Opinion
H024478.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. RICARDO MIRANDA GALARZA, Defendant and Appellant.
Defendant Ricardo Miranda Galarza appeals after conviction, by jury trial, of three counts of committing a forcible lewd or lascivious act on a child under the age of 14 in violation of Penal Code section 288, subdivision (b)(1), and one count of committing a non-forcible lewd or lascivious act on a child under the age of 14 in violation of Penal Code section 288, subdivision (a), with an enhancement for committing offenses "against more than one victim" under Penal Code section 667.61, subdivisions (b),(c) and (e). The trial court sentenced defendant to an aggregate prison term of 24 years to life.
Unless otherwise indicated, all unspecified section references are to the Penal Code.
Defendant contends that the trial court committed reversible error by denying his motion for a new trial based on (1) ineffective assistance of counsel, and (2) a witnesss recantation, which constituted newly discovered evidence. We will affirm the judgment.
I. Background
On appeal, we "review `the whole record in the light most favorable to the judgment. " (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Martin S. and Hermenegilda S. had 10 children, including Victim 1 (the youngest), and Victim 2 (the second youngest). Defendant was the brother-in-law of the victims; he was married to their sister, Maria de la Cruz (Cruz).
A. Victim 2s Disclosures
Victim 2 testified that defendant first sexually molested her in October of 1993, on her 10th birthday. Defendant was about 20 years old at the time. The molestation took place at defendants trailer home, on Monterey Road in Morgan Hill. Victim 2 was there to baby-sit her nephew, defendants son. According to Victim 2, defendant touched her breasts while she was on a bed watching television in defendants trailer. She managed to leave defendants presence, but did not notify Cruz because she was afraid that defendant would hurt Cruz.
One week later defendant "tried to take advantage of" Victim 2 at her home, while her parents were away in Mexico. Defendant was there to watch over Victim 2 and her siblings. Though she testified at trial that Cruz was also present, Victim 2 had previously testified at the preliminary hearing that Cruz was in Mexico with their parents. Victim 2 awoke very early in the morning, before the sun had risen, to find defendant touching her right breast "under the shirt." Defendant then "pulled [her] underwear down," "covered [her] mouth," and "put his penis in [her] vagina." Victim 2 tried unsuccessfully to "get him off" of her, though apparently her struggles did not rouse her niece, who was asleep in the same bed. After defendant stopped he told Victim 2 not to tell anyone, saying that if she did, he would hurt Cruz. She told no one because she "was scared."
One week later defendant again raped Victim 2. On this occasion Victim 2 was at defendants trailer, babysitting her nephews. Defendant returned home from work to find Victim 2 on the couch in the living room. Despite her efforts to "push him off," he successfully "pushed [her] back" and "got on her." Victim 2 twice answered affirmatively when asked if defendant put his penis in her vagina on this occasion. Subsequently, however, she testified that defendant only "put his mouth on my vagina." Victim 2 stated that defendant warned her that he would hurt her sister if she told anyone.
When Victim 2 was 11 years old, defendant once put his penis in her vagina while she was on the sofa in the trailer. He also put his penis in her vagina, more than once, in the trailers bedroom. She was 12 years old or about to turn 12 the last time defendant put his penis in her vagina in the bedroom of the trailer. The last time defendant ever put his penis in her vagina was in the trailers bathroom when she was 12 years old. She was again there to baby-sit her nephews. Though she did not wish to be there, her "parents made her." When defendant returned, she was watching television in the living room with her nephews. To deter defendant from approaching her, she kept her nephews close to her, but defendant sent them away. Victim 2 then tried to get up and go outside, but defendant closed the door and did not let her out. Victim 2 locked herself in the trailers bathroom, but defendant opened the door with a knife. She attempted to escape but he managed to subdue her, started kissing her, and put his penis inside her. Defendant again told Victim 2 "not to tell" because "he would hurt [her] sister."
There were other times that defendant committed sexual acts upon Victim 2 in the bathroom of the trailer. On one occasion "he put his fingers inside [her] genitals" when she was 11 years old. The last time Victim 2 remembered "something sexual happening [between her and] the defendant" was when she was 12 years old. She estimated that between the time these sexual encounters began on her 10th birthday and the last occasion when she was 12, they would occur "every week or two weeks," but she did not remember exactly how often he had had sex with her. She never told her sister, Cruz, about these incidents. On one occasion, she started to tell Cruz, but defendant "shook his head not tell [Cruz]." Victim 2 testified that she had reason to fear defendant because "he beat [Cruz] up once. He beat her — and one time she came home all beat up, her eye was all purple. That was the day I tried to tell her."
