Opinion
A158336
12-01-2021
THE PEOPLE, Plaintiff and Respondent, v. JOHN BENNIE GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-180331-1
POLLAK, P. J.
Defendant John Bennie Gomez appeals a judgment conviction him of sexually abusing a seven-year-old child and sentencing him to a term of 80 years and eight months to life in prison. On appeal, he challenges the admissibility of testimony by two expert witnesses that, he asserts, improperly vouched for the credibility of the victim. He also contends that the prosecutor's receipt of allegedly privileged communications seized from his jail cell was prejudicial. We agree that the expert testimony that it is "rare" for children to make up stories about sexual abuse was improper, but we do not consider the error to be prejudicial, and we perceive no other errors. Accordingly, we shall affirm the judgment.
Background
Defendant was charged by information with four counts of committing a forcible lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (b)); three counts of oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)); and one count each of intercourse with or sodomy of a child 10 years of age or younger (§ 288.7, subd. (a)) and showing pornography to a minor (§ 288.2, subd. (a)(2)). All counts were based on conduct alleged to have occurred between January 5 and January 7, 2018.
All statutory references are to the Penal Code unless otherwise noted.
A two-week trial included testimony by numerous witnesses. We summarize the facts most relevant to the issues raised on appeal.
The victim, who was still seven years old at the time of trial, testified in detail to the sexual abuse committed by defendant. She testified that on the night of the incident, she was sleeping at her aunt's house. In the middle of the night defendant took her to a shed in the backyard, showed her pornographic pictures and pornographic videos on his phone, and then began touching her. He touched her vagina with his hands and his tongue and inserted his penis into her vagina. He also inserted his penis into her anus and her mouth.
The victim's school-attendance secretary testified that the child was hospitalized twice after reporting the abuse. Both times she reported hearing voices in her head telling her to kill herself and defendant's voice yelling at her because "I won't put his penis in my mouth." The child also regularly expressed fear that defendant would come to find her at school. The child's therapist testified that she talked about defendant's abuse "almost every session."
A police witness testified that following defendant's arrest, officers recovered pornographic photographs from the backyard shed where the victim reported the abuse had taken place. The officers also recovered defendant's phone on which pornographic videos were subsequently recovered. The police witness also testified that the victim was interviewed at the children's interview center and a transcript of that interview was introduced into evidence.
Nurse practitioner Nancy Zipkin-Dunn, who was qualified as "an expert in the area of nonacute sexual exams . . . and the interpretation of the results," conducted a sexual assault examination on the victim approximately nine days after the abuse was alleged to have occurred. Zipkin-Dunn testified that before conducting the physical examination, she asked the victim "whether or not anyone had ever touched her in a way she didn't like." Using anatomically correct dolls to help illustrate, the victim detailed the extensive sexual abuse committed by defendant. The victim told Zipkin-Dunn that the penetrations "felt weird," "hurt," and left her bleeding from her vagina.
Zipkin-Dunn detailed the findings of her physical examination and explained that she was sufficiently concerned about the possibility of sexual assault that she asked the victim to come "back after a period of time to see if [the] features [that had caused her concern] were perfectly normal for her or were they, in fact, problems that may have been caused" by the reported abuse. She classified the child's examination results at that time as "indeterminate" but "consistent" with her account, leading to an overall finding that "sexual abuse [was] highly suspected."
Zipkin-Dunn's findings were peer-reviewed by Dr. Jim Carpenter, who also testified as "an expert in the area of child sexual assault, the evaluation of child sexual assault examinations, and their results." Carpenter agreed with Zipkin-Dunn's physical findings and her conclusion that the exam was "suspicious" but "indeterminant" in that it was "not overtly evident of trauma, but it was certainly consistent with the possibility" of abuse, and the findings were "consistent with the history given by" the victim. Carpenter agreed that the victim needed to come back for a second examination.
Zipkin-Dunn conducted her second physical examination of the victim approximately three months later. She explained that the swelling she had observed during the first exam had resolved, which indicated that the victim's vagina had been "healing" from some "trauma" during the first exam. Zipkin-Dunn opined that while each of her two examinations were individually "indeterminant," the contrast between their results rendered "sexual abuse . . . highly suspected." In her opinion, the physical evidence "support[ed] the child's statement," which she used as "the primary piece of evidence" in her determination. On cross-examination, Zipkin-Dunn reiterated that each examination by itself was indeterminate but that taken together with the victim's report of the abuse, the examinations led to the conclusion that "sexual abuse [was] highly suspected."
