Opinion
H049478
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN SOTO CID, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1909927)
DANNER, ACTING P. J.
In 2019, a five-year-old girl stated during a police interview that defendant Juan Soto Cid had sexually abused her. Two years later, at Cid's trial, the child testified that Cid had never abused her. The prosecution presented evidence of the child's prior statements about the sexual abuse and Cid's prior conviction for possession of child pornography. Cid testified and denied the abuse. A jury convicted him of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and forcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)(1)). The trial court sentenced Cid to an aggregate term of 23 years to life in prison.
On appeal, Cid contends the trial court erred in admitting the police interview of the child both under Evidence Code section 1360 and as a prior inconsistent statement, failing to sua sponte instruct the jury on unanimity regarding the forcible lewd or lascivious act, admitting evidence related to his prior conviction for possession of child pornography, and instructing the jury with CALCRIM No. 1193 (CALCRIM 1193). Cid also claims that the alleged errors were cumulatively prejudicial to his convictions.
For the reasons explained below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Charges
The Santa Clara County District Attorney charged Cid with two sex crimes committed against a child (Doe) between July 4, 2018, and May 6, 2019, namely, sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 1), and forcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)(1); count 2).
B. Cid's Trial
The prosecution and defense presented evidence to the jury in April 2021.
1. Prosecution Evidence
a. Circumstances Prior to the Disclosure of Sexual Abuse
Cid was born in May 1960 and is Doe's paternal great-uncle. From about 2005 onward, Doe's father, Francisco C., lived with Cid, Cid's wife Patricia and their family in San Jose.
We refer to Doe's immediate relatives by first name and last initial to protect Doe's privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (11).) In addition, we refer to certain witnesses by first name because they share the same last name.
In February 2011, San Jose police arrested Cid for possession of child pornography. Cid admitted to the police that he had downloaded and viewed child pornography from the Internet. He also said that some of the material he had viewed bothered him, he had deleted the material shortly after downloading it, and he did not masturbate to those images. At the time of Cid's arrest, Doe's aunt, Alicia S.G., was living at Cid's house.
Alicia is Doe's mother's sister, as well as the wife of Doe's father's brother.
In September 2011, Cid pleaded no contest to possession of child pornography (Pen. Code, § 311.11, subd. (a)). At the instant trial, the prosecutor introduced five pornographic images depicting prepubescent girls that the police had discovered when searching Cid's computer in 2011.
In 2014, when Doe was 11 months old, her mother died. Thereafter, Doe lived with her father Francisco at Cid's house. Francisco and Doe shared a bedroom. Doe slept on the upper mattress of a trundle bed, and Francisco slept on the bed's lower mattress. According to Francisco, he and Doe generally fell asleep around the same time each night and slept with the bedroom's door closed but unlocked. In addition, Francisco testified that there was no camera set up in his and Doe's bedroom.
While living at Cid's house, Doe referred to Cid as her "grandpa," "abuelito," or "Tio Juan." Doe called Cid's wife "abuelita," "Mommy," or "Ma." Others who lived at Cid's house included his adult daughter, Yaneth, Yaneth's husband, and Yaneth's son, Alan.
Before Doe started attending school, Alicia and Patricia helped care for Doe while her father worked. Doe sometimes called Alicia "Mom." Alicia took Doe to medical appointments when Francisco could not. Francisco or Yaneth also took Doe to some of her doctor appointments.
Alicia has a daughter who is a year older than Doe, and a second daughter who is a few years younger than Doe. Alicia "always told" her daughters and Doe "that nobody can touch their private parts" and explained that they had to tell Alicia, Alicia's mother, or someone if touching occurred. Doe referred to her vagina/private part as her "colita."
At trial, Doe testified that "everybody has colitas" and she had never seen anyone's colita except her own.
Once Doe began attending school, Francisco brought her to school in the morning and sometimes picked her up at the end of the school day. However, Alicia usually picked Doe up from school and watched her until Francisco collected her later in the evening. Doe sometimes ate dinner out with her father after being picked up and before they went home. In addition, Patricia or Yaneth occasionally watched Doe after school.
Francisco testified that Doe never complained to him about her vaginal area or having any discomfort in that area. He noted that Doe had skin allergies and sensitive skin. He also said that either before or after a trip he and Doe took to Los Angeles in May 2019, Doe developed a rash on her entire body due to an allergic reaction to a shampoo.
Alicia testified that prior to the trip to Los Angeles, Doe had complained on occasion about pain in her private area. When this happened, Alicia "cleaned [Doe] with a wipe and [tried] to put [on] . . . a cream for rash." Alicia also testified that before the trip to Los Angeles, Doe sometimes exhibited a rash on her back or arm, but Alicia had never observed a rash on Doe's vagina.
b. Doe's May 2019 Disclosure of Sexual Abuse
In May 2019, Francisco and Doe drove to Los Angeles to attend the funeral of Alicia's brother. They remained in Los Angeles for about three days, staying at the home of Alicia's parents (i.e., Doe's maternal grandparents).
According to Alicia, on the day that Doe arrived in Los Angeles, Doe told her grandmother that her private part was "hurting." Doe's grandmother cleaned Doe. Alicia looked at Doe's vagina and noticed it was "too open" and "too red." Alicia asked Doe "if something happened to her, if somebody was touching her," but Doe "just look[ed] straight, like, thinking." Alicia thought Doe's reaction was "weird" and abnormal for Doe, who was a "hyper" and talkative child. Alicia again asked Doe if she had been touched. Doe said no.
The police determined that this disclosure occurred on Sunday, May 5, 2019. Unless otherwise indicated, all dates were in 2019.
Because of Doe's abnormal reaction to Alicia's questioning, Alicia "told [Doe], 'I'm going to ask you as a secret [sic]. Can you answer me as a secret?'" Doe responded," 'You're not going to tell Abuelito?'" Alicia replied," 'Don't worry. I won't tell him nothing [sic].'" Doe said that Cid had grabbed her colita. Doe also said that Cid was "not going to like her if she says something."
Alicia did not immediately tell Francisco about Doe's disclosure. Alicia wanted to have Doe checked by a doctor and was scared that Francisco (who was close to Cid) might tell Cid, not believe what Doe had said, or leave Los Angeles.
At some point after Doe's disclosure, Alicia made video recordings of two conversations she had with Doe. The prosecutor played the recordings for the jury.
In one conversation, Doe said, "My grandpa touched me here and he drew red stuff in-my grandpa hit me here on-on-on the uhm. . ." Alicia asked Doe, "And when the red stuff came out, what?" Doe responded, "Uhm. . . it didn't hurt-it-it hurt me a little that he touched it. That-that he touched it uhm . . . it hurts a little." Alicia asked, "And he always does that to you?" Doe responded, "At night, or no, in the morning." Doe stated further that her daddy was with her when her grandpa "drew red stuff from there." Doe also said she did not want to tell, but she did anyway. Alicia asked if Doe's grandpa told Doe not to say anything. Doe responded, "Uhm, no."
We do not note grammatical errors in Doe's statements, which we quote from transcriptions included in the record.
