Opinion
D073904
11-05-2019
THE PEOPLE, Plaintiff and Respondent, v. RUBEN RAMIREZ CABALLERO, Defendant and Appellant.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD267802) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ruben Ramirez Caballero on 35 of 36 charged counts of child sexual abuse of his stepdaughter D.G. over a span of roughly 10 years. It also convicted him on a single (less serious) charged count involving his biological daughter, F.C. At trial Caballero admitted he engaged in various sex acts with D.G. from the time she was 14 years old but denied those acts were forcible. He also denied any sexual conduct as to F.C.
Caballero's primary argument on appeal is that the trial court erred in permitting overly broad expert testimony concerning the Child Sexual Abuse Accommodation Syndrome (CSAAS). But even assuming portions of the expert testimony strayed beyond permissible bounds, we conclude any evidentiary error was harmless. We further reject his sufficiency-of-the evidence claim as to two convicted counts and determine that conceded instructional error as to four convicted counts was not prejudicial. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Victim's Testimony
The prosecution's case was based almost entirely on the testimony of D.G., Caballero's stepdaughter, who was 18 at the time of trial. D.G. met Caballero when she was five years old. She moved from Mexico to the United States after her mother and Caballero began cohabiting. Caballero was "friendly" toward her, and D.G. "always" thought of him as her "dad." D.G. had four younger siblings. Caballero treated D.G. differently from her siblings—he bought her "more stuff," such as food and clothes, and would take her to restaurants.
Shortly after she turned six, D.G. and Caballero were home alone when he allegedly forced her to orally copulate him. D.G. cried and told him "no." When she said she would tell her mother, Caballero hit her in the ribs and said, "She's not going to believe you, and if she does, I'll kill you and your brothers." Believing he would carry out his threats, D.G. complied with his demand. Thereafter, D.G. orally copulated Caballero about once a month when no one else was home.
By the time D.G. was eight, she was orally copulating Caballero three to four times per month while her siblings played in the backyard and their mother was at work. The sexual abuse took place in D.G.'s bedroom, Caballero's bedroom, or in the back of his ice cream van. When D.G. was nine, Caballero forced her to orally copulate him once per week, and in the summer, daily. When she was 10 years old, Caballero demanded that she also use her hand during oral sex. He also orally copulated D.G. By age 11, this occurred three times a week. At age 12, D.G. was orally copulating Caballero almost daily; he also started touching her vagina. This daily abuse continued after D.G. turned 13.
D.G. was 14 when Caballero forced her to have vaginal intercourse. She remembered that he "penetrated" her at a motel for the first time on her eighth-grade graduation day. D.G. had thwarted his attempt to penetrate her at the same motel a couple of months earlier by moving her legs. Caballero responded by hitting her ribs and slapping her. On her graduation day, D.G. closed her legs, moved around, and told Caballero to "stop" when he tried to penetrate her again, but Caballero hit her in the ribs with a closed fist. After a struggle, she "was just tired of it" and let Caballero penetrate her. She also orally copulated Caballero "at least two times." D.G. did not call the police because she was worried about what life would be like for her siblings if Caballero was arrested and in custody. She also thought that her mother would not believe her and that Caballero would "run away" if she disclosed the abuse. The frequency of vaginal intercourse increased from three times per month to three times per week, and it became a daily occurrence by the time D.G. was 15 years old.
Despite the abuse, D.G. tried to live a happy life and was affectionate toward Caballero in front of family. The two frequently communicated with each other via text message. Using a cellular phone application, D.G. asked Caballero to pick her up from school and bring her food, complained that he did not take her out to eat, and discussed chores, ice cream, and getting coffee together. As the defense would show on cross-examination, she also offered in late-night text messages to "crack" Caballero's back. In late June 2016, D.G. messaged Caballero shortly after midnight and asked, "Do you want me to crack your back already?" When Caballero replied that he thought D.G. was sleeping, she wrote, "You thought wrong."
On July 8, 2016, when D.G. was 16 years old, Caballero learned she had a boyfriend. He became angry and demanded oral sex. Caballero tried to sodomize D.G., but she kept moving around, telling him to "stop," and saying that "it" was hurting her. He punched her in the ribs with his closed fist, but eventually gave up and had vaginal intercourse with her instead.
The following day, Caballero came into D.G.'s bedroom and accused her of having sex with her boyfriend, which she denied. He then shut and locked her door. Caballero forced her to orally copulate him and have vaginal intercourse, recording the sexual acts on video while D.G. cried and tried to hide her face. She also cried out "stop" when Caballero tried to insert his finger in her anus. Caballero told her that he would show the video to her boyfriend. After he stopped recording, he sodomized D.G., which was painful. Because anal sex "was just too much," D.G. called the San Diego Police Department to report the sexual abuse. B. The Physical Evidence
D.G.'s 911 call was played for the jury.