Victim 2 stated that defendant ceased abusing her when she no longer went to his residence unaccompanied.
B. Victim 1s Disclosures
Victim 1 testified that defendant had touched her left breast on one occasion in 1998 when she was 13 years of age. She was at defendants trailer to baby-sit the two children of defendant and Cruz. When defendant returned to the trailer the children were at a friends house. After initially asking Victim 1 to "go get them," he then cornered her in the trailers bedroom. Defendant used one hand to push her to the ground "on [her] shoulder," while with the other hand he touched her left breast under her shirt but over her brassiere. Defendant said nothing but instead "was just laughing." Despite her protests, defendant refused to stop. She finally "[got] up and tried to push him away [but] he wouldnt move so [she] scratched him in his bottom lip. [She] then kicked him, and thats when he moved." She managed to find a public telephone in the trailer park and telephone a friend, Adriana, asking Adriana to come pick her up. Adriana first asked why she must come to Victim 1s assistance, whereupon Victim 1 told her what happened. Adriana arrived within five minutes or so and first took Victim 1 to her home, where Victim 1 took a shower "cause [she] felt dirty." Adriana then took Victim 1 to Adrianas fathers house in San Jose. Victim 1 telephoned her parents, who were upset that Victim 1 had ventured so far from home without permission. When Victim 1 arrived at her parents home she told them what defendant had done, but they did "nothing. [Victim 1s] dad just told [her] not to tell [any] one."
Victim 1 and Victim 2 were placed in a childrens shelter in May of 1999 after Victim 2 informed Doreen Moss, a counselor at Victim 2s school, that defendant had molested her sister, Victim 1. She did so because she "felt bad when [she] found out he tried to do it with [her] sister." Victim 2 did not relate any of her own sexual encounters with defendant, however, because she "was embarrassed to tell [Moss], and afraid" because she "would remember the things he would tell me." Once in the custody of the childrens shelter, Victim 2 told Molly Oto, a social worker there, that "defendant had done something sexual to [her]" because Victim 2 trusted her.
C. Defendants Prior History of Domestic Abuse
In 1997 defendant was convicted of a misdemeanor domestic assault against Cruz. Defendant hit Cruz above her right eye and then tried to choke her. Sometime thereabouts defendant "probably" "said that he was going to kill [her]," and as she called the police to report these activities, defendant "went outside to disconnect the phone line." At trial, Cruz said she "[didnt] recall having" told the police that defendant had beaten her on three other occasions, but admitted she "probably" had. Both Victim 2 and Victim 1 testified that they did not like defendant because of the manner in which he treated their sister, Cruz, including the incidents in which he struck her. Hermenegilda S. told the court that Victim 1 had revealed to her a plot where she was "going to do something to get him put into jail," because "he is very much a mendigo with Cruz." Hermengilda defined "mendigo" as "someone whos a machisto. He just wants to be the one that wears the pants, that orders things around in the house and is the only one in control there." She recalled Victim 1 making this statement about six months prior to the incident precipitating defendants arrest for committing a lewd and lascivious act against Victim 1.
D. Defense Evidence
Defendant maintained that Victim 2 fabricated her allegations. He claimed that Victim 2s testimony regarding their first sexual encounter, allegedly occurring in 1993 on her 10th birthday at defendants trailer, was false. He stated that he did not move into that trailer until 1995, and that Victim 2 never baby-sat his children prior to that. Deja Garcia, an employee of the trailer park where defendant resided, corroborated defendants assertion that he did not live in the trailer park until August 9, 1995, and produced records to support her testimony. Cruz also testified that she and defendant began living in that trailer in 1995. According to Cruz, Victim 2 never baby-sat her children in any place before 1996.
Defendant remembered having stayed at the S.s residence while they were in Mexico to watch over Victim 2 and her siblings, but denied ever having raped her. He supposed she perjured herself "because [Victim 1 and Victim 2] never wanted [him] . . . because they would say that [he] would mistreat [Cruz] and they didnt want to see [him] with her."
