Opinion
H031725
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP CHACON, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted defendant Phillip Chacon of (1) four counts of aggravated sexual assault upon a child (counts 1, 2, 3, & 4) (Pen. Code, § 269) and one count of lewd conduct upon a child by means of force, duress, menace, or fear (count 5) (§ 288, subd. (b))—Victim I, (2) five counts of lewd conduct upon a child by means of force, etc., (counts 6, 7, 8, 9, & 10)—Victim II, and (3) two counts of lewd conduct upon a child by means of force, etc., (counts 11 & 12)—Victim III. The trial court sentenced defendant to 12 consecutive terms of 15 years to life (180 years). On appeal, defendant contends that (1) no substantial evidence supports three of the five convictions as to Victim II and both convictions as to Victim III, (2) no substantial evidence supports the element of force, etc., as to Victim III, (3) he received ineffective assistance of counsel because his counsel failed to object to Victim IIs testimony about sex acts that she had not disclosed at the preliminary hearing, (4) the trial court erred when instructing the jury on the principle of unanimity (CALCRIM No. 3500) as the principle affected Victims II and III, (5) the trial court erred by admitting over objection evidence of an uncharged sex offense (Evid. Code, § 1108), (6) the trial court erred by instructing the jury in the language of CALCRIM No. 1191 (evidence of uncharged sex offenses), (7) the trial court erred by admitting evidence and instructing the jury (CALCRIM No. 1193) about Child Sexual Abuse Accommodation Syndrome (CSAAS), (8) his consecutive sentences for counts 1 through 4 were not mandatory, (9) his sentences for three of the five convictions as to Victim II and both convictions as to Victim III violate federal and state ex post facto principles because the underlying acts were not shown to have occurred before the effective date of the applicable sentencing law, and (10) the trial court improperly imposed a $70 AIDS education fund fine and related $133 penalty assessment. The People concede defendants 9th contention—to the extent of count 11 or 12—and 10th contention. We agree that the concessions are appropriate. We agree with defendants 1st contention (in part) and defendants 2nd contention. We otherwise disagree with defendant. We therefore reverse with directions.
Further unspecified statutory references are to the Penal Code.
Under sections 269 and 667.6, the convictions for counts 1 through 4 (aggravated sexual assault upon a child) mandated consecutive 15-years-to-life terms because the underlying offenses were rape (§§ 269, subd. (a)(1), 667.6, subd. (e)(1)) and sexual penetration by a foreign object (§§ 269, subd. (a)(5), 667.6, subd. (e)(8)) involving the same victim on separate occasions (§ 667.6, subd. (d)). As to counts 5 through 12, a conviction for lewd conduct upon a child by force, etc., ordinarily allows for a discretionary sentence of three, six, or eight years. (§ 288, subd. (b)(1).) Here, however, the information alleged and the jury found that defendant had committed counts 5 through 12 against more than one victim. This finding mandated consecutive 15-years-to-life terms. (§ 667.61, subds. (b), (c)(4), (e)(5), (i) & (j).)
VICTIM II
Defendant does not substantively challenge his convictions as to Victim I. The contentions grounded on Evidence Code section 1108, CALCRIM No. 1191, CSAAS, and consecutive sentencing could affect the convictions for counts 1 through 5. But they do not depend upon the underlying acts. We therefore deem it unnecessary to recount a background as to Victim I except to note that she and Victims II and III are sisters and defendants nieces.
Victim II, 20 years old at the time of trial, was born May 1986. While growing up, she visited on weekends and sometimes lived with her grandmother, defendants mother, where defendant lived. When she was five years old and visiting her grandmother, defendant put his hand down her pants and rubbed the outside of her vagina. When she was five and six years old, defendant lay with or hugged her and rubbed his penis against her. When she was seven, eight, and nine years old, defendant put her hands on and therewith stroked his penis. When she was eight and nine years old, defendant put his fingers inside her vagina "a lot of times," making her afraid. When she was eight, nine, and 10 years old, and in defendants bedroom or another bedroom with the door closed, defendant put his penis inside her vagina, hurting her and making her afraid. On her birthday, when she was about to turn 10 or 11 years old, and in the backyard of her grandmothers house, defendant grabbed her waist, turned her around, pushed her down, pulled the underwear underneath her dress down, and touched her anus with his penis, hurting her and making her scream and run away. After a couple of weeks, defendant rubbed her clitoris area. On another occasion thereafter, defendant rubbed his penis on her vagina. In a last incident thereafter, defendant put his fingers in her vagina.
VICTIM III
Victim III, 19 years old at the time of trial, was born March 1988. When she was six and seven years old and living with her grandmother, she suffered defendants attention on different days and separate occasions. The first incident occurred when she was watching television on her grandmothers bed and defendant entered the room, lay beside her, took her clothes down to her knees, and put his penis in her buttocks, hurting her and making her afraid. And, when she was six and seven years old defendant, on more than one occasion in the grandmothers house, put his fingers inside her vagina, hurting her.
The investigating officer testified that Victim III told him that defendant had committed sex acts on her more than five times.
SUBSTANTIAL EVIDENCE—VICTIMS II AND III
In any challenge to a conviction based on the insufficiency of the evidence, our review is highly deferential. We determine " `"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." " (People v. Moon (2005) 37 Cal.4th 1, 22.) Thus, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones ).) And so "if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (Ibid.)
"However, `[e]vidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.] [Citation.] `Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction. " (People v. Tripp (2007) 151 Cal.App.4th 951, 955-956; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
In child molestation cases, "generic testimony" is sometimes presented, in which a victim describes multiple incidents that are not differentiated by dates, times, or places. Such testimony may be presented in cases where the molester has resided in the victims home and molested the victim repeatedly, so that "[a] young victim . . . may have no practical way of recollecting, reconstructing, distinguishing or identifying by `specific incidents or dates all or even any such incidents." (Jones, supra, 51 Cal.3d at p. 305.) This can create certain issues of proof in molestation cases. In Jones, the court reconciled the tensions between a defendants due process rights with societys need "to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time." (Ibid.) It held that generic testimony can support a conviction if certain minimum requirements are met.
