Opinion
H048965
04-27-2023
THE PEOPLE, Plaintiff and Respondent, v. EPIFANIO LEDESMA MONTOYA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 19CR012403)
Wilson, J.
A jury convicted defendant Epifanio Ledesma Montoya of multiple sexual offenses against two different children, Jane Doe 1 and Jane Doe 2, both of whom were under 14 years of age. He was sentenced to a total indeterminate term of 100-years-to-life in prison.
The victims, who are not related, were identified at trial by their first names, with "Doe" in place of their surnames. In order to further protect their identity, we will refer to them as Jane Doe 1 and Jane Doe 2 throughout this opinion.
On appeal, Montoya raises the following arguments related to his trial: (1) his trial counsel was constitutionally ineffective for failing to suppress Montoya's custodial interview with police officers and in her final argument to the jury; (2) the trial court erred in admitting expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS); and (3) the trial court erred in instructing the jury on CSAAS with CALCRIM No. 1193. With respect to his sentence, Montoya argues: (1) the 25-years-to-life terms imposed under the One Strike law constituted improper dual punishment and violated the Eighth Amendment; (2) the trial court erred by failing to conduct a hearing on his ability to pay fines and fees; and (3) the minute order from the sentencing hearing and abstract of judgment must be corrected to reflect the trial court's oral pronouncement of a $1,500 restitution fund fine.
We find no merit in any of Montoya's substantive arguments, but agree that the abstract of judgment and minute order must be modified regarding his restitution fund fine. As modified, we will affirm the judgment.
I. Factual and Procedural Background
A. Procedure
On January 5, 2021, the Monterey County District Attorney filed an amended information charging Montoya with one count of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); count 1), and four counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 2-5).The amended information also alleged, as to each count, that the offenses were committed against more than one victim and each victim was under the age of 14 (§ 667.61, subd. (j)(2); counts 1-5). As to counts 1 through 4, the amended information further alleged Montoya had substantial sexual conduct with the victims and the victims were under the age of 14 (§ 1203.066, subd. (a)(8); counts 1-4).
Unspecified statutory references are to the Penal Code.
The amended information named Jane Doe 1 as the victim in counts 1 and 2 and Jane Doe 2 as the victim in counts 3, 4, and 5.
On February 22, 2021, the jury convicted Montoya on all five counts and found true the special allegations associated with those counts (§§ 667.61, subds. (e)(4), (j)(2), 1203.066, subd. (a)(8)).
On March 23, 2021, the trial court sentenced Montoya to an aggregate indeterminate term of 100-years-to-life in prison, consisting of consecutive terms of 25-years-to-life on counts 1, 2, 4, and 5, plus a concurrent term of 25-years-to-life as to count 3.
In addition, the trial court imposed the following fines, fees, and assessments: a restitution fund fine of $1,500 ($300 per conviction) (§ 1202.4, subd. (b)); an additional parole revocation fund fine of $1,500, suspended pending successful completion of parole (§§ 1202.4, subd. (b), 1202.45); a sexual offender registration fine of $500 plus $1,550 in penalty assessments and administrative fees for a total of $2,050 (§ 290.3); a court operation assessment of $200 ($40 per conviction) (§ 1465.8, subd. (a)(1)); and a court facility assessment of $150 ($30 per conviction) (Gov. Code, § 70373).
The minute order from the sentencing hearing incorrectly indicates that the restitution fine is $10,000. As discussed below, we will direct the trial court to correct the minute order and abstract of judgment to reflect the amount orally imposed by the trial court at sentencing.
Montoya timely appealed.
B. Facts
1. Prosecution case
a. Montoya's relationship with the victims and discovery of sexual conduct
Montoya began dating Maria C. in 2015 or 2016 and, in the fall of 2019, he was living with Maria C. at her home in Salinas with her two daughters, A.C. and Jane Doe 1. In 2019, A.C. was an adult and Jane Doe 1 was 10 years old. Either A.C. or Montoya would look after Jane Doe 1 after school while Maria C. was at work. Sometimes, one of Jane Doe 1's classmates, Jane Doe 2, would come to Jane Doe 1's house after school as well.
b. Jane Doe 1's testimony regarding uncharged conduct
Jane Doe 1 testified to a total of six incidents, two of which were charged in counts 1 and 2. The trial court instructed the jury, pursuant to CALCRIM No. 1191A, that it could only consider the evidence of the four uncharged offenses if the prosecution proved, by a preponderance of the evidence, that Montoya committed those offenses, otherwise it should "disregard this evidence entirely." However, if the prosecution met its burden of proof, the jury could also "conclude from that evidence that . . . [Montoya] was disposed or inclined to commit sexual offenses . . . [a]nd . . . conclude that . . . [Montoya] was likely to commit and did commit the lewd and lascivious act by force or violence and lewd or lascivious acts on a child under 14 years as charged here." Defense counsel did not object to the use of this instruction.
Jane Doe 1, who was 11 years old at the time of trial, testified that Montoya first touched her inappropriately when she was near the end of third grade. She was sitting on the couch in her living room watching television when Montoya came into the room and sat next to her. Montoya put his hand on her thigh then slid his hand up toward her groin. He touched her "private part" over her clothes for two or three minutes until she grabbed his hand and pushed him away. Jane Doe 1 ran to her sister's bedroom, locked the door, and began to cry. She did not say anything because she was afraid Montoya would do something to her mother.
The next incident Jane Doe 1 described took place at the beginning of fourth grade. She and Montoya were "play[] fighting" alone in the living room after she returned home from school. Montoya got on top of her and she "couldn't do anything." Montoya touched her ribs then her breasts.
That same school year, Jane Doe 1 was watching television in the living room. She was on the floor and Montoya sat down near her and pulled her leg. When Montoya started to pull her pants down, she tried to pull them back up and told him to stop. Montoya grabbed her legs so that she could not move, took off her pants, and got on top of her. He inserted his penis into her vagina, hurting her.
The last uncharged incident again occurred when Jane Doe 1 was in fourth grade. She was in her mother's bedroom when Montoya entered the room and asked what she was doing. After Jane Doe 1 replied "nothing," Montoya jumped on her. Because Montoya was heavy, she could not breathe. Montoya grabbed Jane Doe 1's hands, put his knee on her stomach, and pulled down her pants. He then pulled down his pants, but not his underwear, and "went up and down" on top of her.
c. Jane Doe 1's testimony regarding counts 1 and 2
Jane Doe 1 testified that the offense charged in count 1 occurred when she was sitting in the living room of her mother's house. Montoya came out of her mother's room, sat down near her, then pulled her to the floor. After he pulled down her pants, Jane Doe 1 got up and ran to her mother's room, got on the bed, and tried to cover herself with a blanket. Montoya pulled the blanket away, removed both of their pants, and got on top of her. He pulled his underwear down and inserted his penis into her vagina. Jane Doe 1 tried to get away, but he grabbed her elbows, preventing her from moving. After a couple of minutes, she was able to kick him in the stomach and he stopped.
Jane Doe 1 initially testified it was difficult to keep these incidents separate in her mind, but subsequently agreed that the incident on her mother's bed took place when she was in fourth grade.
The incident charged in count 2 also occurred when Jane Doe 1 was in the fourth grade. Jane Doe 1 was watching television after school, lying on her stomach. She asked Montoya to scratch her back and, as he did so, she pretended to fall asleep. Montoya moved his hand down her spine until he was touching her buttocks. He put his hand beneath her shorts, and pushed her underwear aside before touching her vagina with two fingers. Montoya then pulled out his penis and inserted it into her vagina, hurting her. After an undisclosed amount of time, Montoya got up and left the room.
d. Jane Doe 1's testimony regarding the cellphone video
At the beginning of fifth grade, Jane Doe 1 befriended Jane Doe 2, who was the same age as her. On September 26, 2019, Jane Doe 2 and her younger brother came over to Jane Doe 1's house after school. Jane Doe 1 had previously disclosed to Jane Doe 2 what Montoya had done to her. Jane Doe 2 spontaneously asked "what if [I] did it" with Montoya. Jane Doe 1 replied by asking why she would do that. Jane Doe 2 did not respond but went into the living room where Montoya was playing with Jane Doe 2's younger brother. Jane Doe 1 decided she wanted to catch Montoya in the act, because she was tired of him abusing her. She positioned her phone on the dresser in her mother's room, with the camera facing the bed, activated the video recording and left the room. After some period of time, she reentered the bedroom, repositioned the phone and started the video recording again. When she watched the videos later that day, she saw Montoya and Jane Doe 2 in them.