In the second recorded conversation, Doe said, "Uhm, grandpa grabs me . . . like this." Doe told him," 'Don't touch me there, grandpa, please. Don't touch me there.'" Alicia asked Doe what grandpa had said in response and assured Doe that she would not tell him. Doe replied, "he's not going to love me anymore." Doe also said that grandpa touches her "not at night, in the morning." When Alicia asked if Doe was alone at that time, Doe said, "No, I'm with my dad. My dad was asleep and . . . and my grandpa uhm . . . opens the door. Uh, no, not at night, in the morning." Doe stated further, "He kisses me here at night," and "He hit me here. Also, and then-he no longer does anything to me."
On Friday, May 10, a couple days after Doe had returned to San Jose from Los Angeles, Alicia took Doe to a medical clinic, but no doctor was available. Doe stayed with Alicia over the weekend.
On the afternoon of Tuesday, May 14, Alicia took Doe back to the medical clinic. Alicia described the situation to a nurse and then asked "[Doe] if she wanted to tell [the nurse] the secret." Doe "was kind of scared."
Registered nurse Cynthia Sherwood testified that she looked at Doe's vulva. According to Sherwood, "it appeared slightly red, and it looked as if the hymen was gone. It didn't look like a [five]-year-old's vagina." Doe told Sherwood (in Alicia's presence) "that after dinner and before her father got home from work, [her grandfather] would go into her bedroom, kiss her on the mouth, and have her lie down. He would put a pillow over her face and she said she felt something go inside, and that she's not sure if it was his hand." Doe also said, "It felt like skin and she thought it was maybe a hand." Doe stated further that she was last touched on the previous night (i.e., Monday, May 13).
Sherwood described Doe as "clear" in the way she spoke and not shy. Sherwood determined that Doe could tell the difference between the truth and a lie, but Sherwood did not ask Doe if she understood the difference between fantasy and reality. Sherwood informed the police about Doe's statement.
Later that day (May 14), San Jose Police Department Detective Beth Stenger interviewed Doe. The prosecutor played a video recording of the interview during Stenger's testimony.
A transcript of the video was provided to the jurors as an aid while viewing the video, but the transcript was not admitted into evidence. Nevertheless, the transcript was given to the jurors, upon their request, during jury deliberation. The transcript appears in the appellate record, and the parties rely on it in their briefing.
Detective Stenger testified that, at the interview, she asked Doe introductory questions based on a standardized list called the "Thomas Lyon[']s 10-Step Investigative Interview." The questions included whether Doe would tell Stenger the truth. Doe said she would.
Doe told Detective Stenger that she (Doe) did not know why she was talking with Stenger. Stenger responded, "You don't know? Ok. Umm, tell me about the secret." Doe replied, "Umm, my gram, my, my grandfather (inaudible) he touched me here and my, and uhh, well he put a pillow on the, in the face and he, he touched me here and umm, I said, who is it and, and it's no one and, and my grandfather actually would, ran in his room and go to sleep umm, just fine." When speaking the word "here," Doe motioned with her hand toward her vagina. Doe stated further that her grandpa "put a pillow and he touch me here" on "Wednesday," not Monday.
Later in the interview, Doe said the touching happened at her house (in her room) while her daddy, grandpa, and "granny" (Patricia) were there. When Stenger asked where it happened in Doe's room, Doe said she was sleeping on her side. In addition, Doe made the following statements (without additional questioning by Stenger): "And when my pillow and, and I, I actually umm, put my, my blanket on my everything." "And trying to go to bed but I turn over." "And abuelito umm, and, and I, umm, and I, I get it so tight and abuelito, abuelito touch me here." "From, from Tues, from Tuesday." "And nothing happen and I wake up and abuelito was my face. He kiss me and run."
In response to Stenger's question asking Doe to "tell [her] about the pillow," Doe said, "Pillow, I, I almost see him and, . . . he go like this (tickling noise) like . . . (inaudible) (humming noise) like that." "When I see him. And no more, no more. [¶] [Stenger:] So what happens with the pillow? [¶] [Doe:] He, it drop and I see him and he, he umm, go like this (humming noise) like that." In addition, Doe said, "And my almost, I grab it but pretend to grab it and I . . . did saw him." "But, but, I, I feel him arm in the colita." Doe stated further his left arm touched her colita and "it hurting me." Doe also said, "it hurt a little bit teenie bit."
Doe told Detective Stenger that she (Doe) liked to play and color with her grandpa. Detective Stenger asked Doe to tell her about things Doe did not like to do with her grandpa. Doe said "not kissing in the mouth," "not touching me," and "not seeing me when I'm in the bathroom." Doe explained, "And when my daddy pick me up, I go in, in my grandpa room. [¶] . . . [¶] . . . And he just kiss me and I ran." Doe further said, "when I say no to him, don't kiss me, he not gonna love me anymore." Grandpa said this to Doe on "Tuesday."
Later in the interview, Detective Stenger asked Doe to talk more about her grandpa seeing her in the bathroom. Doe responded, "He saw me and he, he look under, like under, under and he saw . . . my legs and . . . my pants." This happened on Wednesday after he touched her colita.
Detective Stenger showed Doe a diagram of a girl. Doe pointed to the vaginal area and called it a "colita." Stenger asked Doe to talk more about what happened when her grandpa touched her. Doe said, "Umm, I said, I think it was my grandpa and I said, stop abuelito. I know it's you and he, he just, he, he umm, he umm, say, I'm not gonna love you anymore." Doe apparently pointed to the colita on the diagram to show where she had been touched. In addition, Doe said "With no pants" and mentioned that the girl in the diagram "doesn't have no pants." In response to Stenger's question about the state of Doe's clothing when the touching happened, Doe said "I only have this. [¶] . . . and I always have my shoes on." Upon further questioning, Doe said that her underwear was "fine" when her grandpa touched her colita and the touching occurred under her underwear. The touching made Doe feel "sad," "angry," "frustrating," and "no more."
Doe said the touching happened for the first time "in Wednesday," and the last time "it's Tuesday." Doe also said it happened "two times." Detective Stenger testified that she could not tell which Tuesday or Wednesday Doe was talking about, but Doe "made it seem like it was recent."
In response to a question from Detective Stenger about what grandpa says, Doe stated, "Umm, he's not gonna love me when he don't touch me again there." "Umm, and I say, abuelito you can't touch anyone there." "And, and abuelito, you can't say that to kids. I know you love me and that's it. No more."
Detective Stenger asked Doe to demonstrate (using a purple crayon) how her grandpa's arm touched her colita. In response, Doe said, "Umm it touching like this so hard." Stenger also asked if his arm was inside or outside Doe's colita when touching her. Doe said inside. Stenger asked if it goes inside and stays inside. Doe said, "Umm, it umm, stay inside." Stenger responded, "It stays inside? Ok." Doe replied, "Outside I mean." Stenger asked, "And it goes outside?" Doe answered, "Yeah, in, inside and outside, inside and outside."
Detective Stenger asked Doe to tell her "about what happens when you hide in the closet." Doe replied (among other things) that "he find me and I, and I run to the nurse, I, and to the nurse I say I was . . . sleeping and he find me."
In response to Detective Stenger's question "did something happen today" (i.e., Tuesday, May 14), Doe said, "Mmm, yes, my abuelito touch me here," "[i]n the colita," in her room. Doe also said that she played with her toys, went "back to sleep with no blanket," took off her pants, and put on her pajamas. "And . . . my abuelito touch me, he like take my pajamas off and take my underwear . . . like this .... And he touch me." "Umm, he umm, touch me here and it hurt so bad right now. [¶] . . . [¶] And I . . . don't want, I want to keep touching it because it still hurt while I touch it."
