Opinion
F082051
10-24-2022
THE PEOPLE, Plaintiff and Respondent, v. AGUSTIN GARCIA, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR053456, Mitchell C. Rigby, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, for Plaintiff and Respondent.
OPINION
SMITH, J.
Agustin Garcia was convicted, after a jury trial, of multiple counts of sexual molestation of his daughter. In this appeal, he challenges the trial court's evidentiary rulings and raises a claim of ineffective assistance of counsel. We conclude these contentions have no merit.
Garcia also argues the trial court applied the wrong legal standard in denying his motion for new trial. The People agree the trial court erred in ruling on Garcia's motion for new trial. We reverse the trial court's order denying Garcia's motion for new trial and remand for the court to rule on the motion pursuant to the correct legal standard.
Finally, Garcia argues he is entitled to remand for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which amended Penal Codesection 1170, subdivision (b). The People agree that remand for resentencing is required in this matter. We vacate Garcia's sentence and remand the matter for resentencing pursuant to amended section 1170, subdivision (b), contingent on the trial court's ruling on Garcia's new trial motion.
Subsequent statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed in other respects.
PROCEDURAL HISTORY
Garcia was charged by an amended information filed in the Madera County superior court on July 2, 2019, with lewd and lascivious acts upon a child under the age of 14 years (counts 1 and 2; § 288, subd. (a)), misdemeanor annoying or molesting a child under 18 years of age (count 3, § 647.6, subd. (a)(1)), and lewd acts on a child under 16 years of age and more than 10 years younger than the defendant (count 4, § 288, subd. (c)(1)). A jury found Garcia guilty on all counts on August 1, 2019.
Garcia subsequently filed a motion for new trial, which was denied by the trial court.
The court sentenced Garcia to an aggregate term of 10 years eight months in state prison, calculated as follows: the upper term of eight years for lewd and lascivious acts upon a child under the age of 14 years (count 1; § 288, subd. (a)), plus two years (one-third the midterm of six years) for lewd and lascivious acts upon a child under the age of 14 years (count 2; § 288, subd. (a)), and eight months (one-third the midterm of two years) for lewd acts on a child (count 4; § 288, subd. (c)(1)). Garcia was sentenced to 364 days with credit for time served on count 3.
FACTS
A. Initial Report of Sexual Molestation Committed by Garcia
Garcia and his wife, Maria G., lived in Madera and had five children: V.G., K.G., J.G., JC.G., and B.G. Maria G. passed away on February 24, 2012, after a hospitalization lasting approximately two weeks; she died of cardiac arrest from a congenital condition.
Garcia's daughter, K .G., was the complaining witness in this matter. K.G. was born in March 1999 and was 12, going on 13, years old, when her mother died. The instant charges relate to Garcia's molestation of K.G. when she was approximately 13 to 15 years old. The molestation started when Maria G. was hospitalized for her fatal illness in 2012, and ended when K.G. reported it to authorities in 2014. By the time the matter proceeded to trial in July 2019, K.G. was 20 years old.
The events that led to the filing of the instant case date to October 8, 2014, when 15-year-old K.G. and her 17-year-old brother, V.G., came to the Madera Police Department. They were eventually interviewed by Madera Police Officer Steven Sisemore. K.G. was sad and crying. She said her father, Garcia, had touched her inappropriately and offered to pay her for sex.
Officer Sisemore's October 8, 2014 interview with K.G. was played for the jury. K.G. told Officer Sisemore that her father began touching her inappropriately while her mother was in the hospital (the latter died a few days later). The family was living on Austin Street in Madera at the time.
Two months after K.G. 's mother died, Garcia began frequenting bars. K.G. told Officer Sisemore: "[Garcia] started going out to the bars and he wouldn't get home 'til like, 2:00 and, like, that's when he would, like, wake me up to heat up his food and that's when he would, like, touch me and stuff, like, more. Like, he would hit my - my butt." K.G. would "push him away or tell him to stop."
K.G. said that "more stuff would happen." She noted: "[Garcia] would tell me, like, that if I would let him do stuff to me that he would let me spend the night at my friend's house." K.G. "would tell him then, 'No,' he was dumb or he was stupid." Garcia would offer K.G. money for doing "intimate stuff" with him. K.G. noted: "He ... would tell me that if I would, um, if I would let - let him do this or that or and, like, whatever he asked me to do that he would give me more money." Garcia would rub K.G. 's leg and ask her to let him touch her. He asked her to have sex with him and offered to let her go out or stay over at her friend's house in return.
K.G. would not allow Garcia to touch her, but she said: "[H]e would touch my [private] parts without, like, me letting him. It would be in the night." This happened "a lot." Garcia would try to slide his hand into K.G.'s pants. K.G. would wake up and tell him to stop. She added: "[Afterwards, like, it started going little by little and then it ex - started expanding to in, like a whole different (unintelligible). He would ask me for my underwears after this and then I would tell him to leave me alone and he refused many times. Then, like, he sometimes he would just, like, go in - in through my stuff." Garcia would also press his pelvic area against K.G.'s bottom when she was washing dishes. K.G. would turn around right away.
K.G. confronted Garcia and pointed out that her friend's dad would not do sexual things to his daughter and asked why Garcia could not be like her friend's dad. Garcia reprimanded K.G. and said:" 'I'm not even doing anything to you. I already explained that when I fuckin' find a lady I'mma leave you the fuck alone.'" K.G. asked," 'Why can't you leave me alone now?'" Garcia would hit K.G. and "smack [her] on [her] head and on [her] back" when she refused to engage in sexual acts with him.
In March 2014, the family moved to Daulton Street in Madera. Garcia continued to molest K.G. at the Daulton Street house as well. He tried to touch K.G. many times, but K.G. would resist; he would basically try every weekend. K.G. asked Garcia whether she could paint her room at the Daulton Street house; Garcia replied he would let her if she let him touch her. If K.G. wanted a mattress and other things, Garcia would say," 'You know what to do.'" K.G. said: "[W]hen we finally did get a couch, um, I would be watching TV and he would walk by and he would, um, drop his pants in front of me and he wouldn't be wearing underwear ... [¶] ... [¶] And he would say that supposedly that they didn't fit him and to 'look, look K.G.'" K.G. would respond," 'You're so nasty.' Like, 'Get away from me.' And he would be li-he would just ... walk away laughing." At times when K.G. watched TV, Garcia would try to massage her back or he would sit on her, forcing her to move or to kick him away.
K.G. said: "[The things he did were] just disgusting 'cause he's my dad. And then I just, like, always ask him why he couldn't stop but he's, like, he doesn't care. And then, um, so when I finally got a lock for my room because at that house I didn't have one even and he was like, 'Why the fuck are you locking your room? Like, why?' And then I was, like, 'Because I can and I want my privacy.' And then, um, what's it called? I would always find my underwear in his room and then he was saying that it would be the dog.'" K.G. added: "I got my lock over the summer - he would um, he'd always go into my room every single night and take off my blanket. Not every single night, but every - every Thursday and Saturday that he ... [¶] ... [¶] goes out [drinking]." K.G. got the lock in late July or early August 2014, and the lock led to some reduction in the frequency of the acts of molestation.
