Opinion
A167511
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVEN MCREYNOLDS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05001707504
CHOU, J.Defendant Steven McReynolds appeals a final judgment following a jury trial in which he was convicted of multiple sex crimes against his daughter, who was eight years old when the offenses allegedly began. The trial court sentenced him to an aggregate term of 75 years to life in state prison. McReynolds contends that his convictions should be reversed due to various errors. These include the prosecutor's improper use of a peremptory challenge based on a prospective juror's ethnicity, the presence of a sheriff's deputy next to McReynolds during part of his testimony, the insufficiency of the evidence to support his convictions for forcible lewd conduct, a sentence in violation of the ex post facto clause, prosecutorial misconduct, and fees imposed without a showing of McReynolds's ability to pay. We reverse in part, finding that McReynolds's sentence on count 6 violated the ex post facto clause. We affirm in all other respects.
I. BACKGROUND
A. Procedural History
In January 2023, an information was filed, charging McReynolds with: (1) oral copulation or sexual penetration of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); counts 1, 5, and 7); (2) lewd acts upon a child (§ 288, subd. (a); counts 2, 3, and 4); (3) forcible lewd acts upon a child (§ 288, subd. (b)(1); counts 6, 8, 11, and 12); (4) aggravated sexual assault of a child -oral copulation (§ 269, subd. (a)(4); count 9); and (5) aggravated sexual assault of a child - sexual penetration (§ 269, subd. (a)(5); count 10). Various aggravating factors were also separately alleged.
All further statutory references are to the Penal Code unless otherwise indicated.
Following trial, the jury found McReynolds guilty on all counts, and the trial court dismissed the aggravating factors based on the prosecution's motion. The court sentenced McReynolds to a determinate term of 10 years in state prison, stayed pursuant to section 654, and an indeterminate term of 75 years to life. McReynolds timely appealed.
B. Facts
1. Sexual Abuse and Jane Doe's Reporting
Jane Doe was born in March 2003. McReynolds is her father. McReynolds and Doe's mother were not together when Doe was born but got married in 2006. They moved to Concord and lived with Doe's aunt and her family. Doe described her mother as "loving" and "caring," but her relationship with McReynolds was "strange" and "withdrawn," with "approval . . . only ever granted during abuse." Doe recalled "[a] lot of emotional abuse, physical abuse, sexual abuse, and mental abuse." Doe's earliest memory of sexual abuse was when she was five years old and living in Concord. She recalled McReynolds doing "something physical" and "feeling . . . a mouth on [her] body." The rest of her memory of that incident was "foggy."
Doe's mother did not testify at trial.
The next incident Doe recalled was when she was eight years old and living in Bay Point. She was in the shower, and McReynolds came in naked and started to touch and kiss her. Doe recalled that he touched her chest and "genitalia." He also kissed and put his tongue on her genitalia. McReynolds then took Doe to the bedroom, laid down on the bed, and placed her on top of him. He rubbed his penis against her genitalia and may have also "inserted his finger into [her]." While this was happening, McReynolds praised Doe as being a" 'good girl.'" When it was over, he told Doe not to tell her mother and threatened "that something would happen if [she] told anyone."
Doe also recalled two specific instances of McReynolds's emotional abuse. The first was when Doe was in a panic while washing the dishes after McReynolds had threatened her. She broke a glass container and cut herself. Scared of McReynolds reprimanding her, Doe went to the bathroom, took out the glass from her legs, and bandaged herself up. She was eight years old at the time and recalled feeling "terror." In the second instance, Doe did not want to eat her vegetables, so McReynolds put her plate on the floor, took away her fork, and made her eat "like a dog." Doe further testified that McReynolds spanked her with a belt and left bruises.
When Doe was still eight years old, her mother and McReynolds separated for a while but then reunited and moved in together in Antioch with her cousins and McReynolds's sister. While there, Doe recalled one incident at night where McReynolds started to kiss her in the laundry room and then lifted her up and took her to the backyard. He pulled his pants down and told Doe to "put [her] mouth on his genitalia" and that "if anything white comes out, spit it out or swallow it." He then grabbed her head and put her mouth on his penis. Doe recalled "almost choking at one point" or gagging. Afterwards, they went back inside the house, and McReynolds told her not to tell anyone "per usual."
When Doe was 10 or 11 years old, she and her family moved back to Concord. She recalled an incident in the living room when she was about 10 years old where McReynolds put her on top of him on the couch, started to "touch [her] genitalia and inserted his finger inside." Both their pants were off, though Doe could not recall if McReynolds had taken hers off. It was nighttime and right before Doe's mother came home. After it was over, McReynolds again instructed Doe not to tell her mother.
Doe did not report McReynolds's sexual abuse for about two or three years after it stopped because she did not know that what had happened was wrong. When she was in seventh or eighth grade, there was a presentation in her sexual education class about rape and sexual abuse. After she got home, she realized that McReynolds "had touched [her] in a way that [she] should not have been touched" and called her mother. Doe's mother immediately scheduled a therapy session. The therapist later contacted the police.