Defendant recalled an incident on April 24, 1999 when Victim 1 baby-sat his children at his residence while he worked. At one point he returned to the trailer to have lunch and his children were not there, though Victim 1 remained. Defendant "got angry because I got there and she was watching television and she was doing her nails. . . . [S]he was not taking care of [the children]." "She didnt know where they were." Defendant then "told her in a loud voice, `If youre not going to take care of them, then leave. " Defendant further recalled later seeing her at a telephone nearby. He denied ever pushing her down, grabbing her breast, or that she scratched his lip. He attributed the accusations that Victim 2 and Victim 1 levied against him to the fact that "they never wanted [him] to be with their sister."
Many of Victim 2s and Victim 1s family members testified as to the sisters reputations for truthfulness. Cruz testified that she considered Victim 2 and Victim 1 to have a reputation as liars among her immediate family members. Moreover, she thought defendant incapable of acting in a manner consistent with the criminal charges. Martin S. also testified as to Victim 1s veracity, opining that he thought Victim 1 to be "quite a liar." Hermenegilda S. observed that Victim 1 "isnt honest. Shes always coming up with lies. Shes always saying things that arent true." In regards to Victim 2, Hermenegilda S. reported "shes not honest either. She also says things that arent true." In contrast, she testified defendant "has good character," and despite his proclivity to be "machisto with his wife," "hes a good person." Toribia S., Victim 2s sister, testified "shes not very truthful. She likes to lie a lot." Another sister, Maria P., spoke of Victim 1 as "neither" honest nor truthful, and that "[s]he always liked to lie." Last, Maria R., oldest sister to Victim 2 and Victim 1, estimated that neither of them were honest and that each possessed a reputation within the family for dishonesty.
Hermenegilda S. denied that Victim 2 or Victim 1 ever told her that they did not wish to go to defendants home to baby-sit his children prior to May of 1999.
E. Child Sexual Abuse Accommodation Syndrome
The People made a motion in limine for the admission of Child Sexual Abuse Accommodation Syndrome (CSAAS). The prosecutor "anticipate[d] that the defense will argue that the victims testimony is not credible because of delayed reporting, and inconsistent statements regarding the molestation." The trial court entertained arguments on this motion at a pretrial hearing. The record reflects the following discussion at that hearing:
"THE COURT: . . . And then finally, [Prosecutor], youve indicated that you intend to call — is he referred to now as a detective or investigator?
"[PROSECUTOR]: Investigator Carl Lewis as a child sexual abuse accommodation syndrome [expert].
"THE COURT: Im familiar with his qualifications and his testimony. Counsel, have you had
"[DEFENSE COUNSEL]: Ive had trials with Carl Lewis and I have a good relationship.
"THE COURT: Your reaction to that, Counsel?
"[DEFENSE COUNSEL]: Every time Ive objected to it, because I actually think its kind of a silly syndrome, but its — Ive been overruled and hes been allowed to testify. I have no personal problems with Mr. Lewis, but I think its just something that is unnecessary. But Ill submit to the courts ruling.
"THE COURT: Okay. Counsel, subject to his qualifications here, his expertise, let me ask you a few questions because case law that Ive reviewed does make some distinction. [¶] Has Mr. Lewis interviewed either of these girls?"
"[PROSECUTOR]: No.
"THE COURT: So hes going to be talking about child sexual abuse accommodation syndrome in a generic form without
"[PROSECUTOR]: Thats correct, hes not interviewed the girls, hes not reviewed the police reports and he and I have not talked about the specific facts of this case.
"[DEFENSE COUNSEL]: Your Honor, my experience is that Mr. Lewis has come in and the victims have either gone sideways, changed their stories, or no longer want to testify and its become relevant thats my experience with him. I dont know the terms of thats how [Prosecutor] anticipates introducing him. Those are the two times Ive dealt with him at trial.
"THE COURT: And Counsel, my understanding of the syndrome and the testimony that surrounds it, is that there are several aspects that can be identified as part of the syndrome. One of those is later delayed reporting, maybe going sideways or changing testimony here. [¶] My understanding is that then Mr. Lewiss testimony would be tailored towards those parts of the syndrome that are here, which would not include changing the story unless its changed on the stand, right?"
"[PROSECUTOR]: Ill definitely tailor his testimony to the evidence in this case. Absolutely.