When Detective Stenger asked Doe to tell her about a time that touching "happened before today," Doe stated, "Umm, in Wednesday I think. In Wednesday and Tuesday. It's two times." Doe further said it happened when it was "dark outside." Doe also stated, "My dad was sleeping and my grandpa was there. And my dad get up and he go and eat food." Doe also said her dad was sleeping "and then he wake up, abuelito wake up and he go downstairs and my daddy go downstairs and he, he (inaudible) and, and he on chair and abuelito, and abuelito wanted to be in that chair if, if he chair because, and, and he goes pass my, my room and sneak and no more."
Doe stated that the only other people she had told the secret to were the doctor and her "mom." In addition, Doe said that her grandma (Patricia) "didn't do that to" her and "[s]he only have cameras." "Cameras in my, in my room. Only in the night. She watch her phone and she saw my grandpa." Grandma saw grandpa "doing this. He, she though, she saw it too to not get umm, red in my colita or if he have a little bit sangre, (blood) little bit blood." Regarding the camera, Doe said, "If she put it, she coming secretly." Doe explained that there was one camera in her room, next to her bed.
Detective Stenger gave Doe a diagram of a boy. Using the diagrams of the girl and boy, Doe demonstrated the touching, saying "this is my abuelito and he touch me there" (italics added). Stenger asked Doe what part of him touches her. Doe said "the colita." Doe also said "Abuelito don't have nothing." "[H]e don't have blood and no, no, nothing." "Nothing like me."
Doe stated that she touches grandpa "in the pansita" and "squeeze[s] it like this."Doe said, "I touch him a lot." Detective Stenger asked, "When you say that you touch him. You said you touch him there? How does that happen?" Doe responded, "Cuz I, he have a little bit, tiny bit, tiny, tiny bit of blood." Doe saw this "in the morning" "[o]n Tuesday." Later in the interview, Stenger asked Doe how her grandpa got blood on him. Doe responded, "(Inaudible) because he, he scratch himself and now he have blood."
At trial, Doe testified that a "pancita" is "in the middle of your body," "ponza" "means belly," and a ponza exists "on a boy and a girl."
Doe said that his colita touched her colita on Wednesday night. When Detective Stenger asked "when his colita touches your colita, what is it doing," Doe responded, "It umm, it umm, is hurting me." Doe added, "And angry." "Mad." "And umm, nothing else." Stenger then referenced Doe's earlier demonstration using the purple crayon and asked again what his colita was doing. Doe responded, "Outside." Doe also said that his colita looked "brown." Doe explained that the touching of his colita to her colita made her feel "[s]ad and frustrating," made her body feel "mad," and made her feel "[m]ad and angry and sad" "down there."
When Detective Stenger asked Doe if there was anything more that Doe wanted to tell her, Doe said "(Inaudible) didn't ask me what, what abuelito did to me like, what, what he did to me in the pansa." Doe added, "The pansi, the pansita is fine but, but, but it has something on it. I have like a little warmth."
At the end of the interview, when Detective Stenger asked if Doe had any more secrets to tell her, Doe said, "Yeah. I have to tell you secretly." Doe pointed to a painted picture of bird on the wall and said "he actually pooped on my, on my hand and it, and it, I think it blood but it's red."
Detective Stenger concluded the interview stating that she had asked enough questions and was going to talk with Alicia.
Late on the night of Tuesday, May 14, the police arrested Cid.
The next day, May 15, physician assistant Mary Ritter performed a Sexual Assault Response Team (SART) examination of Doe. Ritter testified that she obtained information about Doe's disclosure from Francisco or Alicia but not from Doe. Ritter opined that Doe's "examination was quite normal." Doe had "one single wart" on her labia and a mild amount of erythematous (redness) on the labia, clitoris, and skin above the vaginal area. Ritter was "not terribly surprised" or "worried" "to see a little bit of redness in the genital area of [a] [five]-year-old child" because "their hygiene isn't perfect." Ritter testified that, due to Doe's "history of warts on her hands, we assume there's been some transmission from one spot to the other, and that's all we can say, and that, probably, it's not sexually transmitted." Ritter observed that Doe had a generous amount of hymenal tissue, which is "a good indicator that that tissue hasn't been torn." Ritter did not find evidence of penetrating anogenital trauma. Ritter explained that "it's not at all unusual for us to have a normal examination, even in spite of a pretty convincing history" of sexual abuse.
Ritter testified as an expert in the forensic examination of children for sexual abuse.
c. Doe's August 2019 Preliminary Hearing Testimony
In August 2019, Doe testified at a preliminary hearing, the substance of which was not presented to the jury. According to Alicia, several of Cid's family members were present for Doe's testimony and, when Doe exited the courtroom, "[s]he was crying a lot." Similarly, Detective Stenger described Doe as "crying" and being "less talkative" during her preliminary hearing testimony than she was during the police interview in May 2019. While outside the courtroom crying, Doe "said she was scared of her abuelito."
d. Doe's April 2021 Trial Testimony
In April 2021, Doe testified at the instant trial as the prosecution's first witness. She was seven years old and in the second grade.
Doe testified that Cid never did anything to her. Doe stated further that she never told anyone that Cid had done things to her. She also said she did not have any secrets in her family.
Regarding the trip to Los Angeles in 2019, Doe testified that she did not remember taking such a trip, and she did not go on any trips with her "daddy before the coronavirus."
The prosecutor asked Doe if she ever had "to tell a secret" to her aunt Alicia about something that happened when she (Doe) was living at Cid's house. Doe answered, "No." Doe also testified that she did not remember ever telling Alicia anything about her colita.
Regarding visits to the doctor, Doe testified both that Alicia had sometimes taken her to the doctor and that Alicia had never taken her to the doctor. Doe testified further that she did not remember having to go to the doctor to have a nurse look at her colita.
When the prosecutor asked if Doe had ever talked to a police officer, Doe testified, "I don't think so. I never had to talk to a police [sic]."
Regarding the preliminary hearing, Doe testified that she cried a lot, and it was a scary experience because the prosecutor asked her questions about Cid. Doe explained, "'Cause, like, it was things that never happened to me." Doe further explained that the questions at the preliminary hearing were scary "[b]ecause it was, like, about abuelito doing things to me, but that didn't really happen."
Doe testified that she and Cid hugged each other sometimes when she lived at his house. Cid also gave Doe kisses which made her feel happy. Doe, however, did not remember how or where on her body Cid had kissed her.
Doe stated that she did not play or watch TV with Cid, and he did not "come into" her bedroom. When they went on "field trips," she spent time with Cid "in the car with all [her] family." Doe wished she could see Cid's wife Patricia again.
On cross-examination, Doe testified that she missed Cid. She stated that when living at Cid's house, her colita never bothered her. Doe also said "nobody touched my privates before" and when she thinks of her abuelito she feels "[s]afe."
On redirect examination, Doe testified that no one had talked to her about why Cid was currently in court. She also responded "No" when asked if she was afraid that her abuelito might not love her anymore if she said certain things.
e. Expert Testimony
Dr. Blake Carmichael, a licensed clinical psychologist, testified as an expert on child sexual abuse accommodation syndrome (CSAAS). Dr. Carmichael described the origins of CSAAS. He characterized CSAAS as a "foundation for helping people understand the dynamics of [] child sexual abuse" and "the abusive relationship itself." Dr. Carmichael explained the five categories of CSAAS, namely, secrecy; helplessness; entrapment or accommodation; delayed, unconvincing, and conflicted disclosure; and recanting or retraction. In addition, Dr. Carmichael described Lyon's 10-step process for interviewing children.
