Opinion
E071161
09-17-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE MURILLO, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1700872) OPINION APPEAL from the Superior Court of Riverside County. Thomas D. Glasser, Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jose Murillo, guilty of (1) three counts of engaging in sexual intercourse with a child who is 10 years of age or younger (Pen. Code, § 288.7, subd. (a)); (2) four counts of engaging in oral copulation or sexual penetration with a child who is 10 years of age or younger (§ 288.7, subd. (b)); and (3) three counts of committing a lewd or lascivious act upon a child who is under the age of 14 years (§ 288, subd. (a)). The trial court sentenced defendant to prison for an indeterminate term of 135 years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant raises four issues on appeal. First, defendant contends he was denied effective assistance of counsel due to his trial counsel failing to object to irrelevant and inflammatory statements by a Childhood Sexual Abuse Accommodation Syndrome (CSAAS) expert. Second, defendant asserts the prosecutor committed error. Third, defendant contends he was denied a fair trial due to the trial attorneys' acts and omissions. Fourth, defendant asserts the abstract of judgment should be corrected. We affirm the judgment with directions.
We resolve defendant's petition for writ of habeas corpus by separate order. (In re Murillo (E072577).) --------
FACTUAL AND PROCEDURAL HISTORY
A. CRIMES
The victim was born in August 2006. At the time of trial, the victim was 11 years old. Defendant is the victim's paternal grandfather. In 2015, the victim and her four siblings moved in with defendant and their paternal grandmother (Grandmother). The family resided in a two-bedroom apartment.
Defendant touched the victim's breasts and vagina with his hands. Sometimes defendant touched the victim underneath her clothing. When the victim was "[n]ine or ten" years old, defendant penetrated the victim's vagina with his fingers, which would cause the victim discomfort. Defendant penetrated the victim's vagina with his fingers while they were at various locations, including "[t]he living room, his room, and in the car." The victim did not recall how many times defendant penetrated her vagina with his fingers, but it occurred more than one time in the living room. The victim told defendant to " 'stop,' " and sometimes he would cease.
Defendant removed his and the victim's pants and underwear. Defendant penetrated the victim's vagina with his penis. Defendant penetrated the victim's vagina with his penis while they were in the living room, defendant's bedroom, and the victim's bedroom. The penetration occurred more than once in the living room. The victim said to defendant, " 'Stop that. I don't like it.' " Defendant responded, " 'A little bit more.' " Sometimes the victim yelled or screamed, but no one was home. To get him to stop penetrating her vagina, she would "have to push him away." The victim saw semen on her vagina. More than once, defendant forced the victim to orally copulate him. Defendant also orally copulated the victim.
The victim did not tell anyone about defendant's conduct because defendant told the victim "nobody would believe [the victim]." The victim's sister (Sister) was 10 years old at the time of trial. On one occasion, Sister saw defendant and the victim enter defendant's bedroom. Sister was in her bedroom. Sister heard the victim say, " 'It hurts.' " Sister heard defendant ask, " 'Your cola?' " "Cola" refers to a vagina. When the victim went into Sister's bedroom, the victim asked if Sister heard anything. Sister told the victim what she heard. Sister asked the victim what happened. The victim said "nothing happened . . . and not to tell anybody."
Approximately one week later, Sister told Sister's and the victim's father (Father) about what she heard. Father asked the victim if defendant "was doing something to [her], and [she] said yes." Father told Grandmother about the allegations. Father's sister contacted the police.
The victim did not previously tell Father about the molestations and rapes "[b]ecause she was scared to tell somebody because [she] didn't know if they would believe [her] or not." The victim believed defendant's conduct was her fault "[b]ecause she was letting him do it, not telling anybody." The victim believed she would "get in trouble."
B. EXPERT TESTIMONY
Dr. Jody Ward, a clinical and forensic psychologist, testified about CSAAS in general; Ward did not testify specifically about the victim. CSAAS "is a pattern of behaviors that many children exhibit who have been sexually abused." Children who have been abused by a stranger tend to immediately report the abuse, whereas children abused by a person with whom they have a relationship "tend not to report it right away." There are five components to CSAAS. The components include "[s]ecrecy, helplessness, entrapment and accommodation, delayed unconvincing disclosure, and retraction or recantation."
DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
1. CONTENTION
Defendant contends his trial attorney rendered ineffective assistance by failing to raise objections during Dr. Ward's testimony.
2. LAW
" 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption 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. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' . . . 'Failure to object rarely constitutes constitutionally ineffective legal representation.' " (People v. Gray (2005) 37 Cal.4th 168, 206-207.)
" 'CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.]' The evidence must be tailored to address the specific myth or misconception suggested by the evidence." (People v. Wells (2004) 118 Cal.App.4th 179.)
3. LOCATIONS
The prosecutor asked Dr. Ward, "[W]itnesses are kind of rare in a situation of sexual abuse; right?" Ward responded, "Right. So even when it's occurring within a home, there is no one else there to actually witness the abuse occurring. It could be occurring under a blanket. It could be occurring with the couch facing the opposite direction or in a bedroom at night when there [are] other people in the house but no one there to actually witness it. Sometimes people sleeping in the same room, that also occurs."
Defendant contends the foregoing testimony was not relevant to the limited purpose for which the CSAAS testimony was admitted. Defendant asserts the CSAAS evidence was admitted to explain why the victim may have delayed reporting her abuse. Defendant provides no record citation to support his assertion that the trial court admitted the CSAAS evidence for the limited purpose of explaining why the victim may have delayed reporting the abuse. (Cal. Rules of Court, rule 8.204(a)(1)(C) [record citations].)
The jury was instructed as follows: "You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
We see nothing in the jury instruction reflecting that the jury could only consider the CSAAS testimony for the limited purpose of explaining the victim's delay in reporting. Rather, the jury instruction permitted the jury to consider the CSAAS evidence for the purpose of (1) determining if the victim's conduct was consistent with a molestation victim, and (2) evaluating the victim's credibility. A delay in reporting is part of the victim's conduct, but it is not the sole aspect of the victim's conduct. As an example, the victim's failure to run from the room when being abused was also part of the victim's conduct for which jurors may have required an explanation.
Dr. Ward testified about a lack of witnesses in sexual abuse cases. Ward's testimony was relevant to the victim's credibility. Ward's testimony explained why the victim's allegations could be true despite a lack of witnesses. Accordingly, because one could reasonably view Ward's testimony as being relevant, we conclude defendant's trial counsel did not render ineffective assistance of counsel by failing to object.
4. FAMILY MEMBERS
The prosecutor asked Dr. Ward if CSAAS tends to arise more often when the victim has a relationship with the perpetrator. Ward responded, in part, "Yes. What the research shows [is] that children are molested 90 percent of the time by family members or close friends of the family, in other words, people who have access to the child a lot. Only 10 percent of children . . . are molested by strangers."
Defendant contends the foregoing statement was irrelevant to understanding the victim's delay in reporting. Defendant does not provide a record citation to support his assertion that the CSAAS evidence was admitted for the limited purpose of explaining the victim's delay in reporting. Nevertheless, Dr. Ward's testimony was relevant to the victim's delay in reporting because Ward essentially testified that CSAAS could arise in 90 percent of cases. Thus, the jury could infer that it would be likely that the victim's behavior was consistent with CSAAS, which led to the victim's delay in reporting. Because one could find that Ward's testimony was relevant, we conclude defendant's trial attorney did not render ineffective assistance by not raising an objection.
5. RISKY BEHAVIOR
The prosecutor asked Dr. Ward, "Is there a certain element of risk in a sexual abuse situation with a child? Is it a kind of risky behavior?" Ward replied, "Well, it is a risky behavior on some level. But if you think about—that sexual abuse can occur and a child won't report it, and then it continues over and over again and a child never reports it, the[n it] really doesn't become a risky behavior. And, again, it's just because of the dynamics. The abuser knows the child will not report it. The child has never reported it before. So he may end up on the outside looking like he is taking more risks, but it's really not risky at all when you understand the dynamics."