Carpenter confirmed Zipkin-Dunn's interpretation of the two exams. Carpenter also opined that "no advantage" exists "for a child to talk about being sexually abused" and that in his experience, absent any evidence of "secondary gain" for the child, children "do not spontaneously bring credible revelations of sexual abuse unless something [was] going on." Carpenter explained that a report of abuse "has greater validity and credibility" when "a child is able to give very specific details of sexual contact that are not routine experiences of children." In response to a hypothetical about a child who was "exposed to the genitalia of a naked man," Carpenter opined that the child would not have the knowledge necessary to create details similar to those reported by the victim in this case. He explained that even "children who are exposed at [age] three to four to a penis tend not to give elaborate stories with detailed sexual content at any time later than that."
The victim's mother was called as a witness by the defense. She testified that she called the police three times in 2014 and 2015 to report her suspicions that the victim was being sexually abused by a man who had been living with the victim's grandmother. She reported that during the course of the police investigation, the victim disclosed that the man had "pulled down his pants and showed her his private area." The mother stopped allowing the victim to go to her grandmother's house, but later relented. Mother also testified to a conversation she had with the victim in 2017 in which mother asked the victim whether, if their roles were reversed and the victim was the mom, she would allow her child to go to her grandmother's house. The victim said that if she was the mom, she would not let her child go to the grandmother's house and let the man "do those things that he did to her."
The victim's mother also testified, however, that after her daughter reported the abuse by defendant her behavior changed significantly. She "couldn't sleep by herself," was "afraid of the dark," and "would wake up screaming in the middle of the night for help, thinking someone was going to come after her." Her daughter reported hearing defendant's voice and told her she was afraid that he "was going to come after her."
Defendant also called as witnesses several mental health professionals who treated the victim between 2014 and 2017 in part for her increasingly "sexualized" behavior, and a police investigator who testified regarding the investigation following the earlier reports by the victim's mother. The victim's aunt, defendant's then-girlfriend, testified to the victim's relationship with defendant prior to the night of the abuse. The aunt's daughter, who was not home on the night of the abuse, testified that defendant had never touched her "inappropriately." Defendant also called an expert witness who offered a different opinion based on the sexual abuse examinations conducted by Zipkin-Dunn. She testified that she did not "see any indication of sexual abuse or assault on" the victim in the documentation of either of the examinations and under state protocols, "if you're checking 'indeterminant examination,' you can't then say that sexual abuse is highly suspected."
The jury convicted defendant on all charges except one of the forcible lewd act counts; with respect to that count, the jury convicted defendant of the lesser included offense of committing a nonforcible lewd act against his victim (§ 288, subd. (a)).
The trial court sentenced defendant to a prison term of 80 years and eight months to life. Defendant timely filed a notice of appeal.
Discussion
1. The experts' testimony regarding the impact of the victim's statement on their conclusions was properly admitted.
Defendant contends that the court erred by permitting Zipkin-Dunn and Carpenter to vouch for the victim's credibility. He argues that they improperly based their opinions that sexual abuse was highly suspected on "credibility they gave to the statement of the complainant, absent . . . any physical findings that specifically indicate a sexual assault."
Defendant concedes that his attorney did not object to the admission of this testimony. He argues, however, that trial counsel's failure to object and to move to strike the testimony amounts to ineffective assistance of counsel. We do not address counsel's ineffective assistance argument because, as discussed post, the experts' testimony in this regard was not inadmissible.
We disagree with defendant's characterization of the experts' testimony as vouching for the victim's credibility. The experts' testimony about the importance of the victim's report to their conclusions did not necessarily constitute an inadmissible opinion about her truthfulness. (See People v. Reyes (2008) 165 Cal.App.4th 426, 437.) When Zipkin-Dunn was asked how she could find both examinations indeterminate for sexual abuse and still conclude that sexual abuse is highly suspected, she explained that she could not determine from the examinations alone that sexual abuse necessarily occurred. However, after considering the child's statement as an explanation for the trauma she observed in the first exam, she concluded that sexual abuse was highly suspected as the cause of the trauma. Zipkin-Dunn expressly testified that her "job is not to verify the child's statement." Similarly, Carpenter testified, "My evaluation is usually to get background history, make sure that any genital complaints may not be caused by some other condition. It's not necessarily to prove or disprove sexual abuse." On cross-examination Carpenter added, "[W]hether or not parts of the history make sense is not really our purpose. Our purpose is to get a history, do a physical examination, and make determinations whether there is a correlation or not." Neither Zipkin-Dunn nor Carpenter offered any opinion on whether the victim was telling the truth. They merely opined that the findings in the examination were consistent with the victim's report.