Dr. Carmichael testified that CSAAS is not a diagnostic tool and explained that he did not "have a checklist or test to give to see if the child is abused." Dr. Carmichael did not know anything about the facts of the instant case, had not reviewed any reports regarding the case, and did not offer any opinion regarding Doe.
2. Defense Evidence
a. Cid's Testimony
Cid testified in his own defense. He denied touching Doe's vagina. He denied exposing his penis to Doe. He denied touching Doe in any way for the purposes of sexual gratification.
Cid "used to have a very good relationship" with Doe's father Francisco and treated Doe as a "granddaughter." Cid admitted kissing Doe on the mouth many times. He kissed his grandchildren in that manner as "a way of greeting them" and because he loved them.
Cid said that he and Doe tickled each other and played tag sometimes, but he did not spend much time with her. He also did not go into Doe's bedroom much and never set up a camera in her room.
Regarding his 2011 conviction, Cid admitted searching for and downloading adult pornography. He denied searching for child pornography. He also said that he did not intentionally download the child pornography that the prosecution had introduced into evidence. He testified that "[a]dults having sex with kids" is "wrong."
Asked by his defense counsel why he exercised his right to a jury trial, Cid said, "Because I didn't do anything of what I'm accused of."
b. Lay Witness Testimony
Cid called four lay witnesses in his defense.
Liliana Cordero Duran, a family friend, testified that Cid's wife Patricia babysat her for several years and she never saw Cid behave inappropriately.
Patricia testified that she never saw anything unusual in Doe's interactions with Cid. Cid never watched Doe by himself, and Doe did not appear fearful of Cid.
According to Patricia, Doe returned home from her 2019 trip to Los Angeles on Thursday (May 9) in the early morning hours. That evening, Patricia bathed Doe. Doe did not express any discomfort "about her physical body." After spending the weekend with Alicia, Doe returned to Cid's house on Sunday and went to school on Monday (May 13).
Patricia testified that Doe and her father Francisco slept with their bedroom door closed and locked. Patricia denied putting a camera in their bedroom and had not seen a camera in that room. Patricia also denied photographing or videotaping Doe's vaginal area.
Patricia explained that Doe sometimes developed "little bumps" in her vaginal area "if she did not clean herself well." When this happened, Patricia would tell Francisco to take Doe to the doctor, and Patricia put any prescribed ointment on Doe. Patricia did not recall ever seeing any blood or "reddish discharge" coming from Doe's vaginal area.
Monica Lopez testified that she babysat Doe on weekdays from October 2020 until the week before testifying at Cid's trial. According to Lopez, on February 17, 2021, Doe "started talking to [Lopez] about her grandpa" Cid. Doe said she had not seen her grandparents in a long time. When Doe last saw her grandparents (at the courthouse during the preliminary hearing), they looked "really upset with her" and she was" 'really sad when [she] saw them like that.' "
A short time after Doe made these statements about Cid and Patricia, Doe asked if she and Lopez could talk some more. Doe said that she was sad she could not talk to her grandpa anymore.
During their hour-long conversation (while Lopez painted Doe's nails and did her hair), Lopez repeatedly asked Doe if anyone had hurt her, done anything to her, touched her inappropriately, or made her feel unsafe. Doe "just kept telling [Lopez] 'No, nobody's ever,' like, 'touched my parts. Nobody ever touched me inappropriately.' [Doe] said, 'Nobody's ever touched me down there.'" Doe was "[c]asual" and "completely normal" when talking to Lopez.
Lopez testified further that she asked Doe if" 'anybody [had] ever done anything that made [her] uncomfortable?'" Doe responded," 'Sometimes my grandpa would try to kiss me on my lips and I would run away.' "
Cid's daughter Yaneth testified that during her childhood, Cid behaved normally toward her, "[l]ike a father and a daughter." Cid's arrest for child pornography did not concern Yaneth because Cid "always had a dedication for the children. He tries to take care of them."
Yaneth testified that Cid would come home from work, wait for dinner to be prepared, eat, go to his room, and watch television. Cid usually fell asleep around 7:00 or 8:00 p.m. Doe went to bed around 10:00 p.m. and usually fell asleep by 10:30 p.m. Her father Francisco would leave the bedroom door ajar until he and Doe were ready to go to sleep. Francisco would then close and lock the door. Cid never watched Doe alone, and no cameras were set up in Doe's room.
Regarding the May 2019 trip to Los Angeles, Yaneth testified that Francisco and Doe arrived in Los Angeles around 10:30 or 11:00 p.m. on Sunday, May 5. They returned to San Jose around 2:00 a.m. on Thursday, May 9.
Yaneth never saw a picture of Doe's vagina on a phone. Doe had allergies and sometimes soap gave her a rash. In addition, a doctor said that Doe had urinary issues from not drinking enough water. Yaneth and Francisco had taken Doe to the doctor two or three times for these issues. Yaneth never saw any blood come out of Doe's vaginal area.
Yaneth had seen Cid kiss Doe on the mouth. "It was a type of kiss that he would give to [Yaneth's] son, [and] to [her] nephew. It was the type of caring that he showed to the children." Cid also kissed Yaneth on the mouth when she was a child. Cid treated Doe like his daughter. Doe sometimes played tag and hide-and-seek with Cid.
c. Expert Testimony
Cid called two expert witnesses in his defense.
Dr. Bradley McAuliff testified as an expert on suggestibility and forensic interviewing of children. Dr. McAuliff reviewed police reports, interviews, recordings, and preliminary hearing testimony from the instant case. He defined suggestibility as "a term that refers to different processes that influence the accuracy of memory," including cognitive, developmental, and social factors. He explained that "preschoolers" (aged zero to five) "are the most suggestible group." He discussed the concepts of" 'interviewer authority,'" open-ended questioning, repeated questioning, "stereotype induction," "adult distorted memories," "reality and source monitoring errors," "confirmation bias,"" 'expectancy effects,'" and" 'demand characteristics' "
Dr. McAuliff opined, "I think what oftentimes happens is you have an adult who's concerned about the child, and is just trying to figure out what happened. 'Are you safe? Did he hurt you? Where did he touch you?' And the problem is that information can really influence the child's report, especially if they're scared or if they feel like they've done something wrong or they're in trouble. That makes the child more . . . willing to kind of agree with or acquiesce with the interviewer."
Dr. McAuliff noted that Doe was five years old at the time of the police interview and her aunt Alicia was an "authority figure." He explained that "to the extent that Alicia had information about Mr. Cid, that has the possibility of influencing how [Alicia] communicates and questions [Doe] about what Alicia believes is sexual abuse perpetrated by Mr. Cid."
Dr. McAuliff opined that the inconsistencies in Doe's statements suggest that she had a difficult time disentangling the questions from reality. Dr. McAuliff testified further that "Detective Stenger, for the most [p]art, did a very good forensic interview." Nevertheless, Dr. McAuliff had concerns "related to the disregarding [of] other information that [Doe] said. So for example, with the bird poop, [Stenger] doesn't really even want to talk about that."