B. Investigation into the Molestation Allegations
(i) Testimony of Madera County Social Worker Veronica Pleitez
Veronica Pleitez, a Madera County Child Welfare Services social worker, met with K.G. and V.G. at the police department, after K.G. had talked with Officer Sisemore. Pleitez interviewed K.G. and V.G. K.G. was "in pieces," meaning she was distraught, emotional, crying hysterically, and clinging to V.G., who was comforting her. K.G. revealed she had been sexually molested and fondled by her father. She had disclosed the situation to V.G., who made arrangements to move her out of the house for a short period. K.G. told Pleitez," 'I don't want to go through [this] anymore. I want to be free from any molest.'" V.G. was also "very emotional" and "very upset." V.G. said he had learned about the abuse from K.G. in July 2014, arranged for her to move for a limited time, confronted his dad, and warned him to stop. K.G. was 15 years old and V.G. 17, at the time of these events.
Pleitez and Officer Sisemore arranged to immediately remove all five children from the home they shared with Garcia, while the matter was investigated. The children were placed with a relative.
The following day, October 9, 2014, Pleitez met with K.G. at a relative's house. Pleitez testified: "[K.G.] again became very emotional, sharing with me that her mother ha[d] passed away. And that when her mother was - after her mother passed away, the abuse began by her father. [¶] ... [¶] In my recollection, she stated that it happened even when her mother was still in the hospital." Pleitez noted that K.G. told her, "[t]hat her father would make advances - sexual advances on her, that he would attempt to touch her by running his hand all through his leg - or her leg up to the points where her shorts were and try to insert his hand into her shorts." Pleitez continued: "[K.G.] made statements that she would be cooking or washing dishes and her dad would approach her and would come behind her and grab her and touch her in her private areas, her breasts, and her vaginal area." Pleitez added: "She described that her dad would put his hand on her vaginal area and press hard on her vaginal part, that she would feel the pressure onto her vaginal area." K.G. mentioned Garcia would also push against her with his body "to the point that she felt his private."
K.G. would tell Garcia," 'This is not right. This is disgusting. Don't do it.'" Garcia would respond," 'I am not.'" He would laugh in a sarcastic manner and, at one point, said he would stop when he found himself a woman.
Pleitez testified that K.G. mentioned her father would tell her she could spend time with her friend, Vanessa, were K.G. to accept his sexual advances. K.G. also noted she would find her underwear, soiled with semen, in Garcia's laundry basket.
The abuse occurred at two residences, the one on Austin Street and the one on Daulton Street, and took place from the time her mother was hospitalized until the day before K.G. reported it to the police. In the last incident, which occurred on October 7, 2014, Garcia came home drunk and made advances on K.G. K.G. went in her room; Garcia pounded on her locked bedroom door, demanding she open the door. K.G. refused to open it. K.G. stated the abuse disgusted her and made her feel dirty, to the point she had contemplated suicide.
(ii) Forensic Interview of K.G. Conducted by Angelica Limon
On October 9, 2014, Angelica Limon conducted a forensic interview of K.G. A recording of the interview was played for the jury; we will summarize the contents of the interview.
The abuse by Garcia began three days before K.G.'s mother died. K.G. (who was approximately 13 years old at the time) was sitting on a bed with Garcia, at the Austin Street house. K.G. was crying about her mother dying. Garcia slid his hand along K.G.'s leg up towards her shorts. K.G. asked, "What are you doing?" Garcia told her not to worry and gave her a hug. K.G. got up and left the room; she was crying. K.G. said, "And then after that like things started happening to me (unintelligible)." She said, "it started going slowly and slowly and slowly until - until I just - I started questioning why do you this?" In the beginning, Garcia would walk away when K.G. would question him.
Over time, the sexual advances started occurring on a daily basis. K.G. said: "I would be washing dishes like sometimes he would come and like squish his - like squish himself towards me so that I like - would [¶] ... [¶] feel parts like on my back [¶] ... [¶] [h]is private parts." When Garcia noticed that K.G. and her friend, Vanessa, were getting really close, he would tell K.G. she could spend the night at her friend's house if she would "jack[] [him] off." He would stare at K.G.'s private parts when he said this. Later, Garcia ruined K.G.'s relationship with Vanessa, because he offered Vanessa $20 to do "stuff' with him. K.G.'s cousin, Jonathan, interrupted Garcia's advances on Vanessa in the restroom; Garcia pretended nothing was going on and walked out. V anessa told K.G.'s aunt (Garcia's sister) about Garcia's actions, but the aunt laughed at Vanessa. The reaction of K.G.'s aunt made K.G. reluctant to tell her aunt about Garcia's conduct with K.G. herself, because K.G. was afraid her aunt would laugh at her as well.
After one awful incident, when Garcia came up behind K.G. when she was folding clothes, pushed her against a cabinet, and squished himself against her, with K.G. finally fighting him off, K.G. told her cousin, C.G., about her father's conduct. C.G. asked," 'Is he doing it when he's drunk?'" K.G. responded," 'No he does it whenever.'" C.G. urged K.G. to tell C.G.'s mother, K.G.'s aunt (Garcia's sister). K.G. said in her forensic interview: "I still didn't have the guts to do it. And I told [C.G.] before anybody. She was the first to know." This happened in late April 2014, when K.G. was around 14 or so; she remembered the date because her grandmother had passed away around that time.
After that point, Garcia's conduct "got more serious." All the kids slept on the living room floor in the Austin Street house. K.G. told Angelica Limon, the forensic interviewer: "He would take off the blanket and I would wake up to him like trying to reach into my - in my pants. Well it would - I would wear sweat - I wear sweat pants to sleep and ... I woke up like various times like him trying to put his hand down there.
And I like would wake up and be like, 'What the fuck are you doing?'" K.G. would move his hand away. Garcia would tell her to be quiet because all the kids were sleeping in the same room.
After K.G.'s mother died, Garcia started going out to bars regularly at night. When he came home at 2:00 or 3:00 a.m., he played loud music and would try to touch K.G. as she slept, including by "going slowly and slowly downwards" over her "butt cheeks." K.G. recalled, "[H]e would try touching me every single time he would come back from the bar." When K.G. would awaken, she would say," 'What the hell? Go to sleep,'" but Garcia would order her to get up and heat up his food. This was the pattern on weekends because that was when Garcia went out to bars.
In her forensic interview, K.G. described other incidents and occurrences of sexual abuse by Garcia that were consistent with what she had told Officer Sisemore and Veronica Pleitez. For example, when K.G. asked for money, Garcia would tell her she had to do something in exchange, while giving the "nastiest looks towards [her] body." Garcia asked K.G. to "jack [him] off" and when she refused, he took her underwear and masturbated into it.
K.G. told Angelica Limon that the abuse continued at the Daulton Street house. Garcia would approach K.G. and grab her breasts under her clothes. He would smack her butt and grab her private parts. K.G. recalled, "[H]e would claim to be tickling me. He would use that to touch me." Garcia would move his penis up and down in his pants and try to show that to K.G. On a few occasions, Garcia masturbated in his bedroom, invited K.G. into the room, and told her to watch. He instructed K.G.," 'Look,'" and then squeezed his penis so that ejaculate came out of the tip. He asked K.G. to have sex with him and to let him touch her breasts. K.G. was disgusted and refused.