In 2016, Doe was interviewed at the Children's Interview Center. Doe told the interviewer not to tell McReynolds about her allegations against him because she was afraid of abuse from him and was afraid that her mother, an immigrant, might get deported. When questioned at trial about why she omitted certain details of the sexual abuse at the interview, Doe testified that she was 13 years old at the time and felt "extremely uncomfortable telling these things" to a stranger.
2. Pretext Calls and Arrest
The police asked Doe's mother to make a pretext call to McReynolds. Two calls were made. During the first call, Doe's mother told McReynolds about Doe's sexual abuse allegations. McReynolds denied ever having sex with Doe. When Doe's mother asked how many times McReynolds made Doe "put her mouth on [his penis]," he responded, "I'm not saying she's lying, but I don't remember." During the second call that same day, Doe's mother pressed McReynolds for details about what happened, and he again responded, "[L]ike I said, I honestly don't remember." He then stated that the most he remembered was playing with her and putting "[his] hands between her legs [and] moving her around." When asked about the incident in the backyard, McReynolds responded, "I don't think she's lying. I don't remember." He then said that "[i]t's possible" something happened because "those days I was drinking a lot."
The police arrested McReynolds later that day and interviewed him. McReynolds admitted that he began inappropriately touching Doe when she was seven or eight years old. He explained that he was not getting affection from his wife and went "mental" and in "the wrong direction." He estimated that the touching occurred a total of eight or nine times. McReynolds admitted to touching and kissing Doe's chest and crotch but denied any penetration. He recalled that she touched his penis once and gave him a "blowjob" in the backyard in Antioch. He also recalled that when they were back in Concord, he took her pants off on the couch and licked her vagina after she asked him to "lick her." According to McReynolds, the touching stopped three and a half to four years ago after he "came to [his] senses." At the conclusion of the interview, McReynolds agreed to write an apology letter to Doe. In the letter, McReynolds wrote, "I wish on my own life that I can take back what I have done," and "[T]here are no words I can say that will say how sorry I am for making your life like this." The police used the letter to bolster its case against McReynolds and never showed it to Doe.
3. McReynolds's Testimony
McReynolds testified in his own defense and denied doing anything sexually inappropriate with Doe. He specifically denied getting in the shower naked with her at Bay Point and denied that her mouth was ever on his penis. When asked why he told Doe's mother that he did not remember whether he inappropriately touched Doe during the pretext call, McReynolds testified, "[T]hat's just my way of saying no." He also testified that he did not tell Doe's mother that Doe was lying because he did not want to get her in trouble. According to McReynolds, he had "personal issues accusing people of lying."
As for the allegations of nonsexual abuse, McReynolds denied that he made Doe eat her dinner on the floor like a dog. As for the incident with the broken glass container, McReynolds recalled that he had found Doe on the floor of the kitchen bleeding from cuts on her hands and knees. He testified that he "scooped her up, carried her into the bathroom, cleaned the cuts," and "put Band-Aids on them." McReynolds admitted that he disciplined Doe with a belt "when she did something that was severe." He stopped doing it in 2010, except for one additional time in 2016.
On the day of his arrest, McReynolds was employed at a security company and was at work when he received the pretext call from Doe's mother. They were not on talking terms at the time as Doe's mother "took the kids and disappeared" the week before. McReynolds testified that he became suspicious during their call due to the way Doe's mother was talking and "figured that she was with someone and recording the call." When McReynolds got home later that night, the police were outside waiting for him.
McReynolds testified that he admitted to the inappropriate touching during his interview because he did not want Doe to "get in trouble" for lying to law enforcement. He was concerned that Doe might end up in foster care. McReynolds further testified that the specific details of the sexual abuse he provided to the police were based on what he heard from Doe's mother. As for the other details he provided that were not from Doe's mother, McReynolds testified that he "included what sounded feasible." When asked about why he told the police that the touching occurred "eight to nine times total," he responded that he was "[j]ust throwing the number out there."
4. Expert and Character Testimony
Dr. Alexandra Schmidt, a forensic psychologist, testified on behalf of the defense as an expert in "diagnosing and identification of the characteristics of pedophilia and sexual deviancy." Dr. Schmidt administered a series of psychological tests on McReynolds in 2019. Based on the results, Dr. Schmidt opined that McReynolds did not possess characteristics of sexual deviance and was not a pedophile. She further testified that her opinion would not change even if Doe's sexual abuse allegations against McReynolds were hypothetically true.
Dr. Schmidt defined pedophilia as "a sexual arousal or attraction to prepubescent children."
