Opinion
H045973
10-18-2021
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN LEE SIMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1519080
BAMATTRE-MANOUKIAN, J.
Defendant Benjamin Lee Simpson was convicted by a jury of four counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)) against his wife's two younger sisters. The trial court sentenced Simpson to a term of 30 years to life in prison.
Unspecified statutory references are to the Penal Code.
On appeal, Simpson argues: (1) the trial court erred in admitting expert testimony that false reports of child sexual abuse are statistically rare, (2) the trial court erred by excluding the testimony of a defense expert witness, (3) the trial court erroneously admitted evidence under Evidence Code section 1108 and erred in instructing the jury on how to use the evidence, (4) the trial court erroneously excluded evidence of a pretext phone call where he denied the allegations that were made against him, (5) the fresh complaint evidence exceeded the scope of the doctrine, (6) the prosecutor committed misconduct during argument and cross-examination, (7) his trial counsel rendered ineffective assistance on multiple grounds, (8) the trial court improperly dismissed one of the jurors during deliberations, (9) the trial court erred by refusing to further inquire into allegations of juror misconduct and erred when it denied his posttrial motion for new trial without holding an evidentiary hearing on his juror misconduct claim, and (10) the alleged errors were cumulatively prejudicial.
We conclude that Simpson's trial counsel rendered ineffective assistance when he failed to adequately object to the admission of expert testimony that false reports of child sexual abuse are statistically rare and failed to introduce the testimony of the defense expert witness. We further conclude that the trial court erroneously admitted propensity evidence under Evidence Code section 1108 and improperly instructed the jury on how to use the propensity evidence. We do not reach Simpson's remaining claims because we conclude that the cumulative prejudice of the aforementioned errors rendered the trial fundamentally unfair. We reverse the judgment.
Simpson's appellate counsel has also filed a petition for writ of habeas corpus that this court considered with the appeal. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).) We filed an opinion in this case on July 8, 2021. On August 6, 2021, we granted Simpson's petition for rehearing. We requested supplemental briefing on whether the cumulative prejudicial effect of the errors required reversal of the judgment. Simpson and the Attorney General submitted supplemental briefs in response to our request.
Background
A. First Amended Information
On September 25, 2017, the Santa Clara County District Attorney's Office filed a first amended information charging Simpson with five counts of committing a lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)) against his wife's two younger sisters, victim1 (counts 1, 2, & 3) and victim2 (counts 4 & 5). It was alleged as to each count that Simpson had committed sexual offenses against multiple victims (§ 667.61, subds. (b) & (e)).
B. The Prosecution's Case
1. Victim1's Testimony
Victim1 was born in 1998 and was 18 years old at the time of Simpson's trial. Victim1 was the youngest of her siblings, and she had two brothers and two sisters. Simpson was married to victim1's oldest sister ("wife"). Wife was around 33 years old at the time of Simpson's trial. Victim1's other sister, victim2, was three years older than victim1 and was 21 years old at the time of Simpson's trial. Victim1's oldest brother ("older brother") was 32, and he was married to victim1's sister-in-law ("sister-in-law").
Victim1 lived with her family in San Martin, California. When victim1 was younger, wife often watched victim1 when victim1's mother ("mother") was busy with the Doe family's other children. Victim1 was around three years old when wife started dating Simpson. Victim1 viewed Simpson as a big brother, and she regularly spent time with him. Sometimes, Simpson and wife babysat victim1 and victim2. Other times, Simpson babysat victim1 by himself. After several years of marriage, wife and Simpson had four children together. Victim1 frequently babysat wife and Simpson's children. By the time of Simpson's trial, victim1 had not spoken to wife in about three years.
We collectively refer to victim1 and victim2's immediate family as the "Doe family."
Victim1 recalled that her feelings about Simpson changed when she became old enough to realize that Simpson had sexually abused her multiple times when she was a child. Victim1 estimated that Simpson molested her approximately a dozen times. Victim1 recalled that the abuse started when she was around five or six years old and ended when she was around 11 years old. Victim1 could not remember the exact details of every incident. Victim1 explained that the memories of the abuse were "very painful," and she tried to forget them. When victim1 was around 14 years old, she started to have memory "flashes" and recalled past events, including being molested by Simpson.
Victim1 could recall the specifics of only two incidents of abuse. The first incident that victim1 remembered took place at the Doe family house in San Martin when she was around five or six years old. Victim1 remembered that the incident occurred while she watched "Spiderman, the first [movie]" with Simpson and victim2 while lying down on her parents' bed in her parents' bedroom. Both victim1 and victim2 laid down next to Simpson on their sides, with Simpson in between them. Simpson slid his hand down victim1's back under her shirt and pants and placed his finger inside her anus. Victim1 could not see Simpson's other hand, but she believed that Simpson touched victim2 in the same way. Simpson left his finger inside victim1's anus for up to an hour. Victim1 did not say anything to Simpson, and she did not tell anybody about what had happened with Simpson that day.
The second incident that victim1 recalled took place at Simpson's house in Gilroy when she was around 11 years old. Victim1 remembered that she, victim2, and Simpson watched the movie "Toy Story 3." At the time, "Toy Story 3" was still playing in theaters, but Simpson had managed to obtain a copy of the movie. Victim1 "[p]ossibly" recalled telling a detective that she remembered that wife was away in Missouri at the time. Victim1 laid down on a mattress with Simpson to watch the movie, and Simpson placed his finger inside victim1's anus and moved it around. Victim2 was in the same room, but she was not on the mattress.
When victim1 was around 15 or 16 years old, sister-in-law came to the Doe family's house upset and crying. Sister-in-law spoke with mother and asked victim1 if Simpson had ever touched her inappropriately. Victim1 answered yes. However, the police were not contacted.
About a year later, sister-in-law and older brother reported Simpson's actions to the police. At the time, victim2 was unhappy that the police had been contacted. She did not want to have to talk to the police or answer questions about what had happened with Simpson. She was also concerned about her relationship with wife. Later, victim1 learned that Simpson and sister-in-law had an affair.
Victim1 could not recall any inappropriate incidents that took place inside the shower at Simpson's apartment when he and wife lived in San Jose. In fact, victim1 could not recall ever going to Simpson's apartment in San Jose. She also could not recall any inappropriate incidents that took place with Simpson on a family beach trip. Victim1 knew that Simpson and wife moved to Hawaii when she was around four or five years old, and they lived there for about a year. Victim1 believed that Simpson and wife moved to Hawaii before Simpson started touching her inappropriately.
2. Victim2's Testimony
Victim2 was born in 1995 and was 21 years old at the time of Simpson's trial. Victim2 was around six years old when Simpson started dating wife. Simpson touched victim2 inappropriately when she was between the ages of eight and 11. Victim2 could recall three specific incidents. Victim2, however, blocked out most of the memories, which she described as traumatic.
The first incident that victim2 recalled took place shortly after wife and Simpson got married, when victim2 was around eight years old. Victim2 remembered that she and victim1 went over to wife and Simpson's small studio apartment in San Jose for a sleepover. Victim2 and victim1 went to take a shower, and Simpson went into the shower with the two girls. The shower was small, and it felt cramped with three people inside of it. Victim2 said that she was not sure where wife was when they took a shower and that wife might have gone to the store to get ice cream. Simpson used a loofah to wash victim2, touching her chest, buttocks, and vagina. Simpson did not touch victim2 directly, and victim2 did not see Simpson touch victim1. Victim2 remembered that Simpson told her not to get soap in her vagina. Wife was outside the bathroom when victim2, victim1, and Simpson came out of the shower. Victim2 did not remember if wife said anything after they came out of the bathroom.