Officers responding to D.G.'s phone call arrived at the home and detained Caballero. They found D.G.'s cellular phone, a green dildo, and a lubricant hidden in a hollowed-out speaker in the garage. An officer volunteered to drive D.G. to the hospital; however, she said she was unable to sit because of the pain in her buttocks and was transported by ambulance.
At the hospital, a pediatrician specializing in child abuse performed a sexual assault examination (SART). The pediatrician did not note any injuries during the genital or anal exam. The examination report stated it " '[c]annot confirm or refute sexual abuse.' " The only abnormal finding arose from D.G.'s "self-report" of pain to her buttocks. There was no "physical corroboration" of any abnormalities. Swabs collected from D.G.'s vulva and anus revealed the presence of Caballero's DNA. The green dildo also contained both Caballero's and D.G.'s DNA.
After Caballero's arrest, a detective searched the contents of his cellular phone, which contained sexually explicit photographs of D.G. and Caballero, and three videos of sexual acts between them that were recorded on July 9, 2016. The phone also contained photographs and a video of Caballero kissing his young daughter F.C. C. CSAAS Expert Testimony
Midway through trial, Dr. Jody Ward, a clinical and forensic psychologist, testified as a CSAAS expert over defense counsel's objection. Prior to Ward's testimony, the court gave a limiting instruction based on CALCRIM No. 1193 (Testimony on Child Sexual Abuse Accommodation Syndrome) and People v. Gilbert (1992) 5 Cal.App.4th 1372: "Ladies and gentlemen, the testimony of [Dr. Ward] is being offered to you and may be considered by you for the purpose of understanding and explaining the behavior of children as a class, in one or more of the alleged victims in this case, and not as proof that the molestation occurred as to any one or more of the victims." (Id. at p. 1387.)
The court denied Caballero's pretrial motion to exclude CSAAS expert testimony, and at trial overruled defense counsel's objection and request for an evidentiary hearing to "make a little more of a record" about his objection and to "preserve that issue" on appeal. The court allowed Ward to provide "general information to disabuse the jury about some misconceptions," and reiterated that the jury would be given a limiting instruction. It also confirmed that the objection had been preserved for appeal. The People do not contend that any more specific objection was required to preserve the issues now raised by Caballero.
Dr. Ward testified about myths and misconceptions concerning the behavior of child sexual abuse victims, including the grooming process, coping mechanisms, delayed disclosure, and motivations for disclosing abuse. She explained that "90 percent of the cases of sexual abuse are family members or close friends of the family." As a result, children who are in a sexually abusive relationship do not tend to report the abuse. The abuser could also be a family member who is providing the child's food, clothing, and shelter. Children believe they must tolerate the sexual abuse to receive the positive benefits of that relationship. To facilitate the abuse, the abuser first "wins over that child emotionally," and then slowly breaks down the emotional and physical boundaries to abuse the child. This "grooming process naturally builds" the child's loyalty and gets the child to the point where she believes she will be responsible for getting the abuser in trouble if she reports the sexual abuse.
Ward opined that many children are afraid that reporting the sexual abuse will upset the family unit. Children also fear not being believed, or of being blamed for the abuse. According to Ward, "[t]he research shows" that when a child tries to make a disclosure to a maternal figure, the mother often does not believe that the sexual abuse occurred, "especially if it involves a spouse or boyfriend." Ward also explained a victim will bear the brunt of the abuse to protect her siblings.
According to Dr. Ward, children usually disclose the abuse when some type of crisis has occurred. For example, children may be involved in their own appropriate sexual relationship as they approach adolescence or adulthood. Children often get to the point where "they just think that they can't handle it anymore" and "just don't want to keep [the] secret anymore," which will prompt a disclosure of the sexual abuse. Ward also acknowledged that she did not know and had never met or interviewed D.G., nor did she know any case-specific details.
On cross-examination, Dr. Ward conceded that victims react in different ways, and that there is no "rote pattern" that pertains to every child. She also acknowledged instances in the literature and in her own experience involving partial or complete false reporting by a victim of sexual abuse. On redirect, Ward was asked whether it was common for children to lie about sexual abuse. She explained it was "very uncommon," adding that "the research shows" it is "rare that children will lie about being sexually abused." D. The Defense Case
The prosecutor addressed the subject of false reports of abuse on redirect, where the following exchange occurred:
"Q: Based on your experience and the literature you've reviewed, is it common for children to lie about sexual abuse?
"A: No.
"Q: Why not?
"A: I don't know why. I just know that it's very uncommon. It's rare that children will lie about being sexually abused. That's what the research shows."
