Opinion
G062743
12-12-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL FLAHERTY et al., Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Michael James Flaherty. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia Fuentes. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. INF1701482 Dean Benjamini, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Michael James Flaherty.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant Cynthia Fuentes.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, ACTING P. J.
Defendants Michael Flaherty and Cynthia Fuentes were convicted by separate juries of multiple counts of sex crimes against Flaherty's 24-month old son. Fuentes was sentenced to 15 years to life. Flaherty was sentenced to 35 years, four months, plus 30 years to life in prison.
On appeal, both defendants contend there was insufficient evidence of force or duress to support three counts of lewd act on a child under 14 by use of force or duress under Penal Code section 288, subdivision (b). We conclude the manipulation of the baby's body to accomplish the sexual assault, together with various text messages before and after the abuse, was substantial evidence of force to support the charges.
All statutory references are to the Penal Code unless stated otherwise.
Both defendants also contend the court erred and violated their constitutional rights by permitting a witness to testify remotely via video feed. We conclude that, assuming there was any error, it was harmless.
Fuentes contends the admission of her prior statement in a text message that she had "rubbed a baby dick before" was inadmissible under the corpus delecti rule because there was no evidence beyond her own statement that the crime occurred. We conclude that rule is inapplicable here and that her statement was admissible as propensity evidence under Evidence Code section 1108.
Flaherty contends the court erred by failing to consider mitigating factors in deciding between the low and middle term of imprisonment. He contends his own past childhood trauma required the court to impose the low term. Although the court did make certain statements suggesting it misapprehended the scope of its discretion, we conclude any error was harmless because, in deciding whether to run Flaherty's sentences consecutively, the court explicitly made a credibility finding against Flaherty's claimed childhood trauma. That, together with other comments the court made, convince us that the court would have imposed the middle term even if it had understood the full scope of its discretion. Accordingly, we affirm.
FACTS
In the summer of 2017, Flaherty utilized a dating app to meet a woman named Nicole. They exchanged phone numbers and communicated by text message, and eventually, in August 2017, met in person at Flaherty's home in Desert Hot Springs.
In the interest of preserving Nicole's privacy, we refer to her by first name only.
Flaherty had told Nicole that he had a son about one and a half years old. His son, whom we refer to as Doe, was born in late August 2015, and thus was just under 2 years old in early August 2017. The mother and Flaherty, the father, broke up in November 2016, and since then Flaherty had seen Doe infrequently and never for very long on those occasions.
Flaherty began sending texts to Nicole that disturbed her. They began with a text in which he said, "The breast-feeding thing I think is really hot." He wrote "I'd love to fuck yy while [Doe] sucks on your tits." He continued: "Honestly he probably be into it for a little bit but then Hed want to stop but I would think it's hot if you smothered his face if your big tits ...." He then sent a video of himself masturbating at the thought. He offered to put his son on a sleeping aid and suggested Nicole could kiss Doe's body or mouth while they had sex.
At this point, Nicole had made a decision to go to the police, but she continued the conversation to try and elicit more information from him because she felt that his child was in danger. That is when she asked him whether he had done anything like what he described to his son before. He responded that he had with another women, who had touched Doe and "sucked his cock." He then sent her videos of the other woman touching Doe. Afterward he said, "She fingered him too." He accompanied that text with images of what appears to be the other woman sticking a finger into a child's anus. Next, he sent another video that depicted a woman inappropriately touching the child. He went on to tell Nicole, "I want you to put his whole dick and balls in your mouth ...." And he wanted to have sex with her while she did that. He suggested that she smother Doe so hard with her breasts that he cries. "[I don't care] if he cries . . . I'll keep fucking you [and] you scream and cry with him." This sort of talk continued over the course of several more text messages, including a suggestion that she "hold him down and suck his dick."
Eventually Nicole asked him, "Can I see a picture of him?" He then sent three photos of Doe. She asked, "what's his name?" He replied with Doe's actual name.
This is about the time that Nicole contacted Child Protective Services. Later that day, she received a call from the Desert Hot Springs Police Department. She went to the police department and shared with a detective everything she had received from Flaherty. Based on the information provided by Nicole, the Desert Hot Springs Police Department began an investigation on August 17, 2017, to learn more about the two video clips Flaherty had sent to Nicole. The Department of Homeland Security later joined the investigation.