Garcia showed K.G. cards with pornographic pictures on them and asked whether she wanted to watch porn videos. He offered to let her stay home from school should she agree to watch porn videos with him. When K.G. was watching television in the living room, Garcia announced," 'Look, the pants don't fit me,'" and dropped his pants revealing his penis. He revealed his penis to K.G. multiple times. Angelica Limon asked K.G.: "And what did it look like? His penis what did it look like?" K.G. said: "It's just dark. Ew it's disgusting. It's dark and then it wa- expanding it when he would do that."
K.G. noted that the worst thing that ever happened to her was when Garcia pulled down her PE shorts and underwear at the Austin house when she was 13 years old. K.G. quickly pulled them up and demanded," 'Why do you do shit like this to me? '" Garcia, who had been staring at K.G. the entire time, laughed and walked away. K.G. explained why this was the worst thing she endured: "[H]onestly my mom like when she raised me she taught me like to have self-respect. And I felt like when he did that like he took that away from me. Because he had seen all my body."
In the summer of 2014, Garcia and V.G. got into an argument over Garcia's misconduct with K.G. Garcia tried to choke V.G. and V.G. punched Garcia in the face.
The last time Garcia made an advance on K.G. was the night before she reported him to the police. Garcia slapped her butt when K.G. was washing dishes.
(iii) Follow-up Investigation
Maria Maravilla, a Madera County Child Protective Services social worker, met monthly with K.G. after she was removed from her father's custody. Maravilla recalled that "something that stands out is that she really didn't want to go home." Maravilla noted in a report dated August 16, 2015, that K.G. did not want to go home and was worried about her little sister. K.G. said that Garcia had apologized to her in front of the family for the sexual abuse that had occurred. Garcia called K.G. two times per month, but K.G. did not feel comfortable having contact with him.
Jerica Ramos, another social worker for Madera County Child Protective Services during the relevant period, also testified for the prosecution. In March and April of 2016, Ramos worked with K.G. and her younger siblings. She had several contacts with K.G. during that period. As reflected in Ramos's contemporaneous notes, in March 2016,
K.G. told Ramos that returning home to her father would upset her and, further, she was worried about her younger sister; K.G. said she would not want her sister to experience the same abuse she did while in the care of their father. In April 2016, as reflected in Ramos's contemporaneous notes, Ramos told K.G. that some relatives had come forward with an interest regarding placement of K.G.'s siblings. K.G. responded she had some concerns regarding her ability to contact her siblings, should they move to live with family, as she felt things had changed since she disclosed the abuse by her father. K.G. further indicated family members had been telling her to not disclose the abuse. Ramos recalled that K.G. had a sad and depressed demeanor during this discussion.
The trial court further permitted Ramos to testify as an expert regarding child abuse investigations, and, more specifically, child sexual abuse disclosures and recantation of child sexual abuse disclosures or allegations. Ramos testified on these topics in her capacity as an expert witness. As to disclosures of sexual abuse by children, Ramos testified: "Usually, a big influence on a child disclosing abuse is a parent that has previously discussed with them what good and bad touch is or how they should or should not be treated. And so when something goes against what their parent has advised them, then they feel safe to tell someone."
On the related issue of recantation of sexual abuse allegations by children, Ramos testified: "Usually, if a child doesn't have another supportive parent or if the abuse happens by a parent or if it's a younger child, they have a higher likelihood of recanting or taking back that statement after they have made it." When asked to summarize the factors that affect "a child recanting a statement of abuse," Ramos stated: "So it could be a number of factors. But the three that I mentioned are usually the highest indicators of a child recanting, that being a younger child, a child who was abused by someone close to them, such as a family member or parent, or a child who lacks family support."
The prosecutor asked Ramos: "And do you have any idea of what percentage of children recant a statement of abuse?" Ramos responded: "So in my experience and through some of the education that I have had in my career, I know that it's around 20/23 percent of children who recant." The prosecutor further asked Ramos: "So if a child recants the allegation of abuse, could it be that [the abuse] actually happened?" Ramos answered: "Yes. It's possible, yes." The prosecutor next asked: "And could it be that [the abuse] actually didn't happen and the recantation is true?" Ramos answered: "Yes."
Sergeant Alicia Keiser of the Madera Police Department also testified for the prosecution. Sergeant Keiser investigated K.G.'s allegations. She talked to several family members and also spoke with K.G. Sergeant Keiser testified: "K.G. called me a couple times in concern with the family trying to contact her and, at one point, contacting her during [dependency] court, telling her that she needed to lie about what she was saying and that - to stop talking about this and to let it go. And she was very concerned with them contacting her and trying to tell her not to make the police involved." K.G. called Sergeant Keiser in this regard "after the [October 9, 2014] original forensic interview in the beginning of the investigation," and again in April 2016, on "the day that she had gone to family court for the custody issues that they were going through."
C. K.G.'s Trial Testimony
K.G. recanted her allegations of sexual abuse against Garcia, in her trial testimony (see below).
K.G. described her childhood growing up in and attending schools in Madera. After her mother's death, K.G. became lonely, depressed, and suicidal. K.G. hid her feelings and took over the typical "mother" duties in the household, such as cooking, cleaning, and caring for her younger siblings. K.G. 's father sold cars and the family received food stamps and government assistance.
When the children were growing up, K.G.'s mother was the one primarily caring for the five children. K.G. only spent time with her father on Sundays. K.G. saw her dad drinking excessively and then "go out and waste his money." This caused many fights between her parents. Around 2010, K.G. 's father got sick with diabetes and stopped drinking. Afterwards, he mostly stayed at home and worked infrequently. Upon her mother's death, K.G. hated her father because she thought stress that he had caused her mother led to her illness and death.
After her mother died, K.G. would see Garcia drinking secretly and thought he was doing it as a coping mechanism. He went to bars regularly. He would come home at 2:00 or 3:00 a.m., wake everyone up, and demand that K.G. make food for him. Garcia was "aggressive" with K.G.
Garcia mentioned the possibility of bringing new women into the children's lives, making K.G. "livid" and "[f]urious" K.G. did not want anyone taking her mother's place. She was also dealing with a hatred toward her father because she thought it was his fault that her mother was taken from her. K.G. was frustrated and angry that while her father was going out, trying to have a good time, and meet someone new, K.G. was not allowed to be a kid. After her mother passed away, Garcia "expected more" from K.G. But she just wanted to be a typical teen and hang out with friends and go to movies and parties.
K.G. testified that when she was approximately 14 years old, she went to the police and reported that Garcia was sexually abusing her. She explained she fabricated the allegations that Garcia had sexually assaulted and molested her. K.G. was angry and resentful, and hated Garcia. She felt he took her mom away from her and she wanted to make him pay for that and to destroy him. K.G. got the idea to fabricate the allegations because a girl she had known in the sixth grade had been physically and sexually abused. That girl was removed from her household by authorities and placed in foster care; she told K.G. about the system and how it worked.