"THE COURT: All right. Counsel, since its been recognized by the courts as an appropriate syndrome, Ill go ahead and allow that, as long as its tailored. [¶] Counsel, you can make any appropriate objection that you think theyre going too far afield. And Counsel, its also my practice when we have this testimony to read to the jury the appropriate jury instruction about what youre going to be hearing here before its read, just to let them know whats coming.
"[PROSECUTOR]: Okay. And thats, I believe, CALJIC 10.64, which I also submitted on my list to you."
At trial, the People called Carl Lewis to testify about CSAAS. The court prefaced that testimony by reading CALJIC No. 10.64, thus advising the jury: "Evidence will be presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims molestation or rape claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different than which you must take from this case. [¶] The syndrome research begins with the assumption that a molestation or rape has occurred, and then seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume that the defendant is innocent and the People have the burden of proving his guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning this syndrome and its effect only for the limited purpose of showing if it does, and that the alleged victims reactions as demonstrated by the evidence are not inconsistent with her having been molested or raped."
Prior to Lewiss testimony, defense counsel entered an objection "regarding [Lewiss] area of expertise." Defense counsel specified, "In particular, I was just going to object to his qualifications and Ill submit to the Courts ruling." The court overruled defense counsels objection and affirmed Lewiss designation as an expert on CSAAS.
Lewis explained CSAAS as a "concept that contains some behaviors that are exhibited by children who disclose child sexual abuse. And those behaviors would seem to be unexpected by people who are receiving those disclosures." There are five behavioral "elements or categories" of CSAAS. They include secrecy, helplessness, entrapment, delayed and/or conflicting disclosures, and retraction. CSAAS and these signature elements are well-documented in California cases. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1742-1743; People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker)).
F. Objective Evidence of Sexual Trauma
Mary Ritter testified as an expert in medical evaluations in sexual assault cases. Ritter testified that on May 14 and May 21, 1999, she conducted an examination on Victim 2 to "determin[e] if theres any evidence of child sexual abuse." This is known commonly as a "SART" examination. "SART" is acronymic for "sexual assault response team." The SART examination revealed that Victim 2s hymen had been partially torn, indicating a prior penetrating trauma to her vagina. Ritter was not, however, able to identify the recency or cause of the injury. Also, Victim 2 reported that though she did have a boyfriend at the time Ritter conducted the SART examination, "she denied that she had sexual activity with that boyfriend."
G. Charges and Verdicts
The information charged defendant with one count of committing a non-forcible lewd or lascivious act on a child under 14 (count 1; § 288, subd. (a)), three counts of committing a forcible lewd or lascivious act on a child under 14, (counts 2, 11, & 12; § 288, subd. (b)(1)), four counts of forcible rape (counts 3, 4, 5 & 6; § 261, subd. (a)(2)), two counts of forcible oral copulation, (counts 7 & 8; § 288, subd. (c)(2)), two counts of penetration by a foreign object (counts 9 & 10; § 289, subd. (a)(1)), and one count of committing a lewd or lascivious act on a child aged 14 or 15 (count 13; § 288, subd. (c)(1). Count 1 pertained to Victim 1; the remaining counts all pertained to Victim 2.
Pursuant to a motion by defense counsel and a stipulation thereto by the prosecutor, the trial court dismissed counts 8, 10, and 13 at the close of the prosecutors case-in-chief for insufficient evidence. On October 18, 2001, the jury returned guilty verdicts on count 1 (a non-forcible lewd or lascivious act on Victim 1) and counts 2, 11 and 12 (forcible lewd or lascivious acts on Victim 2). The trial court declared a mistrial on counts 3, 4, 5, 6, 7, and 9 when the jury reported that it was unable to reach consensus on those counts. A sentencing hearing was set for December 7, 2001.
H. Victim 2s Recantation
On November 5, 2001 (a few weeks after the trial ended), Victim 2 was interviewed by Sheila Klopper, a private investigator retained by defendant and his new defense counsel. She questioned Victim 2 with respect to the charges against defendant and Victim 2s testimony pertaining thereto. Kloppers report, attached to defenses motion for a new trial, reflects the following dialogue, in which Victim 2 makes an apparent recantation:
"KLOPPER: . . . And why are you here at [defense counsels] office?