Caballero testified in his own defense. He admitted engaging in a sexual relationship with D.G., but claimed it only began when she was 14 years old. He explained that the nature of his and D.G.'s relationship changed a few months before her eighth-grade graduation when she started going into his bedroom, touching and pinching his body parts, rubbing and cracking his back, and playfully biting his ear when the lights were off. She also started falling asleep in his bedroom and initiating physical and sexual contact. He maintained that no sexual contact had taken place against D.G.'s will, or before she was 14. He also denied hitting her or threatening to kill any of her family.
Caballero admitted photographing his sexual acts with D.G. on July 8, 2016, but denied arguing with her that day. He claimed they argued the following day, July 9, when he learned she had a boyfriend and had been skipping school. Caballero admitted videotaping their sex that day, but asserted that the acts were "consensual" and showed them engaged in a "fantasy" and "role play." This was not the first time he and D.G. had recorded themselves or engaged in anal sex.
According to Caballero, when he was not recording on July 9, D.G. repeatedly asked if he wanted to have sex with her girlfriends. Caballero claimed he responded that he wanted to end the relationship. He also told D.G. that he was going to talk to her mother about the boyfriend, to which D.G. responded "that wasn't going to happen."
Caballero was aware that his sexual conduct with D.G. was illegal. As a result, he and D.G. made efforts to avoid being caught by family. For example, they spoke " 'in code' " when communicating by text message. They also talked about Caballero's brother-in-law and a friend who served time in prison for sexually abusing a biological daughter and stepdaughter, respectively, and how the sexual abuse case supported Caballero's niece's U-visa eligibility.
D.G. allegedly asked Caballero about the Deferred Action for Childhood Arrivals (DACA) program and the U-visa "many times," including on his arrest date. She threatened to get a U-visa if Caballero did not help her obtain legal residency status in the United States. According to Caballero, D.G. fabricated the story of longtime and forcible sexual abuse to receive a U-visa and to "not [be] seen in a bad light" by her family and friends.
DACA is an immigration policy that, among other criteria, defers the removal or deportation of undocumented immigrants who came to the United States before the age of 16. (See In re Garcia (2014) 58 Cal.4th 440, 463, fn. 18.) A U-visa is a temporary stay of deportation for undocumented immigrants who cooperate with law enforcement during a criminal prosecution. (See 8 U.S.C. § 1101(a)(15)(U).)
After conducting an Evidence Code section 402 hearing out of the presence of the jury, the court ruled that DACA and U-visa evidence was admissible to show D.G.'s motive for reporting the sexual abuse.
Caballero's older sister and niece testified they had no reason to suspect that Caballero sexually abused D.G. The sister testified that, three months prior to Caballero's arrest, D.G. became upset after a local university denied her application due to her immigration status. Caballero's niece testified that D.G. was present during her conversations with family about applying for a U-visa after being sexually abused by her biological father. According to the niece, D.G. also told her that she preferred to live with Caballero if he and D.G.'s mother divorced. E. The Verdict and Sentence
The jury convicted Caballero on 35 counts of sexual abuse as to D.G. Based on oral copulation with D.G. between the ages of 6 and 13, the jury found him guilty of aggravated sexual assault of a child (Pen. Code, § 269, counts 1-2), oral copulation with a child age 10 or younger (§ 288.7, subd. (b), counts 3-10), and aggravated sexual assault of a child (§ 269, subd. (a), counts 11-16). As to his conduct after vaginal sex began at age 14, the jury found him guilty of forcible rape (§ 261, subd. (a)(2), counts 17, 21-22, 25-27, 31), oral copulation by threat (former § 288a, subd. (c)(3), now § 287, subd. (c)(3), counts 18, 29, 33-34), lewd act on a child aged 14 or 15 (§ 288, subd. (c)(1), counts 19-20, 23-24), forcible sodomy (§ 286, subd. (c)(2)(A), count 32), and counts relating to making and possessing child pornography (§§ 311.4, subd. (c), counts 30, 35, and 311.11, subd. (a), count 36). It acquitted him of a single count of forcible sodomy alleged to have occurred the day before his arrest that, given D.G.'s denial, the prosecution conceded in closing statements had not been proven (§ 286, subd. (c)(2)(A); count 28).
All further undesignated statutory references are to the Penal Code.
Beyond the numerous counts involving D.G., the jury also convicted Caballero as charged of a single lewd act as to his biological daughter F.C. (§ 288, subd. (a), count 37) based on the video he took of them kissing. The court sentenced him to a determinate prison term of 43 years and 8 months, plus an indeterminate term of 240 years to life.
DISCUSSION
Caballero raises three issues on appeal. First, he argues the trial court abused its discretion in admitting CSAAS expert testimony that, in his view, impermissibly permitted prosecution expert Dr. Ward to vouch for D.G.'s credibility. Next, he argues insufficient evidence supports his convictions for oral copulation by threat as to D.G. in counts 18 and 29. Finally, he argues instructional error in counts 18, 29, 33, and 34 concerning the elements of oral copulation by threat. We address these contentions in turn, finding either no error or no prejudice on each.