K.G. clarified Garcia had never sexually abused her and her prior allegations were not true. She had lied to the police, the forensic interviewer, and various social workers about sexual abuse committed by Garcia. Garcia never showed her his penis; she just described what she had seen in a biology textbook or presentation. Garcia never showed her pornography; she had only seen pornographic magazines around the house. When people in town found out about her allegations, K.G. was embarrassed and felt badly that people were saying bad things about Garcia.
K.G. acknowledged she went through counseling after she was removed from Garcia's care, but she never told her counselors or social workers that her allegations were untrue. K.G. further acknowledged that in 2014 and 2015 she had told Jerica Ramos that Garcia's family was telling her to recant. K.G. explained she did not recant her allegations at those points because she was scared she would be punished and locked up.
K.G. acknowledged she told Veronica Pleitez, the social worker, that she was concerned about B.G., her nine-year-old sister, going back to Garcia's house; K.G. explained her concern was that she wanted B.G. to have a childhood and not be burdened by onerous household duties. K.G. said she was not motivated by any concern that Garcia would molest B.G. As for her statement to Maria Maravilla that she did not want to have contact with Garcia, K.G. explained she said that because she felt badly about lying. K.G. also explained why she was recanting her allegations at trial and had not done so previously: "Well, I am also much older. My dad has become part of our lives. We need him. We don't have our other parent. And despite everything he's done, we want our dad."
D. Other Witness Testimony
Maria B., who lived with Garcia's brother, Fernando, testified for the prosecution. When V.G. hit Garcia, V.G. and K.G. came to live at the house of Fernando and Maria B. A week later, Garcia told Maria B. that he had asked his children to clean the house, V.G. got angry, and punched Garcia in the eye. K.G. stayed with Maria B. for about a month before returning to the Daulton Street house she shared with her father and siblings.
The prosecution also called V.G., K.G.'s older brother, as a witness. V.G., who is two years older than K.G., was 22 years old at the time of his testimony. Their mother's death was hard on the family and changed the household dynamic dramatically. K.G. took over the majority of the household chores. Garcia would go out drinking until late at night. At some point after their mother died, V.G. got into a physical altercation with Garcia and then moved out of the house. V.G. wanted to do his own thing and did not want to follow his father's rules. He hit Garcia in the face when Garcia tried to discipline him.
Afterwards, V.G., K.G., and their three younger siblings moved in with Maria B., their aunt. V.G. had told his cousins that he punched his father because of what he was doing to K.G. V.G. later took K.G. to the police station to report that Garcia had molested her. V.G. had believed K.G. when she told him that Garcia had touched her sexually. V.G. did not recall confronting Garcia about K.G.'s allegations of abuse. V.G. testified that the statements he made to CPS social worker Veronica Pleitez at the Madera Police Department were lies.
The prosecution called M.G., one of Garcia's 12 siblings, as a witness. M.G. believed K.G.'s molestation accusations against Garcia were all lies. She was of the view that K.G. made up the allegations because Garcia had scolded her after finding her alone with a boyfriend. M.G. had attended an April 11, 2016 family court proceeding to support Garcia. M.G. had spoken with K.G. after court and had asked her to tell the truth, because it was unfair that K.G.'s siblings were separated from their father because of K.G.'s allegations. M.G. opined that Garcia "would never do anything like that."
M.G.'s daughter, C.G., was also called as a witness by the prosecution. C.G. is two years older than K.G. and they were really close, like sisters, growing up. C.G. testified that K.G. "was always a smart person in school, even in elementary [and through] high school, all throughout." A few weeks before K.G. got in touch with law enforcement, K.G. told C.G. that her father was touching her inappropriately. C.G. testified: "[When K.G. visited] my house, we would be in my room talking about whatever has happened and stuff - boyfriend. And then [K.G.] just had said - she started crying, and I asked her why she was crying. And then she told me that - what I had said, that her dad was touching her." C.G. added: "[S]he started crying uncontrollably, and she didn't really say much. And I was, like, 'I'm going to tell my mom,' and she was like, 'No, don't say anything.' "
E. Defense Case
Garcia testified in his own defense; he was the only witness to testify in the defense case. Garcia testified that he never touched K.G. inappropriately and denied committing the alleged acts. He testified he never offered her money for sex, exposed his penis to her, ejaculated into her underwear, masturbated in front of her, or asked her for sex or to engage in sexual acts. He never showed K.G. pornographic photos, never asked if she wanted to watch porn videos with him, and never told her that she could skip school if she watched porn with him at home. He never touched her vaginal area.
After Garcia's wife unexpectedly died, the family struggled. V.G. no longer obeyed, refused to do chores, and would go out with his friends all the time. K.G. had more chores than V.G. She did laundry, made food, cleaned the house, and helped her younger siblings. K.G. went out with her friends regularly and began smoking marijuana. Garcia scolded her and K.G. got angry. Garcia also made K.G.'s boyfriend go away, which upset her as well.
Garcia only came home drunk once and he did not molest K.G. K.G. lied about him molesting her because she was angry with him.
DISCUSSION
I. Jerica Ramos's Expert Testimony
Garcia contends the trial court erred in permitting Jerica Ramos to testify as an expert in this matter because Ramos was not qualified to do so. Garcia further contends that the substance of Ramos's expert testimony was improper and prejudicial in several respects. Garcia contends these errors require reversal. We disagree.
A. Applicable Law
" 'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience [such] that the opinion of an expert would assist the trier of fact," '" and the testimony is "[b]ased on matter ... that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates." (People v. Vang (2011) 52 Cal.4th 1038, 1044; Evid. Code, § 801.) "[T]he pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury." (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
" '[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. "Where the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions, then the need for expert testimony evaporates." '" (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.) "In other words, when an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them." (Ibid.)
When a party objects to an expert witness's qualifications, Evidence Code section 720 requires the party offering the expert testimony to demonstrate the expert's special knowledge, skill, experience, training, or education before the witness may testify as an expert. (People v. Townsel (2016) 63 Cal.4th 25, 45.) "Whether a person qualifies as an expert in a particular case ... depends upon the facts of the case and the witness's qualifications." (People v. Bloyd (1987) 43 Cal.3d 333, 357.)" 'When a preliminary showing is made that the proposed witness has sufficient knowledge to qualify as an expert under the Evidence Code, questions about the depth or scope of his or her knowledge or experience go to the weight, not the admissibility, of the witness's testimony.'" (People v. Jackson (2016) 1 Cal.5th 269, 327-328.)
" 'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (People v. Jones (2013) 57 Cal.4th 899, 946.) Under the abuse of discretion standard, the appellate court disturbs the trial court's ruling only if the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Clark (2016) 63 Cal.4th 522, 572.) "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness '" 'clearly lacks qualification as an expert.'" '" (People v. Farnam (2002) 28 Cal.4th 107, 162.)
"Absent fundamental unfairness, state law error in admitting evidence is" reviewed by "ask[ing] whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).)" 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (In re Gay (2020) 8 Cal.5th 1059, 1086; People v. Mar (2002) 28 Cal.4th 1201, 1225.)
B. Trial Court's Decision to Permit Ramos to Testify as Expert Was Not an Abuse of Discretion
The trial court, after an Evidence Code section 402 hearing, permitted Jerica Ramos to testify as an expert regarding child abuse investigations, and, more specifically, the matters of child abuse disclosures and recantation of child abuse disclosures or allegations.