Various family members of McReynolds also testified on his behalf. McReynolds's ex-wife, O.C., testified that she was married to McReynolds for about two years. His demeanor had always been very quiet, and he never raised his voice or yelled at her. O.C. testified that McReynolds used to babysit her nieces and that she never saw him act in a sexually inappropriate way towards them. She also saw interactions between McReynolds and Doe and did not ever notice him being sexually inappropriate with her. McReynolds's sister, J.M., lived with him, Doe, and Doe's mother in Antioch beginning in late 2013. J.M. testified that McReynolds was not a sexual deviant or a violent person and that she did not believe the charges against him were true. She further testified that she never saw him touching her own daughters inappropriately. Finally, McReynolds's niece (J.M.'s daughter), A.C., testified that she and McReynolds spent time alone together when she was between 12 and 15 years old. She stated that he never tried to touch her inappropriately and that she never saw him inappropriately touching Doe. A.C. also recalled an incident in Antioch when Doe told her she had been raped in a neighbor's tent but admitted that she "made it up" when A.C. "called her bluff."
II. DISCUSSION
A. Peremptory Challenge Under Code of Civil Procedure Section 231.7
McReynolds first argues that the prosecutor used a peremptory challenge to remove a prospective Hispanic juror in violation of Code of Civil Procedure section 231.7 and that the two reasons provided by the prosecutor-the juror's job as a mail carrier and the way she grew up-were "proxies for race." We disagree.
1. Relevant Procedural History
During voir dire, defense counsel asked prospective juror L.M. if she could think of reasons why a victim might delay in reporting a crime like child molestation. L.M. responded, "My opinion is the person is scared. People is afraid to say somebody what are they going to think. What it's going to happen. Who knows. Sometimes it's different thinking, and, in my case, in my family something happened to you, you let me know for you and not for other people. That is the way I was growing up. We stay away. My father was disciplined, very honest, and we try. We aren't perfect, but we tried."
Defense counsel later confirmed that L.M. worked for the postal service for 31 years before retiring. L.M. was a mail carrier and her spouse was also a mail carrier before he retired. During other parts of the voir dire, the prosecutor asked several other prospective jurors whether their jobs involved working with other people, and all those jurors responded that they did. When the prosecutor used a peremptory challenge to excuse L.M., defense counsel objected and argued that L.M. was Hispanic and that "the only reason for the challenge was based on race." The trial court then asked the prosecutor to articulate her reasons, and she responded:
"The People ask the Court to excuse [L.M.] in large part because she is a mail carrier, and mail carriers work completely alone. She, in her very long career, as a mail carrier, did routes by herself, presumably. She's also married to a [mail] carrier who also worked alone. Part of the jury deliberation process that is so important is having people who work well with other people, and I am not confident in her long career as a mail carrier she is going to be able to do that.
"In addition, she was being questioned yesterday, and she noted that she grew up in a certain way being-and this is what I have written down so this is not exactly what she said, but she said direct, blunt, and honest. And, in this case, we have a 19-year-old coming in to testify, and she late disclosed that she was not always direct, blunt, and honest about the abuse that she suffered.
"So my worry is that the way that [L.M.] grew up is not going to be, essentially-it's not going to work well with the way that the victim in this case handled the abuse."
Defense counsel countered that the prosecutor was "making assumptions" about whether L.M. worked well with other people and "the fact that she grew up in a certain way . . . goes to [a] social economic background of somebody who is Hispanic." The prosecutor reiterated that the challenge was based on L.M. having grown up "in a direct, blunt, and truthful household" and "has nothing to do with her community or her socioeconomic" background. The trial court held that the reasons given by the prosecutor were "race neutral" and overruled the objection. The court concluded that based on the totality of the circumstances, L.M.'s role as a mail carrier and having grown up a certain way ("direct, blunt, and honest") "does not have anything to do with Hispanic heritage."
2. Law and Standard of Review
Assembly Bill No. 3070 (2019-2020 Reg. Sess.) added Code of Civil Procedure section 231.7. (Stats. 2020, ch. 318, §§ 1-3.) The statute codifies the basic principle articulated in the Batson/Wheeler rule-that peremptory challenges may not be made on the basis of a prospective juror's race or ethnicity. (Code Civ. Proc., § 231.7, subd. (a).) The statute, however, no longer places the burden on the objecting party to demonstrate that a peremptory challenge is more likely than not improperly motivated. Instead, the trial court must sustain the objection if, based on "the totality of the circumstances," it "determines there is a substantial likelihood that an objectively reasonable person would view race [or] ethnicity . . . as a factor in the use of the peremptory challenge." (Id., § 231.7, subd. (d)(1).) A "substantial likelihood" is defined as "more than a mere possibility but less than a standard of more likely than not." (Id., § 231.7, subd. (d)(2)(B).)
(Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.)
The trial court may consider a nonexhaustive list of circumstances in making this determination (Code Civ. Proc., § 231.7, subd. (d)(3)) and must "explain the reasons for its ruling on the record" (id., § 231.7, subd. (d)(1)). "The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge." (Ibid.) The statute also includes a number of reasons that are "presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race [or] ethnicity . . . and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case." (Id., § 231.7, subd. (e).) As relevant here, these reasons include "[a] prospective juror's neighborhood" (id., § 231.7, subd. (e)(4)) and "[e]mployment in a field that is disproportionately occupied by members listed in subdivision (a)" (id., § 231.7, subd. (e)(10)).