Dr. McAuliff explained that "a good forensic interview doesn't undo [] prior contamination [(i.e., Alicia's earlier questioning of Doe)] because that's part of the child's memory, and [] part of the information that the child may be relying on, unintentionally, or [] because they feel compelled to be consistent with what was said before, [and] repeat the same story.... [T]here can be a conscious and an unconscious awareness of [] saying that information. [¶] So a bad forensic interview can make things worse. A good forensic interview doesn't undo the problems that we often see earlier in the case."
On cross-examination, Dr. McAuliff acknowledged that there was nothing in the materials he had reviewed indicating that Doe's first report of vaginal discomfort was prompted by questioning. There also was no indication that someone brought up Cid's name before Doe did during the disclosure.
Clinical and forensic psychologist Dr. Bruce Yanofsky testified as an expert in forensic psychology. Dr. Yanofsky had reviewed some case material and interviewed Cid "to establish whether or not there are characteristics or features in Mr. Cid that would indicate that he is the type of individual who may have committed the offense he's accused of."
Dr. Yanofsky testified that Cid "clearly did not appear to be someone who's suffering from a psychiatric disorder." "There were no obvious signs of trying to malinger symptoms, or maybe appear overly good or overly bad, or anything to distort the impression that I would be forming of him."
Dr. Yanofsky administered the Multiphasic Sex Inventory (MSI-2) to examine sexual deviance. Dr. Yanofsky testified that Cid's scores regarding child molestation and the "rapist comparison scale" were in the range expected for "the normal population" (as compared to child molesters or rapists).
C. Jury's Verdict and Cid's Sentence
The jury deliberated for a total of approximately eight hours and 30 minutes over three days before reaching its verdict. During their deliberation, the jury requested readback of testimony from nurse Sherwood and physician assistant Ritter. The jury also requested the transcript of Doe's police interview to facilitate their review of the video.
On May 6, 2021, the jury found Cid guilty on both counts.
In September 2021, the trial court sentenced Cid to an aggregate term of 23 years to life in prison, comprising an indeterminate term of 15 years to life for count 1, consecutive to a determinate middle term of eight years for count 2.
Cid appealed.
II. DISCUSSION
Cid raises six claims of error in this appeal. He contends the trial court erred (1) in admitting Doe's police interview under Evidence Code section 1360, (2) in admitting the police interview as a prior inconsistent statement, (3) by failing to sua sponte instruct the jury on unanimity regarding the forcible lewd or lascivious act for count 2, (4) in admitting evidence related to his prior conviction for possession of child pornography, and (5) by instructing the jury with CALCRIM 1193 regarding the CSAAS evidence. Cid also contends that the alleged errors were cumulatively prejudicial to his convictions.
Unspecified statutory references are to the Evidence Code.
A. Admission of Doe's Police Interview
Cid challenges the admission of Doe's May 2019 police interview with Detective Stenger on two grounds. He asserts that the trial court erred in admitting the police interview under section 1360 because it "lacked the indicia of reliability." Additionally, he contends that the police interview was inadmissible as a prior inconsistent statement under section 1235 because the foundational requirements of section 770 were not met. Cid asserts further that the improper introduction of the police interview violated his right to due process by rendering his trial fundamentally unfair and the error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818, 836.
The Attorney General responds that because section 1360 requires the statement to be "not otherwise admissible by statute or court rule," and Doe's police interview was admissible under sections 770 and 1235, the trial court properly admitted the interview as an inconsistent statement. Alternatively, the Attorney General asserts that the police interview met all the requirements for admissibility under section 1360. Further, the Attorney General contends there can be no prejudice for any error under section 1360 because the police interview was properly admitted as an inconsistent statement, and vice versa. The Attorney General, however, concedes that if the police interview was erroneously admitted, the error was prejudicial.
1. Background
Cid moved in limine to exclude Doe's "out of court statements," in the event Doe did not testify, based on the confrontation clause. He also moved to exclude Doe's statements to her aunt Alicia, nurse Sherwood, and Detective Stenger, even if Doe did testify, arguing that those statements lacked reliability. Cid further requested that if Doe's statements of alleged abuse were admitted, he should be allowed to admit Doe's "out-of-court statements that call[] into question her reliability under the doctrine of completeness." Additionally, Cid requested-in request "[No.] 5"-"that all witnesses be excused subject to recall, due to issues related to impeachment pursuant to [sections] 769 and 770."
The prosecutor moved in limine "to introduce statements made by [] Doe to Alicia [S.G.], [nurse] Sherwood, and the recorded interview between [Detective] Stenger and [] Doe pursuant to Evidence Code section 1360."
"Section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child's statements describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.] Section 1360 safeguards the reliability of a child's hearsay statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.).
At a pretrial hearing on the in limine motions, the trial court deferred ruling on the admissibility of Doe's various statements pending its review of the statements. Regarding Cid's request No. 5, that all witnesses be excused subject to recall, the trial court granted that request, stating: "What I will do after each witness testifies is I will tell them not to discuss their testimony with anybody, and if the attorneys call, they have to return. If it's somebody who's out of town or something like that, or somebody that you guys tell me is someone who should be excused, I will specifically ask you whether the witness is excused. And if you guys both agree, that witness is excused and you'd have to re-subpoena, okay? So No. 5 is granted." The reporter's transcript does not indicate that counsel for the parties objected or responded in any way to the court's ruling.
At a subsequent pretrial hearing, the trial court revisited the issue of Doe's statements. The court noted that it had reviewed the statements, which were captured in various recordings, transcripts, and police reports. The court opined that Doe's statements were generally consistent, her mental state was not suspect, and there was no indication that Doe had a motive to fabricate. The court also acknowledged that there "were some inconsistencies within [Doe's] statements" but did not think those "ma[de] the statements unreliable."
The prosecutor argued that if Doe were to testify consistently with her prior statements, her statements should be admitted under section 1360. But if Doe were to testify inconsistently with her prior statements, her statements should be admitted as prior inconsistent statements under section 1235 (rather than section 1360). Defense counsel opined that any ruling by the trial court depended on whether and how Doe testified. The court agreed and further deferred ruling on the statements.
As detailed ante (pt. I.B.1.d.), Doe testified at Cid's trial as the prosecution's first witness. Doe denied that Cid had ever done anything to her and said that no one had touched her private parts. She also denied that she had ever told anyone that Cid did something to her and that she had any secrets, including with Alicia. Doe denied that Alicia had taken her to the doctor. Doe denied having talked to the police. Doe testified that Cid did not "come into" her bedroom, no one ever did anything that bothered her, and her colita never bothered her when she lived at Cid's house.
At the conclusion of Doe's testimony, the trial court said the following: "All right. [Doe], you can come back -- or you can step down and you can go now.... I don't want you to talk to anybody about what you said here today, okay? Thank you." The reporter's transcript does not indicate that defense counsel asked the court to provide further direction to Doe regarding recall. Moreover, the clerk's transcript indicates that Doe was excused by the court "subject to recall."
Later, the prosecutor commented about Doe's statements: "I think at this point, there are less [section] 1360 statements and more prior inconsistent statements, and [they] will just come in in that fashion anyway; so I think either way, they should come in." The trial court advised defense counsel to raise the matter the next day if he chose to do so.