Defendant contends the foregoing response by Dr. Ward was not relevant to understanding the victim's delay in reporting the abuse. Ward's response was relevant to evaluating the victim's and Sister's credibility. Sister testified that, while in her bedroom, she overheard the victim, in another room, say, " 'It hurts.' " Sister overheard defendant ask, " 'Your cola?' " "Cola" refers to a vagina. When the victim went into Sister's bedroom, the victim asked if Sister heard anything. Sister told the victim what she heard. Sister asked the victim what happened. The victim said "nothing happened . . . and not to tell anybody."
A jury might be inclined to disbelieve Sister's testimony because it might be considered incredible that defendant would risk molesting the victim in an apartment in which another person is present. Dr. Ward's testimony helped the jury to understand why Sister's testimony could be credible—if defendant believed the victim would not tell others about the molestations and rapes, then defendant would feel safe abusing or raping the victim with other people present in the home. Accordingly, because one could view Ward's testimony as being relevant to the issue of credibility, we conclude defendant's trial counsel did not render ineffective assistance of counsel.
6. BELIEVING CHILDREN'S ALLEGATIONS
Dr. Ward testified, "But children who have been abused within an ongoing relationship, they tend not to report it right away. When they do report it, unfortunately, many times, they're not believed because it doesn't fit our idea of how sexual abuse should occur. And because of that, they don't receive the support that they need—as much support, and they tend to show more consequences as a result of that sexual abuse."
Defendant contends his trial attorney should have objected to the foregoing testimony because there is no evidence of people rejecting the victim's allegations against defendant. Dr. Ward's testimony was relevant to the victim's statement: "Because I was scared to tell somebody because I didn't know if they would believe me or not." Ward's testimony gave medical credibility to the victim's fear of not being believed. Ward's testimony explained that there was a reasonable basis for the victim's fear in that, "[w]hen [children] do report [abuse], unfortunately many times, they're not believed." Accordingly, because Ward's testimony could be viewed as relevant, we conclude defendant's trial attorney did not render ineffective assistance by not raising an objection.
7. CHILD'S REACTION
The prosecutor asked Dr. Ward, "When a child discloses sexual abuse and kind of tests the waters, are they affected by the reaction they received from the person they're disclosing to?" Ward replied, "Yes. They're very reactive to that. If the person hearing the disclosure is open to hearing more, picks up on the signals, maybe asks some more questions—like I mentioned—that child would be more likely to disclose the sexual abuse. If they feel there is any resistance or any unbelief on the part of the person hearing their tentative disclosure, the child tends to shut down."
Defendant contends, "There was no indication of any such circumstance in this case; this opinion was irrelevant." Dr. Ward's testimony provided insight into why the victim, who hesitated for so long in reporting the abuse, would suddenly disclose the abuse to Father. The jury could deduce from Ward's testimony that the victim disclosed the abuse to Father, after refraining for so long, because Father was inquisitive and open to hearing the victim's allegations. In sum, because one could find Ward's testimony to be relevant, we conclude defendant's trial attorney did not render ineffective assistance of counsel.
8. ASKED AND ANSWERED
Defendant asserts that the prosecutor asked Dr. Ward four times whether sexually abused children tend to delay reporting abuse when the abuser is a person with whom the child has a ongoing relationship. In looking at the record, we see three instances of the question being asked, and all three times Ward responded affirmatively. Defendant asserts his trial counsel should have objected to the "repetitive and cumulative questioning."
Defendant does not provide any legal basis for his assertion. Defendant fails to explain, legally, at what point an attorney is expected to object to repetitive questions. Typically, one would expect an objection when the questioning becomes overly repetitive, but defendant provides this court with no law as to when questioning becomes overly repetitive, e.g., the fifth time the same question is asked or the tenth time. (See People v. Flores (1936) 15 Cal.App.2d 385, 401 ["ceaseless repetition of the same question is to be avoided"].) Because defendant fails to point this court to a rule that bars asking the same question three times, we are not persuaded that defendant's trial counsel rendered ineffective assistance by failing to object when the same question was asked three times.