I. Admissibility of CSAAS Evidence
In child molestation cases, CSAAS evidence is often presented to explain the behavior of children who have been sexually abused. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); People v. Sandoval (2008) 164 Cal.App.4th 994, 1002.) Delayed disclosure and other seemingly self-impeaching behaviors may be consistent with common reactions of child molestation victims. (McAlpin, at pp. 1300-1301.)
In People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), this court considered whether and how the prosecution may introduce expert testimony regarding CSAAS when a defendant is accused of sexually abusing a child. (Id. at p. 391.) We began by observing that in People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), the California Supreme Court had concluded that the prosecution may not introduce similar evidence pertaining to "rape-trauma syndrome" to prove that a rape had actually occurred, "because the syndrome was developed as a 'therapeutic tool' and not to determine the ' "truth" or "accuracy" of a particular past event.' " (Bowker, at p. 391, quoting Bledsoe, at p. 249.) However, "Bledsoe suggested that . . . evidence related to the syndrome could be admissible to '[disabuse] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.' " (Bowker, at p. 391, quoting Bledsoe, at pp. 247-248.)
Noting the similarities between rape-trauma syndrome and CSAAS, Bowker followed Bledsoe in concluding that CSAAS testimony is admissible for "the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse." (Bowker, supra, 203 Cal.App.3d at p. 392.) For example, such testimony may be properly received to "explain [a victim']s delay in reporting the abuse. . . ." (People v. Housley (1992) 6 Cal.App.4th 947, 955.) However, " '[i]t is beyond dispute that CSAAS testimony is inadmissible to prove that a molestation actually occurred.' " (People v. Wells (2004) 118 Cal.App.4th 179, 188.) Moreover, as with any expert testimony, "[a CSAAS] expert is not allowed to give an opinion on whether a witness is telling the truth because the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact." (See People v. Long (2005) 126 Cal.App.4th 865, 871; Evid. Code, § 801, subd. (a).)
Caballero contends the court prejudicially erred in admitting Dr. Ward's testimony about the behaviors of child sexual abuse victims presented in a series of hypotheticals that "closely tracked" the specific facts of the case. Acknowledging that some of the testimony properly targeted potential misconceptions about how child victims respond to abuse, he focuses instead on Ward's testimony that " '[i]t's rare that children will lie about being sexually abused.' " In this regard he cites the recent decision in People v. Julian (2019) 34 Cal.App.5th 878, 885 (Julian) reversing a defendant's conviction where a prosecution expert testified that "false allegations of sexual abuse by children 'don't happen very often.' " The expert in Julian added that known cases of false abuse allegations ranged from one to perhaps eight percent. (Ibid.) Relying on Bowker and non-California authorities, the Julian court concluded that the expert's testimony went well beyond " ' "disabus[ing] jurors of commonly held misconceptions about child sexual abuse." ' " (Ibid., quoting McAlpin, supra, 53 Cal.3d at p. 1301.) Rather, it invited the jury "to presume Julian was guilty based on statistical probabilities" regarding the truth of the victim's claim. (Julian, at p. 886.)
We need not resolve whether admitting certain portions of Dr. Ward's testimony was improper based on Julian. Assuming it was, our record shows it was harmless error. "It is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. ([Evid. Code,] §§ 353, subd. (b), 354.) '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Richardson (2008) 43 Cal.4th 959, 1001, quoting People v. Watson (1956) 46 Cal.2d 818, 826.) Reasonably probable under Watson "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.)
Caballero contends the erroneous admission of CSAAS evidence requires reversal of his convictions on counts 1-18, 21-22, 25-27, 29, 31-34, and 37. We group these counts into three broad categories:
Caballero mistakenly includes count 28, the sole acquittal for forcible sodomy of D.G. the day before his arrest.
1. Oral copulation of D.G. between the ages of 6 and 13 (counts 1-2, 3-10, 11-16);
2. Sexual contact with D.G. between the ages of 14 and 16, consisting of forcible rape (counts 17, 21-22, 25-27, 31), oral copulation by threat (counts 18, 29, 33-34), and forcible sodomy (count 32); and
3. A lewd act as to five or six-year-old F.C. based on the kissing video (count 37).
Because Caballero admitted significant misconduct as to D.G., the primary disputed issues at trial concerned when the sexual abuse started, and whether it involved the use of force. Caballero categorically denied having any sexual contact with D.G. before she was 14. Although he admitted such contact after age 14, he denied it was forcible in nature. He further denied that anything sexual was depicted in the video of him kissing F.C.