"The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., `twice a month or `every time we went camping). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., `the summer before my fourth grade, or `during each Sunday morning after he came to live with us), to assure the acts were committed within the applicable limitation period." (Jones, supra, 51 Cal.3d at p. 316.)
As to Victim II (counts 6-10), defendant contends that no substantial evidence supports three of the five convictions, the underlying acts of which were alleged to have occurred between July 1, 1994 (defendants 18th birthday), and May 29, 1996, "because three of the acts of molestation . . . could have occurred before [his] 18th birthday, and the People failed to prove they occurred afterwards . . . ." We disagree.
Since defendant turned 18 years old approximately one month after Victim II turned eight years old, it follows that any lewd conduct that occurred when Victim II was at least nine years old occurred after July 1, 1994. Here, Victim II described eight incidents of lewd conduct that occurred when she was at least nine years old. This is substantial evidence to support that the five charged offenses occurred after July 1, 1994. That the evidence revealed other incidents which occurred when Victim II was or could have been eight years old and younger does not reflect insufficiency of the evidence—rather, it reflects sensible charging by the prosecution: "It must be remembered that even generic testimony . . . outlines a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction. (Of course, prosecutors should exercise discretion in limiting the number of separate counts charged. No valid purpose would be served by charging hundreds or thousands of separate counts of molestation, when even one count may result in a substantial punishment.)" (Jones, supra, 51 Cal.3d at p. 314.)
Defendants reliance upon this courts opinion in People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho), is erroneous. The defendant in Coelho was convicted of multiple sex crimes as to which the trial court could have imposed concurrent sentences, discretionary consecutive sentences (§ 667.6, subd. (c)), or mandatory consecutive sentences (id., subd. (d)), depending upon which of the multiple acts the convictions were based. Faced with an ambiguous verdict, this court considered the effect of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). We recognized that "a defendants federal constitutional right to a jury trial requires the trial court to accept the jury s determination concerning the factual bases for its verdicts." (Coelho, supra, at p. 878.) We concluded that, where it cannot be determined beyond a reasonable doubt upon which unlawful acts among many the jury based its verdicts, the trial court should assume, for the purpose of sentencing, the factual bases that would provide the most discretion. (Id. at p. 885.)
Thus, Coelhos rationale applies to sentencing for "convictions, for which it is not reasonably possible to discern the factual bases." (Coelho, supra, 89 Cal.App.4th at p. 885.) And the case implicitly recognizes the concept that a conviction can be supported by substantial evidence notwithstanding that the precise evidence relied upon by the jury cannot be positively identified. Coelho is inapplicable to the substantial-evidence issue raised here.
As to Victim III (counts 11 & 12), defendant makes a similar argument. In counts 11 and 12, the underlying acts were alleged to have occurred between July 1, 1994, and May 29, 1996. Since defendant turned 18 years old approximately three months after Victim III turned six years old, it follows that any lewd conduct that occurred when Victim III was at least seven years old occurred after July 1, 1994. Here, Victim III described vagina incidents on more than one occasion that occurred when she was six and seven years old. From this, one can reasonably infer that one of a minimum of two incidents occurred when Victim III was seven years old. This constitutes substantial evidence supporting that one of the two charged offenses occurred after July 1, 1994.
We agree with defendant, however, that no substantial evidence supports that the buttocks incident (or the second vagina incident) occurred after July 1, 1994. Victim III testified that the buttocks incident occurred when she was six years old. The People concede as much. Since Victim III was six years old during the three months before July 1, 1994, without a more descriptive general time period in which the act occurred, it is no more than a possibility that the incident occurred after July 1, 1994. A possibility is not a sufficient basis for an inference of fact.
We will therefore direct that the conviction for count 12 be stricken.
SUBSTANTIAL EVIDENCE OF FORCE, ETC.—VICTIM III
Since count 12 is to be stricken, we focus on count 11 rather than counts 11 and 12.
In count 11, the first amended information alleged a violation of section 288, subdivision (b), which provides that a person commits an aggravated lewd act on a child "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ."
Defendant argues that the conviction for count 11 should be reduced to a simple lewd act upon a child (§ 288, subd. (a)) because there is no substantial evidence of force, fear, or duress as to the vagina incident. The People counter that "there was substantial evidence of duress [citation], because of [the victims] youthful age, [defendants] relationship to her, and when he put his finger in her vagina he had already committed another act [the buttocks incident]." We agree with defendant.
Duress is defined as a " `direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted. " (People v. Cochran (2002) 103 Cal.App.4th 8, 13.) Physical control can create duress without constituting force. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) " `[D]uress [also] involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. . . . "Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim" [are] relevant to the existence of duress. " (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza).) However, as this court made clear in Espinoza, duress can be established only if "there is evidence that `the victim[s] participation was impelled, at least partly, by an implied threat. " (Id. at p. 1321.)
In Espinoza, the victim was the defendants 12-year-old daughter. On several occasions during a one to two week period, the defendant came into the victims bedroom at night while her sisters were asleep in the other room. The defendant sat on the edge of her bed and fondled her and on the last occasion attempted to rape her before she moved to prevent him. The victim reported that she was scared, and, on one occasion, defendant asked her whether she still loved him, said "[p]lease love me," and may have cried. (Espinoza, supra, 95 Cal.App.4th at pp. 1292-1295.) We concluded that there was no evidence that the defendants lewd acts were accompanied by a direct or implied threat of any kind. We explained: "The only way that we could say that defendants lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that `the victim[s] participation was impelled, at least partly, by an implied threat. " (Id. at p. 1321.)
As the People point out, in this case the victim was young, defendant was an older relative, and defendant had molested the victim previously. But, because there is no detailed evidence as to the vagina incident, this case is no different than Espinoza. "The only way that we could say that defendants lewd act on [Victim III] . . . [was] accomplished by duress is if the mere fact that [defendant] was [Victim IIIs uncle] and larger than her combined with her fear [inferred from having suffered the prior buttocks incident] and limited intellectual level were sufficient to establish that the acts were accomplished by duress. What is missing here is the ` "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." [Citation.] Duress cannot be established unless there is evidence that `the victim[s] participation was impelled, at least partly, by an implied threat . . . . [Citation.] No evidence was adduced that defendants lewd act . . . [was] accompanied by any `direct or implied threat of any kind. While [we might infer] that [Victim III] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Espinoza, supra, 95 Cal.App.4th at p. 1321.)