The next day, defense counsel argued that Doe's trial testimony included her failures to recollect certain events or statements and "that's not necessarily an inconsistent statement." Counsel asked the trial court whether the entire police interview would be admitted as an inconsistent statement, noting that he had "wanted clarification" "because if we're just talking about specific instances of inconsistency, then are we just going to focus on those previous statements that were inconsistent?" Nevertheless, counsel acknowledged that "in some instances" Doe "did deny any wrongdoing" by Cid. Counsel did not specify which statements within the police interview should be ruled inadmissible because they were not inconsistent with Doe's testimony. In addition, counsel reiterated his arguments regarding the inadmissibility of Doe's statements under section 1360.
Based on defense counsel's failure to specify which statements within Doe's police interview were not inconsistent with her testimony, the Attorney General asserts that Cid has forfeited any claim that certain parts of the interview should have been excluded.
The prosecutor argued Doe's "statements should probably come [in] as prior inconsistent statements. And to the extent they wouldn't come in under that, then [section] 1360 provides a catch-all for the entirety of the statement, given that the Court has already made a finding on that reliability indicia."
The trial court "agree[d] that a statement that a person cannot recall is not necessarily inconsistent" but found that Doe had testified to both her lack of recollection and her denials. In addition, the court noted that it had reviewed Doe's various statements and had found the police interview and Alicia's recordings to be "reliable because they were internally consistent with each other." The court overruled the defense objection. After some additional discussion, the court explained further that the police interview "comes in, either as a prior inconsistent statement to her testimony, or under [section] 1360, because [it is] reliable."
2. Legal Principles
"Hearsay is 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' (Evid. Code, § 1200, subd. (a).) Hearsay is not admissible unless it qualifies under some exception to the hearsay rule." (People v. Davis (2005) 36 Cal.4th 510, 535.)
"A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770." (People v. Johnson (1992) 3 Cal.4th 1183, 1219.)
Section 1235 provides, "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his [or her] testimony at the hearing and is offered in compliance with [s]ection 770."
Section 770 provides, "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action."
We review a trial court's admission of a prior inconsistent statement for abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816, 859.)
3. Analysis
Cid makes no argument that specific portions of Doe's police interview were inadmissible under section 1235. Rather, he challenges the admission of the interview, in toto, because section 770's foundational requirements allegedly remained unmet. He claims that the admission of Doe's police interview as an inconsistent statement after she had testified failed to comply with section 770 because "[t]he parties never requested that [] Doe be subjected to recall and [] Doe never came back to testify when the video recording - the prior inconsistent statement - was played for the jury."
We are not persuaded that the trial court erred under the present circumstances in admitting Doe's police interview. Section 770 provides that an inconsistent statement is admissible if "[t]he witness has not been excused from giving further testimony in the action." (Id., subd. (b).) Pretrial, the court granted Cid's request "that all witnesses be excused subject to recall" for purposes of section 770. Although the court did not tell Doe at the close of her testimony that she was subject to being recalled, the court never expressly excused Doe from providing further testimony. Additionally, neither the prosecutor nor defense counsel asked that Doe be excused from being recalled to the witness stand. Further, neither party requested that Doe be recalled after her testimony.
Doe was not excused from giving further testimony at Cid's trial. Because the foundational requirement of section 770, subdivision (b) was met here, and Cid makes no other argument challenging the admissibility of Doe's police interview as an inconsistent statement, we conclude the trial court properly admitted Doe's police interview, in full, under section 1235. Furthermore, given our conclusion that the police interview was properly admitted as an inconsistent statement under section 1235, we need not address Cid's additional claim challenging the admissibility of that interview under section 1360.
B. Lack of Unanimity Instruction
At trial, the jury found Cid guilty on count 2 for committing a forcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (b)(1)).
On appeal, Cid contends the trial court prejudicially erred and violated his due process rights by failing to sua sponte instruct the jury that it had to unanimously agree which act constituted the lewd or lascivious act required to convict on count 2.
The Attorney General responds that no unanimity instruction was needed here because the prosecutor told the jury that count 2 was based on the instance when Cid's penis touched Doe's vagina without penetration. The Attorney General further asserts that any error was harmless beyond a reasonable doubt because the jury rejected Cid's unitary defense that he never touched Doe inappropriately.
1. Background
During closing argument, the prosecutor told the jury that, as compared to count 1 (Pen. Code, § 288.7, subd. (b) [sexual penetration]), count 2 is "kind of a more general child molest crime, because it just requires that he touch any part of [Doe]'s body, either on the bare skin or through the clothing; that he used force, violence, duress, menace, or fear to accomplish that. Again, that he acted with sexual intent, and that [Doe] was under 14. [¶] So this crime doesn't require the touching of a sexual organ. If you or someone gave a 10-year-old a back rub, but in your mind, as you're giving that 10-year-old a back rub, there is a sexual intent, then this statute has been violated."
Later in closing argument, the prosecutor addressed count 2 further: "Count 2 . . . charges a lewd act on a minor. So that's when it's something without penetration because we don't know there was penetration, because for this act, [Doe] was very clear that something stayed on the outside of her. There's a point later in the interview with Detective Stenger, after a break, where [Doe] describes [Cid]'s colita touching her colita, but she's very clear that it was on the outside, that it did not penetrate her."
The prosecutor played a video clip of Doe's police interview depicting "where Detective Stenger shows [Doe] a boy anatomical drawing" and Doe "demonstrate[s] what was happening" between her and Cid using the drawings of a boy and a girl. The prosecutor asserted that, in the video clip, Doe described Cid's penis. The prosecutor also referenced and played another video clip from later in the police interview where "Detective Stenger follows up on this point" about Cid's colita touching Doe's colita. After playing the additional video clip, the prosecutor said, "So that's kind of the basis for the second count before you."
There is no indication in the record that Cid asked for a unanimity instruction.
Despite Cid's failure to request an instruction, the issue is not forfeited because, "[e]ven absent a request, the court should give [a unanimity] instruction 'where the circumstances of the case so dictate.'" (People v. Riel (2000) 22 Cal.4th 1153, 1199.).
2. Legal Principles
The state and federal constitutions require unanimous verdicts. (People v. Russo (2001) 25 Cal.4th 1124, 1132; Ramos v. Louisiana (2020) 590 U.S.___ [140 S.Ct. 1390, 1397].) "In a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 877-878.)
A unanimity instruction is not required if the prosecution elects the specific act relied upon to prove the charge. (People v. Jennings (2010) 50 Cal.4th 616, 679.)" 'The prosecution can make an election by "tying each specific count to specific criminal acts elicited from the victims' testimony"-typically in opening statement and/or closing argument. [Citations.] . . . [Citation.] [¶] Under these principles, there is an implicit presumption that the jury will rely on the prosecution's election and, indeed, is bound by it.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 627 (Brugman).)
Appellate courts review de novo whether the trial court erred in failing to give a unanimity instruction. (People v. Sorden (2021) 65 Cal.App.5th 582, 615; People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
3. Analysis
The prosecutor presented evidence of various acts that could have supported a finding of forceful touching of Doe's body with the requisite intent. Regardless of that circumstance, the prosecutor told the jury during closing argument that the basis for count 2 was the evidence about Cid's penis touching (but not penetrating) Doe's vagina. When discussing count 2, the prosecutor specifically referenced Cid's "colita touching [Doe]'s colita" and played video clips depicting Doe's statements and demonstration of how that touching occurred.