In its trial brief, the prosecution summarized the contents of the videos, which were admitted into evidence and played for the jury. In the first video, Jane Doe 1 is seen setting up the camera and asking where Montoya is. She then takes Jane Doe 2's younger brother out of the room with her. Jane Doe 2 can be heard saying she locked the door, and she then lies near Montoya on the bed. After a short period of time, Montoya moves her hand toward his crotch. Jane Doe 2 says "take it off," and he has her stroke his penis. Montoya stands up, takes her hand, and has her stroke his penis while he stands by the bed. When someone comes to the bedroom door, both Jane Doe 2 and Montoya get away from the bed, then return and lie down again. Montoya grabs Jane Doe 2's head and pushes it toward his crotch but she resists, saying "stop it" and (in Spanish) "I don't want to." He eventually relents. Near the end of the video, Jane Doe 2 gets up on her knees saying she needs to use the bathroom. Montoya puts his hand between her legs and rubs her crotch over her clothing for about 30 seconds. Jane Doe 2 starts to remove her pants, but they are interrupted by something outside the room. After Montoya heads to the door, Jane Doe 2 makes a face at the camera, simulating vomiting, and ends the recording. At the beginning of the second recording, Jane Doe 2 again locks the door. Montoya can be seen telling her to do something, but the audio cannot be heard. The two of them end up on the bed, and Jane Doe 2 is seen removing her pants and underwear and getting on top of Montoya (who is out of view of the camera). As she begins to lower herself onto Montoya, she can be seen saying "Ouch" into the camera. Eventually Jane Doe 2 can be heard saying "stop. Not too hard" and climbs off of Montoya. Both of them move out of frame, but later Jane Doe 2's face enters into view, and it appears she is bent over the bed, with Montoya behind her. She is rocking back and forth repeatedly, while Montoya can be heard breathing heavily until the video comes to an end.
e. Jane Doe 1's testimony regarding the incident with Jane Doe 2 at Montoya's worksite
Jane Doe 1 also testified that, in October 2019, she and Jane Doe 2 went to a barbecue that was held in the evening at Montoya's workplace. At the site, Jane Doe 1 and Jane Doe 2 rode with Montoya in a golf cart, far away from the party. They joined Montoya in a field while he worked on some pipes. Jane Doe 2 told Montoya to pull down his pants, and he pulled down his pants and underwear. Jane Doe 1 could see Montoya's penis because he shined his flashlight on it. Montoya told Jane Doe 2 to pull down her pants and she did. Jane Doe 2 told Jane Doe 1 to pull down her pants as well, but Jane Doe 1 refused.
They all rode back to Montoya's car in the golf cart and got inside the car. Jane Doe 1 sat in the passenger's seat while Montoya sat in the driver's seat. Jane Doe 2 climbed between Montoya and Jane Doe 1. Jane Doe 1 saw Montoya pull Jane Doe 2's pants down and heard him unbuckle his belt. Jane Doe 2 was lying on her side with Montoya reclined behind her, both facing Jane Doe 1. Montoya and Jane Doe 2 were "doing it," and the car moved "like if there was an earthquake." After about five minutes of this, Jane Doe 1 got out of the car, but Montoya and Jane Doe 2 remained inside.
Based on Jane Doe 1's testimony, it appears Montoya and Jane Doe 2 had put their pants back on before returning to the car.
f. Discovery of cellphone video and Montoya's custodial interview
In November 2019, A.C. showed Maria C. a video on Jane Doe 1's phone showing Montoya and Jane Doe 2 engaging in sexual conduct. Maria C. called the police. Salinas police officers viewed the cell phone video and interviewed Jane Doe 1, who said that Montoya had also sexually abused her on one occasion.
Jane Doe 1 testified that someone discovered the video a "few days after" "September 29," but her mother saw it first on November 13, 2019. There was no testimony explaining the approximately six week delay between the video's discovery and it being disclosed to Maria C.
Following Montoya's arrest on the evening of November 13, 2019, police officers interviewed him at the station that night.
During his interview, Montoya admitted he touched Jane Doe 1 inappropriately in August 2019 when she asked him to scratch her back while she lay on the floor. Montoya scratched her back, but at one point, moved his hand under her shorts, and briefly touched her vagina over her underwear. He also took his penis out of his pants and touched her shorts with it. Montoya was behind Jane Doe 1 all the time and did not believe she saw him touch her with his penis. Montoya told the officers this "was the first and last time" he ever touched Jane Doe 1 inappropriately.
Montoya further admitted that he engaged in sexual activity with Jane Doe 2 on one occasion. Jane Doe 2 came into his room while he was trying to sleep, but he told her to leave. Jane Doe 2 removed her pants and climbed on top of him. Jane Doe 2 then pulled Montoya's pants down and grabbed his penis. Jane Doe 2 tried to put his penis in her vagina, but stopped before it went inside, saying that it hurt. Jane Doe 2 got up, put her pants on, and left. Montoya said Jane Doe 2 also touched his penis with her mouth but it did not go inside her mouth.
g. CSAAS expert testimony
Dr. Blake Carmichael testified as an expert witness about CSAAS and the counterintuitive behaviors of victims of child sexual abuse. According to Dr. Carmichael, the common misconceptions about victims of child sexual abuse are that children will: (1) tell about the abuse right away; (2) show fear of their abuser; (3) fight, scream, or flee from someone abusing them; or (4) exhibit sadness or be inconsolable in the abuser's presence. Another common misconception is that an adult who loves or is close to a child would not harm that child, but the vast majority of sexual abuse is committed by someone who knows and is trusted by the child. In fact, the closeness of the relationship between the child and the perpetrator often correlates to a longer delay in reporting the abuse. Dr. Carmichael explained that this is because the child may feel like something bad may happen if they tell, not only to themselves but also to the perpetrator, for whom they feel love and affection.
Dr. Carmichael also testified that a child who reports abuse does not always report all the instances of abuse. The child may want to wait and see how the person reacts before disclosing more of what happened. Another reason may be because the child does not remember everything in that moment, but as they start to talk about it, additional memories surface. Further, when there have been repeated, regular instances of abuse, children may have trouble discriminating between all the different incidents.
When a child does talk about the abuse, they may not be tearful, sad, angry, or appear overwhelmed, but instead they come across as stoic or flat. Children can compartmentalize and disassociate from the abuse, which allows them to act normally in the other areas of their life, such as school or athletics. Because children depend on adults for their safety and protection, they will cope with the abuse differently than an adult perhaps might, such as by wearing an extra pair of pajamas, pretending to be asleep, coming home later from school, or trying to appear less accessible to the abuser.
Dr. Carmichael testified that he did not know anything about the facts of this case. He had not been given the names of anyone involved, and had not reviewed any police reports.
2. Defense case
Montoya testified on his own behalf. He denied ever having sexual intercourse with Jane Doe 1 and testified that he never forced her or Jane Doe 2 to do anything sexual with him. Rather, Jane Doe 2 "provoked" him "a lot of times," and he "fell into the provocation."
On cross-examination, Montoya admitted he touched Jane Doe 1's vagina with his hand, pulled out his erect penis, and touched her with it over her shorts. He further admitted he thought about having intercourse with her but changed his mind. After watching the video of his interaction with Jane Doe 2, Montoya admitted that he grabbed her hand and put it on his penis more than once, forced her head toward his penis, and touched her vagina and breasts over her clothes while in the room with her. Montoya then admitted that his prior testimony, "that [he] never forced [Jane Doe 2] to do anything" was not true.