We will therefore direct that defendants conviction for count 11 be reduced to a violation of section 288, subdivision (a).
Section 1260 deals with appellate courts directly and provides: "The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances."
A violation of section 288, subdivision (a), is not one of the offenses specified in section 667.61, subdivision (c), so as to carry a mandatory consecutive sentence of 15 years to life. The penalty for a violation of section 288, subdivision (a), is (and at all relevant times has been) "imprisonment in the state prison for three, six, or eight years." Since we do not find error regarding the convictions for counts 1 through 10 and will direct that the conviction for count 12 be stricken, defendant will retain a sentence after our disposition of 150 years to life together with a best expectation after a remand of being sentenced to a concurrent term of three years for the reduced conviction on count 11. Under the circumstances, defendants ultimate sentence for count 11 will be inconsequential. We therefore conclude that a remand with directions that inevitably lead to all of the procedural steps involved in arraignment for judgment and sentencing would be wasteful and unnecessary. We will therefore direct the trial court to simply reinstate the judgment with modifications that include defendants best expectation for count 11, while giving the trial court the option to arraign defendant for judgment and sentencing if it elects to impose or the People elect to argue for a different sentence for count 11.
INEFFECTIVE ASSISTANCE OF COUNSEL—VICTIM II
"[A] defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based." (People v. Burnett (1999) 71 Cal.App.4th 151, 165-166 (Burnett ).) "The `preeminent due process principle is that one accused of a crime must be `informed of the nature and cause of the accusation. [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." (Jones, supra, 51 Cal.3d at p. 317.)
"So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires. The defendant may demur if he or she believes the lack of greater specificity hampers the ability to defend against the charges." (People v. Jeff (1988) 204 Cal.App.3d 309, 342.)
Defendant contends that trial counsel was constitutionally ineffective because he "did not object to [Victim IIs] testimony regarding numerous acts of digital penetration which she did not testify to at the preliminary hearing." We disagree.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.)
"To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 [(Strickland)].) `When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. "If the record sheds no light on why counsel acted or failed to act in the manner challenged, `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention must be rejected." " (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsels perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. (Strickland, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, "[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffective assistance of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.)
At the preliminary hearing, Victim II testified that she visited her grandmothers house when she was five, six, seven, eight, nine, and 10 years old and, during those years, defendant touched her in her private areas. She detailed that the first incident occurred while she was sleeping or watching television in a bedroom when she was around five years old. She continued that, on this occasion, defendant went under the blanket, rubbed her body with his hands, and rubbed his penis on her back. She added that defendant did this on more than one occasion when she was five years old. She detailed that defendant rubbed her vagina five or six times a month when she was six years old. She detailed that, when she was seven years old, defendant put his finger inside her vagina, rubbed his penis on her vagina more than once, put her hand on and therewith stroked his penis once or twice a month. She detailed that, when she was eight years old, she had to rub defendants penis on more than one occasion. She detailed that, when she was nine years old, she had to masturbate defendant, defendant continued his behavior and "did some other stuff as well," defendant tried to stick his penis in her anus on her birthday in the backyard, and defendant would rub her and tried to put his penis in her vagina on three or four occasions.
As we have mentioned in the factual background, Victim II testified at trial that defendant put his finger inside her vagina (1) on more than one occasion when she was eight and nine years old, and (2) during the last incident when she was 10 years old.
The prosecutor argued to the jury that it could justify convictions on five counts for (1) the birthday incident, (2) a penis-stroking incident when Victim II was eight, nine, or 10 years old, (3) a penis-on-vagina incident when Victim II was eight, nine, or 10 years old, (4) a penis-inside-vagina incident when Victim II was 10 years old, and (5) a finger-in-vagina incident.
Defendant points out that Victim II "did not testify to any acts of digital penetration at the preliminary hearing." He urges that his counsel should have objected to Victim IIs trial testimony about digital penetrations.
Defendant acknowledges that, at the preliminary hearing, Victim II specified a digital penetration incident that occurred when she was seven years old—before defendants 18th birthday.
Defendant principally relies on Burnett, but that case is distinguishable.
In Burnett, at the preliminary hearing, there was evidence that the defendant possessed a .38-calibre revolver. At trial, however, a different witness gave evidence, not mentioned at the preliminary hearing that, at a different time on the same date, the defendant possessed a .357-calibre revolver. The trial court permitted the original complaint to be amended to delete the words, ".38 caliber" revolver. In closing argument, the prosecutor told the jury that the defendant had possessed two different guns and, accordingly, he could be convicted of the possession charge based on the description of either gun. On appeal, the court determined that the amended information impermissibly allowed the defendant "to be convicted based on a completely different incident than that shown by the evidence at the preliminary hearing." (Burnett, supra, 71 Cal.App.4th at p. 171.)
Here, however, Victim II testified at the preliminary hearing that defendant had committed additional unspecified lewd acts when she was nine years old ("did some other stuff as well"). Thus, defendant was not convicted on different testimony than that presented at the preliminary hearing. Rather, Victim IIs trial testimony, at its most harmful to defendant, was a consistent elaboration of one of the unspecified incidents alluded to at the preliminary hearing.
Burnett itself distinguished the situation in that case from ongoing sexual abuse cases like the one here "involving testimony by a given victim about acts occurring over a period of time that cannot necessarily be tied to specific dates or locations." (Burnett, supra, 71 Cal.App.4th at p. 175.) It noted that the case did "not involve a single witness describing separate acts of a similar nature, but rather distinct witnesses to distinct incidents that could have been (although they were not required to be) charged as separate offenses." (Ibid.) Burnett recognized that child molestation cases are governed by the rule set forth in Jones, supra, 51 Cal.3d at page 317, that "a ` "defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period." " (Burnett, supra, at p. 174.) This rule reflects the reality that young victims of ongoing sexual abuse "may have no practical way of recollecting, reconstructing, distinguishing[,] or identifying by `specific incidents or dates all or even any such incidents." (Jones, supra, at p. 305.)