The next incident that victim2 recalled took place sometime before she was 10 years old. Victim2 could not remember if this incident took place before or after the shower incident. Victim2 remembered that she had gone to the beach with younger brother, victim1, and Simpson. Victim2 got sand in her bikini bottoms, and Simpson brought her to the bathroom to wash the sand out. Victim2 took her pants off, and Simpson used his hands to take some water and wipe off the outer areas of her vagina. Victim1 was also in the bathroom, but victim2 could not remember what she was doing. Victim2 remembered that she did not like what Simpson did, and she remembered thinking that she could have cleaned herself up.
The last incident that victim2 recalled took place when she was around 10 or 11 years old. Wife and victim2's parents were in Colorado for a funeral, and Simpson came over to the Doe family house to watch victim1, victim2, and younger brother for three days. Victim2 had bad nightmares for two nights. The first night she had a nightmare, she went over to Simpson, who was sleeping in her parents' bedroom. Simpson told victim2 to crawl into bed with him, and she did. Victim2 turned away from Simpson in the bed, and Simpson placed his hand underneath victim2's pajama bottoms and underwear and touched her buttocks. Nothing else happened, but victim2 felt uncomfortable and had a hard time falling back sleep. The next morning, Simpson taught victim2 how to make scrambled eggs.
Simpson touched victim2 again the next night. This time, both victim1 and victim2 were in bed with Simpson. Victim2 could not remember how they got into bed together, but she remembered that they were getting ready to sleep. Simpson placed his hand under victim2's pants and underwear and rested it on victim2's buttocks. Victim2 was able to fall asleep, but she did not remember what happened after she woke up.
Victim2 remembered that Simpson stopped touching her around the time that she turned 11 years old. Simpson's actions impacted victim2's relationships, and she became scared of men. When victim2 was 12 years old, she dated J.G. One time, when victim2 and J.G. were kissing, victim2 had a flashback about what had happened with Simpson, and she pushed J.G. off. Three years later, she explained to J.G. that she had been thinking about what had happened with Simpson. At various times, she also told several friends that she had been molested.
After victim2 had the flashback while kissing J.G., she disclosed to mother that Simpson had touched her inappropriately. Mother told her that it was up to her whether she wanted to press charges against Simpson. Two years later, when victim2 was 14 years old, she spoke with mother again about what had happened with Simpson. Again, mother said that it was up to victim2 to decide whether to press charges against Simpson. When victim2 spoke with mother, mother seemed surprised "for a second." Mother sat across from victim2 and cried. To victim2's knowledge, mother never contacted the police. Victim2 also decided not to contact the police because she viewed Simpson as her brother and she "should have been able to trust him."
When victim2 was 18 years old, she told sister-in-law about what had happened with Simpson. Sister-in-law became upset after victim2 disclosed the molestation, and she took victim2 back to the Doe family house and confronted mother. At the time, victim2 did not know that sister-in-law had a past affair with Simpson. Later, sister-in-law and older brother moved to Utah, and sister-in-law eventually reported Simpson's actions to the police. Victim2 did not know that sister-in-law intended to contact the police.
Victim2 had an active imagination as a child. She used to tell false stories about having pets that she did not have or going on vacations to Disneyland. Usually, when she told stories, each story would be different. One time, victim2 watched a video on YouTube that showed someone falling off a tractor. A day later, she told a story that her father had fallen off a tractor and had broken both legs. Victim2 explained that she had an active imagination, and she had mistakenly associated what she had seen in the video with her life. However, the "stories" that she remembered about Simpson were always the same, and they always involved Simpson touching her.
3. Sister-in-law's Testimony
Sister-in-law was married to older brother. She was close with the Doe family, and she viewed both victims as her "little sisters." Sister-in-law was 28 years old at the time of Simpson's trial, and she was about seven years older than victim2.
In 2014, victim2 told sister-in-law that Simpson had touched her inappropriately while she was sleeping at the Doe family house. Victim2 also told sister-in-law that Simpson had done the same thing to victim1. Sister-in-law took victim2 to the Doe family house. Mother called victim1 over, and sister-in-law asked victim1 if victim2's statements were true. Victim1 said that victim2's statements were true, and there was "[l]ot[s] of crying." Sister-in-law thought that the incidents would be reported to the police.
Several weeks later, sister-in-law and older brother moved to Utah. After her move, sister-in-law did not have any conversations with victim1 or victim2 about what had happened with Simpson. Later, sister-in-law learned that the police had not been contacted. In 2015, sister-in-law called the police department in Gilroy and reported that Simpson had molested victim1 and victim2. Sister-in-law also told the police that she had a prior affair with Simpson. The affair took place in 2007, when sister-in-law was 18 years old, and lasted three or four months. Older brother became angry after he learned of sister-in-law's affair with Simpson.
4. Mother's Testimony
Mother had five children, wife, older brother, younger brother, victim1, and victim2. Wife and Simpson lived in the Doe family house for a short period of time after they were married, and they later moved to a studio apartment in San Jose. Wife and Simpson lived in the studio apartment for a few months before they moved to Hawaii, where they lived for a year. They later moved back to California and lived with Simpson's parents in Morgan Hill before they moved to Gilroy. Wife and Simpson would come over to the Doe family house and spend time with the family when they lived in Gilroy. Sometimes, victim1 and victim2 would go over to wife and Simpson's house to spend the night.
Mother recalled that she, her husband, wife, and two of wife's children went to a funeral in Colorado in April 2007. Victim1 and victim2 stayed home. Mother remembered that older brother, sister-in-law, older brother and sister-in-law's son, younger brother, and Simpson all stayed at the Doe family house during that time.
In June 2010, mother, wife, and three of wife's children went to visit mother's father in Missouri. Victim1, victim2, and Simpson did not go with the family to Missouri.
Mother knew that victim2 had a "creative mind" and often told stories. Victim2 started telling stories when she was two years old. None of the stories that she told involved sexual scenarios or being abused. One time, victim2 told her kindergarten teacher that her father had fallen off a tractor and broken both of his legs. Victim2's father had broken his legs when he was two years old, but the story about the tractor was not true. Another time, when victim2 was five years old, she told a story that she had another mother in New York. Other times, victim2 told stories about going to Disneyland or having pets that she did not really have. As victim2 got older, she stopped telling stories. Victim2 had not told false stories since she was 16 years old. Victim1, on the other hand, had a "[n]o nonsense" personality, and she did not like to tell stories like victim2 did.
One day, victim2 disclosed to mother that Simpson had "touched her down there," pointing to her vaginal area. Mother believed that victim2 was expressing that Simpson had touched her inappropriately. Victim2 was on the "verge of tears" when she spoke with mother. Mother told victim2 that they should speak to her father, and victim2 said that she did not want to and that she wanted to "forget it." Victim2 said that she had blocked out some of the details about what had happened. Mother could not remember when victim2 made her disclosure.
Mother did not bring up the abuse again. Mother had a difficult time "wrap[ping her] head around" what victim2 had said, and she did not want to believe that it was true. Mother, however, said that she believed something did happen with Simpson, but she did not know exactly what happened.
Sometime later, sister-in-law came to mother's house and sat down with mother, victim1, and victim2. Sister-in-law asked victim1 if Simpson had touched her inappropriately. Victim1 answered yes. Victim1 also said that she would probably lie and say that nothing had happened with Simpson if she was asked about it because she was not ready to deal with what had happened to her. Older brother wanted victim2 to go to the police because she was over 18 years old at the time. Victim2 said that she would contact the police "[t]o appease her brother," but she never did. Mother also did not contact the police.