II. Discussion
A. Counsel was not ineffective for not moving to suppress Montoya's pretrial admissions as involuntary
Montoya contends his trial counsel was ineffective for failing to move to exclude the inculpatory statements he made to the police during the interview following his arrest on the ground that those statements were involuntary. The Attorney General argues that trial counsel could have reasonably concluded a motion to suppress would fail and, even if counsel's performance was deficient, Montoya was not prejudiced.
We conclude that Montoya cannot show deficient performance because he cannot show that a motion to suppress his statements would succeed.
1. Background
The video of Montoya's interview with police was played for the jury and they received a copy of the transcript. Salinas Police Officer Anthony Garcia testified that at the time of that interview, he and Officer Aranda had viewed the cell phone videos showing Montoya and Jane Doe 2 (counts 3 &4) and were also aware of the single incident Jane Doe 1 disclosed to them (count 2). After the officers read Montoya his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he acknowledged that he understood them.
Officer Aranda's first name does not appear in the record.
After discussing Montoya's relationship with his family, including Jane Doe 1, Aranda told him they knew something had happened with Jane Doe 1. Aranda then said it was not "very serious," and told Montoya "you can-we can, uh, fix this. We can, you know, continue with this" before advising him "just don't lie." Aranda cautioned Montoya that if he did not tell the truth, "that's when problems start and there can be more serious things."
Later in the interview, Aranda told Montoya "we all make mistakes" before saying "what she [Jane Doe 1] said . . . happened isn't anything too serious. It . . . wasn't . . . like about rape." Aranda then asked Montoya to tell them what happened in August when he and Jane Doe 1 were on the living room floor and she asked him to scratch her back. When Montoya said nothing happened, Aranda said he already knew what happened and this was Montoya's chance to be honest so that "we can, you know, work together."
Montoya again said all he did was scratch Jane Doe 1's back, and the officers stated that particular act was not against the law. Officer Garcia explained that they knew Montoya did not have sex with Jane Doe 1, but they also knew that he put his hand "under her shorts, but on top of her panties only." Officer Garcia said, "I know you're scared, okay? But like I said, uh, it's not so-it's not anything serious, okay?" Montoya then admitted that he touched Jane Doe 1 under her shorts but above her underwear. After the officers asked him if he did anything with his penis, Montoya admitted he pulled his penis out and touched it to Jane Doe 1's shorts. Following Montoya's admission, Aranda told him it was important that Montoya "be . . . honest," and Garcia chimed in, "It's better for you."
Montoya then began promising not to ever touch Jane Doe 1 again and said he would be more insistent in making sure she did not "come near me anymore." Alternatively, Montoya indicated he would leave Maria C. and not live with Jane Doe 1 anymore.
The officers then reminded Montoya of his Miranda rights. Montoya acknowledged that he understood what was explained to him. Later in the interview, Montoya admitted to sexual conduct with Jane Doe 2 as well.
The prosecutor played portions of the interview while cross-examining Montoya, impeaching his testimony with multiple instances of him lying to the officers.
During final argument, defense counsel argued that Montoya had not seen the videos of him and Jane Doe 2 prior to the police interview, and the interview took place two months after those videos were made. She also argued that it was unclear what motivated Jane Doe 1 and Jane Doe 2 to record Montoya, but Montoya did not use force with either of them.
In rebuttal argument, the prosecutor theorized that, during the interview, Montoya realizes he could not credibly deny everything to the officers, so he elected to admit a "little bit" of what he did.
2. Applicable legal principles a. Ineffective assistance of counsel
The standard for evaluating claims that counsel provided constitutionally ineffective assistance is set forth in Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland), which states: "[t]o secure reversal . . . upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
It is the defendant's burden of demonstrating by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) A "mere failure to object to evidence or argument seldom establishes counsel's incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.) "Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Further, "[f]ailure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
b. Admissibility of confessions
In order for a confession to be admissible as evidence, the confession must have been made voluntarily and without coercion. (Jackson v. Denno (1964) 378 U.S. 368, 385-386; People v. Benson (1990) 52 Cal.3d 754, 778.) Admitting an involuntary confession as evidence against a defendant violates a defendant's due process rights under both the California and United States Constitutions. (Jackson v. Denno, supra, 378 U.S. 368; People v. Berve (1958) 51 Cal.2d 286, 290, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509, fn. 17.)
" 'A statement is involuntary if it is not the product of" 'a rational intellect and free will.'" [Citation.] The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he [or she] confessed." [Citation.]" 'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." '" '" (People v. McWhorter (2009) 47 Cal.4th 318, 346-347 (McWhorter).)
" 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked.'" (McWhorter, supra, 47 Cal.4th at p. 347.) "However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." (People v. Jimenez (1978) 21 Cal.3d 595, 611, disapproved on another ground in People v. Cahill, supra, 5 Cal.4th at p. 509, fn. 17.) The test is whether the police "cross[ed] the line from proper exhortations to tell the truth into impermissible threats of punishment or promises of leniency." (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
3. No reasonable basis upon which the motion to suppress would be granted
Our careful review of the interview's circumstances and content demonstrates that there was no basis for concluding that Montoya's admissions were involuntary. The interview lasted approximately 90 minutes and was conducted by two police officers in the interrogation room of the police station. Montoya acknowledged that the officers had read him his Miranda rights at the beginning of the interview, and when the officers subsequently reminded him of those rights, he maintained that he understood them. There was nothing unduly overbearing about the setting or circumstances of the interview, nor was it exceptional in length.
Although Montoya suggests he was "especially susceptible" to interrogation techniques due to his limited education, his statements to the officers indicated that he understood the serious nature of engaging in sexual conduct with minors. He repeatedly sought to minimize his own conduct, initially denying that anything happened, while simultaneously accusing both Jane Doe 1 and Jane Doe 2 of behaving inappropriately with him by, e.g., trying to pull down his pants or grabbing his penis. Montoya also told the officers that he always told Jane Doe 2 to stop when she was trying to "provoke" him because he knew if he touched her, he would "get thrown in jail."
Montoya's claim that the officers "crossed the line" and made implicit promises of leniency during the interview are also unsupported. During the interview, the officers consistently urged Montoya to tell the truth and made no promises that he would be treated more leniently if he admitted wrongdoing.
The closest officers came to an implicit promise of leniency was when Aranda made the following statement to Montoya: "[I]f we see that you're completely honest with . . . us, . . . we can . . . fix this. We can, you know, continue with this. But what I do advise you in-professionally what I do advise you . . . is just don't lie." But a vague offer to "fix this" is not a promise of leniency. This statement "fall[s] far short of being [a] promise[] of lenient treatment in exchange for cooperation." (Holloway, supra, 33 Cal.4th at p. 116.) There was no discussion of reduced penalties or avoiding prosecution."' "[W]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made.'" (Id. at p. 115.)
At the time of the interview, the officers were aware of one incident with Jane Doe 1, involving Montoya touching her vagina as she lay on the floor, and they had seen the cellphone videos of Montoya and Jane Doe 2. Thus when Aranda initially told Montoya that what Jane Doe 1 had reported was not "very serious" and did not involve an allegation of rape, it is clear that the officers were contrasting the conduct involving Jane Doe 1 with the (relatively) more serious conduct with Jane Doe 2. At no time, however, did either officer suggest that Montoya would not be charged with a felony or face a lengthy prison sentence for what he had done. In fact, Montoya himself repeatedly said that touching a child sexually was a serious crime and, at first, he continually denied and minimized his conduct with respect to both Jane Doe 1 and Jane Doe 2. It was only after repeated questioning that Montoya admitted more and more of what had happened, as it became clear that the officers already knew the truth.