Ramos was a social worker with Madera County Child Protective Services when K.G. was under the supervision of the agency, after she disclosed that Garcia had sexually molested her for over two years. Ramos worked with K.G. and her younger siblings in March-April 2016. She had several contacts with K.G. during that time period and made notes/reports of her interactions and K.G.'s statements (see above). The prosecutor intended to have Ramos testify to those interactions, stating to the trial court: "And those statements obtained by Jerica Ramos will also impeach K.G.'s testimony regarding recanting the allegations and also the statements that her family was not discouraging her from ... going forward with the allegation." The prosecutor also sought permission from the court to have Ramos testify as an expert in the area of child abuse investigations and the issues of disclosure and recantation.
At the Evidence Code section 402 hearing, Ramos testified as to her educational background, experience, and qualifications, as well as the substance of her anticipated expert testimony. Ramos testified she had bachelor's and master's degrees in social work from California State University, Fresno; her graduate work had an emphasis in child welfare. During her graduate work, she completed internships with a foster family agency and with Madera County Department of Social Services, Child Welfare Services.
Ramos had three years of experience in "emergency response social work with the Madera County Department of Social Services (child protective services)," where she worked from May 2013 to August 2016 (she interacted with K.G. in this position). She also worked in adoption services for the Madera County Department of Social Services. Ramos had another three years of experience in her current position as coordinator and social worker with the Child Advocacy Clinic (a child abuse program) at V alley Children's Hospital. Ramos was also a "forensic interviewer"; she explained a "forensic interviewer" is "a trained professional who receives specialized training in questioning child victims of abuse, both sexual and physical, for law enforcement and Child Protective Services," for investigation and prosecution purposes.
As a "CPS social worker and child advocacy coordinator," Ramos "attended numerous trainings, includ ing international and state trainings, regarding child abuse," with "a sexual abuse component." Her forensic interviewer training "entail[ed] training about child abuse disclosures and all the dynamics of that." Ramos was trained in "all of the characteristics, some risk factors, reasons why children tell, reasons why a child may recant, things like that." She also noted that throughout her training, she had been exposed to statistics, reports, and published articles regarding sexual abuse disclosures and recantations by children. Ramos acknowledged she had not done independent research in the area of recantations. Nor had Ramos attended a training that focused exclusively on recantation.
To sketch out Ramos's proffered expert testimony, the prosecuto r asked Ramos (at the Evidence Code section 402 hearing): "And why might a child disclose sexual abuse?" Ramos answered: "Usually, if they have a supportive parent or adult figure in their life who has had conversations with them about appropriate boundaries, research has shown that those children are more likely to tell an adult [about] any type of sexual abuse." Ramos continued: "Also, if a child is feeling extremely unsafe, that may force them to feel like they have to disclose."
Next, the prosecutor asked Ramos: "And after a child discloses, do some children then later recant the allegation?" Ramos responded: "Yes. In my training and - and in my experience, that is my understanding that about 23 percent of children do recant after disclosing sexual abuse." The prosecutor further asked: "And have you learned what factors or conditions in the child's life might cause a person to recant?" Ramos replied: "One of the studies that I have read indicates that, of that 23 percent, the reason why the y recanted was usually because they had unsupportive adult caregivers. Usually, that was another parent or adults in their lives who they could have confided in. So that means either they didn't believe them or they persuade them not to disclose the abuse. And then also in younger children, and -yeah, those are some of the factors." Ramos added that the relationship of the child and the perpetrator is another factor: "So in that same study, it was discussed that a child who - if it was a family member who was the perpetrator, that they are more likely to recant." In this situation, the child may be influenced by other family members or may "still feel very protective [of] and still love that parent," despite the abuse. Ramos admitted on cross-examination that she could not remember the name of the author of the study she relied on for her testimony; however, she noted it was a 2016 study.
The prosecutor also asked Ramos about recantations based on Ramos's personal experience. She asked: "And in regards to your personal experience with victims -alleged victims of child sexual abuse, have you seen children recant their statements?" Ramos answered, "Yes, I have." The prosecutor followed up: "And how often would you say you have seen it?" Ramos answered: "I would say very similar to what I had referenced to earlier, about 18 to 20 percent."
Defense counsel asked Ramos about "false positives," which he described as a situation "where people come forward and make allegations, and it's a result but it's not true." Counsel asked: "So we talked about what a false positive is. Have you ever run into a false positive?" Ramos answered, "In my experience as a forensic interviewer and a social worker in this field, very rarely." Ramos agreed, however, that children certainly can lie about sexual abuse.
After Ramos's testimony at the Evidence Code section 402 hearing, the prosecutor proffered Ramos's "expertise as a social worker in obtaining information from children in an unbiased, non-leading manner; and then also as to information she has in regards to factors that support disclosure and factors that support recantation." Defense counsel objected to Ramos being qualified as an expert. Defense counsel argued: "I want to specifically address her expertise in the area of recantation. I just don't see it. [¶] She has one study that she is quoting from. She can't remember the author of the study. She is a very nice lady, and I am sure she is an excellent social worker and is probably very good with kids. But as an expert in the area of recantation, it just simply isn't there. She may be able to offer additional insight into the forensic interview process in that she is a forensic interviewer, but that isn't the question here."
In response, the prosecutor argued: "Jerica Ramos does have extensive experience with many children, many more children than the jury combined would have had experience with. She has experience with children in a very specific setting. That would be children who are claiming acts of abuse. She has interacted with these children. She has also learned later on that some of the children have recanted. [¶] Other than the one study that she mentioned in 2016 that she read, she has - also has acquired a master's degree in her field of work, which also included two internships as a social worker. [¶] And she has - according to her resume, she has done many other readings and she has gone to trainings and other - acquired other information regarding this specific topic of children disclosing abuse, talking about abuse, and then recanting abuse. She is more than qualified. Her experience is way beyond that of any jury member, so I would request that she be allowed to testify regarding those topics."
The trial court ruled: "I do find that this particular witness has experience and training beyond the common experience, so she will be permitted to testify as described by [the prosecutor]." Ramos had years of personal experience working with children subjected to sexual abuse. She had interviewed children in these circumstances as part of the investigation into their allegations of sexual abuse by CPS and law enforcement. She was familiar with research regarding the reasons children disclose abuse and why they may later recant. Although she was not a licensed social worker, she had a master's degree in social work. We cannot say the trial court abused its discretion in admitting expert testimony by Ramos.
C. Trial Court Did Not Err in Regard to Ramos's "Head Shaking" Incident
During the Evidence Code section 402 hearing regarding Ramos's expert qualifications and anticipated expert testimony, the following exchange took place between defense counsel and Ramos:
"[Defense Counsel]: Are you an expert in recantation? No? [Ramos]: I -
[Defense Counsel]: I saw you shake your head no. Is that a no? [Prosecutor]: Object
[Defense Counsel]: I saw you shake your head no. Is that a no? [Prosecutor]: Objection. Calls for a legal conclusion.
THE COURT: Sustained."