The trial court's denial of an objection under Code of Civil Procedure section 231.7 is reviewed de novo, "with the . . . court's express factual findings reviewed for substantial evidence." (Code Civ. Proc., § 231.7, subd. (j).) Further, the statute requires that we "not impute to the trial court any findings, including findings of a prospective juror's demeanor, that the trial court did not expressly state on the record." (Ibid.) And if we "determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial." (Ibid.)
3. Peremptory Challenge Under Code of Civil Procedure Section 231.7
McReynolds contends that the prosecutor's two stated reasons for challenging L.M. were presumptively invalid under Code of Civil Procedure section 231.7, subdivision (e). He first argues that "growing up a certain way" is a proxy for L.M.'s neighborhood. (Code Civ. Proc., § 231.7, subd. (e)(4).) We are unpersuaded. The record does not indicate that L.M. ever disclosed her current neighborhood or the neighborhood in which she grew up. Rather, L.M. indicated that she grew up in a household where family members were direct and honest with one another, and the prosecutor later paraphrased L.M.'s statement about growing up a certain way when providing the reasons for challenging her. Although growing up "a certain way" could be correlated with one's neighborhood, we do not find that to be the case here as L.M. only talked about how she interacted with her family given their direct and honest natures. This has no discernable connection with L.M.'s past or present neighborhood.
McReynolds analogizes the facts here to those in People v. Uriostegui (2024) 101 Cal.App.5th 271 (Uriostegui), but we find that case distinguishable. In Uriostegui, the prosecutor exercised a peremptory challenge against a prospective Hispanic juror (T.N.) based on her" 'lack of life experience.'" (Id. at p. 279.) This was grounded in part on the fact that T.N. "was not currently employed." (Id. at p. 280.) The Court of Appeal held that" 'lack of life experience'" was a presumptively invalid reason because it was based in part on T.N.'s" 'lack of employment or unemployment,'" a reason deemed presumptively invalid under Code of Civil Procedure section 231.7, subdivision (e)(11). (Uriostegui, at p. 280.) Here, neither the prosecutor nor L.M. tied growing up in a "direct, blunt, and honest" way to where L.M. grew up, let alone any specific neighborhood.
McReynolds next argues that L.M.'s employment as a mail carrier was also a proxy for race because mail delivery services are "predominantly[] performed by people of color" and therefore presumptively invalid. (Code Civ. Proc., § 231.7, subd. (e)(10).) We are again unpersuaded. As the People point out, subdivision (e)(10) references "[e]mployment in a field that is disproportionately occupied by members listed in subdivision (a)." (Ibid.) Subdivision (a), in turn, states that a peremptory challenge shall not be used "to remove a prospective juror on the basis of the prospective juror's race [or] ethnicity ...." (Id., § 231.7, subd. (a), italics added.)
L.M. is Hispanic. In 2022, Hispanic or Latino workers made up 19 percent of the total labor force. By contrast, only 13 percent of postal service employees were Hispanic (approximately 30 percent were African American). Therefore, the postal service was not disproportionately occupied by Hispanic individuals. McReynolds does not dispute this. Instead, he contends that Code of Civil Procedure section 231.7, subdivision (e)(10) applies because "[m]ail carriers are disproportionately people of color." By making this argument, however, McReynolds is treating all minorities as a single monolithic group, without distinguishing between Hispanics and African Americans. Because section 231.7, subdivision (a) only prohibits the use of a peremptory challenge based on a "prospective juror's race [or] ethnicity," rather than the juror's status as a minority, we decline to adopt McReynolds's construction of subdivision (e)(10).
We grant the People's unopposed motion for judicial notice that includes statistical data from the United States Bureau of Labor Statistics and the United States Government Accountability Office. We also grant McReynolds's unopposed motion for judicial notice.
Finally, McReynolds argues that even if the prosecutor's two stated reasons were not presumptively invalid, the trial court erred in not sustaining his objection because there was "a substantial likelihood that an objectively reasonable person would view race [or] ethnicity . . . as a factor in the use of the peremptory challenge." (Code Civ. Proc., § 231.7, subd. (d)(1).) We disagree. The trial court found, based on the totality of the circumstances, that the prosecutor's reasons for challenging L.M. were race neutral and did not have anything to do with her Hispanic heritage. And the record supports this finding.
First, the prosecutor stated that she was concerned about L.M.'s ability to work well with other jurors given her long career working alone as a mail carrier. This race neutral reason is supported by the fact that the prosecutor asked several other prospective jurors during voir dire whether their jobs involved working with others, and all of those jurors responded that they did. (Code Civ. Proc., § 231.7, subd. (d)(3)(F) [court may consider "[w]hether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record"].)