Shortly after sister-in-law spoke with mother, sister-in-law and older brother moved to Utah. About a year later, sister-in-law told older brother that she had had an affair with Simpson. Eventually, sister-in-law called the police and reported that Simpson had molested victim1 and victim2.
5. Detective Toomey's Testimony
Santa Clara County Sheriff's Office Detective Jennifer Toomey was assigned to the case in June 2015. Detective Toomey spoke with both victims, and the interviews were played for the jury.
Detective Toomey recalled that victim1 told her about an incident that took place when she watched "Toy Story 3" with Simpson. Victim2 told Detective Toomey that she watched the movie at home even though the movie was still in theaters. Detective Toomey obtained records that reflected that "Toy Story 3" was released in theaters on June 18, 2010, and on DVD on November 2, 2010.
Detective Toomey also located an apartment complex where Simpson and wife had previously lived in San Jose. Detective Toomey went inside the apartment and was able to take some photographs, including photographs of the shower stall inside the apartment. Detective Toomey also obtained records that showed that Simpson moved out of the apartment in October 2003.
On redirect examination, Detective Toomey testified that she was not aware of any research that discussed the "suggestibility of child witnesses," whether "witnesses as old as 16 are suggestible to false information," whether "children are resistant to be given false information about sexual conduct," or anything "related to false allegations of child sexual assaults."
6. Dr. Blake Carmichael's Testimony
Dr. Blake Carmichael testified for the prosecution as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Carmichael explained that there are five components of CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, unconvincing, or conflicted disclosure; and recanting or retraction.
The first element, secrecy, is derived from the perpetrator's reliance on the child not reporting the abuse. Sometimes, the perpetrator is someone that the child trusts and has an ongoing relationship with, and the perpetrator does not need to say or do much to keep the child from telling anyone about the abuse. Depending on the child's age, the child may not understand that the sexual abuse is inappropriate. The child also may not want to disclose the abuse because of the negative impact on the perpetrator and the rest of the family.
The second element, helplessness, occurs because if the abuse happens in secret, the child may be unable to stop the abuse without assistance. The child may think that he or she will not be believed if they disclose the abuse, and the helplessness that he or she feels may contribute to their decision to keep the abuse a secret.
The third element, entrapment or accommodation, is related to the secrecy of the abuse and the child's feeling of helplessness. The child may try to deal with the abuse in different ways. The child may also distance or disassociate him or herself from the experience, and either "spac[e]" or "numb[] out."
The fourth element, delayed, unconvincing, or conflicted disclosure, is when a child does not immediately disclose the abuse. Studies have shown that anywhere from 50 to 75 percent of children who have been sexually abused do not tell anyone during the first year, and 40 to 60 percent of children will not tell anyone after they turn 18 years old. When a child does make a disclosure, he or she may not always be consistent in recounting the facts.
The final element, recanting or retraction, typically involves a smaller segment of abused children. Sometimes a child is abused and later, when asked about the abuse, he or she denies or retracts their statement. Some research has indicated that between 17 to 24 percent of abused children will retract their allegations.
Dr. Carmichael then testified about research in the area of false memory and CSAAS. Research findings have showed that false memories occur more naturally with "more plausible things, things that [a person] can relate to," such as getting lost at the mall. However, it is more difficult to get people to adopt or accept that uncommon things have happened to them. Research has also showed that children are resistant to memories that relate to sexual touching even if they are in a suggestive environment. Furthermore, children typically become "far less suggestible" as they get past the age of five.
Subsequently, Dr. Carmichael testified about the statistical rate of false allegations of child sexual abuse. According to Dr. Carmichael, false allegations of sexual abuse made by children are "quite rare." Some studies have found higher percentages of false allegations, but those cases involved custody disputes and "custody child-access issues," and the higher rates of false allegations were usually made by adults. Dr. Carmichael testified that "[p]ercentage wise, you're looking at zero to two and a half or four percent, or so, of false allegations made outside of that custody arena," and that "even in some of those studies, none of them [the false allegations] were made by kids."
On cross-examination, Dr. Carmichael reiterated that CSAAS is not a diagnostic tool; it is an educational tool used "to describe this population of [sexually abused] kids." Dr. Carmichael confirmed that his testimony was based on studies of children who were known to be sexually abused. Dr. Carmichael also reiterated that the population of children that make false allegations is "low," and the rates of false allegations are "in that zero to two and a half and sometimes six percent range."
Dr. Carmichael, however, testified that CSAAS is not a "scientific study." CSAAS is also not accepted by the American Psychiatric Association's Diagnostic and Statistical Manual. Dr. Carmichael acknowledged that there are some criticisms of CSAAS, but he opined that the "vast majority" of critics agree that children delay disclosures, abuse happens in secret and some children recant. Dr. Carmichael also testified that one critic of CSAAS has written that "you can assume that most crimes of sexual abuse are true or valid."
7. A.C.'s Testimony
A.C.'s parents and Simpson's parents were friends, and A.C. and Simpson grew up together. Simpson was around five years older than A.C. When A.C. was between 12 and 14 years old, he went to Simpson's house and played video games with him, including a game called "Tomb Raider," which featured a main female character named Lara Croft. At some point, A.C. fell asleep and was woken up by Simpson. Simpson told A.C. that he wanted to show him something, and A.C. followed Simpson to the living room, where Simpson was using a computer. There, Simpson showed A.C. a nude cartoon image of Lara Croft. Simpson asked A.C. what he thought about the picture, but A.C. did not respond because he felt uncomfortable. A.C. went back to sleep.
8. J.C.'s Testimony
When J.C. was a child, he attended the same church as victim1 and victim2's family. J.C. said that he did not date victim2. When J.C. was around 11 or 12 years old, his family moved to Florida. While in Florida, J.C. reconnected with victim2 over social media. Victim2 sent J.C. messages over social media disclosing that Simpson "would touch her in her room." At the time, J.C. thought that victim2 meant that she had a physical altercation or fight with Simpson. Victim2 told J.C. that she was "damaged" and that it would take her a "while to recover from it." J.C. and victim2 had subsequent conversations about unrelated matters. Victim2 did not discuss being touched by Simpson again.
9. C.A.'s Testimony
C.A. was friends with victim2 and had met her through participating in 4H activities. C.A. had known victim2 for around 10 years, and she considered victim2 to be her best friend. In 2012 or 2013, victim2 told C.A. that Simpson had molested her and victim1. Victim2 and C.A. had been discussing relationships, and victim2 had said that she did not want anything to happen on a "physical level" and was having a hard time dating. C.A. asked her why, and victim2 responded that something had happened to her when she was a child. Victim2 told C.A. that she had not told anyone else about what had happened, and C.A. reassured her that she could tell her anything. At that point, victim2 told C.A. that she had been "molested." It took a long time for victim2 to speak, and when she finally told C.A. about what had happened with Simpson, she burst into tears. Victim2 told C.A. that she felt dirty, and she was afraid that she would never have a healthy relationship. C.A. asked victim2 if Simpson had raped her, and victim2 told C.A. that "it was molest."
10. A.C.2's Testimony
A.C.2 was 18 years old at the time of Simpson's trial and was good friends with victim1. A.C.2 had been friends with victim1 since they were both around 12 years old. During the summer when A.C.2 and victim1 were 13 years old, A.C.2 and victim1 went to clean out the Doe family's goat barn. While cleaning the stalls, A.C.2 and victim1 decided to tell each other things that they had never told anyone else before. Victim1 told A.C.2 that "a family member had molested her." Victim1 specified that the person was her "older sister's husband." At the time, victim1 seemed hesitant to tell A.C.2 her secret. She cried and appeared scared that someone was going to overhear their conversation. Victim1 did not want to tell A.C.2 any details about what had happened. A.C.2 told victim1 that she should tell mother about the molestation. Victim1 responded that she did not want to ruin the relationship that mother had with wife and Simpson's children.