In other words, the issue in this case is lack of specificity at the preliminary hearing rather than evidence of different acts at the preliminary hearing. For this reason, defendant also erroneously relies on People v. Pitts (1990) 223 Cal.App.3d 606, 907 (evidence offered at the preliminary hearing did not encompass the counts presented at trial so amendment to information could not simply allege same number of crimes shown by preliminary hearing evidence "regardless of the particulars" of that evidence). There were remedies available to challenge the lack of specificity in this case, but defendant did not pursue those remedies. In the context of whether generic testimony is sufficient to support a conviction in a child molestation trial, the Jones court stated: "given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendants due process right to fair notice of the charges against him." (Jones, supra, 51 Cal.3d at p. 318.)
Thus, trial counsel could have reasoned that objection to Victim IIs trial testimony about digital penetration would have been futile. (People v. Price (1991) 1 Cal.4th 324, 387 [an attorneys failure to contest an issue does not constitute deficient representation if the attorney has reasonably determined that a contest would be futile].) Defendant therefore fails to carry the heavy burden to prevail on an ineffective-assistance-of-counsel claim.
UNANIMITY INSTRUCTION—VICTIMS II AND III
"`It is fundamental that a criminal conviction requires a unanimous jury verdict [citations]. [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for `one discrete criminal event. [Citation.] `[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. " (People v. Thompson (1995) 36 Cal.App.4th 843, 850, italics omitted.)
The "requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. " (People v. Russo (2001) 25 Cal.4th 1124, 1132.) " `The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. " (Ibid.)
Preliminarily, we note that defendant accepts that (1) the trial court properly instructed as to the unanimity principle for counts 1 and 2, and (2) the prosecutor selected the specific acts relied upon to prove counts 3 through 5. Defendant therefore frames his contention as a challenge to the convictions for counts 6 through 12, which encompasses Victims II and III. However, we have pointed out that (1) count 12 will be stricken, (2) the evidence as to count 11 (a vagina incident) does not show more than one unlawful act, (3) the prosecutor selected the specific act relied upon to prove count 6 (the birthday incident), and (4) the prosecutor selected the specific act relied upon to prove count 7 (a penis-inside-vagina incident at age 10 after Victim II generically testified that a penis-inside-vagina incident happened when she was eight years old on different days, nine years old, and 10 years old). We therefore construe defendants contention as a challenge to three convictions, counts 8 through 10—Victim II.
Here, for counts 8 through 10, as we have mentioned, the prosecutor made an election to match the kind of act to the counts (penis-stroking; penis-on-vagina; and finger-in-vagina) but did not make an election as to the year of occurrence. Thus, there were multiple acts that the jury could have matched to the allegations only in the sense that the same kind of act occurred in different years (penis-stroking at nine or 10 years old; penis-on-vagina at nine or 10 years old; and finger-in-vagina at nine or 10 years old).
The trial court instructed the jury in the language of CALCRIM No. 3500 as follows: "Defendant has been charged in: [¶] Counts 1 and 2—well, let me—the People have presented evidence of more than one act. [¶] To prove the defendant committed this offense, you must not find the defendant guilty unless you all agree that the People have proved the defendant committed at least one of these acts and you all agree on which acts he committed. [¶] In counts 1 and 2, [Victim I], the People have presented multiple acts—the defendant committed multiple acts which was aggravated sexual assault, rape, sometime during . . . . [¶] Count 3 and 4, [Victim I], with aggravated sexual assault with sexual penetration by foreign object sometime during . . . . [¶] Count 5. [Victim I] with lewd or lascivious act on a child by force . . . . [¶] Counts 6, 7, 8, 9 and 10. [Victim II] with lewd and lascivious act on a child by force . . . . [¶] In counts 11 and 12. [Victim III] with lewd or lascivious act on a child with force . . . . [¶] Each of the counts charged in this case is a separate crime."
The trial court gave the jury a written instruction in the language of CALCRIM No. 3500 stating the following: "The defendant is charged in: [¶] COUNTS ONE and TWO ([Victim I]) with Aggravated Sexual Assault (Rape) sometime during . . . . [¶] COUNTS THREE and FOUR ([Victim I]) with Aggravated Sexual Assault (With Sexual Penetration by Foreign Object) sometime during . . . . [¶] COUNT FIVE ([Victim I]) with Lewd or Lascivious Act On A Child By force . . . . [¶] COUNTS SIX, SEVEN, EIGHT, NINE, and TEN ([Victim II]) with Lewd or Lascivious Act On A Child By force . . . . [¶] COUNT ELEVEN and COUNT TWELVE ([Victim III]) with Lewd or Lascivious Act On A Child By force . . . . [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act [he] committed."
Defendant argues the following: "The courts oral instruction erroneously told the jury that it had to unanimously agree on which acts constituted only counts 1 and 2. This was error because jury unanimity is required on all counts. [Citations.] The written instruction was also erroneous because it told the jury they must unanimously agree on which `act the defendant committed, after referring to all 12 counts. This was confusing and misleading, particularly in light of the courts oral instruction, because the instruction was phrased in the singular tense and the jury would not have understood that the unanimity requirement applied to all counts." (Fn. omitted.) He elaborates as follows: "The courts oral instruction stopped short of being full and complete and failed to advise the jury that unanimity was required as to all counts charged against [defendant]. [Defendants] jury would not have known or understood that the unanimity principle applied to all counts charged against him absent correct instruction from the court. . . . [¶] . . . [¶]. . . The result was that the jury could have found [defendant] committed one or more violations of section 288[, subdivision] (b), without agreeing that he committed the same offense, or they could have amalgamated evidence of multiple acts in concluding that [defendant] did something sufficient to warrant conviction on one or more counts."
The short answer to defendants contention is that a unanimity instruction was not necessary for counts 8 through 10.
"` "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." " (People v. Champion (1995) 9 Cal.4th 879, 932, quoting People v. Beardslee (1991) 53 Cal.3d 68, 93; see also People v. Stankewitz (1990) 51 Cal.3d 72, 100 [a unanimity instruction is not required when the defendant offers the same defense to the different acts constituting the charged crime, so no juror could have believed he committed one act but disbelieved that he committed the others]; People v. Schultz (1987) 192 Cal.App.3d 535, 539-540 [unanimity instruction unnecessary unless there is evidence on which reasonable jurors could disagree as to which act the defendant committed].) In Champion, one of the defendants raped a victim twice. After raping her in a bathroom, the defendant left but returned shortly thereafter to rape her again. The court held, "[O]nce a juror determined that defendant Ross committed one of the two rapes, it is inconceivable that the juror would not also conclude that Ross also committed the second rape of the same victim." (People v. Champion, supra, at p. 932.)