Second, the prosecutor's concern that L.M. grew up in a "direct, blunt, and honest" environment is race neutral and reasonable given that Doe, the prosecution's main witness, did not report the sexual abuse until several years after it had stopped. (Code Civ. Proc., § 231.7, subd. (d)(3)(E) [court may consider "[w]hether a reason might be disproportionately associated with a race [or] ethnicity"].) Indeed, McReynolds does not explain how growing up in a "direct, blunt, and honest" setting is disproportionately associated with a certain race or ethnicity.
Lastly, McReynolds is not Hispanic, and the trial court identified three or four Hispanic members of the jury (including alternates). This further supports the court's finding that the prosecutor did not strike L.M. due to her race or ethnicity. (See Code Civ. Proc., § 231.7, subds. (d)(3)(A)(i) [court may consider whether "[t]he objecting party is a member of the same perceived cognizable group as the challenged juror"] &(d)(3)(G) [court may consider "[w]hether the counsel . . . exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, . . . or perceived membership in any of those groups, in the present case"].)
We therefore do not find that there was a substantial likelihood an objectively reasonable person would view L.M.'s Hispanic heritage as a factor in the prosecutor's peremptory challenge.
B. Stationing of Sheriff's Deputy Next to McReynolds
McReynolds next contends that the trial court erred in denying his motion for a mistrial after a uniformed sheriff's deputy sat next to him during a portion of his testimony. He further contends that the deputy's presence constituted prejudicial error. We disagree.
1. Relevant Procedural History
McReynolds began testifying on the morning of January 25, 2023. At some point after the noon break, a deputy sat behind McReynolds while he was testifying. The next morning, defense counsel objected and moved for a mistrial. Defense counsel argued that the deputy's presence behind McReynolds was improper, especially without a hearing on the need for the deputy's presence beforehand, and drew attention to McReynolds's custody status. Defense counsel further argued that the deputy's presence allowed the jury to presume that McReynolds was a violent person when he had been in custody for over six years without any reported issues.
The trial court denied the motion for a mistrial, reasoning that "it is common in criminal cases that a defendant is accompanied to the stand by a deputy who sits near him." The court then stated that this was not "comparable to the circumstance of a defendant being shackled or otherwise restrained in the courtroom . . . because that is a demeaning appearance for the jurors and does carry all sort[s] of connotations." The court concluded that because McReynolds was "charged with a number of serious violent offenses," it "[did not] think it would be surprising to the jurors that the deputy remains close to him as he testifies."
After denying the motion, the trial court offered to instruct the jury to disregard the deputy's presence. Defense counsel agreed that an instruction was necessary but noted that she still stood by her objection and motion. The court instructed the jury not to consider the earlier presence of the deputy behind McReynolds for any purpose. McReynolds then resumed his testimony without the presence of a deputy behind him, which concluded about 20 minutes later.
2. Law and Standard of Review
"Many security and decorum procedures are routine and do not run the risk of prejudice. However, when the court imposes a measure that is inherently prejudicial to the defendant's right to assist in his defense, competently present his own testimony, or enjoy the presumption of innocence, the trial court must take particular care." (People v. Stevens (2009) 47 Cal.4th 625, 643 (Stevens).) Physical restraints like shackles, for example, are inherently prejudicial as they "convey to the jury that the defendant must be separated from the community at large because he is especially dangerous or culpable." (Id. at p. 644.)
Our high court has held, however, that "the stationing of a security officer at the witness stand during an accused's testimony is not an inherently prejudicial practice" but noted that "the trial court must exercise its own discretion in ordering such a procedure." (Stevens, supra, 47 Cal.4th at p. 644.) Specifically, "[t]he court may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis." (Id. at p. 642.) Further, the court "should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant." (Ibid.)
We review decisions regarding courtroom security for abuse of discretion. (Stevens, supra, 47 Cal.4th at p. 643.) Any error in improperly stationing a deputy near the witness stand is reviewed for harmless error under the Watson standard. (People v. Hernandez (2011) 51 Cal.4th 733, 745 (Hernandez).) Pursuant to that standard, "we must reverse the conviction if it is reasonably probable the defendant would have obtained a more favorable result absent the error." (Ibid.)
(People v. Watson (1956) 46 Cal.2d 818.)
We also review the denial of a motion for mistrial for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 282.) "[A] motion for mistrial should be granted only when' "a party's chances of receiving a fair trial have been irreparably damaged." '" (Ibid.)
3. Any Error Was Harmless
The People initially contend that McReynolds forfeited his argument by not timely objecting to the deputy's placement during his testimony. We find no forfeiture as the deputy's stationing occurred without a prior hearing on the issue, and defense counsel objected the very next morning, before McReynolds resumed his testimony. On the merits, we find that although the trial court abused its discretion in allowing the deputy to sit behind the witness stand during a portion of McReynolds's testimony, the error was harmless and therefore does not require reversal.