C. The Defense's Case
1. Wife's Testimony
Wife met Simpson in a church group camp in 1999 and started dating him in 2000. When wife and Simpson first met, wife was one of the students attending the camp and Simpson, who was four years older than wife, was one of the chaperones. Wife and Simpson got married in 2003. After they married, wife and Simpson moved to a studio apartment in San Jose in August 2003, where they lived for several months.
Wife remembered that the shower in the studio apartment was small. Wife and Simpson had attempted to take a shower together, but when Simpson got inside the shower, he took up all the space. Wife could not recall victim1 and victim2 ever spending the night or taking a shower at the apartment. Since the apartment was small, victim1 and victim2 would have had no place to sleep, sit, or eat. When wife and Simpson lived in the apartment, they always went to the grocery store together, and wife never went to the store by herself.
In October 2003, wife and Simpson moved to Hawaii. They moved back to California in February 2005 and lived with Simpson's parents before moving to Gilroy.
In 2007, wife went with her two children and her parents to Colorado for a funeral for three or four days. Older brother and sister-in-law stayed over at the Doe family house with victim1 and victim2. Younger brother was also at the house.
In 2010, wife went with mother and wife's three children to Missouri to visit wife's dying grandfather. Victim1 and victim2 stayed at home with their father. While on her trip to Missouri, wife spoke to Simpson every day. Simpson never mentioned that he was going to spend the night at the Doe family house.
According to wife, it was "probable" that she had gone on a beach trip with victim1, victim2, and other family members. Wife, however, did not recall an occasion where she told Simpson to help clean sand out of victim2's bathing suit.
Wife had not spoken with victim1 or victim2 since June 2015. Wife used to talk to victim2 about her issues with school and friends, and wife usually gave victim2 advice. Wife was closer to victim1, who used to help wife with her children.
Wife knew that Simpson knew how to obtain movies before they were released on DVD. Wife remembered that Simpson obtained this ability sometime after 2009.
In June 2015, older brother called wife and told her that sister-in-law had had an affair with Simpson and that Simpson had molested victim1 and victim2. Sister-in-law sent wife an e-mail, but wife did not read it. Wife knew that Simpson and sister-in-law had an "emotional affair," but she did not know about the physical nature of their relationship until June 2013. Wife had previously confronted Simpson about his emotional affair with sister-in-law in June or July 2007. When older brother learned of sister-in-law's affair, he became hostile toward wife and Simpson. Older brother said he wanted Simpson "[a]rrested, burned, shot, killed."
On cross-examination, wife acknowledged that she had read all the police reports associated with Simpson's case, including the statements made by victim1, victim2, and mother, and the preliminary hearing transcripts. Wife also acknowledged that she had read her own preliminary hearing transcript to prepare for trial.
2. Simpson's Testimony
Simpson remembered living in the studio apartment in San Jose and was familiar with the shower that was inside of it. Simpson could not recall mother ever asking wife and Simpson to watch victim1 and victim2 when they lived at the apartment. Simpson could also not recall wife asking victim1 or victim2 to come stay at the apartment. Usually, Simpson and wife went over to the Doe family house. Simpson could not recall victim1 and victim2 ever spending the night at the apartment. Simpson denied that he ever went inside the shower with victim1 and victim2. Simpson only remembered victim1 and victim2 visiting the studio apartment twice: once when wife and Simpson first moved in, and another time when wife and Simpson moved out. During both of those visits, many other family members were present.
Simpson became involved with 4H with his own children, and once co-led a rabbit project with mother. Victim1 was one of the team leaders for the project. Simpson never touched victim1 inappropriately when he assisted in the 4H projects.
Simpson never babysat victim1 and victim2 at the Doe family house by himself. Simpson spent most of the day working. On the weekend, however, it may have been possible for Simpson to go over to the Doe family house to watch a movie. Older brother and sister-in-law, who had temporarily lived at the Doe family house, sometimes babysat victim1 and victim2. Wife was always with Simpson whenever he babysat victim1 and victim2.
Simpson acknowledged that he had illegally obtained movies to watch at home. Simpson, however, never watched a movie while laying on a bed with victim1 and victim2, and he denied that he ever touched them inappropriately while laying on a bed with them. He had never inadvertently touched victim1 or victim2 in an inappropriate way. Simpson remembered going to the beach with victim1 and victim2, but he never went into the bathroom with them there.
Simpson believed that it was possible that victim1 and victim2 had been molested by someone else. Simpson did not know why victim1 and victim2 would lie about what had happened, or why they blamed him.
Simpson acknowledged that he had an affair with sister-in-law. At the time of the affair, sister-in-law was 18 years old. The affair lasted around two and a half to three months and ended after Simpson broke it off with sister-in-law. Sister-in-law was hurt after Simpson ended the affair, and she continued to send Simpson messages over social media.
Simpson denied that he ever showed A.C. nude images of Lara Croft.
On cross-examination, Simpson acknowledged that he had read victim1's and victim2's statements and had seen them testify at trial.
3. N.R.'s Testimony
N.R. was a pastor and had known Simpson since 2008. Simpson was a youth assistant for her church, and he helped with Bible study. N.R. had the opportunity to work with Simpson when he assisted with study groups. N.R. always saw Simpson conduct himself appropriately with female study group members.
D. The Verdict, New Trial Motion, and Sentencing
On October 12, 2017, the trial court excused Juror No. 11 and sat an alternate juror. On October 17, 2017, the jury reached a verdict, finding Simpson guilty of counts 2 through 5. The trial court declared a mistrial as to count 1.
Count 2 was the "beach incident" with victim2, count 3 was the "shower incident" with victim2, count 4 was the "Spiderman" incident with victim1, and count 5 was the "Toy Story 3" incident with victim1. The jury did not reach a verdict on count 1, which was the "nightmare" incident that victim2 alleged occurred when she had a nightmare while her parents were away in Colorado.
On April 19, 2018, Simpson, who had retained new counsel, filed a motion for a new trial, arguing in part that there was juror misconduct and that his trial counsel had rendered ineffective assistance.
On June 14, 2018, the trial court denied Simpson's motion for a new trial without an evidentiary hearing. Thereafter, the trial court sentenced Simpson to a total term of 30 years to life in prison, composed of 15 years to life for count 2, 15 years to life for count 3, 15 years to life for count 4, and 15 years to life for count 5. The sentence for count 3 was ordered to run concurrent to the sentence for count 2, and the sentence for count 5 was ordered to run concurrent to the sentence for count 2.
Discussion
A. Admission of Statistical Testimony
Simpson argues that the trial court erred when it admitted testimony that suggested that false reports of child sexual abuse are statistically rare. He argues that if his trial counsel's failure to object to the evidence forfeits his appellate claim, counsel rendered ineffective assistance.
1. Background
Before trial, the prosecutor made a motion in limine seeking to exclude evidence of victim2's reputation for story-telling. During a pretrial hearing, the trial court ruled that the defense could elicit testimony from mother that victim2 sometimes told imaginative stories when she was a young child. The trial court, however, stated that "should the defense open that door," the prosecutor would be permitted to "ask their CSAAS expert regarding the false reporting regarding sexual assault cases." Simpson's trial counsel stated that he objected to the testimony "unless [the expert] can lay a foundation for it." The trial court agreed that a foundation had to be laid for any expert opinion.