We are also unpersuaded by Montoya's claims that his statements to police showed his belief that he would be permitted to go home if he confessed. At no point did the officers respond to Montoya's promises to never touch Jane Doe 1 again or to leave his family by indicating that he would in fact be free to leave if he simply admitted what he had done. When Officer Garcia told Montoya his family "want[s] [him] to be honest" so that he can "[l]eave . . . everything behind," this was describing the "benefit" of Montoya achieving some sort of closure with his family, not a promise to let him go if he confessed.
On this record, Montoya's counsel may have elected not to file a motion to exclude his statements because counsel reasonably believed such a motion had "little or no basis." (People v. Lucas (1995) 12 Cal.4th 415, 442.) It is well-established that "failing to make motions or objections that counsel reasonably determines would be futile" is not ineffective assistance. (People v. Price (1991) 1 Cal.4th 324, 387, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.)
Because the record does not support a finding that Montoya's admissions were involuntary, his trial counsel was not ineffective for failing to seek suppression of his statements on that ground.
B. Counsel was not ineffective in final argument
Montoya also argues his trial counsel was ineffective in her final argument by: (1) failing to address weaknesses in the prosecution's case; (2) making a "confusing," "irrelevant" presentation that was "supportive of the prosecution's case, tender[ing] only nondefenses to the jury, and effectively conced[ing] [Montoya]'s guilt on charges he denied." We disagree.
1. Additional background
Montoya was charged with three counts of sexual conduct relating to Jane Doe 1, as follows: (1) count 1 alleged Montoya committed a forcible lewd act on Jane Doe 1 when he followed her into the bedroom and sexually assaulted her; (2) count 2 alleged Montoya committed a lewd act on Jane Doe 1 when he touched her vagina underneath her clothing in the living room; and (3) count 5 alleged that Montoya committed a lewd act on Jane Doe 1 when he was with her at his worksite. With respect to Jane Doe 2, he was charged with two counts (counts 3 &4) of committing a lewd act on her, both arising out of the incidents recorded on Jane Doe 1's cellphone.
During his testimony, Montoya denied ever having intercourse with Jane Doe 1, and denied using force in committing any sexual acts with her. As to Jane Doe 2, Montoya testified that she "provoked" him to do the sexual acts that were captured on the video recording, and denied that he used force against her in any way. On cross-examination, Montoya admitted that, during the incident on the living room floor, he touched Jane Doe 1's vagina with his hand and also touched her, over her clothing, with his erect penis.
After the close of evidence, the trial court instructed the jury, pursuant to CALCRIM No. 1110, that in order to convict Montoya of counts 2, 3, 4, or 5, it had to determine that he touched a part of a child's body or caused a child to touch his or her own body or his body with the intent to arouse or gratify the lust, passions, or sexual desires of himself or the child, and the child was under 14 years old. The jury was also instructed with CALCRIM No. 1111 that to convict Montoya of count 1, it had to determine that, in addition to the elements set forth in CALCRIM No. 1110, Montoya also used "force, violence, duress, menace or fear of immediate and unlawful bodily injury to the child or someone else" in committing the act. The jury was specifically instructed that it is not a defense that the child may have consented to the act. In addition, the trial court instructed the jury that it could consider Jane Doe 1's testimony regarding the four uncharged offenses as evidence that Montoya was "disposed or inclined to commit sexual offenses . . . [a]nd . . . was likely to commit" the charged offenses.
In his initial argument, the prosecutor maintained that, with respect to the element of force on count 1, the jury had to determine whether Jane Doe 1's testimony was credible. The prosecutor referenced the video recording, noting that it showed Montoya initiating the contact with Jane Doe 2, forcing her head toward his penis, and moving her hand to his penis, stating that it was "clearly not his first time doing this with a child." The prosecutor then argued that it should evaluate whether Jane Doe 1's testimony was corroborated, directly or indirectly, by other evidence, such as the videos of Montoya and Jane Doe 2.
During her final argument, Montoya's counsel called the girls' conduct in recording Montoya in the bedroom "disturbing" and that this conduct undercut Jane Doe 1's credibility. Montoya's counsel questioned Jane Doe 1's explanation that the videos were made because she wanted Montoya to stop abusing her, because Jane Doe 1 not only failed to show those videos to anyone, but she also subsequently went to Montoya's worksite with him and Jane Doe 2. Defense counsel also contested that there was evidence of force: "Did anybody force anybody to do anything? I submit that there was no force here." After arguing that Jane Doe 2 was not forced to do anything in the videos, defense counsel concluded that the jury will "have to consider [Jane Doe 1]'s testimony to determine what happened between her and [] Montoya."
2. Counsel was not constitutionally ineffective in final argument
"Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense." (People v. Moore (1988) 201 Cal.App.3d 51, 57.) "The effectiveness of an advocate's oral presentation is difficult to judge accurately from a written transcript." (People v. Cudjo (1993) 6 Cal.4th 585, 634.) We decline to find deficient performance in this situation.
As detailed above, the jury saw Montoya engaging in sexual acts with 10-year-old Jane Doe 2. During those encounters, Montoya pushed her head toward his crotch and pushed her hand toward his penis several times. In addition, the jury watched Montoya's interview with police in which, after accusing Jane Doe 1 and Jane Doe 2 of behaving inappropriately toward him, Montoya admitted to touching Jane Doe 1's vagina as she lay on the living room floor and admitted to acting on to what he described as Jane Doe 2's provocative behavior. In the face of this evidence, attacking Jane Doe 1's credibility and intimating that she was a willing participant, in an attempt to negate the element of force or fear in count 1, was seemingly the only viable defense strategy.
It appears that defense counsel's statements in her final argument were part of a strategy to have the jury question whether Montoya forced Jane Doe 1 to have sex by attacking her credibility and suggesting that perhaps, like Jane Doe 2, she willingly participated in the sexual acts. Ultimately, the jury believed Jane Doe 1 to be credible, not Montoya. Given the mountain of evidence supporting the convictions, it is unlikely defense counsel's statements negatively impacted the jury's decision.
We disagree that counsel's references to Jane Doe 1's and Jane Doe 2's behavior in "entic[ing]" Montoya into the bedroom and the failure to show the videos to an adult was tantamount to tendering a nondefense. Defense counsel expressly admitted to the jury that she was not arguing that the victims consented, but was instead arguing that their conduct should cause the jury to ask itself "if force was really there." Given the evidence at hand, it was reasonable for defense counsel to attempt to have the jury question whether Jane Doe 1's testimony of forcible sexual acts, which were not caught on camera, should be believed.
For the same reasons, we disagree that defense counsel improperly told the jury that Montoya did not employ force against Jane Doe 2. It is clear that defense counsel was trying to have the jury contrast the relatively minimal application of force they saw Montoya employ with Jane Doe 2 with the more violent acts they heard Jane Doe 1 describe in her testimony.
Finally, we conclude that defense counsel did not, as Montoya suggests, effectively concede his guilt on count 1. Montoya ignores the fact that defense counsel repeatedly sought to undermine Jane Doe 1's credibility by pointing the jury to the inconsistency of her testifying she wanted to video Montoya with Jane Doe 2 in order to get him to stop abusing her but then failing to show that video to her mother or another adult. Defense counsel also argued that the videos, which did not show Montoya forcing Jane Doe 2 to have sex with him, could cast doubt on Jane Doe 1's testimony that Montoya forcibly removed her clothing, held her down, and inserted his penis into her vagina.
While we conclude that defense counsel was not ineffective in final argument, even if she were, Montoya cannot show he was prejudiced thereby. It is not reasonably probable that a jury would have concluded that Jane Doe 1's testimony about him forcibly penetrating her was not credible, given the video evidence of Montoya engaging in sexual conduct with 10-year-old Jane Doe 2 and his admissions to police that he both touched Jane Doe 1's vagina and touched his erect penis to her rear end. In fact, based upon the evidence presented, it is difficult to imagine an alternative final argument from defense counsel which would have obtained a more favorable result for Montoya. (Strickland, supra, 466 U.S. at pp. 694, 697.)