"[VICTIM 2]: Cause... I wanna ... take the charges off of [defendant]. [& para;] . . . [¶]
"KLOPPER: Okay. And just the few minutes we talked before going onto tape I explained to you that, if in fact [defendant] did rape you or did touch you inappropriately that you should stand by that, if that is true, and that nobody should try to change your mind to get you to say anything differently. Is that what I have explained to you and that is what I am explaining to you now?
"[VICTIM 2]: Yes. [¶] . . . [¶]
"KLOPPER: ... Has anybody made you come in today to tell you to change your story?
"[VICTIM 2]: No.
"KLOPPER: Okay. And your sitting in here with me, just the two of us and are you feeling any kind of outside pressure that you need to change your story. Is there anybody in your family that is causing pressure on you to make you change your statement?
"[VICTIM 2]: No. [¶] . . . [¶]
"KLOPPER: Okay and how many times had [defendant] supposedly raped you?
"[VICTIM 2]: I believe like five. [¶] . . . [¶]
"KLOPPER: Okay. Now ... why dont you tell me what it is that you have come forward and what it is that you want to say.
"[VICTIM 2]: To say that what I said is not true.
"KLOPPER: Okay. What is not true.
"[VICTIM 2]: That he raped me.
"KLOPPER: Okay. Is that on one occasion or all five occasions?
"[VICTIM 2]: All five occasions.
"KLOPPER: And did he ever touch you inappropriately?
"[VICTIM 2]: No.
"KLOPPER: In anyway that made you feel uncomfortable?
"[VICTIM 2]: No.
"KLOPPER: Okay. Would you tell me why you are coming forward now to say this?
"[VICTIM 2]: Cause I never knew it was gonna go that far.
"KLOPPER: Okay. [A]long the line did any of the social workers or police officers or anybody explain to you the seriousness of what these charges were and what would happen to [defendant]?
"[VICTIM 2]: Yes, they did.
"KLOPPER: Okay. And why wouldnt you have said anything then?
"[VICTIM 2]: Cause I was scared to, I dont know to turn my word around. [¶] . . . [¶]
"KLOPPER: Okay I guess Im trying to get at is why you didnt share with the counselor that it wasnt true?
"[VICTIM 2]: Cause I was scared.
"KLOPPER: Okay. What, what were you scared of?
"[VICTIM 2]: That something would happen to me.
"KLOPPER: By whom?
"[VICTIM 2]: By the law. [¶] . . . [¶]
"KLOPPER: So what started all this?
"[VICTIM 2]: Cause he would always beat up my sister and I never like him cause he would always beat ... my sister.
"KLOPPER: And your sister is who?
"[VICTIM 2]: [Cruz.] [¶] . . . [¶]
"KLOPPER: And is [Cruz] related at all to [defendant]?
"[VICTIM 2]: Yes, thats her wife, his wife.
"KLOPPER: His wife, okay. And you say you have never liked [defendant]?
"[VICTIM 2]: No.
"KLOPPER: Why?
"[VICTIM 2]: Cause he would always hit my sister, he would always be screaming at her and he would never let her go to our house. [& para;] . . . [¶]
"KLOPPER: Did you ever say anything to anybody in your family about what you saw and your not liking it? [¶] . . . [¶]
"[VICTIM 2]: No, well they knew I didnt like him. I never, I never liked him.
"KLOPPER: "Why?
"[VICTIM 2]: Cause hes a jerk.
"KLOPPER: [I]s there any other reasons why you dont like him?
"[VICTIM 2]: Cause, I dont know, hes an alcoholic and he really hurt my sister. [¶] . . . [¶]
"KLOPPER: Okay. And so youre coming forward now ... because[?]
"[VICTIM 2]: I never knew they were going to go this far and I recognize I did something wrong and my nephews are the ones suffering and my sister.
"KLOPPER: Okay. Have you talked to your mom about this also?
"[VICTIM 2]: Yes, I have.
"KLOPPER: Okay. And what does your mom say?
"[VICTIM 2]: She told me, well they told me just to say the truth and there [sic] still going to be there for me. [¶] . . . [¶]
"KLOPPER: Okay and that you were afraid to change the story once it got out of hand because . . . .
"[VICTIM 2]: I dont wanna get in trouble. [¶] . . . [¶]
"KLOPPER: And what was your sisters reaction when you started saying that he had done all of these things?
"[VICTIM 2]: Well, my family stopped talking to me, but his wife kept, still talked to us, she was there for us and everything."