Here, we disagree with defendants argument that "The jury was presented with multiple distinctly different types of molestation that occurred in different locations, on different days, over a very long period of time [risking] verdicts, without [agreement] on which particular act constituted a violation of the particular charge." As we have mentioned, according to Victim IIs generic testimony and as segregated by the prosecutor, there was a single type of act underlying count 8, a single type of act underlying count 9, and a single type of act underlying count 10. There were multiple acts only in the sense of the time of occurrence. Thus, for count 8, the jury needed to unanimously agree on whether a penis-stroking incident occurred at nine or 10 years old; for count 9, the jury needed to unanimously agree on whether a penis-on-vagina incident occurred at nine or 10 years old; and, for count 10, the jury needed to unanimously agree on whether a finger-in-vagina incident occurred at nine or 10 years old. Moreover, defendant never contested that a particular act occurred in a particular year. Via cross-examination, a witness, and a stipulation, defendant raised the same defense to all of the acts that could have constituted the charged crimes, namely, victim credibility. Thus, the case was an all-or-nothing case boiling down to whether the jury would accept or reject Victim IIs testimony. Because the jury convicted defendant, it necessarily accepted Victim IIs testimony. Having determined that defendant committed one of the two possible acts for each count, it is inconceivable that a juror would not also conclude that defendant also committed the second of the two possible acts for each count. Thus, these facts did not call for a unanimity instruction. It follows that whether the instructions given by the trial court could have confused or misled the jury about the unanimity principle is of no consequence.
In the context of a failure to give a unanimity instruction, this type of fact pattern is sometimes deemed harmless error. (See, e.g., People v. Napoles (2002) 104 Cal.App.4th 108, 119 ["The erroneous failure to give a unanimity instruction is harmless if disagreement among the jurors concerning the different specific acts proved is not reasonably possible"]; People v. Thompson, supra, 36 Cal.App.4th at p. 853 ["Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless"]; see Coelho, supra, 89 Cal.App.4th at pp. 882-883 [acknowledging that, in an all-or-nothing scenario, failure to instruct may be deemed harmless error or no error at all].)
In any event, "With regard to criminal trials, `not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is " `whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process. " [Citation.] " `[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. " [Citation.] If the charge as a whole is ambiguous, the question is whether there is a " `reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." (Middleton v. McNeil (2004) 541 U.S. 433, 437.)" (People v. Huggins (2006) 38 Cal.4th 175, 192.)
Here, any linguistic imprecision caused by the trial courts oral mention of counts 1 and 2 before correcting itself to first state the substance of CALCRIM No. 3500 followed by the substance of counts 1 through 12 cannot possibly result in a lack of sufficient clarity or in legal error. Given the complicated network of definitions and elements upon which the jurys verdict depended, it would be implausible to assume that the jurors worked through the case nuances based solely on their recollection of the oral instructions they received. Rather, as there is no indication to the contrary, we presume that the jury followed the proper written instructions it received for purposes of its deliberations, rather than the oral instruction containing the supposed misstatement. (People v. Osband (1996) 13 Cal.4th 622, 687 [stating in assessing challenge to oral instructions that differed from proper written instructions that "[t]he jurors had before them six copies of the written version when they began to deliberate, and we presume that they were guided by those copies"]; People v. Davis (1995) 10 Cal.4th 463, 542 ["It is generally presumed that the jury was guided by the written instructions"]; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2 ["We presume that the jurors were guided by the written version"].) And there is no reasonable likelihood that the written instruction was misleading simply because, following the 12-count litany, it was phrased to read in the singular ("act") rather than the plural ("acts").
We must consider the instructions as a whole and assume the jurors were intelligent people capable of understanding them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) Had the jury thought, as defendant would have it, that the unanimity principle applied only to one count because one word in the written instruction was phrased in the singular, it no doubt would have asked the trial court to which count the principle applied.
EVIDENCE OF UNCHARGED SEX OFFENSE
During in limine proceedings, defendant unsuccessfully sought to exclude from evidence the Peoples proffered testimony of Witness I, defendants 13-year-old niece, who intended to testify that, in 2004, defendant molested her in her home when she was 10 years old by doing acts similar to the charged acts. He pointed out that he had pleaded guilty to a misdemeanor battery for that incident rather than a sex offense and Witness I was now posed to testify that the incident amounted to a sex offense rather than mere battery. He urged that admission of the evidence would consume an undue amount of time because it would result in a trial within a trial. He complained of potential prejudice because the jury might convict in this case as punishment for having escaped a more serious conviction in the battery case.
The prosecutor replied that she did not intend to introduce evidence related to the charges or disposition in the battery case.
The trial court explained: "So what Im boiled—ended up looking at under [Evidence Code section] 352 which has been the brunt of your arguments overall. And as I look at [Evidence Code section] 352, one of the issues that are often found in sex-related cases in which there is a one-on-one relationship between the victim and the perpetrator, is the issue of credibility. And so oftentimes this [Evidence Code section] 1108 evidence is looking at it and doing a [Evidence Code section] 352 balance rather. The credibility is going to be an issue in this case, and I think its always an issue. The vast majority of the time its an issue in a sex-related case. [¶] So as I look at the conduct that happened to [Witness I], I would have to agree with [the prosecutor] that its—based upon the information I have been given so far—the conduct, although, as alleged is certainly reprehensible, it certainly doesnt rise to the level that will be testified to by [Victims I, II, and III]. And so I do take that as a factor as I balanced out the [Evidence Code section] 352 in terms of the prejudice for the defendant. I also think this balances out in another way too in the case of [Victims I, II, and III]. They did not report this right away, but [Witness I] did. And so I think thats a credibility issue that will cut both ways to both credibility of the alleged victims and the [Evidence Code section] 1108 evidence of [Witness I]. [¶] And so as I look at this case in terms of [Evidence Code section] 352 and with credibility being an issue, as it often is in these cases, Im going to let this evidence in, because I believe it is more probative than prejudicial. So Im using my discretion. I do not think it will be undue consumption of time. The jury will be given limited instructions on how to use this evidence. Im going to voir dire them on the limited instructions during my regular voir dire of the jury to make sure that—because I am going to allow this evidence in, they will be using this evidence in a way that is proper. [¶] So Im going to let the testimony of [Witness I] come in under [section] 1108, under Evidence Code. And Im basing this on my balancing act under [Evidence Code section] 352. I think it is more probative than prejudicial."
