3d at p. 1300; Bowker, supra, 203 Cal.App.3d at p. 391.) Such testimony is not reliable when used for this purpose because CSAAS "was developed as a therapeutic tool" and not "to determine when a child has been abused." (Bowker, at p. 392.) "CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience." (Id. at p. 394.) The prohibition against using CSAAS testimony to prove the occurrence of a sexual assault applies when the expert testifies "the particular victim was abused," as well as when the expert provides " 'general' testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused." (Id. at p. 393.)
In the present case, Dr. Killen-Harvey rendered proper CSAAS testimony that disabused the jury of myths regarding the behavior of child sexual abuse victims. For instance, he described misconceptions regarding why victims might delay disclosure or not disclose sexual abuse, why families may not recognize child sexual abuse, and the range of responses and demeanors victims may exhibit when disclosing child sexual abuse. This testimony is not in dispute. Rather, Arcasi challenges Dr. Killen-Harvey's testimony regarding the prevalence of false child abuse allegations. Relying on People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian), he argues the false allegation testimony invaded the province of the jury to make witness credibility determinations and improperly called on the jury to convict him based on mere likelihoods and probabilities.
Prior to trial, the defense filed a motion in limine to exclude CSAAS testimony and objected to Dr. Killen-Harvey's testimony to the extent it sought to "[r]estore the [v]ictim's [sic] [c]redibility." The defense also objected to the expected testimony of Dr. Killen-Harvey regarding the prevalence of false allegations of child sexual abuse. The trial court opined that statistical evidence of false allegations was "not going to be part of the expert's testimony" and overruled the motion in all other respects. --------
In Wilson, an expert in a child sexual abuse case rendered CSAAS testimony about myths and misconceptions of child sexual abuse. (Wilson, supra, 33 Cal.App.5th at p. 568.) But then, at the invitation of the prosecutor, he testified on the topic of false allegations of child sexual abuse. (Ibid.) On this issue, he testified "false allegations occur 'very infrequently or rarely,' " and referenced a "Canadian study that found 'about 4% of cases in which there was an allegation that was determined to be false' ...." (Ibid.) He "testified there were 12 to 15 other studies on the subject, which found false allegations in between 1 and 6 percent of cases." (Ibid.) In the words of the Wilson court, the testimony told "the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth." (Id. at p. 570.)
After conducting an extensive review of case law from federal, out-of-state, and military courts, the Wilson court concluded "the clear weight of authority ... finds such evidence inadmissible." (Wilson, supra, 33 Cal.App.5th at p. 570.) As the court explained, false allegation testimony is improper because it "invade[s] the province of the jury, whose responsibility it is to 'draw the ultimate inferences from the evidence.' " (Id. at p. 570.) Further, the court concluded such testimony "would not be helpful to the jury because it tells the jury nothing about whether this particular allegation is false." (Id. at p. 571.) Although the admission of the testimony was erroneous, the court concluded the error was harmless because the expert testimony was brief, the expert conceded it would be difficult to assess whether a sexual abuse allegation was false, and there was extensive victim testimony, among other factors. (Id. at p. 572.)
In Julian, the same expert from the Wilson case testified in another child sexual abuse case about the prevalence of false allegations of child sexual abuse. (Julian, supra, 34 Cal.App.5th at p. 883.) The expert testified the range of false allegations was " 'about as low as [1] percent of cases to a high of maybe 6, 7, 8 percent of cases ....' " (Ibid.) During cross-examination, the expert cited a "Canadian study" as the basis for his conclusion and added, " 'the body of research supports' the claim that false allegations are rare and 'very' infrequent." (Ibid.) The expert further testified there were a " 'dozen studies' that supported a '[1] to [6] percent' false allegation rate." (Id. at pp. 883-884.) According to the expert, " 'the best research that we have is that false allegations do occur but they happen infrequently or rarely....' " (Id. at p. 884, italics omitted.)
The Julian court determined the false allegation testimony "invited jurors to presume [defendant] was guilty based on statistical probabilities" and not to base the verdict on properly-admitted evidence. (Julian, supra, 34 Cal.App.5th at p. 886.) As the court explained, the testimony was "irrelevant to the issue of [the defendant's] guilt or innocence" and "distracted the jury from its duty to decide the properly admitted evidence." (Id. at p. 888.) Further, it "tipped the scales in favor of the People," given that the case boiled down to a "credibility dispute," the testimony was not a "slight passing reference," and the prosecution relied on the testimony during closing arguments. (Id. at pp. 888, 889.) For all these reasons, the testimony was "highly prejudicial" and reversal of defendant's convictions was required. (Id. at pp. 888, 890.)