C. No error in admitting CSAAS evidence
Montoya next argues the CSAAS evidence was inadmissible and should have been excluded by the trial court. First, he argues that the evidence does not meet the reliability test in People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and, because it therefore has no probative value, should have been excluded under Evidence Code section 352. Second, Montoya asserts that his constitutional rights to due process were violated because the admission of CSAAS evidence rendered his trial fundamentally unfair. As we explain below, we conclude the trial court did not err in admitting the CSAAS testimony and reject Montoya's arguments in their entirety.
The Kelly rule was formerly known as the Kelly/Frye rule. As explained by the California Supreme Court, "[u]ntil 1993, this rule was generally known in this state as the Kelly Frye rule because this court in [People v.] Kelly [(1976) 17 Cal.3d 24] had relied on the reasoning of a federal appellate court decision, Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye). In 1993, the United States Supreme Court held that the Federal Rules of Evidence had superseded Frye [citation], and our state law rule is now referred to simply as the Kelly test or rule." (People v. Bolden (2002) 29 Cal.4th 515, 545 (Bolden).)
1. The prosecution's in limine motion to admit CSAAS testimony
The prosecution moved in pretrial briefing to admit expert testimony regarding CSAAS to address misconceptions about sexually abused children and to assist the jury in evaluating their testimony. Specifically, the prosecutor sought to admit expert testimony regarding common misconceptions regarding childhood sexual abuse, such as: (1) the victim's failure to disclose the molestation immediately means some of the described incidents did not occur or they are less believable; (2) since the victim did not show obvious trauma when disclosing the molestation to adults, the molestation did not occur; (3) since the victim did not appear frightened, upset, or traumatized by the abuser's conduct, the molestation did not occur; and (4) the victim should have been able to do something to protect herself from being molested.
Montoya filed a pretrial motion to exclude CSAAS expert testimony, arguing: (1) it "does not meet the Kelly-Frye standard," for admissibility; (2) that the evidence was only admissible to rebut any attack on the victim's credibility based on one of the "myths" or "misconceptions" identified by CSAAS and the prosecution must first show that the misconceptions CSAAS is intended to address still persist; and (3) the evidence "may easily be misapplied by the jury" even with a cautionary instruction.
At the hearing on the motion, the trial court ruled that it would allow the prosecution to admit CSAAS evidence "in the People's case in chief if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." However, "the testimony is limited to explaining why the victim's behavior is not inconsistent with abuse, in general" and "[t]he jury will be immediately admonished after the testimony that it shall consider it only for the limited purpose of showing, if it did, that the victim's reactions were not inconsistent with her having been molested."
2. Applicable law
"Trial courts may admit CSAAS evidence to disabuse jurors of five commonly held 'myths' or misconceptions about child sexual abuse. [Citation.] While CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well established in California law [that] CSAAS evidence is relevant for the limited purpose of evaluating the credibility of an alleged child victim of sexual abuse." (People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); see also People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450 (Harlan); People v. Stark (1989) 213 Cal.App.3d 107, 116-117.) It is well established that "the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.'" (McAlpin, supra, at p. 1299.)
3. CSAAS evidence is not subject to the Kelly test
Montoya contends that all CSAAS evidence should be subject to the Kelly test because, in the many years since the CSAAS model has been established, it has not gained wide acceptance in the scientific community and is "junk science." In his view, the trial court therefore abused its discretion in admitting the evidence in this case. We disagree.
Under the Kelly rule, "evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community." (Bolden, supra, 29 Cal.4th at p. 544.)
"The second prong [of the Kelly rule] requires proof that the witness testifying about the technique and its application is a properly qualified expert on the subject. [Citation.] The third prong requires proof that the person performing the test in the particular case used correct scientific procedures." (Bolden, supra, 29 Cal.4th at pp. 544-545.) Montoya does not argue that Dr. Carmichael's testimony failed to satisfy these other two elements of the Kelly rule, so we do not discuss them further.
The California Supreme Court has explained that the "additional scrutiny" under Kelly, which "imposes certain preconditions on the admission of evidence derived from a novel scientific technique or procedure,"" 'is justified because "[l]ay jurors tend to give considerable weight to 'scientific' evidence when presented by 'experts' with impressive credentials. We have acknowledged the existence of a' . . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.'" '" (People v. Peterson (2020) 10 Cal.5th 409, 457 (Peterson).)
However, in contrast to evidence that is based on a new scientific technique or procedure, expert opinion testimony is not necessarily subject to Kelly. The California Supreme Court has explained as follows: "[I]n most cases no similar caution is required before a jury considers expert opinion testimony. Unlike results 'produced by a machine,' to which jurors may 'ascribe an inordinately high degree of certainty,' jurors presented with the personal opinion of a witness, even an expert witness, 'may temper their acceptance of his [or her] testimony with a healthy skepticism born of their knowledge that all human beings are fallible.' [Citations.] For this reason,' "[a]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly[]."' [Citations.] Of course, some expert testimony may be 'based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law' [citation]; where the novel technique 'appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury,' additional scrutiny under Kelly is warranted." (Peterson, supra, 10 Cal.5th at pp. 457-458, some italics added.)
In the present case, Montoya contends that the California Supreme Court applied Kelly to evidence regarding rape trauma syndrome in People v. Bledsoe (1984) 36 Cal.3d 236 and thus Kelly must be applied to CSAAS evidence as well. In Bledsoe, "expert testimony describing the [rape trauma] syndrome and applying it to [the] victim was used to prove that 'a rape in the legal sense had, in fact, occurred.'" (People v. Stoll (1989) 49 Cal.3d 1136, 1160 (Stoll), italics omitted.) However, "rape trauma syndrome was not devised to determine . . . whether, in fact, a rape in the legal sense occurred-but rather was developed by professional rape counselors as a therapeutic tool, to help identify, predict and treat emotional problems experienced by the counselors' clients or patients." (Bledsoe, supra, at pp. 249-250.) In other words, the scientific literature regarding rape trauma syndrome did "not . . . purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred." (Id. at p. 251.) Significantly, none of the parties in Bledsoe disputed that the Kelly test was the appropriate standard in evaluating the syndrome evidence. (Stoll, supra, at p. 1160.) As a result, the California Supreme Court "[a]ssum[ed], like the parties, that the [Kelly] test did apply," and "simply concluded that the prosecution would not be able to prove that rape trauma syndrome was generally accepted by the counseling community to prove criminal guilt." (Id. at p. 1161, italics omitted.) The California Supreme Court has subsequently made clear that its opinion in "Bledsoe did not hold that the [Kelly] test applied to the expert opinion in that case" and that Bledsoe did not "discuss the test's relationship to 'syndrome' or other expert psychological evidence in general." (Ibid., some italics added.)
Significantly, subsequent to Bledsoe, the California Supreme Court in Stoll concluded that where psychological testimony is based on methods that "are not new to psychology or the law" and "carry no misleading aura of scientific infallibility," the testimony is not subject to the Kelly rule. (Stoll, supra, 49 Cal.3d at p. 1157.)
In the present case, Montoya fails to demonstrate that CSAAS evidence is based on methods that are "new to psychology or the law" and that testimony about CSAAS carries a "misleading aura of scientific infallibility." (Stoll, supra, 49 Cal.3d at p. 1157; accord, Peterson, supra, 10 Cal.5th at p. 458.) To the contrary, with respect to CSAAS evidence, "we are not dealing with new experimental scientific evidence' "not previously accepted in court." '" (People v. Munch (2020) 52 Cal.App.5th 464, 472 (Munch).) In this case, the prosecution's expert, Dr. Carmichael, was a licensed psychologist at the U.C. Davis CAARE Center, a child abuse treatment program, for the past 20 years. Over the course of his work at the CAARE Center, he had directly counseled 300 or so children and supervised the treatment of another 300 or 400. His expert testimony was thus" 'based on [his] clinical experience with child sexual abuse victims and on [his . . .] . . . familiarity with professional literature in the area.' [Citation.] . . . Such expert testimony meets 'traditional standards for competent expert opinion, without need for additional screening procedures'" under Kelly. (Munch, supra, at p. 473.) In addition, CSAAS evidence "has been ruled to be properly admitted by the courts of this state for decades." (Id. at p. 472; see also id. at p. 468.)