I. Motion for a New Trial
Defendant moved for a new trial on February 15, 2002 on the grounds that, inter alia, (1) Victim 2s recantation constituted newly discovered evidence and would render a different result on retrial reasonably probable, and (2) trial counsel was ineffective for failure to demand a hearing pursuant to Evidence Code section 402 before the CSAAS evidence was presented.
Attached to the Peoples opposition to the motion for a new trial was a report by Randy Brown, investigator for the Santa Clara County Office of the District Attorney. In an interview dated November 7, 2001, Victim 1 revealed to Brown that "Cruz had been visiting her mother and Victim 2 at the [family] residence almost every day," and that "Cruz and Victim 2 spent much of the time visiting upstairs." Victim 1 also related that "Cruz two children have also made comments to Victim 2 and herself [to] try to make them feel guilty for putting their father in jail. Victim 1s younger nephew would not give her a hug because she put his father in jail. [She] also overheard her mother talking on the telephone stating that she was embarrassed to have Victim 1 and Victim 2 as daughters." Brown also reported that Victim 1 told him that she "could no longer live at her mothers residence anymore" because of the pressure exerted upon her to change her story and because Victim 2 had moved out of the family residence and began cohabitating with her boyfriend, "Lecho."
Browns report also contains statements made by Dina Orosco, a social worker who Victim 2 believed to have had knowledge of Victim 1s whereabouts after Victim 1 left home. Orosco reportedly informed Brown that, in a conversation on November 8, 2001, Victim 1 told her that the reason she did not wish to return home was because "[Victim 2] went to the District Attorneys office to tell them that everything that happened to her was a lie." When Victim 2 contacted Orosco, Orosco asked her whether the molestation allegations were fabricated, which elicited the following response from Victim 2, as reproduced by Brown, "No, I just want this Fucken Shit to be over it has been to [sic] long."
In a January 4, 2002 letter to Brown, Molly Oto, the social worker to whom Victim 2 had initially disclosed defendants abuses, described how Victim 2 told her that her recantation was a result of pressure from her mother and Cruz and that it was also an attempt to regain her familys affection after her relationship with Lecho had deteriorated. "My mom and my sister ... kept telling me `you know you were lying (about [defendants] crimes) over and over again. I got so sick of them saying that, and I thought theyd stop if I just told them they were right. So one morning when they were both saying that, I said `okay, I WAS lying and they said `then lets go down to the court and tell them that. They piled everyone in the car immediately, and went straight to the courthouse. [¶] She then went on to tell me that at the time, she and her boyfriend . . . had been having `serious problems and she felt very alone. She said she felt if her boyfriend left her, she would only have her family to help her [and her child]. So she felt that she needed them `on her side and she made the recantation to somehow `keep the peace. " The trial court conducted a hearing on defendants new trial motion on April 26, 2002. The prosecution and defense stipulated that the exhibits to the motion and opposition, partially reproduced above, could be introduced into evidence without any evidentiary objections. The trial court denied the motion for a new trial.
As to defendants claim of ineffective assistance of counsel for failing to request an Evidence Code section 402 hearing on the relevance of CSAAS, the trial court noted that it had read a limiting instruction to the jury and that CSAAS has been used with approval in California courts. The trial court observed that CSAAS, "regardless of how the other [states] courts may have looked at it, is a recognized, relevant, admissible, series of evidence that the courts in California have allowed." Further, defense counsel "was given an opportunity to voir dire Mr. Lewis on his expertise and, in fact, objected to his testifying regarding that," thus the court was "satisfied that [defense counsel] did all he could with regard to the 402 hearing. . . ."