The record does not show that the trial court made any case-specific determination that stationing a deputy near McReynolds at the witness stand was necessary or appropriate before the deputy sat behind McReynolds. Indeed, it is unclear why the deputy decided to sit behind McReynolds during his afternoon testimony. After defense counsel objected and moved for a mistrial the next day, the court stated that it was common practice in criminal cases for a deputy to accompany a defendant to the witness stand and sit near him. The court then held that because McReynolds was "charged with a number of serious violent offenses," it should not be surprising to the jury to see a deputy nearby while he testified. The court, however, did not determine whether McReynolds posed a current danger after defense counsel pointed out that McReynolds had been in custody for over six years without any issues. Under these circumstances, the court abused its discretion by allowing the deputy to sit behind McReynolds during part of his testimony.
Hernandez, supra, 51 Cal.4th at page 744, is instructive here. In that case, the trial court stationed a deputy near the witness stand during the defendant's testimony as a routine practice and did not discuss the matter with counsel beforehand. After defense counsel objected, the trial court "refused to make an individualized finding that [the] defendant's behavior warranted this heightened security measure." (Id. at p. 743.) Instead, it simply relied on the fact that it was routine practice during a criminal trial. (Ibid.) Under these facts, our high court held that the trial court "abused its discretion by stationing a deputy at the witness stand during [the] defendant's testimony out of deference to a generic policy." (Id. at p. 744.) The high court further held that the trial court's "scattered references to individualized facts constituted, at most, an effort to construct a post hoc justification for a security measure the court had already decided to employ pursuant to its standard policy." (Id. at p. 743.) The same is true here.
Nonetheless, the trial court did not abuse its discretion in denying the motion for a mistrial because McReynolds was not prejudiced by the error.
First, before McReynolds resumed testifying, the trial court instructed the jury not to consider the deputy's earlier presence behind McReynolds for any purpose. We presume the jury followed this instruction. (People v. Harris (1994) 9 Cal.4th 407, 425-426.)
Second, contrary to McReynolds's assertion, this was not a close case. The jury found him guilty on all 12 counts, and the evidence at trial strongly supported this verdict. Doe testified in detail about numerous instances of sexual abuse by McReynolds that occurred over the years. And during the pretext call, McReynolds did not deny Doe's allegations. Rather, he told Doe's mother that he did not remember but conceded that "[i]t's possible" something "happened." After his arrest, McReynolds admitted to the police that he inappropriately touched Doe eight or nine times and that she had put his penis in her mouth. He also wrote an apology letter to Doe in which he stated that he wished he could take back what he had done. Although McReynolds later recanted his confession to the police during his testimony, claiming that he lied in order to protect Doe, we do not see how the presence of a deputy during a portion of his testimony made any difference here in light of the overwhelming evidence against him. Accordingly, it is not reasonably probable that McReynolds would have obtained a more favorable outcome absent the error.
C. Substantial Evidence of Forcible Lewd Conduct
McReynolds next argues that there was insufficient evidence to support his four convictions for forcible lewd acts upon a child (counts 6, 8, 11, and 12). Specifically, McReynolds contends that there was no evidence he used physical force that was substantially greater than the force necessary to accomplish the lewd act. The People counter that these convictions may be premised on duress alone and that there was substantial evidence that McReynolds accomplished these acts by duress. We agree.
Our standard of review is well established. When a defendant challenges his conviction based on insufficiency of the evidence, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We"' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." '" (People v. Davis (1995) 10 Cal.4th 463, 509.)
The crime of forcible or aggravated lewd act upon a child requires that the defendant accomplish the lewd act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1), italics added.) "[D]uress" means"' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." '" (People v. Soto (2011) 51 Cal.4th 229, 246, italics omitted (Soto).) Because "duress is measured by a purely objective standard," "the focus must be on the defendant's wrongful act, not the victim's [subjective] response to it." (Ibid.) Circumstances like the victim's age and her relationship to the defendant are relevant considerations in determining whether an act was accomplished by duress. (Id. at p. 246, fn. 9.)
Here, the trial court instructed the jury using the above definition of duress. And there was substantial evidence that McReynolds's wrongful conduct met that definition. Doe was only eight years old at the time of the first offense (or perhaps even younger), and McReynolds is her father. These facts alone are sufficient to establish duress. (People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. 6 (Cochran) ["when the victim is . . . young . . . and is molested by her father in the family home, in all but the rarest cases duress will be present"], disapproved on another ground in Soto, supra, 51 Cal.4th 229.) But even if these facts were not enough, by themselves, to establish duress, there is additional evidence of duress. For example, McReynolds was emotionally and mentally abusive, and Doe was scared of him. McReynolds also physically disciplined Doe with a belt. Finally, McReynolds often threatened Doe that "something would happen" if she told anyone about it after he sexually abused her.
McReynolds counters that the facts here "pale[] in comparison with Cochran." In that case, the victim was nine years old and the defendant was also her father. (Cochran, supra, 103 Cal.App.4th at p. 15.) A video recorded by the defendant showed that he "direct[ed] and coach[ed] the victim" and that the victim was clearly "reluctant to engage in the activities and, at most, acquiesce[d] in the conduct." (Ibid.) The victim also orally copulated the defendant and "repeatedly gag[ged], curl[ed] up on the sofa away from [the defendant], and only continue[d] reluctantly and as a matter of compliance with parental authority." (Ibid.) In another part of the video, the victim can be heard complaining that the defendant was "hurting her." (Ibid.)