According to Dr. Carmichael, the initials stand for "Child Adolescent Abuse Resource Evaluation Diagnostic and Treatment Center."
Further, testimony about CSAAS does not purport to provide any" 'definitive truth'" (Peterson, supra, 10 Cal.5th at p. 458) about whether a child has been abused and instead simply attempts to rebut misconceptions about the conduct of child sexual abuse victims (see Munch, supra, 52 Cal.App.5th at pp. 468, 473; Lapenias, supra, 67 Cal.App.5th at p. 173). Indeed, in this case, Dr. Carmichael testified that he knew nothing about the case, not even the names of those involved, and had not reviewed any police reports. The California Supreme Court has rejected the notion that the "use of 'syndrome' . . . terminology by a mental health professional makes the [testimony] seem 'scientific' to a jury, and thus invokes [Kelly]." (Stoll, supra, 49 Cal.3d at p. 1161, fn. 22 [court was "not persuaded that juries are incapable of evaluating properly presented references to psychological . . . 'syndromes' "].)
Lastly, in view of Montoya's failure to demonstrate the applicability of the Kelly rule to the CSAAS evidence in this case, we find unpersuasive his reliance on any out-of-state authority regarding whether CSAAS evidence meets a Kelly (or Frye) requirement regarding general acceptance within the scientific community. (See, e.g., State v. J.L.G. (N.J. 2018) 234 N.J. 265, 301 ["we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community"].)
Accordingly, because Montoya fails to establish that CSAAS evidence is based on methods that are "new to psychology or the law" and that the evidence carried a "misleading aura of scientific infallibility" (Stoll, supra, 49 Cal.3d at p. 1157; accord, Peterson, supra, 10 Cal.5th at pp. 457-458), we conclude that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without subjecting it to analysis under Kelly. (See, e.g., Lapenias, supra, 67 Cal.App.5th at p. 173 ["expert CSAAS testimony is not '" 'scientific'" evidence' subject to the Kelly rule"]; Munch, supra, 52 Cal.App.5th at pp. 472-473 [CSAAS evidence not subject to Kelly analysis]; Harlan, supra, 222 Cal.App.3d at p. 449 [Kelly rule does not apply to expert testimony about the reactions of child molestation victims, where expert's "opinion was based on her clinical experience with child sexual abuse victims and on her familiarity with professional literature in the area"]; People v. Gray (1986) 187 Cal.App.3d 213, 218-220 [Kelly test not applicable to CSAAS testimony which addressed behavior of child molestation victims as a class, and which did not purport to prove molestation occurred]; see also People v. Bowker (1988) 203 Cal.App.3d 385, 392 [notwithstanding Kelly, CSAAS evidence may be admissible "for the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse"].)
5. Admission of CSAAS evidence did not violate due process
Montoya also contends that his state and federal constitutional rights to due process were violated because the admission of CSAAS evidence rendered his trial fundamentally unfair. In this regard, he contends that (1) the CSAAS evidence should have been excluded as set forth in his above-described arguments concerning the lack of relevance of the evidence and its inflammatory nature; and (2) the CSAAS evidence was unreliable for the same reasons that he contended the Kelly test should apply.
Generally, a court's compliance with the rules of evidence does not violate a defendant's right to due process. (Lapenias, supra, 67 Cal.App.5th at p. 174, citing People v. Hall (1986) 41 Cal.3d 826, 834-835.) Reviewing courts have also routinely held the admission of CSAAS evidence does not violate due process. (See, e.g., Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [trial court's admission of CSAAS evidence did not violate due process].)
We have already rejected Montoya's contentions that (1) the evidence should have been excluded as irrelevant; and (2) CSAAS evidence is unreliable and that the Kelly test must be applied. The "rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised" on appeal. (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29.) Having rejected each of the underlying claims of error in admitting this evidence, we accordingly reject Montoya's due process claim.
D. No error in instructing with CALCRIM No. 1193
Montoya contends that the trial court erred by using CALCRIM No. 1193 to instruct the jury and that his constitutional rights to due process were violated as a result. According to Montoya, CALCRIM No. 1193 improperly allowed the jury to "use CSAAS evidence as substantive evidence of guilt," thereby depriving him of a fair trial. We disagree.
1. Trial court proceedings
Prior to instructing the jury and outside of the jury's presence, the trial court went through each instruction individually and asked counsel if there was an objection. Defense counsel affirmed she had no objection to CALCRIM No. 1193.
At the conclusion of evidence, the court instructed the jury pursuant to CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Blake Carmichael regarding [CSAAS]. Dr. Carmichael's testimony about [CSAAS] is not evidence that the Defendant committed any of the crimes charged against him or any conduct or crimes with which he was not charged. [¶] You may consider this evidence only in deciding whether or not [Jane Doe 1]'s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
2. No error in instructing with CALCRIM No. 1193
As a threshold matter, the Attorney General argues that Montoya has forfeited his claim of instructional error by failing to object to CALCRIM No. 1193 at trial. Because Montoya contends the challenged instruction was an incorrect statement of law and affected his substantial rights under section 1259, we decide that we can consider the merits of his claim in spite of his failure to object below. (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312; People v. Townsel (2016) 63 Cal.4th 25, 59-60.)
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) When we review a purportedly erroneous instruction, we consider" '" 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." '" (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) We consider the instructions as a whole and" 'assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (Ibid.)
We find that it is not reasonably likely jurors understood CALCRIM No. 1193 as permitting the use of CSAAS evidence for the improper purpose of proving that Jane Doe 1 was abused by Montoya. (See Richardson, supra, 43 Cal.4th at p. 1028.) CALCRIM No. 1193 informs jurors that they may use CSAAS evidence to evaluate whether the alleged victim's behavior, which may appear inconsistent with being molested, was actually not inconsistent. To the extent that CALCRIM No. 1193 allows jurors to consider CSAAS evidence in their evaluation of the victim's credibility, the instruction was proper because such evidence is relevant and admissible when an alleged victim's credibility has been attacked. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Contrary to Montoya's contention on appeal that jurors would interpret CALCRIM No. 1193 as allowing them to conclude that the complaining witness was in fact abused, CALCRIM No. 1193 specifically instructs jurors that they must not consider CSAAS testimony as evidence that the defendant committed the charged crimes. Accordingly, we conclude that Montoya's claim regarding CALCRIM No. 1193 is without merit. (See People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 [rejecting contention that CALCRIM No. 1193 allows a jury to use CSAAS testimony as proof that the victim was molested]; accord, Munch, supra, 52 Cal.App.5th at pp. 473-474; Lapenias, supra, 67 Cal.App.5th at pp. 175-176.)
Because there was no error in instructing the jury pursuant to CALCRIM No. 1193, we reject Montoya's alternative argument that his trial counsel was ineffective for failing to object to that instruction. (People v. Poslof (2005) 126 Cal.App.4th 92, 99.)
E. No cumulative error
Montoya contends that the cumulative effect of the purported errors discussed above warrants reversal of the judgment. As we have found no individual error, we reject his cumulative error argument.
F. No error in sentencing under One Strike law
Montoya next argues that his sentence under the One Strike law violates his due process rights under the Fourteenth Amendment because it improperly uses the same fact twice, i.e., the victims' age, to impose double punishment for the same conduct. In addition, he contends that his sentence violates the Eighth Amendment's narrowing requirement because the enhanced sentence again relies on the victims' age, which fact is also a necessary element of the underlying offenses. For the reasons set forth below, we disagree.