In a bare-bones argument in his opening brief, Garcia claims "[t]he trial court erroneously sustained the prosecutor's legal conclusion objection." Garcia has not shown the trial court erred. Defense counsel's question appeared to call for a legal conclusion and therefore the trial court properly sustained the prosecutor's objection.
In his reply brief, Garcia cites Evidence Code section 720, subdivision (b), which provides:" 'A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony." Garcia argues, with reference to Evidence Code section 720, subdivision (b), that "Ramos' 'own testimony' by shaking her head no that she was not an expert in recantation showed her lack of special knowledge, skill, experience, training or education [on] recantation." Garcia's argument is unpersuasive because defense counsel did not clarify he was seeking to elicit testimony regarding Ramos's training and experience in recantation as opposed to asking for a legal conclusion as to her status as an expert witness. The cases cited by Garcia are unpersuasive for the same reason.
D. Garcia Has Forfeited His Objections to Ramos's Expert Testimony; the Testimony Was Proper in Any Event
In addition to the foregoing challenges to Ramos's expertise, Garcia also contends that Ramos's testimony was improper in several respects and that her improper testimony was erroneously admitted. First, he argues the statistical evidence to which Ramos testified-i.e., "that 20/23% of children recanted"-was irrelevant, not helpful to the jury, and nullified the jury's role, and therefore was erroneously admitted. Second, he contends "Ramos' predictive testimony of 'the highest indicators' of recantation and that she 'knew' 20/23% of children recanted was erroneously admitted." Finally, Garcia argues Ramos's "erroneous expert testimony improperly vouched for [her] factual testimony" regarding her interactions with K.G. as her social worker.
Garcia has forfeited these claims on appeal for failure to object on these grounds in the trial court. "Evidence Code section 353 provides, as relevant, 'A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.'" (Partida, supra, 37 Cal.4th at p. 433, quoting Evid. Code, § 353.) In accordance with Evidence Code section 353, our Supreme Court has" 'consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (Partida, at pp. 433-434.) "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Id. at p. 435.) Since Garcia did not object to Ramos's testimony at trial on the grounds he raises on appeal, he has forfeited his claims on appeal.
Regardless, Garcia has not shown Ramos's testimony was improper and erroneously admitted. As noted above, Garcia first argues Ramos's testimony that "20/23% of children recanted" was improper because "[t]he statistics were irrelevant evidence that distracted the jurors from the requisite function of weighing the evidence." We will excerpt here the relevant exchange between the prosecutor and Ramos at trial. The prosecutor asked Ramos: "And do you have any idea of what percentage of children recant a statement of abuse?" Ramos responded: "So in my experience and through some of the education that I have had in my career, I know that it's around 20/23 percent of children who recant." The prosecutor further asked Ramos: "So if a child recants the allegation of abuse, could it be that [the abuse] actually happened?" Ramos answered: "Yes. It's possible, yes." The prosecutor next asked: "And could it be that [the abuse] actually didn't happen and the recantation is true?" Ramos answered: "Yes."
Under these circumstances we cannot say Ramos's testimony was unhelpful to the jury or served to usurp the jury's function; rather, the testimony provided appropriate and helpful context for the jury for purposes of resolving the key factual disputes at issue. K.G. told authorities in 2014 that Garcia had sexually molested her and, when she testified at trial in 2019, she recanted her 2014 statements as well as related statements she had made to authorities over the next few years. The defense theory was that K.G. had fabricated the allegations of sexual abuse and properly recanted them at trial. The jury had to determine whether K.G. had lied in alleging that Garcia molested her and was being truthful in recanting the allegations. The challenged testimony by Ramos did not resolve this issue or serve to skew the jury's consideration of the evidence. For example, Ramos did not give percentages as to children who recanted falsely and those who recanted because the original allegations were untrue. (Cf. People v. Julian (2019) 34 Cal.App.5th 878, 880 (Julian) ["Sports fans often use statistical odds to predict the outcome of a sporting event. Statistical odds, however, are not a substitute for admissible evidence to decide the guilt or innocence of the defendant."].) Garcia has not shown that Ramos's testimony to the effect that 20/23 percent of children recanted was inadmissible.
Relying on caselaw regarding child sexual abuse accommodation syndrome (CSAAS), Garcia next argues that Ramos's testimony "suffered from similar deficiencies" as improper expert testimony regarding CSAAS. (See People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker); Julian, supra, 34 Cal.App.5th 878.) More specifically, Garcia argues: "Ramos testified as a primary witness to K.G.'s March and April prior inconsistent statements, a lay witness to K.G.'s depressed or sad demeanor, and an expert witness to the 'highest indicators' of recantation and 20/23% statistical probability of recantation. Ramos' testimony served improperly as a predictor of abuse in that K.G.'s recantations emanated from discouraging family members, which was among 'the highest predictors]' of recantation and fell within a 20/23% of recanting individuals. This predictive error was compounded and exacerbated when Ramos improperly testified she 'kn[e]w' about 20/23% of children recanted."
Garcia appears to be quoting from or referring to language from Bowker, supra, 203 Cal.App.3d at page 393 [rejecting CSAAS evidence presented in a form that would signify that syndrome behaviors exhibited by child victims served as "predictor[s] of child abuse"].) Ramos did not use the term "predictor" or suggest that one could predict with reasonable certainty whether a child had been sexually abused based on various contextual factors that were associated with children recanting allegations of sexual abuse.
With respect to CSAAS, Bowker explained: "The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of a jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Bowker, supra, 203 Cal.App.3d at p. 394.) The Bowker court found the testimony of the CSAAS expert in that case (Dr. Murphy) was improper. Bowker noted: "Dr. Murphy's testimony accounted for nearly 70 pages of reporter's transcript and was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed. Murphy in effect said regardless how inconsistent a child's accounts of abuse are, abused children give inconsistent accounts and are credible nonetheless." (Ibid.) Bowker further explained: "More importantly, by delineating each stage of the CSAAS theory, Murphy constructed a 'scientific' framework into which the jury could pigeonhole the facts of the case. Thus, even though he was precluded from using CSAAS as a predictor of child abuse, the jury was free to superimpose these children on the same theory and conclude abuse had occurred." (Id. at p. 395.)
Similarly, the Julian court explained that in testifying about CSAAS," '[t]he expert is not allowed to give an opinion on whether a witness is telling the truth'" and "such evidence 'is not admissible to prove that the complaining witness has in fact been sexually abused.'" (Julian, supra, 34 Cal.App.5th at p. 885.) Julian further explained: "The expert providing CSAAS testimony may not give' "general" testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused. '" (Ibid.) In addition, Julian noted: "Nor is it proper for an expert to present 'predictive conclusions' [citation], such as alleged child abuse victims 'should be believed' or 'abused children give inconsistent accounts and are credible nonetheless' [citation]. Such predictive conclusions go beyond the scope of CSAAS evidence and may confuse the jury. '[T]he jurors' education and training may not have sensitized them to the dangers of drawing predictive conclusions.'" (Id. at p. 886.)