Geotagging showed that the videos and images provided by Nicole were taken on August 5, 2017 between 4:08 p.m. and 4:16 p.m. from two locations in Palm Springs that are across the street from each other. At that time, Doe's mother was out of town celebrating her birthday. Doe was staying with his grandmother who dressed him in the clothes he is wearing in the video. Flaherty picked up Doe from his grandmother's house around 2:00 p.m., and when he returned with Doe later that afternoon, Doe had severe diarrhea that was acid yellow and lasted for a week. On August 7, law enforcement officers showed Doe's mother the videos from Nicole's phone. Doe's mother "very clearly" saw both Doe and Flaherty in the videos.
Investigators arrested Flaherty and took his cell phone. They seized a computer tower from his home. Flaherty's computer contained a backup of his cell phone that went through August 6, 2017. The data eventually retrieved from Flaherty's iPhone was consistent with what was on the computer tower backup. As detailed below, it showed a digital conversation between Flaherty and defendant Cynthia Fuentes that took place between July 25, 2017 and August 6, 2017, including videos, photos and text messages between appellants regarding their pre-August 5 plan to sexually assault Doe, the August 5 sexual assault, and their August 6 recap, plus a plan for a future encounter involving Doe.
Prior to their August 5, 2017 sexual assault of Doe, appellants exchanged numerous messages planning and describing the nature and extent of their intended sexual assault, including causing Doe pain and drugging him, as follows:
On July 25, 2017, Fuentes sent Flaherty a number of pictures of herself.
On July 28, 2017, Flaherty wrote, "Maybe if you are okay I'll have my boy here next time." Fuentes responded, "Of course I am. I want to talk to him and see him and then bulge my tits out lol." Flaherty said, "I want to fuck you while you suck and lick his balls." Fuentes responded, "Omg. I wanna try that. Ive rubbed small baby dick before. Its adorable."
On July 29, 2019, Flaherty wrote: "I really want to have you meet [Doe] my boy and we get naked in the sheets." Flaherty said, "Mmmm, I want to eat your pussy with him at the same time. He can lick your ass while I eat your pussy." Fuentes responded, "Ughhh, yes. I want his little fingers in my pussy while you lick my clit." Flaherty wrote, "I really want you to sit on his face, hard. I'll cover his arms in oil and try to push his whole arm inside of your body." Later that day, Flaherty said, "I just really want to fuck you and let your head go up and down on his cock while I do it." She responded, "Oooh yes. I will do that. I will suck on his cock and rub my hands on him."
On July 30, 2017, Flaherty said, "If I put him to sleep with pills would you be OK maybe doing dirty things like sticking your finger in him or in his mouth really far" She said, "I'd be fine with it." Flaherty wrote, "I'd like you to push the norcos in his mouth with your tongue and saliva and make him swallow. While he's sleeping you put each one of your toes in his ass and cover his face with your soles." She responded, "As long as he doesn't choke." Flaherty wrote, "I want to turn the lights out a[n]d listen and see the covers move like you're ass raping him." Fuentes wrote, "Ugh im playing w[i]th myself."
On July 31, 2017, Flaherty wrote, "I have the pills. If you want I'll give him a lot and he'll knock out hard." Fuentes replied, "Don't OD him lol." Later Flaherty wrote, "I like to watch vids of kids getting raped and picture it's my son. Toddlers. Would you take a few pics of your toes on his face or in his mouth?" Flaherty went on, "If it gets nasty, will you let me video you violating him and fingering his ass and sitting in his face while he's drugged?" Fuentes responded, "Possibility. I have never fingered a little kids bum. Only an adults lol. I'll sit on his face. And suck him."
On August 2, Appellant sent two images of child pornography to Fuentes. He said, "I really want that" and "He'll cry if he's not drugged." Fuentes responded that he should drug him because "I just don't want to traumatize him and have him not like me or want to be with me [because] he will remember the pain lol."
On August 2, 2017, the two continued to discuss their plans, including giving [Doe] two pills and "gag[ging] his sleeping body" with fingers, "smother[ing]" him until his "little body buckle[s] from your toes choking him." Flaherty wrote, "I want you to lube him up and violate him. Then you shove your toes in his mouth till he vomits. Too much?" She responded, "Gag is okay. I like that." Flaherty responded, "Omg I love this. Will it hurt him? A little?" Fuentes responded, "Yes, a little. he will be sore for sure." Flaherty said, "I want to hear him cry, baby." He went on, "I want you to spank him until he wakes up from pain." Fuentes said, "I am just a bit concerned about leaving marks or bruises or any redness (since he is very pale) you know [because] his mom."