As for Victim 2s recantation, the trial court found that the recantation was "not credible and not worthy of belief." The trial court based its finding on "several things: The evidence that was presented and the paperwork that the Court considered before the motion. Going back to the trial... Ill indicate that it was the Courts consideration that [Victim 2s] character was very credible. Her demeanor, the character and quality of her testimony, the words she used to describe what happened, the way she described what happened, the fact that her testimony was consistent with reports she had made to other witnesses, the method of the report that first came out, all those things were incredibly compelling and the jury obviously agreed because even though [the prosecutor] says there is a lot of other circumstantial evidence that would support her testimony at trial, the other circumstantial evidence was pretty lean so the jury either had to believe or not believe [Victim 2s] testimony based pretty much on its own merits, and they found [defendant] guilty because I think they did believe it and it was credible testimony. [& para;] It seems to me based on what I have seen here that there was an incredible amount of pressure put on [Victim 2] by the family to recant that was evidence during the trial based on where she was living and who she was living with and the fact that certain witnesses who she was living with were called to testify that she was a liar and maybe she was promiscuous. Also it was evidence to the Court at the time of the trial that she was under a lot of pressure to change her story and yet she didnt do it. [¶] And I also find it significant that while [Victim 2] may have recanted her story, [Victim 1] has not done so, and to me thats significant also and just casts more doubt on whether the recantation is worthy of belief. I simply find that its not worth of belief."
On the same day that the trial court denied defendants motion for a new trial, it sentenced defendant to an indeterminate term of 15 years to life for count 1, pursuant to section 667.61, subdivisions (b) and (e). The court also imposed three consecutive terms of three years for counts 2, 11 and 12, for an aggregate sentence of 24 years to life.
II. Discussion
Defendant claims the trial court committed reversible error by denying his motion for a new trial. A decision to grant or deny a new trial "rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." (People v. Williams (1988) 45 Cal.3d 1268, 1318; see People v. Delgado (1993) 5 Cal.4th 312, 328; People v. Turner (1994) 8 Cal.4th 137, 212.)
A. CSAAS and Ineffective Assistance of Counsel
Defendant first claims a new trial was warranted due to defense counsels failure to properly object to the Peoples presentation of CSAAS testimony. Though defendant concedes that California law presently permits the introduction of such evidence in certain circumstances, he asks this court to conclude that it is inadmissible for any purpose.
It is well settled that to establish a claim of ineffective assistance of counsel, defendant must first demonstrate that trial counsels representation was objectively deficient in falling below the standard of reasonableness under prevailing professional norms. He must then prove that trial counsels deficient 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 him. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland ); People v. Castillo (1997) 16 Cal.4th 1009, 1014-1015; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
In People v. Bledsoe (1984) 36 Cal.3d 236, 246-248 (Bledsoe ), the Supreme Court addressed the admissibility of expert testimony concerning "rape trauma syndrome." The court observed that "In a number of the cases in which the issue has arisen, the alleged rapist has suggested to the jury that some conduct of the victim after the incident — for example, a delay in reporting the sexual assault — is inconsistent with her claim of having been raped, and evidence on rape trauma syndrome has been introduced to rebut such an inference by providing the jury with recent findings of professional research on the subject of a victims reaction to sexual assault. [Citations.] As a number of decisions have recognized, in such a context expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths." (Id. at pp. 247-248.)
In People v. McAlpin, supra, 53 Cal.3d 1289, the Supreme Court spoke approvingly of the Courts of Appeal extending the rule in Bledsoe to CSAAS cases. "In a series of decisions the Courts of Appeal have extended... the rule and the exception of People v. Bledsoe, supra, 36 Cal.4th 236: i.e., expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witnesss 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. [Citations.] `Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotion antecedents of abused childrens seemingly self-impeaching behavior. " (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, fn. omitted.)
In Bowker, supra, 203 Cal.App.3d 385, the Court of Appeal set the parameters for the admissibility of CSAAS testimony. Bowker limited the admissibility of CSAAS to situations where "the evidence must be tailored to the purpose for which it is received. (Bowker, supra, 203 Cal.App.3d at p. 393.) That is, it must be directed to rebutting an "attack on the credibility of the alleged victim(s), . . . at a minimum the evidence must be targeted to a specific `myth or `misconception suggested by the evidence," such as delayed reporting of an incident (Id. at pp. 393-394.) Second, the court must instruct the jury of the reason for the CSAAS testimony. (Id. at p. 394.) So long as a trial court adheres to these procedural safeguards, CSAAS testimony is admissible. (Id. at pp. 393-394.)
As stated above, defendant does not argue that in this case, the CSAAS testimony did not meet the standards of admissibility set out in Bowker. Rather, defendant claims that CSAAS testimony is "inadmissible for any purpose." He effectively concedes the propriety of its introduction in the present case, so long as we adhere to the line of appellate decisions extending the Supreme Courts ruling in Bledsoe to CSAAS testimony. We reject defendants invitation to ignore the settled law of this state. Defendants trial counsel clearly acted within the objective standard of reasonableness by relying on established California precedent. Therefore, we cannot say that the trial court abused its discretion by finding no ineffective assistance where counsel, while not making a "formal" objection at the motion in limine, did voice his reservations about CSAAS and volunteered to "submit to the Courts ruling."