In Julian, the CSAAS expert testified to the statistical percentage of false allegations by child sexual abuse victims. The expert testified:" 'The range of false allegations that are known to law enforcement or [Child Protective Services] ... is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.'" (Id. at p. 883, italics omitted.) The Julian court concluded "[t]his statistical probability evidence deprived Julian of his right to a fair trial." (Id. at p. 886 ["Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence."].)
In contrast to the expert testimony that was found to be improper in Bowker and Julian, here Ramos clarified that recantations could either be false or proper and warranted; thus, her testimony was not based on a premise that molestation had occurred. Nor did she give any percentages for false recantations and recantations that were warranted, respectively, that would have distracted and misled the jury. Indeed, she testified that it was not her role to make "any determinations as to whether [the abuse] has happened or not." Rather, her role was "to question the child in the manner that [she] was trained, obtain whatever information the child gives [her] and hand that off to the people ... who are the ones who make those decisions."
While Ramos described three factors (young age of child, close relative as abuser, and unsupportive family) as the "highest indicators" of a child potentially recanting, she noted several other factors were also in play. Her testimony was relatively brief and limited, without expressions of sympathy for abused children or any suggestion that one could predict with reasonable certainty whether a child had been sexually abused based on contextual factors associated with children recanting allegations of sexual abuse. (See Bowker, supra, 203 Cal.App.3d at p. 393.) Thus, while it may be arguable that Ramos's testimony approached the line separating admissible and inadmissible expert testimony regarding the dynamics of recantation of allegations of sexual abuse by children, Garcia has not shown it was improper predictive testimony as discussed in CSAAS cases such as Bowker and Julian.
Finally, Garcia argues: "Ramos testified in the triple capacity as fact witness to prior inconsistent statements, a lay witness to K.G.'s demeanor, and an expert witness to 'the highest indicators' of recantation and that she 'knew' about 20/23% of recant ations. Thus, expert witness Ramos improperly vouched functionally for fact witness Ramos and lay witness Ramos." This argument is not developed and is more akin to an assertion. We are not persuaded. Given our conclusion that Ramos's expert testimony was not improper predictive testimony, we cannot say Ramos's expert testimony improperly vouched for her fact testimony.
E. Ramos's Testimony Was Not Prejudicial
Furthermore, any error in admitting Ramos's testimony on recantation was harmless. K.G.'s reports in her interviews with law enforcement and social workers were detailed, consistent, and compelling. She reported and related the abuse to multiple investigating authorities including Officer Sisemore and social worker Veronica Pleitez at the police station, Veronica Pleitez again the following day at a relative's house, forensic interviewer Angelica Limon, and CPS social worker Maria Maravilla.
K.G.'s reports were corroborated by the statements of her brother, V.G., to police and social workers. K.G. told V.G. that Garcia had molested her, and he therefore took her to the police station to report it. V.G. believed K.G. when she told him Garcia had touched her sexually. Maria B.'s testimony corroborated the fact that K.G. came to live with her after K.G. told V.G. about the abuse and V.G. punched Garcia in the face and helped her move out. In addition, K.G.'s cousin, C.G., testified that a few weeks before K.G. was removed from her home by CPS, she started crying uncontrollably and told C.G. her father was touching her.
It is not reasonably probable a verdict more favorable to Garcia would have resulted absent any putatively improper testimony by Ramos. The other evidence presented at trial would likely have yielded the same conclusion. We think it unlikely that Ramos's expert testimony was a critical factor in establishing Garcia's guilt. (People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Angelica Limon's Testimony
As noted above, the video recording of K.G.'s forensic interview was played for the jury; the prosecution offered the interview as a prior inconsistent statement. Angelica Limon, a licensed marriage and family therapist, had conducted the forensic interview; she testified for the prosecution regarding the protocol followed in conducting forensic interviews of children in the context of suspected sexual abuse or other crime. Limon explained the process through which she interviewed K.G. regarding the allegations of sexual abuse by Garcia.
Defense counsel cross-examined Limon. He asked: "And what steps do you take or you understand are taken in this field to prevent false positives?" Limon answered: "So, you know, [it's] not really part of my job ... to figure out if someone is telling the truth or not. I can just speak to this case is [sic] that I felt like she was. I think her detail - when she repeated things back, they were pretty consistent with what she had said in the beginning when I went back to, kind of clear up houses, dates. But my job is not to figure out if somebody is telling the truth or not. I am just there to collect the information." (Emphasis added.)
Defense counsel followed-up: "Okay. You are not a lie detect[o]r, and you can't attest to whether they are telling you the truth or not at the time. It's just you are there as an investigator trying to lead them through a series of questions to an end result?" Limon replied: "I mean, I am not trying to lead them anywhere. I am just there to ask the questions and to really hear them out." Defense counsel observed: "I am not using the work 'leading' in terms of, like, leading questions. I am using the word - you start out through the phases, and you work towards the conclusion of the interview. That's all I meant is just like you walk them through the process." Limon answered: "That's correct." Defense counsel noted: "Just to gather information. But you are not a lie detect[o]r. You are just thorough in collecting the information as best you can?" Limon responded: "Right. I am not a lie detect[o]r. I don't read minds." Defense counsel asked: "And children can lie about little things?" Limon said: "Yeah. Children and adults lie about little things." Defense counsel added: "They do indeed. And they can lie about life-altering, major things too? Limon answered: "Sure."
Garcia argues that Limon's testimony in response to defense counsel's question about ways to prevent false positives, was improper and prejudicial. As noted above, defense counsel asked Limon, "[W]hat steps do you take or you understand are taken in this field to prevent false positives?" and Limon answered that, while it was not her job to ascertain an interviewee's veracity, given the detail and consistency reflected in K.G.'s interview statements, she felt K.G. was truthful in her forensic interview. Generally, a witness's opinion about whether another person is telling the truth is inadmissible because the jury is as capable in discerning truthfulness as the witness. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) But failure to object to such testimony forfeits review of the issue on appeal. (Id. at pp. 81-82.) Garcia has forfeited this issue on appeal; not only was the testimony elicited by defense counsel on cross-examination, but counsel did not object to the testimony at the time.
Acknowledging counsel's failure to object to the challenged testimony, Garcia contends trial counsel's performance in this regard was deficient and prejudiced Garcia as a result. We disagree as to both points.
To establish ineffective assistance of counsel, the defendant has the burden of proving by a preponderance of the evidence that "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) "If the defendant's showing is insufficient as to one component of this claim, we need not address the other." (People v. Hinds (2003) 108 Cal.App.4th 897, 900-901, citing Strickland, at p. 697.)
Appellate courts presume that counsel's actions fall within the broad range of reasonableness and afford "great deference to counsel's tactical decisions." (People v. Lewis (2001) 25 Cal.4th 610, 674.) Accordingly, the defendant's burden is "difficult to carry on direct appeal," as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had"' "no rational tactical purpose" '" for an action or omission. (People v. Lucas (1995) 12 Cal.4th 415, 437; see also People v. Earp (1999) 20 Cal.4th 826, 896.)