In the present case, Dr. Killen-Harvey testified that research and studies showed "children by and large do not make it up when they disclose" child sexual abuse. He stated he was unaware of evidence or research demonstrating that children made false accusations of sexual abuse, and added: "[I]t just doesn't manifest itself there. We don't see false allegations at that age level." Further, he opined that false allegations, to the extent they occur, generally occur with younger children and coincide with complicating factors such as divorce, separation, or custody disputes.
Taken together, these statements conveyed to the jury that M.H. and J.H. likely were truthful in their reporting of the sexual abuse because most children like them are truthful about such allegations. Like the testimony in Wilson and Julian, Dr. Killen-Harvey's testimony "invaded the province of the jury, whose responsibility it is to 'draw the ultimate inferences from the evidence.' " (Wilson, supra, 33 Cal.App.5th at p. 570; People v. Sanchez (2019) 7 Cal.5th 14, 46, 47 [" 'The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.' "].) Further, it invited the jury to presume Arcasi was guilty based on statistical probability, rather than properly-admitted evidence. (Julian, supra, 34 Cal.App.5th at p. 886.) Accordingly, we conclude the admission of the false allegation testimony was erroneous.
The People argue Dr. Killen-Harvey's testimony is distinguishable from the improper expert testimony in Wilson and Julian because Dr. Killen-Harvey did not specify the exact numerical percentage of sexual abuse claims that are believed to be fabricated. We disagree. As noted, Dr. Killen-Harvey testified, without qualification, that lying "just doesn't manifest" in preadolescent or adolescent victims and clinicians "don't see false allegations at that age level." Based on this unequivocal testimony, a jury could infer that there were no documented instances of false allegations from the pertinent age group in the research on which Dr. Killen-Harvey relied.
In any event, whether Dr. Killen-Harvey provided a precise figure about the prevalence of false allegations is not dispositive. More important is whether he "suggest[ed] to the jury that there was an overwhelming likelihood [the victims'] testimony was truthful." (Wilson, supra, 33 Cal.App.5th at p. 570; see also State v. Catsam (1987) 148 Vt. 366, 370 ["By testifying first that sufferers of PTSD generally do not fabricate claims of sexual abuse, and then that the complainant suffers from PTSD, [the expert] testimony left one clear and unmistakable inference to be drawn: the complainant would not fabricate this allegation."]; State v. Lindsey (1986) 149 Ariz. 472, 474, 475 [court erred in permitting expert to testify " 'most people in the field feel that it's a very small proportion [of incest victims] that lie' " because such testimony "usurps the jury's traditional functions and roles and because, when given insight into the behavioral sciences, the jury needs nothing further from the expert."]; State v. Myers (1986) 382 N.W.2d 91, 92 [court improperly admitted expert testimony that "children generally tell the truth when they report that they have been sexually abused"].) We have no trouble concluding that Dr. Killen-Harvey conveyed this message to the jury and thus supplanted the role of the jury in assessing the credibility of the victims.
We turn now to whether the admission of the testimony was prejudicial. Arcasi urges us to apply the prejudice standard articulated in Chapman v. California (1967) 386 U.S. 18, on grounds that the error was so egregious as to violate his federal due process rights. " 'The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. [Citation.] "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." ' " (People v. Coneal (2019) 41 Cal.App.5th 951, 972.)
Arcasi has not established that the testimony at issue rendered his trial fundamentally unfair. Dr. Killen-Harvey qualified his testimony by stating he was unaware of any research suggesting that false allegations occurred in the victims' age group. Although the testimony certainly tended to establish that M.H. and J.H. were truthful witnesses, it is not the only inference the jury could have drawn. It is conceivable the jury may have inferred that false allegations occur, but are not well-documented in the research. Alternatively, the jury could have inferred that Dr. Killen-Harvey was unaware of all research on the topic. Further, Arcasi has not articulated, nor can we discern, any basis for concluding the testimony at issue was of such quality to prevent a fair trial. Arcasi has not established a due process violation and, therefore, we will apply the prejudice standard governing errors of state law. (Wilson, supra, 33 Cal.App.5th at pp. 571-572.) That standard requires us to deem an error harmless unless there exists a reasonable probability the defendant would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 837.)