The jury was instructed pursuant to CALCRIM No. 332, "You must decide whether the information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." Thus, the jury was authorized to reject the experts' conclusions if it found that the victim's statement was not accurate or truthful. There was no error in the admission of the experts' testimony in this regard.
2. The admission of Carpenter's testimony regarding the rarity of false allegations of child sexual abuse was harmless.
Defendant contends that Carpenter's "testimony as to the percentage or rare occurrence of false reports of sexual abuse was presented to the jury, in violation of defendant's right to due process and a fair trial." Defendant concedes that he did not object to the admission of the evidence but argues that his counsel's failure to object amounts to ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. [Citations.] To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.'" (Harrington v. Richter (2011) 562 U.S. 86, 104, citing Strickland v. Washington (1984) 466 U.S. 668, 691-692 and People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) As discussed post, we conclude that there is no reasonable justification for counsel's failure to object but that the error was harmless.
In People v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson), this court held that expert testimony that purports to quantify the prevalence of false accusations of child sexual abuse is irrelevant, and its admission is more prejudicial than probative. (See also People v. Julian (2019) 34 Cal.App.5th 878, 887 [same].) In Wilson, we explained, "Even assuming one could determine that only 1 to 6 percent of sexual abuse allegations are false, that fact would not be helpful to the jury because it tells the jury nothing about whether this particular allegation is false." (33 Cal.App.5th at p. 571.) Juries "must evaluate" the evidence "without statistical evidence placing a thumb on the scale for guilt." (Ibid.)
In Wilson, supra, 33 Cal.App.5th at page 572, we found the error harmless, in part based on the fact that the defense expert had acknowledged that it is rare for children to make up false accusations of abuse purposefully and that false accusations are more likely to be the result of outside influences. We were not called upon to determine whether introduction of similar testimony by a prosecution expert was permissible.
In People v. Lapenias (2021) 67 Cal.App.5th 162, 179 (Lapenias), the court concluded that a prosecution expert's testimony that false allegations of sexual abuse are "rare" violated the general rule that an expert may not opine as to whether another witness is telling the truth. On appeal in Lapenias, as in the present case, the People attempted to distinguish Julian and Wilson on the ground that the expert in those cases improperly testified about the statistical frequency of false accusations, whereas the expert in that case testified only to the rarity of false allegations. (Id. at pp. 179-180.) The Lapenias court rejected that argument, finding that" 'there is no meaningful distinction between giving a statistic that indicates that false allegations are rare and stating that children rarely make false allegations without quantifying the word "rare." The problem with both assertions is that [the] expert is vouching for the veracity of the' alleged victims." (Ibid.)
Here, Carpenter testified that "if a child makes a credible revelation of sexual abuse, the child - not the mother, not the granny - if the child makes it, it has very high validity that is based on reality." He added, "my experience is that children do not spontaneously bring credible revelations of sexual abuse unless something is going on." Similarly, he testified that "my experience . . . is that children very rarely lie, exaggerate, or fantasize about details of sexual contact." On cross-examination he added, "there really is no secondary gain for reporting child sexual abuse. The only time that I've seen a few examples where there were indeed false allegations, it was usually a child custody battle where the parent told the child to say this."
Based on the analyses in Julian, supra, 34 Cal.App.5th 878, Wilson, supra, 33 Cal.App.5th 559, and Lapenias, supra, 67 Cal.App.5th 169, which we reaffirm, Carpenter's testimony was inadmissible. Nonetheless, counsel's failure to object was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Lapenias, supra, at p. 180 [finding the error harmless under Watson test]; Wilson, supra, at pp. 571-572 [same].)
In Julian, the court found the admission of the expert's testimony highly prejudicial because the "case was a credibility dispute" between the victim and defendant. (Julian, supra, 34 Cal.App.5th at p. 888.) The court noted the "strong defense evidence" and that the child "had difficulty remembering certain facts, gave some tentative responses, and some of her testimony was introduced with leading questions." (Ibid.) In addition, there were conflicts between her trial testimony and her out-of-court interview. (Ibid.) Finally, the court noted that while "a slight passing reference by the expert" to the statistics might be harmless, the jury in that case was "bombarded with it" and the prosecutor relied on the evidence heavily in closing argument. (Id. at pp. 888-889.)
In both Lapenias, supra, 67 Cal.App.5th at page 180 and Wilson, supra, 33 Cal.App.5th at page 572, the court found the evidence harmless. In Lapenias, supra, 67 Cal.App.5th at page 180, the court explained that the expert's "testimony about false allegations of child sexual abuse was brief, as were the mentions of that testimony (by both counsel) during closing arguments. Further, Doe's contemporaneous disclosures . . . about being molested by her mother's husband (Lapenias) provided corroborative evidence of Lapenias's guilt." The court also noted that we must presume the jury followed the court's standard evidentiary instructions that they were not bound by an expert's opinion, and that they were the sole judge of the credibility of the witnesses. (Ibid., citing CALCRIM Nos. 226 & 332.)