The prosecutor called Witness I as her first witness. But before the testimony, the trial court instructed the jury in the language of CALCRIM No. 1191 as follows: "The People will be presenting evidence that the defendant committed a specific crime—were going to talk about that—a specific crime under the umbrella of child molest that was not charged in this case. And later on, when I read all the instructions to you, I will define for you what specific child molest crime that is uncharged against [Witness I]. You may consider this evidence only if the People have proved by a preponderance of the evidence. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense or offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. [¶] A fact thats proved by a preponderance of the evidence if you conclude its more likely than not that the fact is true. If the People have not met this burden of proof, you may disregard this evidence entirely. If you decide, however, that the defendant committed the uncharged offenses, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that discussion also conclude that the defendant was likely to commit and did commit the charged sex offenses as charged here. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of the charged sex offenses. The defendant must still—or the People must still prove each element of every single charge beyond a reasonable doubt. And do not consider this evidence for any other purpose except for the limited purpose which Ive explained to you which may include also the determining which—which I will explain to you a little bit later on Im going to leave it there because we havent really flushed that out yet."
Witness I testified that, when she was nine years old, defendant came into her bedroom while she was sleeping, woke her up, had her lay with him on the floor, and touched her chest, vagina, and buttocks.
During the jury-instruction phase of the trial, the trial court again instructed the jury in the language of CALCRIM No. 1191.
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Evidence Code section 1108 creates an exception in sex-offense cases to the prohibition in Evidence Code section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (Id. at p. 915.) Consequently, Evidence Code section 1108 permits the trier of fact to consider uncharged sexual offenses " ` "as evidence of the defendants disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." " (Falsetta, supra, at p. 912.) "With the enactment of [Evidence Code] section 1108, the Legislature `declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness. " (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, "the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ` "it has too much." " (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
"By reason of [Evidence Code] section 1108, trial courts may no longer deem `propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶] . . . [T]he probative value of `other crimes evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Ultimately all of the relevant factors can be classified into two competing categories of effects. One is the tendency of the evidence to show that the defendant possessed a proclivity to engage in conduct of the same type as that involved in the charged offense, thus supporting an inference that he did in fact engage in the conduct alleged in the information. The other is prejudice, i.e., the tendency of evidence of wrongdoing to generate a sense of antagonism toward the defendant, ranging from distaste to indignation to outrage to shock, which in and of itself inclines the jury to convict the defendant regardless whether the actual charges are borne out by the evidence.
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." " (People v. Karis (1988) 46 Cal.3d 612, 638.) " `In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. " (People v. Branch, supra, 91 Cal.App.4th at p. 286; see also People v. Harris (1998) 60 Cal.App.4th 727, 737 [a defendant must be tried for what he did, not for who he is].)
Defendant contends that the trial court erred by admitting Witness Is testimony. He asserts: "The error here centers around the fact that the court admitted [Witness Is] testimony, which was changing and developing into a sexual offense when the acts against [Witness Is] were previously determined not be sexual in nature, and that the court twice instructed the jury that [Witness Is] testimony was evidence that [defendant] committed a crime the court and the People know [defendant] had not been convicted of committing. This was fundamentally unfair and violated due process and Evidence Code section 352." He urges that the People "knew full well that the only crime [he] committed was misdemeanor battery," and "had every opportunity to prosecute [him] for a sex offense but chose not to do so." He adds: "Implicit in the governments acceptance of [his] plea to a non-sexual offense is the fact that the government could not prove [he] committed a sexual offense. Thus, [defendant] maintains that under the doctrine of collateral estoppel the government was prohibited from relitigating the issue of whether [defendants] prior conduct amounted to sexual misconduct." He makes the analogy that, just as evidence of indebtedness is inadmissible under Evidence Code section 352 to prove a motive to commit theft, evidence of past sex offenses should be inadmissible if the People decline to prosecute.
Given that defendant does not make an abuse-of-discretion argument in the sense of characterizing the trial courts decision as irrational, we glean that defendant argues that Witness Is testimony was inadmissible under Evidence Code section 352 as a matter of law because the People declined to prosecute him for a sex offense.
Defendant, however, cites no authority for his proposition. And Falsetta explicitly states that the Evidence Code section 352 analysis for evidence admissible under Evidence Code section 1108 is the usual one for abuse of discretion.
The Falsetta court explained: "In summary, we think the trial courts discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendants due process challenge. As [we have] stated . . ., `[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under . . . section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause. " (Falsetta, supra, 21 Cal.4th at pp. 917-918.)
Moreover, the authority is contrary to defendants proposition.
Evidence of a prior act may be introduced pursuant to Evidence Code section 1108 even if, as a result of that act, the defendant was convicted of a crime that was not a sexual offense. (People v. Lopez (2007) 156 Cal.App.4th 1291, 1298-1299.) "A defendant may avoid conviction of a sexual offense because of the more stringent burden of proof, either because the prosecutor may not feel he or she can meet the burden, or because the jury concluded the prosecution failed to meet the burden. When the evidence is introduced at a subsequent trial as evidence of a prior sex offense, however, the jury may conclude the same evidence meets the preponderance of the evidence standard and utilize the evidence as permitted by law." (Id. at p. 1299.) "The issue is, and should be, whether the prior act is a sexual offense." (Ibid. )
In short, defendant was free to (1) attack Witness Is credibility because of her "changing and developing" testimony (as he did), and (2) expose the nature of the conviction and argue that the conviction, rather than the "changing and developing" testimony, was more probative of the incident (he did not). Stated another way, the question about Witness Is testimony implicates the weight of the evidence rather than the admissibility of the evidence. (See People v. Mullens (2004) 119 Cal.App.4th 648, 660 [credibility involves the weight, not the admissibility, of evidence].)