Applying this standard, we conclude the error was harmless. The improper false allegation testimony was relatively brief, taking up just four of the 82 pages of the reporter's transcript devoted to Dr. Killen-Harvey's testimony. Further, on cross-examination, Dr. Killen-Harvey conceded the issue of false child sexual abuse reports was not his "area of strength." He also admitted there was "very little research" on false allegations, which mitigated the prejudicial impact of his direct examination testimony.
Further, the evidence against Arcasi was substantial. J.H. and M.H. provided detailed testimony about the sexual abuse they endured at Arcasi's hands. They corroborated one another when discussing the tactics Arcasi employed—for example, his use of the word "colita" and his efforts to conceal the sexual abuse with threats and bribery. Perhaps most compelling, the prosecution played the audio recording from the pretext call, during which M.H. repeatedly accused Arcasi of sexual abuse and Arcasi never once denied the accusations. On the contrary, he admitted he made "big mistakes," stated he "should have never done it," and begged M.H. to forgive him. Faced with this evidence, the jury apparently did not view this as a close case, as it convicted Arcasi of 10 offenses and found true multiple related allegations in a mere three hours.
On this record, Arcasi has not established a reasonable probability that he would have obtained a more favorable result in the absence of Dr. Killen-Harvey's testimony.
B
Cruel and Unusual Punishment
The trial court sentenced Arcasi to a determinate prison term of eight years, plus an indeterminate prison term of 125 years to life. Arcasi contends the sentence violates his right to be free from cruel or unusual punishment guaranteed by article I, section 17 of the California Constitution and his right to be free from cruel or unusual punishment guaranteed by the Eighth Amendment to the United States Constitution.
1
California Constitution
A punishment is cruel or unusual in violation of the California Constitution "if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) "[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed ...." (Id. at p. 419.)
To determine whether the sentence is so disproportionate to the crime as to be cruel or unusual, we employ three "techniques." (Lynch, supra, 8 Cal.3d at p. 425.) First, we examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Ibid.) Second, we compare the sentence with the punishments prescribed for different and more serious offenses in California. (Id. at p. 426.) Third, we compare the sentence with the punishments prescribed for the same offense in other jurisdictions with an identical or similar constitutional provision. (Id. at p. 427.) In undertaking this analysis, we are to remain mindful that "court[s] should not lightly encroach on matters which are uniquely in the domain of the Legislature," including the definition of crime and the determination of punishment. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
We begin with the nature of the offenses and the offender. "Along a spectrum ranging from murder, mayhem, and torture on one end to petty theft on the other, 'lewd conduct on a child may not be the most grave of all offenses, but its seriousness is considerable.' " (People v. Baker (2018) 20 Cal.App.5th 711, 724-725.) In the present case, the sexual offenses were particularly egregious, as Arcasi committed them against multiple victims over several years. The victims testified he engaged in anal intercourse with them more than a dozen times each, in addition to acts of oral copulation, kissing, and improper touching. As a soccer coach, neighbor, and friend of the victims' family, he abused a position of trust to perpetrate these crimes. Not only did Arcasi sexually abuse his victims, he threatened and bribed them to keep the sexual abuse a secret.
These crimes also left a lasting impact on the victims. One victim fell into depression, detached himself from his social networks, and contemplated suicide after suffering through the sexual abuse. The other victim believed the sexual abuse made him a "disgusting person." The nature of the offenses and their long-standing consequences support a conclusion that the sentence is not disproportionate to the offenses. (People v. Christensen (2014) 229 Cal.App.4th 781, 806 (Christensen) [lewd conduct on a child is serious because "[i]t may have lifelong consequences" for the child].)
Arcasi argues his punishment is disproportionate to the crimes because he has no prior criminal history and a low risk of reoffending. However, Arcasi sexually abused separate victims over multiple years. "[T]he timing of the discovery of the acts, and of the prosecutions and convictions, is pure happenstance...." (Christensen, supra, 229 Cal.App.4th at p. 807.) "In any event, the lack of a prior criminal record is not determinative." (Ibid.; see People v. Gomez (2018) 30 Cal.App.5th 493, 501, 502 [life imprisonment for molestation of minor was not cruel or unusual despite defendant's "very limited criminal record"].) Further, Arcasi cites no record support for his assertion that he possesses a low risk of reoffending. In fact, Arcasi scored an "average" risk of reoffending on the Static-99R, an instrument used to predict the risk for sexual offense recidivism. Considering all these factors, we conclude Arcasi has not established disproportionality based on the nature of the offense or the offender.