During trial, the prosecutor asked Dr. Carmichael about studies into children's suggestibility. Simpson's trial counsel objected, arguing that Dr. Carmichael was "far afield from the subject matter of [his] expertise." The trial court overruled counsel's objection. Later, the prosecutor asked Dr. Carmichael about research into false allegations of child sexual assault. Dr. Carmichael testified that false allegations are "quite rare," and "[p]ercentage wise, you're looking at zero to two and a half or four percent, or so, of false allegations made outside of that [child] custody arena. And even in some of those studies, none of them were made by kids." On cross-examination, Dr. Carmichael also testified that one critic of CSAAS wrote that "you can assume that most crimes of sexual abuse are true or valid."
2. Forfeiture
Simpson argues that his argument is not forfeited because he raised an objection to Dr. Carmichael's testimony during the hearing on the prosecutor's motion in limine. We disagree. Simpson's trial counsel objected to Dr. Carmichael's testimony twice-once during the hearing on the motion in limine and again when Dr. Carmichael testified-but the objections were not based on the specific grounds now urged on appeal, that the evidence was not relevant and invaded the province of the jury. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 22 [objection to evidence must be preserved by specific objection at time evidence was introduced].) During the hearing on the in limine motion, Simpson's trial counsel argued that he would object to Dr. Carmichael's testimony unless there was sufficient foundation for it. At trial, he similarly echoed his foundational objection-asserting that Dr. Carmichael was testifying on subjects outside his expertise. Simpson's failure to object on the specific grounds raised on appeal forfeits his appellate arguments.
3. Ineffective Assistance of Counsel
Alternatively, Simpson argues that his trial counsel was ineffective for failing to adequately object to Dr. Carmichael's testimony about statistics and how one CSAAS critic wrote that "you can assume that most crimes of sexual abuse are true or valid."
To prevail on an ineffective assistance of counsel claim, a defendant must establish that trial counsel's performance was deficient and that there was prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
"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).)
Simpson relies on two recent appellate decisions issued a year after Simpson's trial that concluded that testimony about the statistical rarity of false sex abuse allegations is inadmissible, People v. Wilson (2019) 33 Cal.App.5th 559, 568 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878, 885 (Julian).
In Wilson, a case from the First Appellate District, an expert witness testified that false allegations of child sexual abuse occur" 'very infrequently or rarely,' most often during a child custody dispute," and that a study found that false allegations occurred in approximately 4 percent of cases. (Wilson, supra, 33 Cal.App.5th at p. 568.) The expert also testified that additional studies had found that false allegations occur in between 1 and 6 percent of cases. (Ibid.) Wilson held that the expert testimony "had the effect of telling the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth," and "the practical result [of the testimony] was to suggest to the jury that there was an overwhelming likelihood [the victim's] testimony was untruthful." (Id. at p. 570.) Thus, the evidence improperly "invaded the province of the jury, whose responsibility it is to 'draw the ultimate inferences from the evidence.'" (Id. at p. 571.) Wilson determined that the statistical evidence was not relevant and was more prejudicial than probative (ibid.), but concluded that the erroneous admission of the evidence was harmless because the victims testified extensively, other percipient witnesses testified, and the defense called an effective expert witness in rebuttal (id. at p. 572).
In Julian, the Second Appellate District concluded that trial counsel was ineffective for failing to object to expert testimony that false allegations of child sexual abuse are rare and are" 'about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases.'" (Julian, supra, 34 Cal.App.5th at p. 885, italics omitted.) Julian noted that the improper statistical evidence "invited jurors to presume [the defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886.) Julian determined that "there [was] no justification for counsel's failure to object to [the expert's] statistical evidence on false allegations," noting that the evidence "was inadmissible and it improperly suggested [the defendant] was guilty based on statistical probabilities that were irrelevant to this case." (Id. at p. 888.)
Here, upon further consideration and after carefully reviewing the record and the parties' supplemental briefs, we conclude that there was no tactical reason for trial counsel's failure to adequately object to the statistical evidence. Trial counsel first objected to the evidence during a pretrial hearing, arguing that it should not be admitted unless there was proper foundation laid for it. When Dr. Carmichael subsequently testified about studies into children's suggestibility, trial counsel objected that Dr. Carmichael's testimony was "far afield from the subject matter of [his] expertise." After testifying about childhood suggestibility, Dr. Carmichael testified about the statistical rate of false allegations in child sexual assault cases, and trial counsel made no specific objection to this testimony. As in Julian, "there is no justification for counsel's failure" to object to Dr. Carmichael's statistics testimony on the basis that it was irrelevant and beyond the scope of CSAAS evidence. (Julian, supra, 34 Cal.App.5th at p. 888.)
We acknowledge that Wilson and Julian were decided in 2019, a year after Simpson's trial. Wilson and Julian, however, did not rely on novel legal principles. Both cases relied on well-established principles that only relevant evidence should be admitted, and evidence should not be admitted if its probative value is substantially outweighed by its prejudicial effect. (Wilson, supra, 33 Cal.App.5th at pp. 570-571; Julian, supra, 34 Cal.App.5th at p. 888.) Both cases also observed that testimony about the statistical rate of false allegations invaded the province of the jury, "whose responsibility it is to 'draw the ultimate inferences from the evidence.'" (Wilson, supra, at p. 570; Julian, supra, at p. 886.) Additionally, Julian cited to the longstanding principle that it is improper for experts on CSAAS "to present 'predictive conclusions' [citation], such as alleged child abuse victims 'should be believed' or 'abused children give inconsistent accounts and are credible nonetheless.'" (Julian, supra, at p. 886, quoting People v. Bowker (1988) 203 Cal.App.3d 385, 393.)
Accordingly, we conclude that Simpson has demonstrated that his trial counsel was ineffective for failing to adequately object to the admission of Dr. Carmichael's testimony on the statistical rate of false child sexual abuse allegations. We do not assess whether trial counsel's omission was individually prejudicial under Strickland, supra, 466 U.S. at page 694, however, because we determine that the cumulative prejudice from various errors rendered the trial fundamentally unfair (see infra).
B. Failure to Present Defense Expert Testimony
Next, Simpson argues that his convictions must be reversed because he was unable to present expert testimony from Dr. Ellen Stein. He argues that if Dr. Stein's failure to testify was due to his trial counsel's inadvertence, his counsel rendered ineffective assistance.
1. Background
On September 20, 2017, Simpson's trial counsel filed a motion in limine seeking to admit Dr. Stein's expert testimony. The motion stated that Dr. Stein would testify about "childhood suggestibility" and the "psychological factors involved in the interview process." The motion also stated that recent research had examined the "common problems presented by suggestive questioning of children." The People filed an opposition to Dr. Stein's testimony.
The following day, the trial court held a hearing on the parties' in limine motions. The trial court stated: "As I indicated, I'm skeptical about what the defense expert can offer in this case, but I've agreed to allow [Simpson's trial counsel] to obtain a statement from his expert as to exactly what she would testify to if called as a witness. And after reviewing that statement, I'll make a ruling." Simpson's trial counsel responded that he would do his "best" to have the statement ready by the next week. There is nothing in the record to reflect that Simpson's trial counsel submitted a statement summarizing Dr. Stein's proposed testimony, and Dr. Stein did not testify at Simpson's trial.
After the jury reached its verdict, Simpson's trial counsel prepared a declaration in support of a motion for a new trial. Counsel declared that he had to "scramble" to present a defense after the prosecution rested its case early, and he had attempted to get Dr. Stein to testify, but she was unable to reschedule her prior commitments. Trial counsel remembered that he had discussions with the trial court in chambers and "possibly on the record" about the admissibility of Dr. Stein's testimony, and he remembered that he argued that her testimony was admissible under People v. Stoll (1989) 49 Cal.3d 1136 (Stoll). Near the end of the prosecutor's case in chief, trial counsel asked the trial court if it would allow a continuance until Dr. Stein was available, but the trial court denied the continuance and excluded her testimony.