On August 4, 2017, Flaherty detailed what they would do, including: "You can ride his hard dick till he gets upset. Then you do it harder as he cries you grins your pussy on him and squirt on his body [as] he's trapped between your legs." She responded by asking if he is busy tonight, can she visit, and will he have Doe. Flaherty wrote, "[T]omorrow for sure. I can try to get him. Are you feeling naughty? Want me to drug him? Mom is gone all weekend you can leave marks." Fuentes responded, "I'm feeling super naughty."
On August 5, 2017, the date of the sexual assault, Flaherty told Fuentes he had his boy until 5:00 p.m. Later that day she texted him with details of her current location.
The next day appellants exchanged messages reveling in their sexual assault of Doe.
Flaherty wrote to Fuentes, "That was so hot." She responded, "He has a cute butt hole." Flaherty wrote, "Omg fuck, I'm so hard lol. Did you like doing that? I really like when you started to push him down so that you can get a better angle I wanted you get rough to be honest, but I loved every second of what happened, especially when you suck his little dick." Flaherty sent pictures of a finger penetrating the anus of a small child and two videos, to which Fuentes responded: "I hope I get another opportunity soon to do more. I wanna out my fingers again."
Flaherty began planning their next abuse: "Tomorrow I'm picking him up same time. I want you to lay him on the bed and finger him while you suck his cock." Fuentes responded, "Yesss. Drug him." Flaherty replied, "You fucked him so good lol." Fuentes then said, "I wanna be harder next time." Flaherty texted, "Will you get really dirty with him? Maybe be mean or a little rough? I'll get him really fucked up for you." Fuentes wrote back, "I will be really dirty. You will see." Flaherty wrote, "Will you choke him and maybe try to wake him up from the pain? I loved hearing him cry while you had him in the trunk." Fuentes responded, "Yes. And I'll cover his little eyes and wipe tears and continue. I was rubbing him while he was crying."
The conversation continued in much the same vein. Flaherty wrote, "Oh my god yes I want you to be really rough with him if that's OK. He won't remember if he's wasted I'm sure. You're in control with him." She responded, "Ugh i was so wet when I was fingering his butt. I lived the tight ess." "*tightness" "*loved." Flaherty wrote back, "He likes it, too lol. I want you to slap him around and then rape him."
After a break, the conversation continued later in the day. "It was so hot watching you finger fuck [Doe]," Flaherty wrote. "I want you to hold him down and violate him hard while I jack off." Fuentes replied, "I kept thinking about [Doe]. I wanna do all of that. I wanna finger fuck his asshole really hard and make out with him while he's passed out and switch off on sucking his hard cock." Flaherty wrote, "Omg, yes! I wa[n]t you to do it hard. It was so hot when you started controlling him. You were getting into it. I can tell you wanted to get rough." Fuentes wrote back, "I'm horny for [Doe]. I want his cock all into my mouth while I fuck his tight asshole. I wanna be smothered by t. Ugghhhh." Flaherty responded, "I'll drug the fuck out of him so you ca[n] let loose. I want to hear you cumming from pleasure you've stolen from his body. Tell him he's a good boy while you fuck him and cum from my cock filling you up."
The photos and videos Flaherty sent to Fuentes on August 6, 2017, were the same ones provided to police by Nicole.
On August 16, 2017, Flaherty wrote a text to Fuentes that said, "Please delete our conversations. I think I might be in trouble." That message and the videos taken on August 5, 2017, were marked for deletion, meaning Flaherty had deleted them from his phone but the data was still there because the service had not yet deleted it.
When investigators executed a search warrant on Fuentes's home on August 30, she agreed to talk to them. Fuentes admitted victimizing Doe once in Palm Springs. She said she was under the influence of alcohol and drugs, and the incident took place in a car. She claimed she felt uncomfortable but Flaherty told her what to do. She penetrated Doe with her finger. She said she had no recollection of any other sexual activity with Doe. She freaked out when she saw the video of her penetrating Doe and she deleted it.