Turning to the second technique, we now compare the punishment imposed in this case to the punishments imposed for more serious crimes in California. Arcasi makes just one argument relevant to this comparison, arguing that he would have been eligible for parole earlier—after 50 years—if he had been convicted of the first degree murder of two victims. However, that may not be the case. Section 190, subdivision (a), sets forth three alternative punishments for first degree murder, including death, imprisonment without the possibility of parole, or imprisonment for a term of 25 years to life. The more serious punishments of death and imprisonment for life without the possibility of parole are proper if the defendant "has been convicted of more than one offense of murder in the first or second degree." (§ 190.2, subd. (a)(3).) Thus, the punishment on two counts of first degree murder could well be more severe than the punishment Arcasi received. (See Christensen, supra, 229 Cal.App.4th at p. 808.)
In any event, Arcasi ignores the fact that the jury convicted him of several offenses against each of his victims. "The penalties for single offenses ... cannot properly be compared to those for multiple offenses ...." (People v. Crooks (1997) 55 Cal.App.4th 797, 807; see Christensen, supra, 229 Cal.App.4th at p. 808 [punishment for lewd act convictions not comparable to punishment for murder because the jury convicted defendant "of crimes against three separate victims, and of multiple offenses against some of them"].) Thus, we are not persuaded by Arcasi's efforts to compare his punishment to the punishment he might have received if he had been convicted of one offense against each victim.
Regarding the third factor, Arcasi proffers no argument that the punishment imposed in this case is cruel or unusual by comparison to the punishments imposed for the same offenses in other jurisdictions. (Lynch, supra, 8 Cal.3d at p. 427.) "Because [Arcasi] 'makes no effort to compare his sentence with ... punishments in other states for the same offense' we take it 'as a concession that his sentence withstands [that] constitutional challenge ....' " (People v. Reyes (2016) 246 Cal.App.4th 62, 89.)
Finally, in passing, Arcasi asserts that his punishment violates his right to be free from cruel or unusual punishment because it exceeds the human lifespan. He cites Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, which states that a prison term that is impossible to serve furthers no rational purpose and violates federal and state guarantees against cruel and/or unusual punishment. However, as stated in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd), " 'no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]' [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk's concurring opinion, it has no precedential value."
Further, we follow the Byrd court in its respectful disagreement with Justice Mosk's analysis. As the Byrd court reasoned, "it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. [Citation.] [¶] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects society's condemnation of defendant's conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (Byrd, supra, 89 Cal.App.4th at p. 1383.)
In sum, this is not the "rarest of cases" in which the legislatively-mandated sentence is constitutionally excessive. (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) Accordingly, we conclude Arcasi's punishment is not cruel or unusual in violation of article I, section 17 of the California Constitution.
2
United States Constitution
The Eighth Amendment to the United States Constitution provides as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) The Eighth Amendment "contains a 'narrow proportionality principle,' that 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Graham v. Florida (2010) 560 U.S. 48, 59-60 (Graham).)
In deciding whether a sentence is grossly disproportionate to a crime, "[a] court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham, supra, 560 U.S. at p. 60.)
For the reasons previously discussed, the gravity of the offense and the severity of the sentence do not give rise to a preliminary determination that Arcasi's punishment was excessive. For this reason alone, we conclude the sentence was not cruel and unusual under the Eighth Amendment.
C
Fines and Fees
The trial court imposed fines and fees on Arcasi as part of his sentence, including a $400 court security fee (Pen. Code, § 1465.8), a $300 critical needs account fee (Gov. Code, § 70373), a $154 criminal justice administration fee (id., § 29550.1), a $300 sex offender registration fee (Pen. Code, § 290.3), and a $10,000 restitution fine (id., § 1202.4, subd. (b)), without conducting an ability-to-pay hearing. The court also imposed and stayed a $10,000 parole revocation restitution fine. (Id., § 1202.45.) Arcasi claims he is indigent and, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, argues the trial court violated his state and federal due process rights by imposing these fines and fees without conducting an ability-to-pay-hearing.
Arcasi did not request an ability-to-pay hearing or object to the fines and fees in the trial court. Accordingly, we conclude his due process argument is forfeited. (People v. Keene (2019) 43 Cal.App.5th 861, 863-864 [defendant forfeited due process challenge to $1,500 restitution fine and $224 in other fees by failing to object]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant forfeited due process challenge to $10,000 restitution fine and $1,300 in other fees by failing to object].)
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.