On June 14, 2018, the trial court held a hearing on Simpson's motion for a new trial. The trial court stated that it recalled that there had been a discussion with Simpson's trial counsel about preparing a statement from Dr. Stein summarizing her intended testimony but "[t]hat statement was never produced." The trial court explained that it had indicated that Dr. Stein could not testify about the subjects initially proffered by Simpson's trial counsel, but the trial court had been willing to "look at anything else [that trial counsel] wanted to submit," but "nothing was submitted." The trial court also stated that the other reason that Dr. Stein did not testify was because Simpson's trial counsel had a scheduling problem with Dr. Stein. The trial court explained that it had denied a continuance because it "had no indication of what [Dr. Stein] was going to testify to or whether her testimony was going to be relevant to any of the issues in the case or were admissible, for that matter."
2. Simpson's Trial Counsel Did Not Call Dr. Stein as a Witness
On appeal, Simpson argues that the trial court erred when it excluded Dr. Stein from testifying. Simpson's argument fails because the record reflects that the trial court did not exclude Dr. Stein's testimony; Simpson's trial counsel failed to produce her as a witness. The record reflects that the trial court asked trial counsel to prepare a statement summarizing Dr. Stein's proposed testimony so it could make a ruling on the admissibility of her testimony. Simpson's trial counsel agreed to do so, but no such statement appears in the record. Furthermore, there is no ruling on the record excluding Dr. Stein's proposed testimony.
3. Ineffective Assistance of Counsel
Simpson argues that if Dr. Stein did not testify due to his trial counsel's omissions, his trial counsel rendered ineffective assistance. This argument is virtually identical to his claim of ineffective assistance of counsel raised in his new trial motion, which the trial court denied.
Typically, a trial court has broad discretion when ruling on a new trial motion and its ruling will not usually be disturbed on appeal unless it has abused its discretion. (See People v. Fuiava (2012) 53 Cal.4th 622, 730.) However, appellate courts have held that when the trial court has denied a motion for a new trial based on an ineffective assistance of counsel claim, which implicates a constitutional right, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
As we previously explained, to prevail on an ineffective assistance of counsel claim, a defendant must establish that trial counsel's performance was deficient and that there was prejudice. (Strickland, supra, 466 U.S. at p. 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
In support of Simpson's motion for a new trial, Dr. Stein submitted a declaration that summarized the contents of her intended testimony. Dr. Stein indicated that she understood that Simpson's trial counsel had wanted her to discuss three areas: (1) that there was no evidence that Simpson had a mental disorder that predisposed him to the commission of sexual offenses, either against children or adults; (2) that victim1 and victim2's conversations "outside the forensic interview process" with family and friends provided opportunities for "contamination"; and (3) that CSAAS is "commonly understood in forensic psychology to be 'junk science' and . . . is not scientifically supported through any peer review studies."
Dr. Stein's declaration also described that Simpson's trial counsel had an "unspecified illness" and abruptly departed from his former law firm. Subsequently, Dr. Stein "noted a marked deterioration in [trial counsel's] work, organization, responsiveness, attention to detail and work product."
The trial court did not make any express factual determinations about whether Simpson's trial counsel had a tactical reason for failing to call Dr. Stein as a witness.
The trial court, however, determined that Simpson's trial counsel failed to produce a statement summarizing the contents of Dr. Stein's proposed testimony, and the trial court denied a continuance because it had no summary of Dr. Stein's proposed testimony. In his declaration in support of the new trial motion, Simpson's trial counsel did not claim that he had a tactical reason for failing to call Dr. Stein as a witness. In fact, Simpson's trial counsel characterized Dr. Stein's testimony as the "heart" of the defense.
Accordingly, the record "affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission." (Mai, supra, 57 Cal.4th at p. 1009.) Again, since we reverse infra based on cumulative prejudice, we do not decide whether this error was individually prejudicial under Strickland, supra, 466 U.S. at page 694.
C. Admission of Evidence Under Evidence Code Section 1108
Simpson argues that the trial court erred when it admitted A.C.'s testimony about the nude cartoon image under Evidence Code section 1108 and did not properly instruct the jury on how to use the evidence. Simpson further argues that the trial court failed to limit the use of the evidence of Simpson's affair with sister-in-law.
1. Background of A.C.'s Testimony
Before A.C. testified, the trial court held a hearing under Evidence Code section 402. At the hearing, A.C. testified about two incidents involving Simpson, one being an incident where Simpson stumbled across a "weird sex [chat] room" while using a computer and another being the incident where Simpson showed him a nude cartoon image of Lara Croft. The prosecutor argued that A.C.'s testimony was admissible under Evidence Code sections 1101, subdivision (b) and 1108. The prosecutor claimed that the conduct fell under section 647.6, annoying or molesting a child, which was specifically enumerated in Evidence Code section 1108, and was not more prejudicial than probative. The trial court permitted A.C. to testify about the nude cartoon image but excluded his testimony about the chat room.
After the close of evidence, the trial court instructed the jury on the proper use of A.C.'s testimony as follows: "The People presented evidence of behavior of the defendant that was not charged in this case. This behavior was showing a nude image to [A.C.] when [A.C.] was 13-14 years old and the defendant was 18-19 years old. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact engaged in this uncharged behavior. . . . [¶] If the people have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant engaged in this uncharged behavior, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit lewd or [lascivious] acts on a child under fourteen, as charged here. If you conclude that the defendant engaged in this uncharged behavior, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty . . . . The People must still prove each charge and allegation beyond a reasonable doubt."
2. General Legal Principles
Typically, evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) The Legislature, however, has created an exception to this rule in cases involving sexual offenses, so long as the evidence is admissible under Evidence Code section 352. (People v. Cottone (2013) 57 Cal.4th 269, 281; Evid. Code, § 1108, subd. (a).) Evidence Code section 1108, subdivision (d) defines a sexual offense as "a crime under the law of a state or of the United States" that involves certain types of conduct and the violations of certain statutes, including section 647.6.
"[T]he admissibility of uncharged conduct pursuant to section 1108 turns on the existence of a preliminary fact-namely, that the uncharged conduct constitutes a statutorily-enumerated 'sexual offense.'" (People v. Jandres (2014) 226 Cal.App.4th 340, 353.) "The trial court must make a preliminary determination of whether the proffered evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense." (Ibid.) We review the trial court's determination of this preliminary fact for an abuse of discretion. (Ibid.)
3. Admission of A.C.'s Testimony
The prosecution argued that Simpson's conduct constituted a sexual offense because it violated section 647.6, which prohibits annoying or molesting a child under the age of 18. A violation of section 647.6 requires proof of the following elements: "(1) the existence of objectively and unhesitatingly irritating or annoying conduct; (2) motivated by an abnormal sexual interest in children in general or a specific child; (3) the conduct is directed at a child or children, though no specific child or children need to be the target of the offense; and (4) a child or children are victims." (People v. Phillips (2010) 188 Cal.App.4th 1383, 1396, fn. omitted.)
Assuming the trial court made a preliminarily factual determination that the conduct was a violation of section 647.6, it did not abuse its discretion. Although this is a close issue, a jury could conceivably infer that Simpson's actions were motivated by an abnormal sexual interest in children because they were directed at A.C., who was a minor. It is also conceivable to infer that the conduct was objectively and unhesitatingly irritating or annoying.