D.G.'s account differed. She testified Caballero made her orally copulate him starting at age six and continuing with increasing frequency through age 13. He took her to a motel the day of her eighth-grade graduation and forced vaginal sex, ignoring her pleas to stop. All her sexual contact with Caballero was against her will. She finally reported because anal sex was too much, and past history told her it would become the new norm. During cross-examination, defense counsel explored the likelihood that no one would have noticed the years-long molestation, D.G.'s failure to seek help, her closer bond with Caballero than with her mother, her immigration status and interest in a U-visa, and text messages like the "crack your back" text allegedly suggesting sexual banter.
Focusing first on the forcible sexual contact counts listed above in category 2, any erroneous admission of CSAAS evidence was harmless. Assuming Dr. Ward improperly vouched for D.G.'s credibility, it would at best affect the jury's determination as to whether sexual contact occurred at all. Ward's testimony that the "research shows" that it is "rare" for children to lie about being sexually abused has no bearing on whether Caballero's admitted molestation of D.G. after age 14 was forcible. Moreover, the jury had occasion to test Caballero's perception of nonforcible contact. It viewed videos taken the day of his arrest in which he called 16-year-old D.G. a whore, demanded her boyfriend's name, forced her to look at the camera, and said as he molested her, "This is my bitch Raul." He then sodomized her while she cried and twice told him to stop. D.G. replied "No" when asked thereafter if she was enjoying the oral sex, prompting Caballero to say: "You don't like. Open your mouth, close it." After their encounter ended, D.G. called 911 from a hidden phone and told the dispatcher she was "so scared." Caballero insisted the filmed events were fantasy and consensual, but the jury undoubtedly found otherwise. There is no reasonable probability any improper CSAAS testimony affected its determination that admitted sexual contact with D.G. after the age of 14 was forcible in nature.
There is likewise no prejudice as to the age six to 13 convictions listed above in category 1. Unlike the counts listed in category 2, Ward's CSAAS testimony is relevant to the key factual issue in dispute—i.e., the question of when the abuse began. D.G. said it began at age six; Caballero said age 14. Arguing this case was close, Caballero makes the same points his counsel made in cross-examining D.G. But to believe Caballero, he had a normal fatherly relationship with D.G. until her eighth-grade graduation, when he and D.G. mutually agreed to go to a motel and have vaginal sex. D.G.'s contrary account that the molestation began with oral copulation at a young age and increased in frequency and severity over time is more logical.
The record does not suggest jurors saw this as a close case that was swayed by Dr. Ward's testimony. They deliberated for less than seven hours on 37 counts, convicting Caballero on all but one. The jury requested two readbacks of the prosecution's examination of D.G.—specifically her testimony that the abuse started "From AGE 6" and her recollection of "Events on July 8." There was no request for a readback of D.G.'s cross-examination or any defense witness testimony. In the afternoon, the jury asked what would happen if they could not agree on one or more charges. About an hour later, it reached a verdict. It acquitted as to a single count of forcible sodomy on July 8 that D.G. testified and the prosecution conceded did not occur. The readback requests show that the jury wanted to pinpoint when the molestation began and assess whether she was sodomized on July 8—not that it was struggling with D.G.'s credibility.
Caballero relies on predeliberation notes submitted by two jurors early in the trial. In two separate notes during D.G.'s testimony on the second day of trial, Juror No. 6 questioned D.G.'s use of the word "penetrate" in her 911 call. Later that day, Juror No. 9 submitted a note seeking more information on U-visas. These notes merely reflect two jurors' attempts to evaluate the prosecution's case in real time. Nothing in the record suggests the jury harbored concerns as to D.G.'s credibility when they began to deliberate.
Propensity evidence further reduces the chance of prejudice as to the age six-to-13 counts involving D.G. Evidence Code section 1108 permits jurors to consider sexual conduct charged in the same case to infer a defendant's propensity to commit other charged sexual offenses. (People v. Villatoro (2012) 54 Cal.4th 1152, 1164.) Consistent with Villatoro (id. at pp. 1167-1168), the jury was instructed that if it found beyond a reasonable doubt that Caballero had committed one or more of the charged crimes, it could, but was not required to, "conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the other sexual offenses charged in this case." (CALCRIM No. 1191B.) This was only one factor to consider and insufficient standing alone to prove guilt. (Ibid.) Caballero does not challenge the sufficiency of the evidence as to the vast majority of post-age-14 molestation counts involving D.G. To the extent jurors were unsure whether earlier molestation occurred, their finding beyond a reasonable doubt that Caballero molested her when she was older was probative of the fact that it did.
We reject his claim post that there was insufficient evidence to support his convictions of oral copulation by threat in counts 18 and 29.