On this record, we are not persuaded by Cid's argument that there was no clear prosecutorial election tethering count 2 to the lewd act of Cid's penis touching Doe's vagina. We conclude the prosecutor elected in argument the specific act relied on to prove count 2, which negated any need for a unanimity instruction. (See People v. Wilson (2020) 56 Cal.App.5th 128, 162; Brugman, supra, 62 Cal.App.5th at pp. 629630.)
C. Admission of Evidence of Prior Conviction
Cid contends the trial court abused its discretion under section 352 and prejudiced him "when it admitted highly prejudicial and inflammatory evidence of [his] prior conviction of possession of child pornography to show intent when intent was not in dispute" (capitalization &boldface omitted).
The Attorney General counters that the fact of Cid's conviction was admissible under section 1108, Cid's underlying conduct was admissible under section 1101, subdivision (b) to prove the disputed element of intent, and the evidence was neither cumulative nor unduly prejudicial.
1. Background
Cid moved in limine to exclude his 2011 conviction for possession of child pornography (Pen. Code, § 311.11, subd. (a)). Cid objected to that evidence because "the prejudicial effect would severely outweigh the probative value per . . . [s]ection 352." He asserted that the "five factors . . . particularly significant" in a section 1108 case (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 (Nguyen)) weighed in favor of finding that "the prejudicial bias against [him] outweighs the probative value in this case."
The five factors described by the Nguyen court are: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (Nguyen, supra, 184 Cal.App.4th at p. 1117.).
The prosecutor moved to introduce evidence of Cid's prior conviction under section 1108. The prosecutor also moved to admit the pornographic images and videos that Cid possessed (including child pornography, "a homemade sex tape" depicting Cid and his wife, and "two DVDs that appeared to depict bestiality") as evidence of Cid's intent under section 1101, subdivision (b).
At a pretrial hearing on the in limine motions, the trial court heard oral argument from Cid's defense counsel and ruled the prior conviction was admissible under section 1108. The court explained: "I considered the issues of [section] 352 that I thought were relevant, and I don't think it's an undue prejudice.... I don't think it's going to be any consumption of time of significance, and I don't think there's a risk of confusing the jury . . . since he was, in fact, convicted."
Regarding the evidence of Cid's underlying conduct under section 1101, subdivision (b), the trial court stated its initial impression that that evidence "should probably be limited to the materials that were found on [Cid's] computer and that he admitted downloading," comprising "the photographs and/or video . . . of prepubescent girls." In turn, the prosecutor noted that there were "about five or six" images of prepubescent girls found on Cid's computer and asked to introduce those images at trial "because they show [Cid's] intent." Defense counsel argued that he might want to introduce additional evidence showing that most of the pornography that Cid had downloaded was adult pornography.
The trial court ruled as follows: "[T]he evidence, under [section] 1101, is admissible, because I believe that evidence of the materials relating to prepubescent girls that [Cid] admits that he downloaded . . . is relevant to the issue of intent, and while it's damaging, I don't think it's unduly prejudicial." The court added: "So the ruling right now is that the testimony, in [the] People's case-in-chief, is that, under [section] 1101[, subdivision] (b) on intent, is limited to photographs of prepubescent girls that [Cid] admitted downloading in 2010. [¶] The issue of the relevance of that is totally up for grabs. You get to argue about it."
As mentioned ante (pt. I.B.1.a.), at trial, the prosecution presented witness testimony concerning the police investigation and Cid's arrest, as well as five pornographic images depicting prepubescent girls and documents proving Cid's 2011 no contest plea to possession of child pornography.
2. Legal Principles
"Character evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion." (People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro); see People v. Baker (2021) 10 Cal.5th 1044, 1088 (Baker); § 1101, subd. (a).)
Section 1108, however, permits a jury to consider a defendant's other sexual offenses (including possession of child pornography (Pen. Code, § 311.11, subd. (a)) as propensity evidence. (See Villatoro, supra, 54 Cal.4th at p. 1164; § 1108, subd. (a), (d)(1)(A).)
Section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [s]ection 1101, if the evidence is not inadmissible pursuant to [s]ection 352." In turn, section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In addition," 'other crimes' evidence is admissible under Evidence Code section 1101, subdivision (b) 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.'" (People v. Jackson (2016) 1 Cal.5th 269, 300.)
Even though certain prior misconduct may be relevant and thus not subject to exclusion under Evidence Code section 1101, "[b]ecause evidence of a defendant's commission of other crimes, wrongs, or bad acts' "may be highly inflammatory, its admissibility should be scrutinized with great care." '" (People v. Cage (2015) 62 Cal.4th 256, 273.) "[C]ourts 'must engage in a careful weighing process under section 352' when admitting propensity evidence. [Citation.] 'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.'" (Baker, supra, 10 Cal.5th at p. 1098; see also People v. Foster (2010) 50 Cal.4th 1301, 1330 (Foster); People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).)
" 'Evidence is prejudicial within the meaning of Evidence Code section 352 if it" 'uniquely tends to evoke an emotional bias against a party as an individual'" [citation] or if it would cause the jury to"' "prejudg[e]" a person or cause on the basis of extraneous factors.'" '" (Foster, supra, 50 Cal.4th at p. 1331; see Baker, supra, 10 Cal.5th at p. 1089.) Further, if evidence of uncharged misconduct "is 'merely cumulative with respect to other evidence which the People may use to prove the same issue,' it is excluded under a rule of necessity." (People v. Thompson (1980) 27 Cal.3d 303, 318; see also Ewoldt, supra, 7 Cal.4th at pp. 405-406; People v. Balcom (1994) 7 Cal.4th 414, 423.) "But trial courts are not required to exclude all cumulative evidence and if evidence has substantial relevance to prove material facts which are hotly contested and central to the case, it is not 'merely cumulative.'" (People v. Lang (1989) 49 Cal.3d 991, 1016 (Lang), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190; see also People v. Rodriguez (1986) 42 Cal.3d 730, 758.)
"We review the trial court's decision whether to admit evidence, including evidence of the commission of other crimes, for abuse of discretion." (People v. Harris (2013) 57 Cal.4th 804, 841.) "A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)
3. Analysis
Cid asserts that the trial court "admitted the facts of [his] 2011 conviction for the purpose of proving that [he] had the intent to molest [] Doe," but his "intent was not in dispute." He claims that Doe's police interview provided proof of his sexual intent and, thus, "evidence that [he] possessed child pornography in 2011 was 'merely cumulative on this issue.'" In turn, he asserts that "cumulative evidence is more prejudicial than probative" under section 352. Additionally, Cid contends that the "five child pornographic images" presented to the jury "constitute exactly the kind of evidence that can inflame the jurors' passions and lead them to decide the case based on personal antipathy toward the accused." In other words, Cid argues that "it was an abuse of discretion under section 352 to admit the prior conviction [(including its facts)] and the photographs" because the former evidence was cumulative on the issue of intent and the latter was inflammatory.