The jury convicted Montoya of one count of committing a forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1); count 1), and four counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a); counts 2-5). The jury also found true the special allegations that each of the offenses were committed against more than one victim and each victim was under the age of 14 (§ 667.61, subd. (j)(2); counts 1-5). Under the One Strike law, the trial court then sentenced Montoya to consecutive terms of 25 years to life on counts 1, 2, 4, and 5 pursuant to section 667.61, subdivision (j)(2), along with a concurrent term of 25 years to life on count 3.
1. The One Strike law
Section 667.61, also known as the One Strike law, mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under certain aggravating circumstances. "The purpose of the One Strike law is 'to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction,' 'where the nature or method of the sex offense "place[d] the victim in a position of elevated vulnerability." '" (People v. Alvarado (2001) 87 Cal.App.4th 178, 186.)
Section 667.61, subdivision (b), provides: "Except as provided in subdivision (a), (j), (l), or (m), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." Two of the offenses listed in subdivision (c) of section 667.61 are the offenses charged in this case, namely "[l]ewd or lascivious act, in violation of subdivision (b) of [s]ection 288" (id., at subd. (c)(4)) and "[l]ewd or lascivious act, in violation of subdivision (a) of [s]ection 288." (§ 667.61, subd. (c)(8).)
Section 667.61 was amended once since the crimes in this case occurred and were charged against Montoya, but the amendment is not material to our consideration of Montoya's claim. (See Stats. 2021, ch. 626, § 31.) For simplicity, we cite to the current version of section 667.61.
Section 288, subdivision (a) provides: "Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." Section 288, subdivision (b)(1) provides: "A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
Section 667.61, subdivision (e), provides in relevant part: "The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
Section 667.61, subdivision (j)(2) provides: "A person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life."
2. Montoya's challenges to his sentence are forfeited
Montoya failed to object to his sentence. Accordingly, his arguments that his sentence violates the principle against dual use of the fact of the victims' ages and the narrowing requirement of the Eighth Amendment are forfeited. (See People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to dual use issues at sentencing forfeits the issue on appeal]; People v. Speight (2014) 227 Cal.App.4th 1229, 1247 [failure to object that sentence constitutes cruel and unusual punishment forfeits the issue on appeal].)
Anticipating that these arguments were forfeited, Montoya argues in the alternative that defense counsel rendered ineffective assistance by failing to object to his sentence on these grounds. His claim of ineffective assistance of counsel fails. As discussed below, we find no merit to either of his claims, and thus his counsel was not ineffective for failing to raise meritless objections. (People v. Lucero (2000) 23 Cal.4th 692.)
3. Even if not forfeited, the sentence was lawful
Even assuming Montoya did not forfeit his right to challenge his sentence, we conclude his arguments are without merit.
a. One Strike law does not violate "dual use " principle
In support of his contention that imposition of 25 years to life indeterminate terms was unlawful because it relied on the dual use of the victims' age, Montoya relies on People v. Arroyas (2002) 96 Cal.App.4th 1439, People v. Briceno (2004) 34 Cal.4th 451, and Lopez v. Superior Court (2008) 160 Cal.App.4th 824. In his view, these cases stand for the proposition that one cannot be punished twice for the same act, i.e., for committing a lewd or lascivious act against a child under the age of 14.
These cases are readily distinguishable, however, as they address situations in which sentence enhancements, specifically gang enhancements, were used to maximize punishment on the same conduct involved in the underlying offense. The One Strike law is not a sentence enhancement, but an alternative sentencing scheme. (People v. Anderson (2009) 47 Cal.4th 92, 102 (Anderson).) As explained by Anderson, a criminal offense is "a collection of specific factual elements that the Legislature has chosen to define as a crime." (Id. at p. 101.) "The Legislature has prescribed a range of determinate sentences for most substantive crimes." (Ibid.) The Legislature has also determined that certain substantive crimes should carry, according to "particular facts attendant upon their commission," more severe punishments than the terms set forth in the corresponding statute. (Ibid.) One way the Legislature effects this policy is to "provide[] for greater sentences if certain enhancements are pled and proven." (Ibid.) Sentencing enhancements "have their own factual elements." (Ibid.) In addition to sentencing enhancements, the "Legislature and California voters have also enacted . . . 'parallel sentencing scheme[s]'" such as the Three Strikes law for repeat offenders and, in 1994, the One Strike law for qualifying felony sex offenses. (Id. at p. 102.)
The One Strike law mandates the imposition of specified indeterminate terms where "the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true (§ 667.61, subds. (d), (e))." (Anderson, supra, 47 Cal.4th at p. 102.) The factual allegations that must be found true most often "concern the manner in which the underlying substantive offense was committed" and will only be addressed by a jury that has first determined that "all the elements of the underlying substantive crime have been proven." (Ibid.) However, and most important for our purposes, "[u]nder the One Strike law, certain factual allegations may have the same elements as a substantive offense." (Id. at p. 103, italics added.)
In this case, Montoya was charged with committing lewd acts on two different children, both of whom were under 14 years old. The jury found that he committed those offenses and further found true the allegations that there was more than one victim and the victims were under 14 years of age, which meant that Montoya was subject to the alternate sentencing provisions of the One Strike law. The California Supreme Court has expressly stated that, under the One Strike law, "[t]he elements of both the substantive crime and the sentencing allegation are the same." (Anderson, supra, 47 Cal.4th at p. 103.)
b. One Strike law does not violate Eighth Amendment
Montoya also contends that the One Strike law violates the Eighth Amendment because it does not "narrow[] . . . the category of offender." In his view, because an essential element of section 288 is that the victim is under 14 years old, the One Strike law's use of that same fact to increase punishment "fails to do more than simply repeat the pertinent portions of the lewd act on a child statute." We disagree.
The Eighth Amendment's "narrowing requirement"-which "require[s] States to limit the class of murderers to which the death penalty may be applied" (Brown v. Sanders (2006) 546 U.S. 212, 216)-applies only in capital cases. (See Gonzalez v. Prunty (C.D. Cal. 1997) 959 F.Supp. 1264, 1273 [" '[W]hile capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is . . . only an outlying point on the continuum of prison sentences,' and there is no basis for applying a narrowing requirement to . . . an LWOP [life without parole] sentence."]; see also Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 [refusing to extend the" 'individualized capital sentencing doctrine'" to LWOP sentences].) The authorities cited by Montoya are all capital cases, and he misreads the sole authority he cites for the proposition that the Eighth Amendment's "narrowing requirement also applies if the prosecution seeks a sentence of life without the possibility of parole." That case, People v. Johnson (2016) 62 Cal.4th 600, is itself a capital case in which the California Supreme Court addressed whether the lying-in-wait special-circumstance violated the Eighth Amendment's narrowing requirement because that special circumstance was "virtually identical to, and thus indistinguishable from, the lying-in-wait theory of first degree murder." (Id. at p. 634.) In its analysis, the Supreme Court noted that one of our sister courts had addressed that very question in People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297 (Bradway). (Johnson, supra, at p. 635.) In footnote 4, the footnote on which Montoya relies, the Supreme Court made the following observation about the Bradway decision: "Because Bradway was sentenced to life without the possibility of parole, rather than death, his constitutional challenge to the lying-in-wait special circumstance arose as a void-for-vagueness claim under the due process clause. (Bradway, supra, 105 Cal.App.4th at p. 309.) However, his vagueness challenge echoed the 'specialized concept of vagueness most clearly defined by the [United States] Supreme Court in dealing with Eighth Amendment challenges to death penalties.' (Bradway v. Cate (9th Cir. 2009) 588 F.3d 990, 991.)" (Id. at p. 635, fn. 4.)