STATEMENT OF THE CASE
On February 2, 2021, the Riverside District Attorney filed the operative information charging Flaherty and Fuentes with two counts of oral copulation or sexual penetration of a person 10 years of age or younger (counts 1 (digital penetration) and 2 (oral copulation); Pen. Code1, § 288.7, subd. (b)); three counts of lewd act upon a child under 14 by use of force, violence, menace, duress and fear of unlawful bodily injury (counts 3 (hand on buttocks), 4 (hand on testicles), 5 (hand on penis); § 288, subd. (b)); and one count of inducing a minor to engage in sexual conduct for the purpose of preparing a representation (count 8; § 311.4, subd. (c)).
The information also charged Flaherty with two counts of providing a child under 16 for the purpose of a lewd act (counts 6 and 7; § 266j); possession of child pornography (count 9; § 311.11); child abuse (count 10; § 273a, subd. (a)); and accessory after the fact (count 11; § 32).
On October 21, 2021, Flaherty pleaded guilty to counts 6 through 11.
Defendants were tried together with separate juries. On December 1, 2021, Fuentes's jury found her guilty of all charges. On December 3, 2021, Flaherty's jury found him guilty of all charges.
Fuentes was sentenced to 15 years to life in prison. Flaherty was sentenced to 35 years, four months in prison plus 30 years to life. The principal reason for the disparity in sentences was that the court ran Fuentes's sentences concurrently, whereas the court ran Flaherty's sentences consecutively. Both defendants appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTS THE FORCE ELEMENT FOR COUNTS 3-5
Defendants first contend there was no substantial evidence to support the force or duress element of counts 3-5. Section 288, subdivision (a), provides that "a person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." Under subdivision (b), a person who violates subdivision (a) "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" is subject to a greater punishment (5, 8, or 10 years in state prison). Here, the People contend defendants violated subdivision (b) by employing force and duress. We conclude that the evidence supports a finding that defendants employed force, and thus we do not reach whether the evidence demonstrated duress.
"'"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] 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." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."''' (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)
On appeal, Flaherty argues there was no evidence of force or duress. His argument begins by observing that counts 3, 4, and 5 were all charged as a touching of different body parts: buttocks, scrotum, and penis, respectively. Flaherty acknowledges there was video evidence of force when it came to digitally penetrating Doe's anus, but he downplays that evidence as being "from another count . . . unrelated to the mere act of rubbing the child's buttocks, scrotum, and penis area." He goes on, "Certainly nothing in the video shows this child, slightly less than two, resisting any of these acts."
Fuentes joined in Flaherty's argument.
For purposes of section 288, subdivision (b)(1), courts have described "force" as physical force that is "substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.) Courts have alternatively described it as: "any force that is 'different from and in excess of the type of force which is used in accomplishing similar lewd acts with a victim's consent.'" (Id. at p. 1005.) The latter description helpfully points to the real policy distinction between subdivisions (a) and (b): subdivision (b) deals with situations in which the defendant overcame the victim's opposition or coerced the victim's will.
In light of this description of force, we have little trouble concluding that defendants employed force in the various lewd acts they committed. We begin with the observation that Doe was of an age that we refer to in months, not years. He was 23 months old. He was not verbal, other than the few words that ordinarily accompanies such an age. He could not put on his own shoes or his own clothes. He could not put on a seatbelt by himself. He had to be carried around certain places or taken in a stroller. He could not, in short, voluntarily comply with the various sexual acts defendants imposed on him.
We combine this common sense with the evidence from the defendants' text messages. The day after the sexual assault, Flaherty wrote that he loved it when Fuentes "push[ed] him down so that [she could] get a better angle." Flaherty wrote, "I loved hearing him cry while you had him in the trunk." Fuentes responded, "I was rubbing him while he was crying." (Italics added.)
We are hard pressed to imagine a case where force is not present when the victim is this young. The manipulation of a victim's body constitutes force. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48 [defendant "slightly pushed" the victim's back during oral copulation and held the victim's hand to rub the defendant's genitals, both of which constituted force].) Thus, a scenario where force is not used would entail the young victim voluntarily assuming the positions requested by the abuser (including, in this case, removing his own clothing) and providing no resistance to the abuser's predations. Under most circumstances involving a child this young, that is such a preposterous scenario as to beggar belief. That common sense was confirmed in this instance by the text messages after the abuse confirming that Fuentes manipulated Doe's body and that Doe was crying through the assault. Accordingly, there was substantial evidence of force to support the verdicts on Counts 3 through 5.
II.