Moreover, to the extent defendant's trial counsel could have raised an "asked and answered" objection, we conclude counsel may have had a tactical reason for not objecting. For example, defense counsel may not have wanted to draw more attention to the question by raising an objection. (See People v. Salcido (2008) 44 Cal.4th 93, 172 [" '[d]eciding whether to object is inherently tactical' "].) Because it is possible that defendant's trial counsel had a reason for not objecting, we cannot conclude counsel rendered ineffective assistance. (People v. Gray, supra, 37 Cal.4th at p. 207 [ineffective assistance of counsel claim must be rejected unless there "simply could be no satisfactory explanation" for counsel's omission].)
9. CONCLUSION
We are not persuaded that defendant's trial counsel's performance fell below the standard of a reasonably competent attorney. (See People v. Cudjo (1993) 6 Cal.4th 585, 635 ["standard of reasonably competent representation"].) Accordingly, we will not address the prejudice prong of the ineffective assistance of counsel issue.
B. PROSECUTORIAL ERROR
1. LAW
"It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial [error] for appeal. [Citations.] 'The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial [error] is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu).)
2. DEFENDANT'S WIFE'S REACTION
During closing argument, the prosecutor said, "And so I ask you to think: Did the truth come from [the victim]? Or, did it come from the defendant? Because he took the stand in this courtroom and he couldn't even give you a plausible reason as to why his entire family would turn against him for no reason. His wife could have taken his side. His wife could have chosen him. She didn't."
Defendant contends the foregoing argument constituted prosecutorial error "because it urged the jurors to consider the opinion of [defendant]'s wife as persuasive authority in resolving the credibility issues in this case." We conclude this issue has been forfeited by defense counsel's failure to object in the trial court. (Seumanu, supra, 61 Cal.4th at p. 1328.)
3. REASONABLE CONCLUSION
During closing argument, the prosecutor said, "The basis of reasonable doubt is whether or not the doubt you have is reasonable. So take a minute and think. Is the defendant's story reasonable? Or, did the truth come from [the victim] and [Sister]? [¶] After the entire comparison and consideration of all the evidence, there is only one reasonable conclusion in this case, so I'd ask you to find the defendant guilty."
Defendant contends the foregoing argument constituted prosecutorial error because the prosecutor urged the jury to convict defendant "if it found the evidence supported a reasonable conclusion that the crimes had been committed." We conclude this issue has been forfeited by defense counsel's failure to object in the trial court. (Seumanu, supra, 61 Cal.4th at p. 1328.)
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant asserts his trial counsel rendered ineffective assistance by failing to object to the foregoing two instances of alleged prosecutorial error. The law pertaining to ineffective assistance of counsel is set forth ante; we do not repeat it here.
a. Credibility
Defendant asserts his trial attorney should have objected to the prosecutor's argument concerning Grandmother's testimony because the argument "urged the jurors to consider the opinion of [Grandmother] as persuasive authority in resolving the credibility issues in this case."
"A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them." (People v. Martinez (2010) 47 Cal.4th 911, 958.)
Defendant testified at trial. Defendant said Father regained custody of his children in February. Father mistreated the children after regaining custody. Defendant told Father that he planned "to call the social worker and let her know, in reality, what was going on." Father pressured the victim and Sister to lie about defendant's sexual abuse so as to prevent the social worker from believing defendant. Grandmother testified at trial. The night that Grandmother learned of the sexual abuse allegations against defendant she removed all of defendant's property from their house. Grandmother did not see defendant again.
During closing argument, the prosecutor said, "His wife could have taken his side. His wife could have chosen him. She didn't." Defendant's trial counsel could have viewed the prosecutor's statements as comments on the evidence—as a reminder to the jury that Grandmother seemingly rejected defendant's version of the events, meaning the jury should consider that evidence and also reject defendant's version of the events. Thus, defense counsel could have reasonably chosen not to object because she viewed the prosecutor's statements as comments on defendant's credibility. (People v. Martinez, supra, 47 Cal.4th at p. 958.) Therefore, we conclude defendant's trial counsel did not render ineffective assistance by not raising an objection.
b. Reasonable Doubt
During closing argument, the prosecutor said, "After the entire comparison and consideration of all the evidence, there is only one reasonable conclusion in this case, so I'd ask you to find the defendant guilty." Defendant contends his trial counsel should have objected because the prosecutor's use of the phrase "reasonable conclusion" "articulated a standard which does not rise to the level of proof beyond a reasonable doubt."