It goes too far to say that Johnson endorses the Eighth Amendment's narrowing principle to noncapital cases, especially when Bradway itself made clear that distinction between death penalty and LWOP cases under the Eighth Amendment. The court wrote, "Generally, there are two separate and distinct legal theories for challenging a statute on vagueness grounds, depending on the interests at stake. [Citation.] A person challenging aggravating circumstance statutes in death penalty cases brings such under the Eighth Amendment, asserting 'the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with . . . open-ended discretion ....' [Citation.] In noncapital cases, the challenge comes under the due process clause and 'rest[s] on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.' [Citation.] Where there is no First Amendment right implicated, such due process challenges 'are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.'" (Bradway, supra, 105 Cal.App.4th at p. 309, italics added.)
Montoya's position is further undercut by the Ninth Circuit's decision addressing Bradway's federal petition for writ of habeas corpus, Bradway v. Cate, supra, 588 F.3d 990, a decision which the California Supreme Court cited in footnote 4 of Johnson. In that case, the Ninth Circuit discussed the procedural background of the case before noting: "Bradway's vagueness challenge is primarily based on a specialized concept of vagueness most clearly defined by the [United States] Supreme Court in dealing with Eighth Amendment challenges to death penalties. To satisfy the Eighth Amendment, an aggravating factor that renders a defendant subject to the death penalty must reasonably distinguish his conduct from that of the general run of murderers not to be sentenced to death. [Citation.] Bradway recognizes that he lacks standing for an Eighth Amendment death penalty challenge because he was not sentenced to death, see Houston v. Roe, 177 F.3d 901, 907-08 (9th Cir. 1999), so he presents his rather specialized vagueness challenge to California's special circumstance under the Due Process Clause." (Bradway v. Cate, supra, at p. 991, italics added.)
To reiterate, Montoya has cited no authority, and our independent research has disclosed none, to support his contention that an indeterminate sentence, even one which is effectively beyond his expected lifespan, is subject to the Eighth Amendment in this fashion.
G. Fines and fees
Montoya also claims that his federal and state due process rights were violated by the trial court imposing fines, fees, and assessments without first conducting a hearing on his ability to pay, as explained by People v. Duenas (2019) 30 Cal.App.5th 1157, 1164.Alternatively, he contends that his counsel rendered constitutionally ineffective assistance by failing to object under Duenas at his sentencing because he lacked the ability to pay the fines and assessments.
Panels of this court and other Courts of Appeal have reached differing conclusions on whether Duenas was correctly decided, and the issue is pending before the California Supreme Court. (See, e.g., People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068 (Aviles) [concluding that Duenas was wrongly decided and its "analysis is 'fundamentally flawed in that general "fairness" grounds of due process and/or equal protection principles do not afford a defendant a preassessment ability-to-pay hearing before a trial court imposes fines and fees on him or her' "]; People v. Hicks (2019) 40 Cal.App.5th 320, 325, review granted Nov. 26, 2019, S258946; People v. Adams (2020) 44 Cal.App.5th 828, 832 [concluding that "Duenas was wrongly decided"]; People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Duenas was not "persuasive"].) For the reasons stated post regarding ineffective assistance of counsel, we need not address the merits of Duenas in this case.
The Attorney General counters that Montoya forfeited his claim because he neither objected at sentencing to the fines and assessments nor did he argue that he lacked the ability to pay them. Regarding the alleged ineffective assistance of defense counsel, the Attorney General contends that Montoya's counsel may have had a strategic reason for withholding an objection. As to the underlying merits of Montoya's claim, the Attorney General asserts that the punitive fines were not unconstitutionally excessive, do not implicate due process protections, and were not arbitrarily or irrationally imposed.
As discussed below, we agree with the Attorney General that Montoya forfeited his current challenge to the fines and assessments by failing to object at sentencing.
At the March 23, 2021 sentencing hearing, the trial court ordered Montoya to pay the following fines and fees: (1) a restitution fund fine of $1,500 (§ 1202.4); (2) an additional $1,500 parole revocation fine, stayed pending successful completion of parole (§ 1202.45); (3) a sexual offender registration fine of $500 plus $1,550 in penalty assessments and administrative fees for a total of $2,050 (§ 290.3); (4) $200 in court security fees (§ 1465.8); and (5) a $150 conviction assessment (Gov. Code, § 70373). Montoya's counsel did not object to any of the fines and fees or indicate that Montoya lacked the ability to pay.
The forfeiture rule applies to a claim relating to the imposition of fines, fees, or assessments which was not first raised at sentencing. (See People v. Greeley (2021) 70 Cal.App.5th 609, 624; People v. Lowery (2020) 43 Cal.App.5th 1046, 1052-1054.)
Having concluded that Montoya's claim of error is forfeited, we turn to his alternate claim of ineffective assistance of counsel. As discussed ante (part II.A.2.a.), Montoya must show both deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel. (Mai, supra, 57 Cal.4th at p. 1009.) We will find ineffective assistance of counsel only if "there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926; see also Mai, supra, at p. 1009.)
Generally, "a defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences." (People v. Acosta (2018) 28 Cal.App.5th 701, 707.) "We cannot speculate, given the absence of information before us, what led to defense counsel's decision not to object, but a myopic focus on [the defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (Ibid.)
Here, the record does not disclose why Montoya's defense counsel did not object to the fines and assessments or request a hearing on Montoya's ability to pay them. We cannot say there could be no satisfactory explanation for defense counsel's inaction regarding the fines and assessments. Montoya was 48 years old at the time of his sentencing and counsel could have reasonably considered Montoya's ability to earn wages in prison as a reason for not objecting or requesting an ability-to-pay hearing. (See Aviles, supra, 39 Cal.App.5th at pp. 1062, 1076-1077 [concluding that a defendant sentenced to a prison term of 82 years to life had the ability to pay $10,600 in restitution fines, $160 in court operations assessments, and $120 in court facilities assessments from either prison wages or monetary gifts from family and friends during his lengthy prison sentence]; see also People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)" '[E]very able-bodied prisoner' must work while imprisoned. [Citation.] Prison wages range from $12 to $56 per month, depending on the job and skill level involved. [Citation.] Up to 50 percent of [a prisoner's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction." (People v. Cervantes (2020) 46 Cal.App.5th 213, 229.)" '[A]n inmate's assignment to a paid position is a privilege dependent on available funding, job performance, seniority and conduct.'" (Ibid.) We acknowledge that Montoya would have to work for many years in prison to earn enough to pay off the amount imposed, but he is relatively young and reported no physical limitations to probation, aside from having to take medication for high blood pressure.
Even if we were to assume that Montoya's defense counsel performed deficiently, Montoya has not met his burden to show prejudice resulting from counsel's failure to object and to request an ability-to-pay hearing. Again, the facts in the record do not demonstrate definitively that Montoya is and will be unable to pay the aggregate amount of $2,900 or that the amount imposed is excessive. Thus, we cannot say there is a reasonable probability the result of Montoya's sentencing would have been more favorable to him, in that the trial court would have reduced or eschewed the fines and assessments had defense counsel objected and requested a hearing. (See People v. Keene (2019) 43 Cal.App.5th 861, 864-865.)
H. The restitution fund fine must be amended
Montoya argues that the abstract of judgment must be amended to reflect the $1,500 restitution fund fine pronounced by the trial court at his sentencing, rather than the $10,000 restitution fund fine reflected on the corresponding minute order and the abstract of judgment. The Attorney General concedes the error, and we find the concession to be well-taken.
At sentencing, the trial court ordered Montoya "to pay a restitution [fund] fine of $300 times the number of felony counts, which is five, for a total restitution [fund] fine of $1,500 pursuant to . . . Section 1202.4[, subdivision] (b)(2)." However, the minute order and abstract of judgment indicate that Montoya's restitution fund fine is $10,000. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We may correct a court's written order or judgment that does not accurately reflect its oral pronouncement. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.)
III. Disposition
The judgment is modified to reflect a restitution fund fine of $1,500 pursuant to Penal Code section 1202.4, subdivision (b). The trial court is directed to prepare an amended minute order and an amended abstract of judgment reflecting this modification and send a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Danner, J.