ANY ERROR IN PERMITTING A WITNESS TO TESTIFY REMOTELY WAS HARMLESS
Both defendants contend the court erred in permitting one witness, Timothy Losito, to testify remotely via video feed from Virginia. They contend this violated their Sixth Amendment right to confront the witness. We need not address whether this was error because, even assuming it was, it was plainly harmless.
Losito was a supervisory special agent for the Coast Guard Investigative Service for the Electronic Crimes Section for the Department of Homeland Security. He testified from the Cyber Crimes Center in Fairfax, Virginia, where he was stationed. In November 2017, he was a National Program Manager for the Mobile Forensics Unit. His duties included conducting high-level forensic examinations of mobile devices. His role, in almost all cases, was to simply extract the data, then he would pass the data back to investigating agents to perform the actual analysis.
In November 2017, Losito became involved in the case when he was given Flaherty's cell phone and was tasked with extracting data from it. Losito explained the process he used to extract that data. He explained how the data is preserved so that it is not changed after the extraction.
Flaherty's counsel cross-examined Losito about whether he was able to extract deleted items from the phone. Losito's response was that he did not do the analysis of the data, so he could not be certain about whether some or all deleted items were extracted.
Fuentes's counsel cross-examined Losito about whether he was able to extract all text messages from her phone, to which he also responded that he did not know because he did not perform the analysis.
Under the Sixth Amendment Confrontation Clause, a criminal defendant has the right to a "face-to-face meeting with witnesses appearing before the trier of fact." (Coy v. Iowa (1988) 487 U.S. 1012, 1016.) But this rule has never been absolute; face-to-face testimony is not required "when alternate procedures, such as testimony from a remote location, are necessary to further an important government public policy." (People v. Lujan (2012) 211 Cal.App.4th 1499, 1505.) A defendant's right to confront witnesses may be satisfied absent a traditional face-to-face confrontation at trial where: (1) "denial of such confrontation is necessary to further an important public policy"; and (2) "the reliability of the testimony is otherwise assured." (Maryland v. Craig (1990) 497 U.S. 836, 850.) "This public policy exception is not a general one; it must be applied on a case-by-case basis." (People v. Alvarez (2022) 75 Cal.App.5th 28, 36.)
Here, the trial court permitted Losito to testify remotely because of the Covid-19 pandemic, combined with the fact that Losito was the caretaker for his ailing father who would be particularly susceptible to Covid-19.
Ultimately, we decline to address whether this was error because it is so plainly harmless. Because the alleged error is of a constitutional dimension, we apply the test articulated in Chapman v. California (1967) 386 U.S. 18, 24, and ask whether, upon reviewing the entire record, we are convinced beyond a reasonable doubt that, absent the error, the result would have been the same.
Of that, we are convinced. Losito was not a particularly significant witness in this case. He was essentially a foundational witness. He testified to the reliability of the data extraction process, and no real issue was made of that at trial. Moreover, both defendants' counsel were able to cross examine Losito effectively. There was no issue at trial as to Losito's credibility. Thus, the jury's inability to see him in person was of no consequence. On the whole, there is simply no reason to believe that having Losito testify in person would have made any difference whatsoever. Accordingly, any error was harmless.
III.
PROPENSITY EVIDENCE WAS ADMISSIBLE AGAINST FUENTES
Fuentes contends the court erred by admitting the statement, "I've rubbed small baby dick before. It's adorable." The court ultimately admitted that statement as propensity evidence pursuant to Evidence Code section 1108. Subdivision (a) of that section provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Section 1101 generally prohibits the admission of character evidence, also known as propensity evidence. Section 1108 is an exception to that rule. Under section 1108, evidence of other sex offenses is admissible to demonstrate that the defendant has a propensity to commit sex offenses (subject to Evidence Code section 352). We review the court's admission of evidence under the abuse of discretion standard. (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
Fuentes contends it was error to admit her statement under section 1108 because it violated the corpus delecti rule. Our high court has described the corpus delecti rule as follows: "In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) "There is no requirement of independent evidence 'of every physical act constituting an element of an offense,' so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (Id. at p. 1171.) "This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Id at p. 1169, italics added.)