The jury was instructed on circumstantial evidence. The jury instruction reads, in relevant part, "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 224.)
The prosecutor's use of the phrase "reasonable conclusion" could be viewed as coming from the circumstantial evidence instruction. The prosecutor urged the jury to find only one reasonable conclusion from the evidence and therefore find defendant guilty—as opposed to finding two reasonable conclusions from the evidence and then finding defendant not guilty. Because one could reasonably view the prosecutor's argument as being derived from the circumstantial evidence instruction, we conclude defendant's trial counsel did not render ineffective assistance by not objecting.
C. CUMULATIVE ERROR
Defendant contends his conviction should be reversed due to the cumulative effect of the alleged errors. We have found no errors. As a result, there is nothing to cumulate. (People v. Duff (2014) 58 Cal.4th 527, 562 ["nothing to cumulate"].)
D. ABSTRACT OF JUDGMENT
For count 7, the trial court imposed an indeterminate prison term of 15 years to life. Defendant contends the determinate abstract of judgment should be corrected to delete count 7. According to defendant, count 7 is listed twice: it is correctly listed on the indeterminate abstract of judgment, and it is incorrectly listed on the determinate abstract of judgment. The People concede the abstract of judgment needs to be corrected.
The record does not include a determinate abstract of judgment. The record includes only an indeterminate abstract of judgment. On the first page of the abstract of judgment, in section 1, there are six lines for entering six counts. Defendant was convicted of 10 counts. Therefore, the first six counts are listed on the first page of the abstract judgment; counts seven through 10 are listed on an attachment page.
Also, on the first page of the abstract of judgment, in section 6c, the trial court indicated that defendant was sentenced to 15 years to life on count 7. That information is accurate. We assume defendant's counsel is confused because the attachment form (Judicial Council Form CR-290(A)) is meant to be attached, as needed, to either a determinate or indeterminate abstract of judgment. Because the attachment page is generic for either type of sentence, it includes a box labeled "PRINCIPAL OR CONSECUTIVE TIME IMPOSED," as one might expect on a determinate abstract of judgment form. In that box, for count 7, the trial court entered "15." Thus, if one did not notice that the form is attached to an indeterminate abstract of judgment, then one might mistakenly believe defendant received a determinate 15-year sentence for count 7. To clarify this issue, to the extent an issue exists, the trial court should write on the attachment page "15 years to life."
The People assert the trial court erred by including count 7 within section 6c on the first page of abstract of judgment because count 7 was listed on the attachment page. The People provide no support for the argument that section 6c cannot include counts that are listed on an attachment page. We see nothing in section 6c indicating only the first six counts may be listed in section 6c. In sum, we see no error concerning count 7 in the abstract of judgment. Count 7 is properly listed in section 6c and on the attachment page. Nevertheless, in an abundance of caution, we will direct the trial court to indicate on the attachment page that the sentence for count 7 is 15 years to life, rather than a determinate term of 15 years.
On our own, we have noticed errors in the abstract of judgment. First, the trial court failed to mark the box in section 1 of the abstract of judgment next to the line that reads, "Additional counts are listed on attachment." Second, on the attachment page, the trial court omitted some of the information concerning counts 9 and 10. We will direct the trial court to correct these errors in an amended abstract of judgment.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment. In the amended abstract of judgment, the trial court, on page one, section 1, shall mark the box next to the line reading, "Additional counts are listed on attachment." The trial court shall also complete the line in section 1 indicating how many pages are attached. The trial court shall also amend the abstract of judgment to complete the "Count," "Code," "Section No.," "Crime," and "Year Crime Committed" sections pertaining to counts 9 and 10. The trial court shall indicate on the attachment page that the sentence for count 7 is 15 years to life. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.