Here defense counsel asked about steps taken in the forensic interview process to prevent false positives, but Limon's answer that K.G. appeared to be telling the truth in her forensic interview was beyond the scope of the question. Therefore, counsel cannot be faulted for posing the question that elicited the challenged testimony. Nor can counsel be faulted for failing to object to the challenged testimony (and failing to move to strike it). Rather than objecting, counsel deployed alternative, and arguably more effective, means to neutralize and blunt the impact of Limon's unexpected testimony. Specifically, counsel immediately emphasized, twice, that Limon was not a "lie detect[o]r" but merely gathering information as best she could; Limon readily agreed, noting, "Right. I am not a lie detect[o]r. I don't read minds." In light of counsel's follow-up questions to Limon's earlier testimony that K.G. appeared to be telling the truth, and Limon's favorable answers to those follow-up questions, counsel's failure to object to the earlier testimony may properly be characterized as a reasonable tactical choice.
Furthermore, Limon's challenged testimony was not prejudicial. The challenged testimony constituted an isolated remark and was made in conjunction with Limon's repeated clarifications that her job was gathering information, not assessing truthfulness.
We also reject Garcia's claim of cumulative error related to the admission of the respective testimony of Jerica Ramos and Angelica Limon.
III. Garcia's Motion for New Trial
Garcia contends the judgment must be vacated because, in denying his motion for new trial, the court "misconceived its duty, extended evidentiary deference to the jury's province to decide veracity and integrity, had the duty to consider, examine, and reappraise the weight of the evidence independently, and failed to give [Garcia] a proper, independent evaluation of the evidence." Respondent, the People, respond as follows: "Respondent agrees that the trial court imposed an improper standard in denying the motion for a new trial and that remand is appropriate." We agree with the parties, vacate the judgment, and remand for the trial court to reconsider Garcia's motion for new trial under the correct legal standard.
Following the jury's verdict of guilty on all counts, Garcia sought a new trial under section 1181, subdivision (6), which confers on the court the power to grant a new trial "[w]hen the verdict or finding is contrary to law or evidence." When a defendant argues that a new trial should be granted because a jury's guilty verdict is contrary to the evidence, he or she is asking the court to decide for itself, sitting as the 13th juror, whether the evidence has proved the defendant guilty beyond a reasonable doubt. (Porter v. Superior Court (2009) 47 Cal.4th 125, 133 (Porter).)
The analysis a court must apply when deciding a motion of this kind thus must be distinguished from the substantial evidence analysis it may carry out in any of several other procedural situations, such as a motion for a judgment of acquittal based on legal insufficiency of the evidence (§ 1118.1), a post-verdict motion to dismiss premised specifically on legal insufficiency of evidence (§ 1385), or an appeal based on a claim of such insufficiency. In those situations, the court must determine whether the evidence is sufficient as a matter of law to support a guilty verdict. It must decide whether, in light of the evidence, any reasonable fact finder could reach the same conclusion as the jury. In the type of motion at issue here, by contrast, the court must ask itself whether it is actually persuaded by the evidence that the defendant is guilty beyond a reasonable doubt-the same task jurors must perform. (Porter, supra, 47 Cal.4th at p. 133; People v. Pedroza (2014) 231 Cal.App.4th 635, 643-645.)
Here, in denying Garcia's motion for new trial, the trial court stated: "[W]ith regard to the testimony brought out at trial and, in particular, by the person I will label as 'the complaining witness,' although I am very mindful of the fact of the recantation by the witness, I am unable, though, to substitute the Court's thought for the judgment of the jury." The court continued: "It is, in the Court's view, the province of the jury to make a decision as to its analysis of the veracity, the integrity, of any witness, which would include the complaining witness. And they apparently opted here to incorporate in their judgment one view, which is one of, I will say, two opposed views offered by the complaining witness." The court concluded: "So I think there is evidence that would very much support the judgment of the jury had they come out with a very much opposite judgment. Given the testimony of the complaining witness, there may have been sufficient evidence to establish and to support that as well. I think it's the province of the jury, and I think the jury exercised its own judgment in that regard in their execution of their duties. So I am going to deny the motion for new trial for Mr. Garcia."
Respondent, the People, correctly and candidly concede the argument that the trial court improperly "extended evidentiary deference to the jury's findings in denying the motion for a new trial." The People note: "In this case, respondent agrees that the trial court based its denial of the new trial motion under an incorrect legal standard. The trial court's comments suggest it did not independently review the evidence and decide the proper weight to accord it. Accordingly, the matter should be remanded so that the court may apply the correct legal standard in considering [Garcia's] motion for a new trial." We agree.
The trial court's order denying Garcia's motion for new trial is reversed and the matter remanded for the court to apply the correct legal standard in ruling on the motion.
IV. Sentencing Issues: Senate Bill No. 567
Garcia was sentenced on September 29, 2020. Thereafter, effective January 1, 2022, Senate Bill No. 567 amended section 1170, restricting a trial court's sentencing discretion, including its ability to impose the upper term for a conviction. (Stats. 2021, ch. 731, § 1.3.) Pursuant to Senate Bill No. 567, section 1170 now precludes a trial court from imposing a sentence exceeding the middle term for any offense with a sentencing triad, 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." (§ 1170, subd. (b)(1) &(2).) In other words, Senate Bill No. 567 provides for a presumptive middle term absent the presence of circumstances in aggravation, the facts underlying which have either been stipulated to by the defendant or proven beyond a reasonable doubt at trial. (§ 1170, subd. (b)(1) &(2); People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez).)
The parties agree, as do we, that Senate Bill No. 567's amendments to section 1170, subdivision (b), make ameliorative changes to the law, that apply retroactively to all cases not yet final as of January 1, 2022. (See Lopez, supra, 78 Cal.App.5th at p. 465.) The amended statute is ameliorative because it potentially limits punishment by requiring the imposition of the middle term absent the applicability of aggravating circumstances, the facts underlying which must either be stipulated to by the defendant or proven beyond a reasonable doubt. (§ 1170, subd. (b)(1) &(2).) Garcia's case was not final on January 1, 2022; accordingly, the amendments to section 1170 apply retroactively to his case.
As relevant here, Senate Bill No. 567 affected the trial court's discretion to impose an upper term sentence on count 1 (as the trial court did at Garcia's 2020 sentencing). Garcia argues the trial court's imposition of the upper term on count 1 cannot stand under Senate Bill No. 567. The People candidly concede the point: "Because the trial court relied upon factors in aggravation that were neither admitted by appellant nor found to be true beyond a reasonable doubt, the case should be remanded for the trial court to resentence appellant consistent with the changes made to section 1170, subdivision (b) under the authority granted by Senate Bill No. 567."
Accordingly, we vacate the sentence and remand for resentencing pursuant to amended section 1170, subdivision (b), contingent on the trial court's ruling on Garcia's new trial motion.
Since we have vacated Garcia's sentence and are remanding the matter for a new sentencing hearing, if applicable, we need not resolve Garcia's remaining sentencing-related claims.
DISPOSITION
The trial court's order denying Garcia's motion for new trial is reversed. The sentence is vacated. The matter is remanded for the trial court to rule on Garcia's motion for new trial under the correct legal standard. Depending on the disposition of Garcia's motion for new trial, any resentencing would proceed pursuant to amended section 1170, subdivision (b). The judgment is affirmed in all other respects.
WE CONCUR: POOCHIGIAN, Acting P. J. FRANSON, J.