CALCRIM NO. 1191
Defendant contends the trial court committed prejudicial error by instructing the jurors in the language of CALCRIM No. 1191. He argues that the instruction unconstitutionally allows "the jury to apply a preponderance-of-the-evidence standard to draw inferences of criminal propensity." According to defendant, "the logical interpretation of the instruction is that the entire chain of reasoning leading to a conclusion of predisposition is governed by the preponderance-of-the-evidence standard."
In People v. Cromp (2007) 153 Cal.App.4th 476, the court rejected a similar challenge to CALCRIM No. 1191, relying on People v. Reliford (2003) 29 Cal.4th 1007, 1012-1015, which had likewise rejected a challenge to the substantially similar language of CALJIC No. 2.50.01. "[T]here is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendants contention that the instruction violated his due process rights." (People v. Cromp, supra, at p. 480; see also People v. Schnabel (2007) 150 Cal.App.4th 83, 87 ["The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 1191 (which was given here) in its explanation of the law on permissive inferences and the burden of proof"].) We similarly reject defendants challenge. We are in no position to reconsider the Supreme Courts holding in Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We observe that CALCRIM No. 1191 is even more restrictive than its CALJIC predecessors because it expressly advises the jury that evidence of another sexual offense "is not sufficient by itself to prove that the defendant is guilty of [the charged offenses]. The People must still prove each [element of each offense] beyond a reasonable doubt."
CSAAS
Over defendants objection, Carl Lewis testified as an expert witness concerning CSAAS. According to Lewis, CSAAS is essentially a set of ideas deriving from a study to determine how victims responded to and reported child abuse; its purpose is to counsel the adult community against having preconceived notions about how a child would react; for example, it is common for a child to delay reporting child abuse.
The trial court instructed the jury about CSAAS in the language of CALCRIM No. 1193 before Lewiss testimony and, as follows, during the jury-instruction phase of the trial: "Youve heard evidence from Carl Lewis regarding Child Sexual Abuse Accommodation Syndrome. Carl Lewiss testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [Victim Is, Victim IIs, and Victim IIIs] conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of their testimony."
Defendant concedes that "California law currently allows the admission of evidence of [CSAAS] for certain limited purposes." He complains, however, that the trial court abused its discretion by (1) admitting the evidence to bolster the victims credibility, and (2) instructing that the jury could use the evidence to evaluate credibility. We disagree.
CSAAS evidence is routinely admitted in child sexual abuse cases. (See People v. Brown (2004) 33 Cal.4th 892, 905-906.) To the extent our Supreme Court has recognized that such evidence may be relevant, useful, and admissible in a given case, as an intermediate appellate court, we are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In People v. Gilbert (1992) 5 Cal.App.4th 1372, we discussed the use of expert testimony in a case involving the sexual abuse of a child. We stated that "expert testimony from which it may be inferred that `the victim manifests certain defined characteristics which are generally exhibited by abused children [citation] is not admissible, and may not be used by the jury, to prove that the victim was in fact abused on this occasion. But in such a case such expert testimony `is admissible to rehabilitate [the victims] credibility when the defendant suggests that the childs conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. " (Id. at p. 1383.)
CALCRIM No. 1193 is simply a cautionary instruction warning jurors they must not consider CSAAS testimony as evidence that the defendant committed the offense, and that they may consider CSAAS evidence only for the limited purpose of determining whether the victims conduct was inconsistent with the conduct of someone who had been molested. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 [generally, CSAAS evidence is offered to disabuse a jury of misconceptions it might hold about how a child reacts to a molestation].) It is true that CALCRIM No. 1193 broadens the scope of CSAAS evidence to allow the jury to consider it in evaluating the victims credibility. But, as we mentioned in Gilbert, when the victims credibility is attacked, "[t]he [CSAAS] testimony is pertinent and admissible." (People v. Patino (1994) 26 Cal.App.4th 1737, 1745.) Here, the victims credibility was in dispute. Thus, the jury could properly consider CSAAS evidence in weighing the victims credibility and CALCRIM No. 1193 correctly stated the law in this regard.
SENTENCING—VICTIM I
As mentioned (ante, fn. 2), the trial court sentenced defendant, as to Victim I, to mandatory consecutive 15-year-to-life terms on four counts of aggravated sexual assault upon a child (counts 1-4) (§§ 269, 667.6), offenses that were alleged to have been committed between October 25, 2000, and October 24, 2003. Section 667.6, subdivisions (d) and (e), provides that full, separate, and consecutive terms be imposed for rape or sexual penetration. Section 269 is not a predicate offense. (People v. Jimenez (2000) 80 Cal.App.4th 286, 291 (Jimenez) ["Section 667.6 was enacted in 1979 [citation]; section 269 followed in 1994 [citation]" as a separate sentencing scheme where victims were under age 14 and 10 years or more younger than the defendant].)
Defendant contends that the trial court erroneously concluded that counts 1 through 4 carried mandatory consecutive terms without allowing for discretion to impose concurrent terms. He acknowledges that case law supports that mandatory terms were required. (Jimenez, supra, 80 Cal.App.4th 286; People v. Glass (2004) 114 Cal.App.4th 1032, 1037-1038 (Glass).) He argues, however, that Jimenez and Glass were wrongly decided. We disagree. Consecutive terms were mandatory for counts 1 through 4.
Section 667.6, subdivision (d), provides that consecutive terms "shall" be imposed for each violation of an offense listed in subdivision (e), if the offenses involved separate victims or the same victim on separate occasions. Subdivision (e) lists rape (§ 261) and sexual penetration (§ 289), but does not list any form of aggravated sexual assault (§ 269). In counts 1 through 4, defendant was convicted of violating section 269, by committing rape and sexual penetration. Thus, here, the fundamental requirements of section 667.6 were met and consecutive terms were mandatory on counts 1 through 4.