The question here is whether this rule applies to uncharged acts that are admitted purely as evidentiary facts. In People v. Robertson (1982) 33 Cal.3d 21 (Robertson) our high court came close to holding that the rule does apply to uncharged acts. A plurality declared, "California has long adhered to the rule, established at common law and followed in most jurisdictions, that 'evidence of the commission of a prior crime may not be proved by the introduction of evidence of an extrajudicial admission without proof aliunde that such a crime had been committed.'" (Id. at p. 41.) However, that proposition did not command a majority of votes. Moreover, just 10 years later, our high court declared, "It is not clear that the corpus delicti rule applies to other crimes evidence offered solely to prove facts such as motive, opportunity, intent, or identity, or for impeachment." (People v. Clark (1992) 3 Cal.4th 41, 124, abrogated on other grounds as stated in People v. Edwards (2013) 57 Cal.4th 658.)
Since the Robertson decision, at least three Court of Appeal decisions have rejected the notion that the corpus delecti rule applies to evidence of uncharged acts. (People v. Davis (2008) 168 Cal.App.4th 617 (Davis); People v. Martinez (1996) 51 Cal.App.4th 537, 545 ["corpus delicti rule has never been applied to other-crimes evidence introduced for impeachment purposes in the guilt phase of a trial"]; People v. Denis (1990) 224 Cal.App.3d 563, 568-570 [corpus delicti rule inapplicable to "uncharged conduct, offered for a limited purpose under . . . section 1101, subdivision (b)"].)
In Davis, the court conducted an extensive analysis of the issue, concluding that the Truth-In-Evidence amendment to the California Constitution (Art. I, §28, subd. (f)(2)) abrogated any evidentiary aspect of the corpus delecti rule. (Davis, supra, 168 Cal.App.4th at p. 633.) "In June 1982 the voters, by adopting Proposition 8, added . . . the 'Right to Truth-in-Evidence' provision, to article I of the California Constitution. This section provides that except under certain statutes already in effect, or thereafter enacted by a two-thirds vote of each house of the Legislature, 'relevant evidence shall not be excluded in any criminal proceeding.'" (People v. Alvarez (2002) 27 Cal.4th 1161, 1165.) The corpus delecti rule has continuing vitality as a proof requirement to obtain a conviction. (Ibid.) However, the Davis court reviewed California caselaw, respected treatises, out of state authorities, and federal authorities, all of which counseled against applying the corpus delecti rule as a proof requirement for uncharged acts. (Davis at pp. 634-638.) This makes sense: the primary policy animating the corpus delecti rule is to prevent a person from being convicted of a crime that never occurred. But that is not a concern when the acts are not actually charged as a crime.
Although Fuentes declares that Davis and the cases preceding it are wrongly decided, she has not actually addressed the rationale advanced by Davis. In particular, she has not addressed the Truth-In-Evidence issue, nor has she contended with the fact that a wrongful conviction is not possible with an uncharged act. While she contends that applying the corpus delecti rule in the present circumstance would advance the policy goals of that rule, her argument is unconvincing. She primarily argues that evidence of prior offenses carries a high degree of prejudice. But section 1108 expressly incorporates a section 352 analysis to address prejudice. Accordingly, she has presented no persuasive reason to depart from the thoroughly reasoned analysis of Davis. Since the corpus delecti rule does not apply here, there was no error in admitting the evidence pursuant to section 1108.
IV.
THE COURT DID NOT COMMIT PREJUDICIAL ERROR IN SENTENCING FLAHERTY TO THE MIDDLE TERM
Flaherty contends the court erred in sentencing him to the middle term on counts 3, 4, 5, and 6. He contends the court misunderstood the scope of its discretion, and that, properly understood, the court was compelled to impose the low term. We are not persuaded.
At sentencing, the court observed (correctly) that it had no ability to select the high term in sentencing Flaherty because the jury had not, pursuant to recent amendments to Penal Code section 1170, been asked to make findings on aggravating factors. As amended effective January 1, 2022, subdivision (b) of that section requires the court to impose a sentence "not to exceed the middle term" unless "there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (Italics added.)
However, in deciding whether to impose the low or the middle term, the court went a step beyond that and stated that it could not consider mitigating factors either: "I think that when there are literally no circumstances of mitigation, no circumstances in aggravation, I can choose either one, because I can't consider either one of those." (Italics added.) In choosing the middle term, the court further stated, "no particular aggravating or mitigating factors were looked at right now." Instead, the court based its judgment on "the circumstances of the case in terms of the overall conduct, the heinous conduct ...." Flaherty contends this was error because under section 1170, the court could not consider aggravating factors not found true by the jury, but it could consider mitigating factors supporting selection of the low term.