Here, the victim's testimony at trial was largely consistent with her prior interviews. Her account of the abuse included detailed descriptions of actions and circumstances not typically within the experience of a child her age. The evidence of vaginal trauma described in Zipkin-Dunn's examinations corroborates the victim's allegations, as do the pornographic magazines found in the shed and the videos found on defendant's phone.
Moreover, the jury was not "bombarded" with evidence concerning the low statistical incidence of false allegations of child sexual abuse, nor was the jury presented with "a mountain of prejudicial statistical data." (Julian, supra, 34 Cal.App.5th at pp. 888-889.) As set forth above, the references to the rarity of false allegations, while improper, were not quantified or supported by testimony about specific academic studies. Similarly, while the prosecution did discuss Carpenter's testimony in closing argument, overwhelming emphasis was not placed on the rarity of false allegations. Accordingly, it is not reasonably probable defendant would have obtained a different result had this testimony been excluded.
3. Defendant's motion to dismiss his case or recuse the district attorney's office was properly denied.
Prior to trial, defendant filed a "motion to dismiss pursuant to common law" and "to recuse the Office of the District Attorney pursuant to Penal Code section 1424(a)(1)." Defendant asserted that during a jail search, law enforcement had seized "approximately forty pages of paper documents" containing privileged attorney-client communications and then gave them to the prosecutor in violation of his Sixth Amendment right to counsel. The prosecutor opposed the motion on the ground, among others, that the documents were not privileged. She also submitted a declaration stating that she requested that defendant's jail cell "be searched for non-legal information and mail that could possibly evidence any witness dissuasion" after hearing calls that defendant had with his girlfriend that "alerted [her] to the possibility that witness dissuasion could be an issue."
At the hearing on the motion, two Contra Costa Sheriff's Deputies testified that they conducted a search of defendant's jail cell for "any information about trying to dissuade a witness." The deputies seized three notepads from a box in defendant's cell that they believed "fell along the lines of what [they] were looking for" because they contained language saying, "How could you do this to me?"
Defendant testified that the three seized notepads were inside a manila envelope addressed to defense counsel. According to defendant, the notepads included his thoughts on the evidence in the case as well as "[s]tuff [he] wanted to state and questions [he] wanted [counsel] to ask in the trial." On cross-examination, defendant claimed that he sealed the notepads in a manila envelope "[a]bout a month or two" before the hearing. He also acknowledged that he had not given the notepads to his attorney despite having met with her on multiple occasions during that time period, including a week before the search of his jail cell. The court also reviewed a summary of the phone calls that prompted the search. The court denied the motion on the ground that the documents were not privileged but also precluded the prosecutor from using the contents of the notepads in her case absent leave from the court to do so. We find no error.
People v. Gutierrez (2009) 45 Cal.4th 789 is controlling. In that case, defendant argued that the trial court violated his Sixth Amendment right to counsel by admitting into evidence documents seized from his prison cell that he asserted were protected by the attorney-client privilege. The court rejected his claimed privilege on the ground that the documents had not been transmitted to his attorney. The court noted that "the intent to show a document to a lawyer does not transform a document into one covered by the attorney-client privilege." (Id. at p. 817.) The court continued, "An attorney-client privileged communication is defined as 'information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client. . . .' [Citation.] Thus, a client's intent to communicate with his or her lawyer does not render the subject of that communication privileged; the rule requires that 'information [be] transmitted.'" (Id. at p. 817.)
Here, the trial court concluded that the documents were not privileged under Gutierrez because they were not transmitted by defendant to his attorney. The court found that defendant's testimony that the documents were in an envelope addressed to his attorney lacking in credibility and questioned the sincerity of defendant's testimony that he intended to give the documents to his attorney. The court based its finding in part on the fact that defendant failed to deliver the documents to his attorney despite having ample time and opportunity to have done so. Substantial evidence supports the trial court's findings regarding the lack of transmittal. (See People v. Gutierrez, supra, 45 Cal.4th at p. 817 ["We review a trial court's conclusion that a document is admissible and not subject to the attorney-client privilege to determine whether it is supported by substantial evidence."].) Accordingly, the court did not err in denying the motion.
Disposition
The judgment is affirmed.
WE CONCUR: BROWN, J. ROSS, J. [*]
[*] Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.