In short, there is no reasonable probability that but for any improper CSAAS testimony offered by Dr. Ward, the jury would have reached a different verdict as to any of the crimes involving D.G. There was likewise no "evidentiary spillover" as to the single lewd act count involving F.C. (See United States v. Duran (9th Cir. 1999) 189 F.3d 1071, 1081 [describing prejudice from evidentiary spillover], citing Kotteakos v. United States (1946) 328 U.S. 750, 776.)
We reach this conclusion without relying on the court's limiting instruction that Ward's testimony could be considered "for the purpose of understanding and explaining the behavior of children as a class" but "not as proof that the molestation occurred as to any one or more of the victims." Accordingly, we do not reach Caballero's argument that this limiting instruction was insufficient to cure the harm.
II. Sufficiency of the Evidence
Caballero contends there was insufficient evidence to support his convictions for oral copulation by threat in counts 18 and 29. Count 18 involved oral copulation at a motel after D.G.'s eighth grade graduation at age 14. Count 29 involved oral copulation in D.G.'s bedroom on July 8, 2016 (the day before Caballero's arrest) at age 16. Caballero contends the alleged threat he made when D.G. was six years old, even if believed, had necessarily become "stale" by the time the oral copulation took place several years later. We disagree. A. Additional Background
D.G. testified that she had observed Caballero become physically violent toward her mother and others from a young age. When she was in middle school, she saw him pull her mother's hair and push her down to the kitchen floor during an argument. He also disciplined D.G. and her brothers by spanking them when they failed to listen to his warnings. On one occasion, she saw Caballero "aggressively punch" a man in the ribs and face when he caught the man looking at D.G., leaving "him really bad." She learned that the man eventually obtained a restraining order against Caballero. According to D.G., Caballero also said that he would "always get in[to] fights," and was told that, although he was "friendly," she would "suffer the consequences" if she "[got] him mad." As a result, she testified that she believed he was a "super dangerous individual" who "was capable of doing whatever he wanted." B. Analysis
"Our review of any claim of insufficiency of the evidence is limited. 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citation.]' " (People v. Veale (2008) 160 Cal.App.4th 40, 45.) "Given this court's limited role on appeal, defendant bears an enormous burden in claiming there is insufficient evidence to sustain his molestation convictions." (Id. at p. 46.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
To prove oral copulation by threat, the prosecution must establish: (1) the act was "accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person"; and (2) there was "a reasonable probability that the perpetrator will execute the threat." (Former § 288a, subd. (c)(3), now § 287, subd. (c)(3).) " 'Threatening to retaliate' means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death." (Former § 288a, subd. (l), now § 287, subd. (l).) "The circumstances at the time [the threat to retaliate was made], and the reasonableness of the victim's conduct in response, are not examined." (People v. Towers (2007) 150 Cal.App.4th 1273, 1281 (Towers).)
Here, the jury could reasonably infer that Caballero accomplished the act of oral copulation against D.G.'s will by threatening to kill her and her siblings if she reported the abuse. D.G. testified that Caballero forced her to orally copulate him when she was only six years old. When she said she would tell her mother, Caballero hit her in the ribs and said, " 'She's not going to believe you, and if she does, I'll kill you and your brothers.' " Believing he would carry out this threat, D.G. said she complied with his increasing demands that she orally copulate him over the next 10 years. The number of years that passed between Caballero's alleged threat and the oral copulation charged in counts 18 and 29 may go to the weight of the evidence, but it does not preclude a finding that D.G.'s compliance was a product of the threat. (See People v. Ward (1986) 188 Cal.App.3d 459, 468 [in a case involving a young girl, "[a] jury could conclude that, in the girl's mind, as a reasonable person of that age, only her submission to these ongoing sexual attacks would prevent her mother's immediate death"].)
The jury could also infer there was a reasonable probability that Caballero would follow through on that threat based on his violent nature. D.G. testified that when she was in middle school, she observed Caballero's physically violent behavior toward her mother, siblings, and another man, and personally experienced physical abuse when he disciplined her, punched her in the ribs, and slapped her face when she tried to resist his sexual advances. Even though he never verbally threatened her again, D.G. repeatedly testified that she did not report the abuse because she was afraid of him and feared that he would kill her siblings. Specifically, she testified that his threat was "the first thing that popped in[to] [her] mind" and "the main reason" she did not report the abuse. On this record, it was objectively reasonable for D.G. to fear that Caballero might carry out his earlier threat to harm her or her family members unless she went along with his demands to orally copulate him when she was 14 and 16 years old.
Accordingly, we conclude there was sufficient evidence to establish the oral copulation by threat alleged in counts 18 and 29.
III. Jury Instructions
Finally Caballero argues the court committed instructional error as to counts 18, 29, 33, and 34 by misstating the elements of oral copulation by threat. Criminal defendants have the right to accurate instructions on the elements of a charged crime. (People v. Mil (2012) 53 Cal.4th 400, 409.) We review this claim de novo. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1164.)