We agree that the court had discretion to select the low term if it found there were mitigating factors supporting that selection. (Cal. Rules of Court, rule 4.420, subd. (d) ["In selecting between the middle and lower terms of imprisonment, the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision."].) Indeed, under section 1170, subdivision (b)(6), the low term would have become the presumptive term if it found certain mitigating circumstances to be true: "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (See also People v. Gerson (2022) 80 Cal.App.5th 1067, 1095.) This happens to be the primary mitigating factor Flaherty relied on at trial. The court's statement that it could not consider mitigating factors in selecting the term, therefore, was inaccurate.
However, whether to select the low or middle term was not the only major sentencing decision confronting the court. The court also had to decide whether to run the sentences consecutively or concurrently, a much more consequential decision in terms of Flaherty's overall sentence. In making that determination, the court specifically observed that it was permitted the "weighing of aggravating and mitigating circumstances and other circumstances whether to impose consecutive versus concurrent." The court's comments and conclusions in performing that analysis persuade us that any error in not considering mitigating circumstances when selecting between the low and middle term was harmless because the court simply would not have selected the low term even if it had entertained Flaherty's mitigating circumstances.
In deciding whether to run the sentences consecutively, the court began by observing, "The acts which were committed were truly monstrous acts. There's no way to mitigate the acts themselves. Whether it's the worst I have ever seen or the second worst or the third worst, it's really irrelevant. The acts themselves were horrific. They were monstrous." "I think sitting here in the courtroom, there are two people. I think Mr. Flaherty is a monster. I don't necessarily think that Ms. Fuentes is." The court referred to Flaherty as the "puppeteer" in the sexual assault, describing him as "manipulative beyond belief." The court concluded Flaherty was a "serious, serious danger to society."
The court then considered mitigating circumstances - in particular, "whether or not Mr. Flaherty experienced and this is under [California Rule of Court, Rule 4.423,] subdivision (b)(3) and (4), basically - whether he's experienced psychological, physical, or childhood trauma as a victim of sexual violence, perhaps, and whether that has been connected to the - the prior victimization has been connected to the current offense. I don't have much faith in Mr. Flaherty as a reliable historian, to say the least. That's a nice way of saying that I don't necessarily believe him, or I don't necessarily believe the extent to which he has indicated that he has been victimized in the past. [¶] I don't know if this is reality or this is fantasy. What I do know is there is no corroborating evidence of it. This was never reported. I do realize his mother does write in the letter that at some point in his 20s, he said something about it. I don't know the extent to which he disclosed it if it ever was disclosed, and even if it was - and this is going to stand apart from - and I'm just going to preview here just for a second - it stands apart from Ms. Fuentes, because I think Ms. Fuentes did provide information about how the prior victimization did play a role in the current conduct, but there's nothing like that with Mr. Flaherty. There's supposition, and there's assumptions but nothing more. A, I don't necessarily know what happened; B, I don't have sufficient information to believe it's connected; and, C, even if I did, given Mr. Flaherty's particular aggravating circumstances, I believe that any mitigation pales in comparison to the aggravating circumstances."
On appeal, the only mitigating circumstances Flaherty points to is his claim that he was sexually abused as a child, and his claim that this trauma contributed to his conduct in this case. However, as its comments make clear, the court simply did not believe Flaherty. Flaherty has largely ignored this fact in his briefs, dismissing the court's conclusion as making "little sense." But credibility was plainly for the court to decide. "We will uphold a trial court's sentencing determination where it is supported by substantial evidence." (People v. Downey (2000) 82 Cal.App.4th 899, 917.) Flaherty's claims of abuse were not so obviously true that the court was compelled to accept them.
Therefore, even if the court erroneously believed that it could not consider mitigating factors in deciding between the low and middle terms, it is quite apparent that the court did not credit Flaherty's claimed mitigating circumstance. Moreover, the court's comments on the heinous nature of the crimes make it clear that the result would have been no different in the absence of the error. We reach this conclusion regardless of whether we apply the standard of prejudice articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (reasonable probability of a different outcome absent the error) or the more stringent standard of Chapman v. California, supra, 388 U.S. at pp. 23-24 (convinced beyond a reasonable doubt that the error did not affect the outcome). Under either standard, the error was harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DELANEY, J. GOODING, J.