However, we agree with Simpson that the trial court abused its discretion in admitting the evidence under Evidence Code section 352. In Jandres, this court observed that "[a]s to probative value,' "[t]he court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered . . . ." '" (Jandres, supra, 226 Cal.App.4th at p. 355.) The uncharged offense must have some tendency to prove that the defendant is predisposed to commit the charged crimes. (Id. at pp. 355-356.)
Simpson was charged with five counts of committing lewd and lascivious acts on minor girls by touching them inappropriately. The uncharged conduct involved Simpson showing a teenage boy a nude image of a cartoon videogame character. The charged crimes and the uncharged conduct bore little similarity, and evidence of the uncharged conduct does not rationally support an inference that Simpson had a predisposition or a propensity to commit the charged sexual offenses. In sum, the uncharged conduct had minimal probative value. (See People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 [propensity evidence has probative value if uncharged conduct is similar enough to charged behavior to tend to show defendant did in fact commit the charged offense].) Although the potential for prejudice was also low-A.C.'s testimony was brief and the uncharged conduct was not particularly inflammatory-the minimal probative nature was still substantially outweighed by the potential for prejudice. (Evid. Code, § 352.)
4. Jury Instructions
Next, Simpson claims the trial court erred when it instructed the jury about how to use evidence of the uncharged act. Simpson's trial counsel did not object to the challenged instructions below, but we reach the merits of his claim." 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.] But that rule does not apply when, as here, the trial court gives an instruction that is an incorrect statement of the law." (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) We review errors in jury instructions de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
We agree with Simpson that the jury instruction, as given, misstated the law. (Jandres, supra, 226 Cal.App.4th at pp. 358-359 [the court must instruct the jury on elements of the offense or offenses].) The instruction described the uncharged offense as "showing a nude image to [A.C.]." The uncharged offense, however, was a violation of section 647.6, and the jury instruction made no mention of that provision. The instruction also failed to inform the jury of the elements of section 647.6 and did not tell the jury that it needed to find that the prosecution proved the elements of the crime by a preponderance of the evidence.
Both the trial court's erroneous admission of A.C.'s testimony and its error in instructing the jury are reviewed under the Watson harmless error test. (Jandres, supra, 226 Cal.App.4th at pp. 357, 359.) Again, however, we do not assess whether these errors were individually prejudicial because, as discussed infra, we conclude that the cumulative prejudice of trial counsel's ineffective assistance and the trial court's errors requires reversal of the judgment.
D. Cumulative Effect of Ineffective Assistance of Counsel and Trial Court Errors
Simpson argues that even if none of his trial counsel's omissions and the trial court's errors were prejudicial in isolation, they were cumulatively prejudicial.
We review the cumulative prejudice stemming from trial counsel's omissions and the trial court's errors under the standards articulated in Strickland and Watson, that is, whether there is a "reasonable probability" (Strickland, supra, 466 U.S. at p. 694) or whether it is "reasonably probable" (People v. Watson (1956) 46 Cal.2d 818, 836; see Jandres, supra, 226 Cal.App.4th at pp. 357, 359) that Simpson would have received a more favorable outcome in the absence of the errors. (Jandres, supra, at p. 361; In re Jones (1996) 13 Cal.4th 552, 588 [cumulative effect of ineffective assistance was prejudicial under Strickland standard] (Jones).)
We evaluate cumulative prejudice by examining Simpson's claims of ineffective assistance of counsel and trial court error "that we have determined to be meritorious." (Jones, supra, 13 Cal.4th at p. 583 [examining cumulative effect of multiple instances of ineffective assistance of counsel that were found to be meritorious]; see People v. Hill (1998) 17 Cal.4th 800, 846 [concluding that prejudice arising from the combination of prosecutorial misconduct and "other errors" required reversal of judgment] (Hill); see also People v. Williams (2009) 170 Cal.App.4th 587, 646 [under doctrine of cumulative error, reviewing court "must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence' "].) We have concluded that trial counsel was ineffective when he failed to adequately object to the admission of expert testimony that false allegations of child sexual abuse are statistically rare and failed to call Dr. Stein as an expert witness. We have also concluded that the trial court erred in admitting A.C.'s Evidence Code section 1108 testimony and when instructing the jury on the Evidence Code section 1108 evidence. Finally, we conclude that when we cumulate the prejudicial impacts of trial counsel's ineffective assistance and the trial court's errors, Simpson was deprived of his right to a fair trial, and we must reverse the judgment.
The California Supreme Court has held that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Hill, supra, 17 Cal.4th at p. 844; see Jones, supra, 13 Cal.4th 552.) For example, in Jones, the court concluded that the cumulative effect of multiple instances of ineffective assistance of counsel, including counsel's failure to adequately investigate the case before trial, object to testimony that was admitted only against the petitioner's codefendant, and seek exclusion of certain evidence, required reversal of the judgment. (Jones, supra, at pp. 583-584; see also Hill, supra, at pp. 844-848 [finding that the cumulative effect of multiple instances of serious prosecutorial misconduct, along with instructional errors and other trial court errors, required reversal].)
In Jandres, a different panel of this court concluded that the cumulative effect of the erroneous admission of sexual assault propensity evidence and instructional error required reversal of the judgment in a case that was largely" 'a credibility contest'" between the victim and the defendant. (Jandres, supra, 226 Cal.App.4th at p. 356.) Jandres held that "[b]ecause defendant's credibility was the pivotal issue at trial, and the [sexual assault propensity evidence] tended strongly to impeach him, its erroneous admission likely weighed heavily in the jury's determination [of] whether defendant was guilty." (Id. at p. 360.) Similarly, in People v. Clotfelter (2021) 65 Cal.App.5th 30 (Clotfelter), the First Appellate District concluded that trial counsel's multiple instances of ineffective assistance, including counsel's failure to object to expert testimony that opined that the defendant was guilty, object or move to strike highly prejudicial testimony about the defendant's prior crimes, object to improperly used CSAAS evidence, and object to other instances of inflammatory testimony, had an overwhelming cumulative effect and rendered the trial fundamentally unfair. (Id. at pp. 69-70.)
Here, we first consider the prejudicial impact of Dr. Carmichael's testimony about the statistical rarity of false child sex abuse allegations. Dr. Carmichael's testimony strongly and improperly suggested that the victims were telling the truth during their testimony. Dr. Carmichael stated: "Percentage wise, you're looking at zero to two and a half or four percent, or so, of false allegations made outside of that [child] custody arena. And even in some of those studies, none of them were made by kids." Dr. Carmichael referred to the statistical evidence again on cross-examination, when he reiterated that the population of children that makes false allegations is "low," and the rates are "in that zero to two and a half and sometimes six percent range." Dr. Carmichael also testified that one critic of CSAAS wrote that "you can assume that most crimes of sexual abuse are true or valid."
The prejudicial impact of Dr. Carmichael's testimony was somewhat diminished by trial counsel's cross-examination. For example, Simpson's trial counsel asked Dr. Carmichael, "How do you discern the two [false allegations and real abuse]?" Dr. Carmichael replied, "There's no tool that makes that distinction. That's why you have the judicial process." Dr. Carmichael then stated that when he provides treatment to sexually abused children, there "has [already] been a finding" that the child has been abused. Thus, Dr. Carmichael's testimony emphasized that there is no tool that can discern between false and real allegations, which tended to undermine his testimony about the low rate of false allegations. Moreover, the potential for prejudice was also diminished by the fact that Dr. Carmichael's statistical testimony was relatively brief and that the prosecutor did not reference the statistical evidence during closing argument.