Defendant argues that consecutive terms were not mandatory because section 269 is not listed in section 667.6, subdivision (e). The Jimenez court rejected substantially the same argument. There, the defendant suffered two aggravated sexual assault convictions based on two acts of forcible sodomy against the same victim on different occasions. He argued that consecutive terms were not mandatory because section 269 was not listed in section 667.6. The court disagreed and reasoned that sections 269 and 667.6 served different purposes, and it would be "irrational to suppose the Legislature intended that criminals who commit multiple violent sexual offenses would be exempt from the aggravated punishment prescribed by section 667.6 merely because their victims happened to be children under age 14 who were 10 or more years younger than they." (Jimenez, supra, 80 Cal.App.4th at p. 291.)
The court in Glass adopted the same reasoning in the analogous context of great-bodily-injury enhancements (§ 12022.8) for section 269 convictions. Although section 269 is not listed in section 12022.8, the underlying offenses to which the enhancements apply are listed. (Glass, supra, 114 Cal.App.4th at pp. 1036-1038.)
Defendant urges that a 2006 amendment to section 269 shows that Jimenez erroneously concluded that section 667.6 was applicable to violations of section 269 before 2006. We disagree.
In 2006, the Legislature amended section 269 to add subdivision (c) which provides: "The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of section 667.6." (Stats. 2006, ch. 337, § 6, p. 2132, eff. Sept. 20, 2006; amended by initiative measure (Prop. 83, § 5) at the Nov. 7, 2006, Gen. Elec. operative Nov. 8, 2006.)
Defendant asserts that, via the 2006 amendment, the Legislature evinced an "intent to impose consecutive sentences, for qualifying offenses, under section 667.6[,] [subdivision] (d)" and, thus, made a "change in existing law."
The court recently rejected a similar argument in People v. Figueroa (2008) 162 Cal.App.4th 95: "[D]efendant asserts that the amendment of section 269 in September 2006, to expressly apply the mandatory consecutive provision of section 667.6, subdivision (d) signals that the applicability of section 667.6, subdivision (d) to section 269 was ambiguous before that date. He also cites the Legislative Counsels Digest for the 2006 amendment to section 269 which states, ` "The [amendment] would require the court to impose a consecutive sentence for each offense that results in a conviction under this provision." (Legis. Counsels Dig., Sen. Bill No. 1128 (2005-2006 Reg. Sess.).) No doubt, the amendment does, indeed, require a consecutive sentence for each offense. However, the digest did not state that that requirement did not already exist under section 667.6, subdivision (d). Not to be ignored is the analysis of the Assembly Committee on Public Safety in 1994 that multiple convictions under section 269 were to be punished consecutively under section 667.6, former subdivision (d). Additionally, section 667.6, subdivision (d) has not, since 2006, been amended to add section 269. What we are left with then, at best for defendant, are dueling legislative analyses and an interpretation of inaction on the part of the Legislature. Rather than attempt to sort out these legislative tea leaves, we prefer to adopt the reasoned analysis of our colleagues at District Five in Jimenez. Section 667.6, subdivision (d) was crystal clear, at the time defendant committed his crimes, in its application to the rapes that the jury in this case found beyond a reasonable doubt to have been committed. Therefore, consecutive sentencing was mandatory under that subdivision." (Id. at p. 100, fn. omitted, first bracketed insertion added.)
We agree with Figueroa that Jimenez still offers the best interpretation of the interplay between sections 269 and 667.6, subdivision (d), before the 2006 amendment.
And we disagree with defendant to the extent that he is basically arguing that there was no reason for the 2006 amendment if section 667.6, subdivision (d), already applied to section 269 under existing law.
Repeating existing law in a statute "may eliminate potential confusion and avoid the need to research extraneous legal sources . . . ." (Reno v. Baird (1998) 18 Cal.4th 640, 658.) By amending section 269 in 2006, the Legislature apparently clarified and strengthened the law by making the enhanced punishment of section 667.6 directly part of the statute defining the crime of aggravated sexual assault on a child, instead of merely adding section 269 to the list of predicate offenses in subdivision (d) of section 667.6. In addition, the 2006 amendment also reduced the age difference between the victim and perpetrator from 10 to seven years. (See § 269, subd. (a).) Thus, these statutory changes are consistent to show that the purpose behind the 2006 amendment was to strengthen and improve existing laws that punished child abusers. These changes, however, do not necessarily compel the conclusion that defendant urges; i.e., that a defendant convicted of section 269 was not subject to consecutive sentences under section 667.6, subdivision (d) prior to 2006.
SENTENCING—VICTIMS II and III
Section 667.61 (consecutive 15-years-to-life terms for lewd conduct by force, etc., against more than one victim) became effective on November 30, 1994 (People v. Hiscox (2006) 136 Cal.App.4th 253, 257), when Victim II was eight years old and Victim III was six years old. Defendant argues that the trial court erred by sentencing him under that statute as to three of the counts against Victim II and both counts as to Victim III because the evidence is insufficient to establish that he committed those offenses after the effective date of the law. He relies on the same reasons that support his substantial evidence challenge to the convictions for those counts. Since we have concluded that substantial evidence supports the convictions for counts 6 through 10 (Victim II was nine years old), it follows that the evidence sufficiently supports that defendant committed the offenses against Victim II after the effective date of section 667.61. As to Victim III, count 11 will be reduced to carry a nonaggravated sentence and count 12 will be stricken.
AIDS EDUCATION FUND FINE AND PENALTY ASSESSMENT
Defendant contends that the $70 AIDS education fund fine and related $133 penalty assessment must be stricken because they are not authorized by statute. Section 1463.23 authorizes the imposition of an AIDS education fund fine for specified offenses only. Defendant was not convicted of any of the offenses enumerated in that section. The People concede that the fine and penalty assessment are unauthorized and must be stricken. We will therefore direct the trial court to strike the $70 AIDS education fund fine and $119 penalty assessment. (See People v. Walker (1991) 54 Cal.3d 1013, 1026-1029.)
DISPOSITION
The judgment is reversed. The trial court is directed to reinstate the judgment with the following modifications: (1) strike the conviction for count 12; (2) reduce the conviction for count 11 to a violation of Penal Code section 288, subdivision (a); (3) strike the $70 AIDS education fund fine and $119 penalty assessment; and (4) impose a concurrent three-year sentence for count 11—unless it elects to impose or the People elect within 10 days of the remittitur of record to argue for a different sentence for count 11, in which case it must arraign defendant for judgment and sentencing.
WE CONCUR:
Rushing, P.J.
Elia, J.