The People concede the court erred. Counts 18, 29, 33, and 34 charged Caballero under former section 288a, subdivision (c)(3) (now § 287, subd. (c)(3)) with committing oral copulation "by threatening to retaliate in the future against the victim and another person, there being a reasonable possibility that the perpetrator [would] execute the threat." The court instructed the jury with CALCRIM No. 1015. But instead of providing alternative 3B relating to oral copulation by threat, it provided alternative 3A. As a result, the jury was instructed on oral copulation by "force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone" (former § 288a, subd. (c)(2), now § 287, subd. (c)(2)). The court provided additional instructions on force, fear, duress, menace, and consent—as relevant here, duress includes a direct or implied threat of force. Because a threat to retaliate in the future is not equivalent to duress (see Towers, supra, 150 Cal.App.4th at pp. 1281, 1283), the given instruction is not necessarily interchangeable with the correct instruction.
Caballero does not argue he received inadequate notice.
An instruction that erroneously describes an element of an offense is reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Mayfield (1997) 14 Cal.4th 668, 774.) The test is whether it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Mayfield, at p. 774; see Neder v. United States (1999) 527 U.S. 1, 15.) " 'To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' " (Mayfield, at p. 774.) Reviewing the entire record, we agree with the People that the error was harmless. Although oral copulation by threat of retaliation is not necessarily the same as oral copulation by implied threat of force, the concepts completely overlap as applied here, eliminating any chance of prejudice.
As earlier discussed, a defendant commits oral copulation by "threatening to retaliate" if he makes a threat "to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury, or death" as to the victim or another in the future, and there is a reasonable possibility the defendant will execute that threat. (Former § 288a, subds. (c)(3) & (l), now § 287, subds. (c)(3) & (l), italics added; see Towers, supra, 150 Cal.App.4th at p. 1280.) By contrast, "[d]uress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes; it is a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to either perform an act which otherwise would not have been performed, or to acquiesce in an act to which one otherwise would not have submitted." (Towers, at p. 1280.)
Towers identified two key differences between a threat of retaliation and duress. "First, a threat of retaliation is expressly limited to future actions, while duress contains no time limitation and could conceivably include more immediate threats." (Towers, supra, 150 Cal.App.4th at p. 1281.) Moreover, a threat of retaliation considers only the threat and the possibility the defendant will act on it, whereas duress also examines "[t]he circumstances at the time, and the reasonableness of the victim's conduct in response." (Ibid.) These distinctions mattered in Towers to determine whether a prior conviction for oral copulation by threat qualified on its face as a strike. But they are immaterial here. As we explain, the prosecution offered the same theory to explain all 10 years of molestation. That theory could be characterized either as duress or threat of retaliation. There is no possibility the jury would not have convicted Caballero on the four challenged counts had it been properly instructed on oral copulation by threat.
At the time, oral copulation by duress was listed as a strike, but oral copulation by threat was not. The record of the prior consisted of an abstract of judgment showing "nothing other than a bare conviction of section 288a." (Towers, supra, 150 Cal.App.4th at p. 1278, fn. 5; former § 288a, now § 287.) Because the definitions of duress and threat of retaliation did not perfectly align, the prior conviction did not qualify as a strike. (Id. at pp. 1281, 1283.)
Count 18 pertains to Caballero's oral copulation of 14-year-old D.G. the day of her eighth-grade graduation. D.G. testified he made her perform oral sex before and after their first time having vaginal sex. Count 29 pertains to Caballero's oral copulation of 16-year-old D.G. the day before his arrest. Angry that D.G. had a boyfriend, Caballero demanded oral sex before unsuccessfully trying to force her to have anal sex. Counts 33 and 34 pertain to two acts of oral copulation the next day before and after anal sex, and were filmed by Caballero.
As discussed, D.G. testified that when Caballero first molested her at age 6, he threatened to kill her and her siblings if she told anyone and proceeded to punch her in the ribs. Although he did not repeat the threat, D.G. continued to believe it. She had seen Caballero punch her mom once. She also saw him hit a grown man he saw looking at D.G. in middle school. As time went by, she stopped resisting; each time she resisted Caballero's demands, he would punch her in the ribs.
D.G. testified that once they reached the motel on her eighth-grade graduation day, she did not try to ask for help because she was worried about how her brothers would feel if Caballero went away and feared her mother would not believe her. From this, Caballero suggests "D.G.'s testimony about the threat's lasting effect was inconsistent." We do not see the inconsistency. Although D.G. offered several reasons for why she did not report the abuse, her testimony as to why she succumbed to it was consistent and rooted in the threat made when she was six years old.