While the defendant in Cochran may have applied greater physical force than McReynolds, we fail to see why that matters where, as here, duress does not depend on a finding of force. (Cochran, supra, 103 Cal.App.4th at p. 15 ["The very nature of duress is psychological coercion"].) In any event, there was arguably more evidence of duress here than in Cochran. For example, Doe testified that she was afraid of McReynolds and that McReynolds threatened her to keep quiet after each incident of sexual abuse. By contrast, the victim in Cochran "testified she was not afraid of [defendant and] that he did not beat or punish her." (Cochran, supra, 103 Cal.App.4th at p. 15.) Thus, the evidence of duress here is arguably stronger than the evidence of duress in Cochran.
D. Ex Post Facto Violation
McReynolds argues that his sentence on count 6 violates the ex post facto clause because the prosecutor failed to establish that the offense underlying this count occurred after the Chelsea King Child Predator Prevention Act of 2010 (Chelsea's Law) went into effect in September 2010. (Stats. 2010, ch. 219.) It is "the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court." (People v. Hiscox (2006) 136 Cal.App.4th 253, 256.) We agree with McReynolds and remand the matter for resentencing.
Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of the California Constitution prohibit the passage of ex post facto laws. This means that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43.) Here, the offense underlying count 6 (forcible lewd act upon a child) was alleged to have occurred between March 19, 2010 and March 19, 2012. But Chelsea's Law-which "significantly increase[d] the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions" (Soto, supra, 51 Cal.4th at p. 237, fn. 4)-did not go into effect until September 9, 2010. Thus, McReynolds should not have been sentenced under Chelsea's Law, which increased the punishment for forcible lewd acts upon a child from three, six, or eight years to five, eight, or ten years. (Stats. 2010, ch. 219, § 7; § 288, subd. (b)(1).)
Here, the trial court sentenced McReynolds to the eight-year midterm on count 6 pursuant to section 288 as amended by Chelsea's Law. In doing so, the court expressly noted that it could not "sentence the aggravated term because the jury did not find aggravating factors." This is consistent with section 1170, which states that "[t]he court may impose a sentence exceeding the middle term only when there are circumstances in aggravation." (§ 1170, subd. (b)(2), italics added.) The court then stayed the eight-year sentence pursuant to section 654.
The People do not dispute that McReynolds may have committed count 6 before Chelsea's Law went into effect but argue that there is no ex post facto violation because McReynolds received a sentence-i.e., eight years- that did not exceed the "maximum punishment" under the prior law. This argument, however, runs contrary to well-established precedent.
In Lindsey v. Washington (1937) 301 U.S. 397, an earlier version of a law provided that the punishment for grand larceny could be up to 15 years imprisonment but was later amended to require the maximum term. (Id. at pp. 397-398.) The amended law took effect after the petitioners committed the offense but before sentencing, and they were sentenced to the 15-year maximum term. (Id. at p. 398.) The United States Supreme Court concluded that this violated the ex post facto clause because "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence." (Id. at p. 400.) Forty years later, the high court interpreted Lindsey to mean "that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old." (Dobbert v. Florida (1977) 432 U.S. 282, 300.)
More recently, another division of this court considered whether a change in the law that "transform[s] discretionary conditions of probation into mandatory ones" triggers the ex post facto clause. (People v. Delgado (2006) 140 Cal.App.4th 1157, 1167.) That division concluded that it did and reasoned that "a change in law that increases the mandatory minimum sentence attached to a crime increases the measure of punishment even if a defendant cannot show that he would have received a more lenient sentence under the former law." (Id. at p. 1169.) Likewise, "changes in sentencing rules can violate the ex post facto clause when the rules sufficiently circumscribe judicial discretion, even if the change does not automatically lead to a more onerous result than what would have occurred under the prior law." (Ibid.)
Chelsea's Law undisputably increased the mandatory minimum sentence for McReynolds's conviction under count 6 and made eight years, which was previously the maximum term, the presumptive middle term. The record also establishes that McReynolds could not have been sentenced to the eight-year upper term under the prior law because the jury did not find any aggravating factors to justify imposition of the upper term. (§ 1170, subd. (b)(2).) McReynolds's eight-year sentence for count 6 therefore violates the ex post facto clause, requiring resentencing.
E. Prosecutorial Misconduct
McReynolds contends that certain statements made by the prosecutor during her opening statement and closing argument constituted prosecutorial misconduct that deprived him of a fair trial. We are unpersuaded.
1. Relevant Procedural History
During her opening statement, the prosecutor stated that "Jane Doe was living in a nightmare she couldn't wake up from." Defense counsel objected. After a discussion off the record, the trial court admonished the jury that what counsels say in their opening statements and closing arguments is not evidence. The prosecutor then told the jury that "after enduring this sexual abuse, Jane Doe will have the courage to come into court and face her abuser and allow herself to be re-victimized all over again." Defense counsel objected, and the court again admonished the jury that "statements of counsel are not evidence."