B. Newly Discovered Evidence
Defendant also contends that the trial court erred by denying his motion for a new trial on the ground that Victim 2s recantation constituted new evidence that made a more favorable result on retrial reasonably probable.
As mentioned above, we review orders pertaining to motions for a new trial under an abuse of discretion standard. (People v. Ochoa (1998) 19 Cal.4th 353, 473; People v. Jones (1998) 17 Cal.4th 279, 317.) Appellate courts follow this deferential view because the trial judges "familiarity with the facts and circumstances of the entire case," affords "a far better position to determine the effect and value of such evidence than . . . the reviewing court." (People v. Raquel (1954) 125 Cal.App.2d 384, 385; People v. Minnick (1989) 214 Cal.App.3d 1478, 1480-1481; People v. Shoals (1992) 8 Cal.App.4th 475, 488.)
In order for a trial court "[t]o grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial." (People v. Ochoa, supra, 19 Cal.4th at p. 473; see also People v. Beeler (1995) 9 Cal.4th 953, 1004.) In the present case the trial court did not abuse its discretion by determining that the new evidence would not have made a different result probable. The trial specifically found Victim 2s recantation incredible. This conclusion was formulated upon the trial courts own perceptions of Victim 2s testimony- in particular, her detailed and graphic account of defendants sexual abuses and the emotions with which she testified. The trial court also noted that Victim 2 reported the same occurrences, consistent in detail, to different people. (See Evid. Code, § 780.) The trial court found Victim 2 subject to great influence to recant her testimony at the behest of her family, especially her mother and Cruz. Also, the fact that Victim 1 did not recant indicated to the trial court that Victim 2 had falsely recanted. The record squarely supports each of these findings.
Although defendant presented character witnesses who testified as to his good character and the victims proclivities for dishonesty, there was also evidence indicating that Victim 2s testimony at trial was credible- as the trial court found, her demeanor, the quality of her testimony, the manner in which she described events, the consistency of her reports to different persons, and the method by which she divulged defendants abuses, each lent credence to the veracity of her trial testimony. Conversely, several factors supported the trial courts finding that the recantation was not worthy of belief, including the fact that Victim 2s family had put "an incredible amount of pressure" on her to recant, and the fact that Victim 1 had not recanted.
Defendant also presented evidence that contradicted Victim 2s recollection of the dates and places in which defendant sexually abused her. But minor children who testify at trial are afforded somewhat greater latitude in their recollection of specific facts when victim of such traumatic events as sexual abuse. (People v. Jones (1990) 51 Cal.3d 294). Victim 2 was 10 years old in 1993 when the molestations allegedly began. They continued until she was 12, a period of two to three years. She did not reveal these abuses, which took place "every week or two weeks" until May 12, 1999, nearly six years after they began. Victim 2s inability to affix accurate dates to incidents lends little credibility to her recantation.
In People v. Jones, supra, 51 Cal.3d 294, the court upheld the defendants convictions for committing lewd and lascivious acts even though the young victim had difficulty distinguishing between such acts and attaching specific dates to them because the acts had taken place over a number of years. (Id. at p. 305.) Jones noted that "child molestation cases frequently involve difficult, even paradoxical, proof problems. A young victim ... assertedly molested over a substantial period by a parent or other adult residing in his [or her] home, may have no practical way of recollecting, reconstructing, distinguishing or identifying by `specific incidents or dates all or even any such incidents." (Ibid.) When an appellate court is faced with a young victim recalling distant events, it is incumbent upon it to not to "reweigh the evidence and substitute its own judgment for that of the fact finder at trial." (People v. Avina (1989) 211 Cal.App.3d 48, 56; see People v. Barnes (1986) 42 Cal.3d 284, 303.)
The record supports the trial courts finding that Victim 2s recantation was not credible, and therefore that it would not "make a different result probable on retrial." (People v. Ochoa, supra, 19 Cal.4th at p. 473.) We conclude that the court did not abuse its discretion in denying the motion for a new trial on that basis.
III. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, ACTING P.J., ELIA, J.