In her closing statement, the prosecutor situated D.G.'s decade of abuse in the context of Caballero's dynamics as her stepfather and an authority figure. Caballero threatened to kill to force oral copulation at age six and over the years punched her when she resisted. As the prosecutor explained, the oral copulation by threat counts "were all accomplished using fear, force, violence, menace, duress. That is the nature of their relationship. The relationship is one of subservience by D.G.; [] this man, her stepfather, she was used by him for his own sexual gratification. If she resisted, he would punch her ribs. She was constantly acquiescing to things submitting herself to his will because he was in charge." Later, the prosecutor explained the concept of duress and asserted that everything D.G. endured was under direct or implied threat of force:
"After the victim has gone through years of abuse at the hands of Mr. Caballero, every time he's telling her to commit oral sex on him, every time he's coming to her to force himself on her for vaginal sex, there is an implied threat of force because every time that she has resisted in the past, he has punched her in the ribs. He has also threatened her directly to kill her family if she says anything. All of
these things amount to duress, and again you can consider all the circumstances including the age of the offender versus the age of the victim and the relationship there. He's an authority figure. He's going to have more control and duress. He can impart more fear to her and have more of an effect on her than, say, someone she doesn't know at all because of that relationship of trust, that relationship of authority."
Caballero contends the court's instructional error "excused the jury from confronting the proper and most difficult question" of whether D.G. capitulated to oral sex those four times at ages 14 and 16 because of Caballero's long-ago threat to kill. He argues the jury could have reached its verdict on the oral-copulation-by-threat counts by improperly focusing on physical force applied at each instance. But contrary to Caballero's claim, there was no evidence he "physically forc[ed] D.G. into submission" for oral sex on these three separate encounters—instead, she testified that he punched her on two of these occasions after having oral sex as she resisted his subsequent attempts to initiate vaginal and anal intercourse for the first time. As D.G. explained, Caballero started demanding oral sex when she was six years old; knowing he would punch her if she resisted, she stopped resisting by age 12 or 13. D.G.'s testimony and the prosecution's closing argument made clear that the oral copulation in counts 18, 29, 33, and 34 involved the same implied threat of force underlying other counts.
There may be cases in which oral copulation by implied threat of force (duress) can be distinguished from oral copulation by threat of future retaliation. This is not one of them. Ten of the 36 counts involving D.G. were allegedly committed "by force, violence, duress, menace or fear of immediate and unlawful bodily injury": counts 1 and 2 (aggravated sexual assault of a child based on oral copulation of D.G. at age six, § 269); counts 17, 21-22, 25-27, 31 (forcible rape of D.G. starting at age 14, § 261, subd. (a)(2)); and count 32 (forcible sodomy of D.G. at age 16, § 286, subd. (c)(2)(A)). The People had the same theory for these 10 counts as for the four oral-copulation-by-threat counts—Caballero's initial threat to kill her and her siblings, coupled with his use of force over the years on D.G. and others, amounted to duress by a direct or implied threat of force. (See, e.g., People v. Thomas (2017) 15 Cal.App.5th 1063, 1072-1073 ["When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest of cases."].)
For example, "duress" for purposes of oral copulation includes an implied threat of hardship. (People v. Leal (2004) 33 Cal.4th 999, 1001-1002.) That type of threat may not suffice for oral copulation by threat of retaliation. (§ 287, subd. (l).)
It is unclear why the district attorney charged counts 18, 29, 33, and 34 under the "threat" prong instead of the "duress" prong. But her argument made clear that she had the same theory for all aggravated molestation counts. Although framed as duress, that conduct also constitutes oral copulation by threat of retaliation. Caballero committed oral copulation by his long-ago threat to inflict serious bodily injury or death on loved ones, and his violent outbursts demonstrated a reasonable possibility he would carry out that threat. (Former § 288, subd. (c)(3), now § 287, subd. (c)(3).)
Caballero distinguishes counts 33 and 34, arguing the jury could have convicted him on those counts based on his statement in the July 9, 2016 video. He suggests the comment, "I want you to fuck me or I'll stick it in you" might have established force, duress, or fear, but not a future threat to retaliate against D.G. He misreads the record. He made this comment after D.G. performed oral sex, right before they started vaginal intercourse. He proceeded to sodomize her and again make her perform oral sex. There is no possibility the jury convicted him of oral copulation by threat in counts 33 or 34 based on that comment.
On our record, we conclude beyond a reasonable doubt that the error—instructing the jury on oral copulation by duress instead of by threat of retaliation—did not affect the verdicts on counts 18, 29, 33, and 34.
Because we reach this conclusion on different grounds, we need not address the parties' arguments as to whether express mention of "oral copulation by threat" in the verdict forms alleviated prejudice.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. BENKE, J.