We are not persuaded that the trial court erred under section 352 in admitting evidence about Cid's prior conviction for possession of child pornography or the five child pornographic images that were found on his computer. "In certain circumstances, evidence of sexual images possessed by a defendant has been held admissible to prove his or her intent." (People v. Page (2008) 44 Cal.4th 1, 40.) For example, in People v. Memro (1995) 11 Cal.4th 786 (Memro) (overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2), our Supreme Court considered a challenge to the admission of "certain magazines and photographs depicting clothed and unclothed youths admitted under Evidence Code section 1101, subdivision (b)." (Memro, at p. 864.) The Memro court concluded that the evidence was "admissible to show defendant's intent to molest a young boy in violation of [Penal Code] section 288." (Ibid.) The court explained that defendant's intent to violate that section "was put at issue when he pleaded not guilty to the crimes charged" (ibid.) and "the photographs, presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction. [Citation.] The photographs of young boys were admissible as probative of defendant's intent to do a lewd or lascivious act with [the victim]." (Id. at p. 865.) The Memro court also rejected defendant's contention that the pornographic evidence was substantially more prejudicial than probative under section 352. (Ibid.)
Similar circumstances exist in the present case. Cid put his intent at issue by denying he committed the charged crimes. (See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 822; People v. Erskine (2019) 7 Cal.5th 279, 296-297.) Further, the evidence about Cid's prior conviction and the pornographic images he possessed were not cumulative of Doe's police interview on the disputed issue of intent. Although both components of the prosecution's case were relevant to Cid's intent, his prior conviction and pornographic images were not duplicative of the police interview because they differed in nature and Cid's primary defense was that Doe's prior statements were false. Cid's prior conviction and personal possession of child pornographic images directly demonstrated his intent and sexual attraction to prepubescent girls in the face of his challenge to the veracity of Doe's prior statements. As such, the evidence was not cumulative. (See Lang, supra, 49 Cal.3d at p. 1016.)
Likewise, the evidence of Cid's prior conviction and his child pornography were not more inflammatory than the evidence directly concerning the charged crimes. Only a small number of pornographic images was presented to the jury and, based on descriptions in the record, the five admitted photographs were no more graphic than the sexually explicit images described by our Supreme Court in Memro, supra, 11 Cal.4th at pages 864-865. Moreover, the trial court decided that arguably more explicit and inflammatory material (i.e., Cid's "homemade sex tape" and bestiality DVDs) could not be presented in the prosecution's case-in-chief.
" 'In applying section 352, "prejudicial" is not synonymous with "damaging." '" (People v. Bolin (1998) 18 Cal.4th 297, 320.) As long as a reasonable trial judge would admit the challenged evidence upon weighing its probative value against the probability of undue prejudice, we must defer to the trial judge's exercise of discretion. (See Rodriguez, supra, 20 Cal.4th at pp. 9-10.) The trial court explicitly decided the evidence about Cid's prior conviction and his pornographic images of prepubescent girls were not unduly prejudicial. We cannot conclude the trial court exceeded the bounds of reason in making that decision.
D. CALCRIM 1193
In the final instructions to Cid's jury, the trial court instructed with CALCRIM 1193 as follows: "You have heard testimony from Dr. Blake Carmichael regarding child sexual abuse accommodation syndrome. [¶] Dr. Blake Carmichael's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [Doe]'s conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of his testimony" (italics added).
This quoted language is drawn from the written jury instructions appearing in the clerk's transcript. According to the reporter's transcript, when the trial court read the final phrase of the instruction to the jury it said, "and in evaluating the believability of his or her testimony" (italics added). Cid makes no argument regarding this discrepancy between the written and oral instructions. Further, Cid and the Attorney General substitute in "her" (i.e., Doe) when quoting the instruction in their briefing. Under these circumstances, we assess the instruction in accord with the parties' reading of it.
On appeal, Cid contends that CALCRIM 1193 "erroneously informed the jurors that they may consider the CSAAS expert's testimony in determining the complaining witnesses' credibility" (capitalization &boldface omitted). Cid concedes the instruction "adequately informs the jury" that CSAAS testimony" 'is not evidence that the defendant committed any of the crimes charged against him.'" Nevertheless, he claims that by instructing the jurors that "they may consider the expert's testimony in evaluating the complaining witness's credibility," the instruction improperly circumvents the holdings of precedent concerning the limited use of CSAAS evidence and "permits the jurors to consider this expert testimony as supportive of the truth of the allegations made against the defendant."
The Attorney General asserts Cid forfeited his claim of error by failing to object to the CALCRIM 1193 instruction at trial. However, in an in limine motion, defense counsel asked the trial court to use CALJIC No. 10.64 rather than CALCRIM 1193. Counsel argued that the CALJIC instruction "is a more complete and accurate admonishment in that it reminds the jury that the research behind CSAAS begins with the assumption that a molestation has occurred." During a hearing on the in limine motion, the prosecutor urged the trial court to instruct with CALCRIM 1193 only. The trial court decided to use CALCRIM 1193, explaining that it did not think certain language within CALJIC No. 10.64 was appropriate.
In his appellate briefing, Cid argues that "[n]o objection is required to preserve a claim of instructional error that affects the defendant's substantial rights," citing Penal Code section 1259. Assuming arguendo that defense counsel's request for the CALJIC instruction failed to adequately preserve Cid's current challenge to the CALCRIM instruction, we reach the merits of Cid's claim despite any failure to object to CALCRIM 1193 because he contends that instruction was legally incorrect and affected his substantial rights. (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312; Pen. Code, § 1259.)
Turning to the merits of Cid's claim," '[w]e review a claim of instructional error de novo. [Citation.] The challenged instruction is considered "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner."' [Citation.] 'We of course presume "that jurors understand and follow the court's instructions." '" (People v. Ortiz (2023) 96 Cal.App.5th 768, 815-816 (Ortiz).)
Cid acknowledges that other California Courts of Appeal have upheld the language of CALCRIM 1193 as accurately informing the jury of the limited use of CSAAS evidence. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 (Gonzales); People v. Munch (2020) 52 Cal.App.5th 464, 473-474; People v. Lapenias (2021) 67 Cal.App.5th 162, 175-176 (Lapenias); Ortiz, supra, 96 Cal.App.5th at p. 816; People v. Ramirez (2023) 98 Cal.App.5th 175, 220.) Nonetheless, Cid contends that the cases wrongly overlooked the fact that CALCRIM 1193 "effectively circumvents" prior precedent and improperly permits the jurors to use the CSAAS evidence "as supportive of the truth of the charges."
We are not persuaded that the cases upholding CALCRIM 1193 as a correct instruction were wrongly decided. Further, viewing the instruction given here in light of the entire record, we are not convinced that there is a reasonable likelihood the jurors applied the instruction in an impermissible manner. The instruction told the jurors that Dr. Carmichael's testimony could not be considered as evidence that Cid "committed any of the crimes charged against him." Thus, the instruction explicitly precluded the use of that testimony to conclude inferentially from Doe's conduct and Dr. Carmichael's testimony that Cid committed the charged crimes. Additionally, the last sentence of the instruction did not compel a conclusion that Doe's conduct was consistent with being a sexual abuse victim. In the same vein, Dr. Carmichael testified that CSAAS was not a diagnostic tool and he did not have any test for determining whether a child had been sexually abused. Dr. Carmichael also testified that he was not familiar with the facts of the case, and he did not offer any opinion about Doe.
Under these circumstances, we conclude that the trial court properly instructed the jury with CALCRIM 1193. (See Gonzales, supra, 16 Cal.App.5th at p. 504; Lapenias, supra, 67 Cal.App.5th at p. 175; Ortiz, supra, 96 Cal.App.5th at p. 816.)
E. Cumulative Prejudice
Having reviewed and denied Cid's claims of error, we likewise reject his claim of cumulative prejudice. There is no prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Bromberg, J., Adams, J. [*]
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.