During closing argument, defense counsel argued that Doe was "disturbed" and had "been influenced by her mother." In rebuttal, the prosecutor acknowledged that "the defense does not have the burden of proof" and that "[t]he burden of proof never shifts from the People." The prosecutor, however, argued that if "bringing in [Doe's mother] actually would support [McReynolds's] version of the case, [McReynolds had] the same subpoena power the People do." Defense counsel objected that this was "[b]urden shifting." The trial court responded, "[I]t's been made clear multiple times, the burden never shifts to the defense. The People retain the burden. But counsel are permitted to comment on the other witnesses that a party could call."
Later, the prosecutor argued, "It is a complete farce that defendant admitted to molesting his daughter to protect her. That's insulting." Defense counsel objected that this was prosecutorial misconduct, but the trial court overruled the objection. At the end of her rebuttal, the prosecutor concluded, "[N]ow it's time to deliberate. And only after you deliberate and find him guilty, it's only then that her voice will be heard" "and justice will be served." Defense counsel again objected that this was prosecutorial misconduct. The court overruled the objection and repeated its admonition to the jury that "the statements of counsel are not evidence" and that the evidence "comes from the witnesses." Defense counsel moved for a mistrial on the ground that the prosecutor "inappropriately vouch[ed] for Jane Doe's credibility by appealing to the emotions of the jurors." The court denied the motion.
2. Relevant Law and Application
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted." (People v. Riggs (2008) 44 Cal.4th 248, 298 (Riggs).) Further, "[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.)
At trial, a prosecutor "is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury." (People v. Pensinger (1991) 52 Cal.3d 1210, 1251.) In Pensinger, the defendant's crimes involved the disturbing murder of a five-month-old infant. (Id. at p. 1238.) And at trial, the prosecutor argued that the defendant was a" 'perverted maniac.'" (Id. at p. 1251.) Despite the potentially inflammatory nature of the prosecutor's characterization of the defendant, our high court held that the prosecutor did not "exceed[] the bounds of proper argument" as "there was evidence in the record which, if the jury believed it, would warrant" the argument made. (Ibid.) Moreover, the defendant failed to argue "that an admonition could not have cured the harm." (Ibid.)
As in Pensinger, we do not find that the prosecutor committed any misconduct in her opening statement or closing argument. Her characterization of McReynolds's testimony as a "farce" did not exceed the bounds of proper argument and was supported by the overwhelming evidence of sexual abuse, including Doe's testimony, McReynolds's interview with the police, and his apology letter to Doe. And her comments that Doe was "living in a nightmare" and "allow[ing] herself to be re-victimized" by testifying was also supported by the evidence. Indeed, Doe testified about the numerous incidents of abuse she endured throughout the years and her fear of McReynolds. We are further unpersuaded that the prosecutor's claim that Doe was "living in a nightmare" was an improper invitation for the jurors to "step into Doe's shoes." The claim simply relayed Doe's own personal experiences growing up with McReynolds.
Finally, even assuming that the prosecutor's comments were aimed at arousing the passion or prejudice of the jury, any error was harmless. In light of the overwhelming evidence of McReynolds's guilt, it was not reasonably probable that, without such misconduct, McReynolds would have received a more favorable outcome. (Riggs, supra, 44 Cal.4th at p. 298.) Indeed, the jury convicted McReynolds on all counts. Further, the trial court, on several occasions, admonished the jury that counsel's arguments were not evidence, and McReynolds does not contend that these admonitions were insufficient to cure any harm caused by the prosecutor's comments.
F. Ability to Pay Fees and Assessments
Lastly, McReynolds argues that a $360 court security fee (§ 1465.8) and a $480 criminal conviction assessment (Gov. Code, § 70373) should be stricken because they were imposed against him without a showing of his ability to pay as required under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). McReynolds, however, forfeited this argument by failing to object or to contest his ability to pay the assessments and fees below.
Our Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844, on the issue of whether the trial court must consider a defendant's ability to pay before the imposition of assessments and fees.
In Duenas, the Court of Appeal held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments." (Duenas, supra, 30 Cal.App.5th at p. 1164.) Shortly after, this same court clarified that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (People v. Castellano (2019) 33 Cal.App.5th 485, 490.) This comports with the general rule that "a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal." (People v. Greeley (2021) 70 Cal.App.5th 609, 624.)
Here, Duenas was decided roughly four years before McReynolds was sentenced, and we see no reason why he could not have raised an ability-to-pay objection pursuant to Duenas at sentencing. McReynolds only argues in reply that "resolution of this issue must await our Supreme Court's guidance." But he fails to explain why his failure to challenge the fees and assessments based on his inability to pay should be excused.
III. DISPOSITION
The judgment is reversed in part and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.
We concur. JACKSON, P. J., SIMONS, J.