Nonetheless, Dr. Carmichael's testimony was highly prejudicial, especially when we consider that the case was largely a credibility contest between the two victims and Simpson. Additionally, Dr. Carmichael made two references that improperly suggested that the victims were telling the truth. As we have stated, Dr. Carmichael twice reiterated the statistical evidence that false allegations are in the "zero to two and a half and sometimes six percent range." In essence, this testimony improperly suggested that there was anywhere between a 100 to a 94 percent chance that the victims were being truthful. (See Julian, supra, 34 Cal.App.5th at p. 886.) "[T]he practical result [of the evidence] was to suggest to the jury that there was an overwhelming likelihood [the victims'] testimony was truthful." (Wilson, supra, 33 Cal.App.5th at p. 570.) Furthermore, the "probability evidence invited jurors to presume [Simpson] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Julian, supra, at p. 886.) This testimony also came from an expert, and "[i]t is widely acknowledged that an expert's statements are 'likely to carry special weight with the jury.'" (Clotfelter, supra, 65 Cal.App.5th at p. 60.)
Even so, the jury was not bombarded with statistical evidence, and if this was the only error that was made below, we may have concluded that trial counsel's failure to object to the testimony was not prejudicial. (Strickland, supra, 466 U.S. at p. 694.) Trial counsel, however, also failed to call Dr. Stein as an expert witness. As we previously summarized, Dr. Stein submitted a declaration that indicated that she understood that Simpson's trial counsel had wanted her to discuss the following three areas if called to testify: (1) there was no evidence that Simpson had a mental disorder that predisposed him to the commission of sexual offenses, either against children or adults; (2) victim1's and victim2's conversations "outside the forensic interview process" with family and friends provided opportunities for "contamination"; and (3) CSAAS is "commonly understood in forensic psychology to be 'junk science' and . . . is not scientifically supported through any peer review studies."
First, trial counsel's failure to call Dr. Stein as a witness deprived the jury of the opportunity to hear testimony that there was no evidence that Simpson was predisposed to commit sexual offenses." 'It is now settled that psychological opinions based upon personal examination and an analysis of accepted psychological tests . . . may be admitted as character evidence tending to show that an individual was or was not likely to have committed a particular act.'" (People v. Fernandez (2013) 216 Cal.App.4th 540, 567.) In Stoll, supra, 49 Cal.3d 1136, the California Supreme Court concluded that the trial court erroneously excluded evidence that the defendant displayed a" 'normal personality function, '" showed no" 'indications of deviancy, '" and implied that the defendant was" 'unlikely'" to commit the charged act or any serious crime. (Id. at p. 1153.)
The Stoll court found exclusion of similar evidence to be prejudicial under somewhat different circumstances. (Stoll, supra, 49 Cal.3d 1136.) In Stoll, four defendants were tried and convicted of 36 counts of lewd conduct against seven children. (Id. at p. 1141.) Two of the defendants attempted to introduce expert testimony that they did not have signs of sexual deviancy. (Ibid.) The California Supreme Court noted that the defendants had "mounted a thorough attack on the credibility of each witness." (Id. at p. 1162.) Several child witnesses contradicted each other's account of the same event. (Ibid.) Additionally, four of the children who testified against the defendants admitted that they had lied at the preliminary hearing, and two witnesses conceded that their trial testimonies "contained at least one untruth." (Ibid.) Pretrial statements of several of the children contradicted their trial testimony as to the type of, or circumstances surrounding, the sex crimes at issue. (Ibid.) Moreover, the investigators specifically directed three of the children "to discuss sexual contact with defendants," and two of the children were told about another child's accusations before they were questioned. (Ibid.) Given these circumstances, the Supreme Court concluded that the "jury might well have been swayed by expert opinion testimony that neither [defendant] was 'the type of person' to commit the charged acts." (Ibid.)
Although some of the deficiencies that were present in the prosecution's case in Stoll are not present here-significantly, the two victims did not contradict their own testimonies and their testimonies were largely consistent with their prior statements-the victims were also unable to corroborate each other's accounts. For example, victim1 could not recall going to Simpson and wife's apartment in San Jose, and she could not recall any inappropriate incidents that took place during a family trip to the beach. Although a defense-retained expert's opinion on Simpson's predisposition toward sexual deviancy may not have, by itself, "swayed" the jury's verdict, the evidence may have cast some doubt on whether Simpson "was the 'type of person' to commit the charged acts." (Stoll, supra, 49 Cal.3d at p. 1162.)
In a supplemental brief, the Attorney General argues that had Dr. Stein's testimony been admitted, the prosecutor would have been allowed to present evidence of Simpson's bad character in rebuttal. The Attorney General references the prosecutor's trial briefs and pretrial motions in limine identifying A.C.2's mother as a potential witness. A.C.2's mother had told officers that she had an uncomfortable feeling when she saw Simpson interact with his own daughters and that she thought Simpson hugged his daughters in a way that "more resembled boyfriend/girlfriend than father/daughter contact." At a pretrial hearing, Simpson's trial counsel objected to the admission of A.C.2's mother's testimony, and the prosecutor argued that he did not intend to call A.C.2's mother in his case-in-chief and would only call her for "some other sort of rebuttal purpose." The trial court responded: "[B]ased on the paragraph describing what her potential testimony might be, I think it's highly speculative so I probably wouldn't allow that anyway."
Moreover, Dr. Stein intended to testify that she had examined transcripts of interviews with victim1 and victim2 and that in an interview with victim1, officers used "closed-ended" and "leading" questions that were "improper for a forensic interview of a child or adolescent." Dr. Stein's declaration pointed to two instances where officers used closed-ended and leading questions when interviewing victim1. First, an officer asked victim1 whether Simpson would use his hands "over [her] shirt," whether he would "go in through the neck," and whether he would "grab [her] butt" or "do anything specific" like "squeeze" or "just slide his hand back there." After victim1 replied that Simpson had slid his hands "back there," the officer asked whether Simpson's hands went "into [her] butt crack," whether he "actually touch[ed] like [her] anus," and whether, after he "push[ed her] butt cheeks to the side," if he "ever put his fingers inside" victim1. Dr. Stein's declaration, however, stated that in the earlier portion of the same interview in question, officers used open-ended questions until victim1 described that Simpson would "slid[e] 'his hand down our [victim1's and victim2's] back[s] and then go under our [pants].'" Subsequently, the officer used closed-ended and leading questions to get some of the details about the inappropriate touching.
In his opening brief, Simpson does not identify any other instances where suggestive questioning was used with either victim1 or victim2. Dr. Stein's testimony would have only been relevant to these relatively brief instances where suggestive questioning techniques were employed, and the record reflects that the suggestive questioning at issue took place only after victim1 had described to the police that Simpson slid his hands down her and victim2's pants. Nonetheless, Dr. Stein's testimony regarding the "close-ended" and "leading" questioning of victim1 may have been helpful to the defense had it been admitted.
Finally, Dr. Stein intended to offer rebuttal testimony about CSAAS. Some of the criticisms lodged by Dr. Stein against CSAAS that were described in her declaration were raised by Simpson's trial counsel when he cross-examined Dr. Carmichael. For example, on cross-examination, Dr. Carmichael acknowledged that there were criticisms of CSAAS, CSAAS should not be used as a diagnostic tool, CSAAS was not a "scientific study," and CSAAS has not been accepted by the American Psychiatric Association's Diagnostic and Statistical Manual. However, trial counsel's cross-examination was likely not as persuasive as an expert opinion that questioned the validity of CSAAS and offered criticisms of the syndrome. (Clotfelter, supra, 65 Cal.App.5th at p. 60 [expert testimony is likely to carry special weight].)
In addition to trial counsel's errors, the trial court erroneously admitted A.C.'s Evidence Code section 1108 testimony about the nude photograph and erred when instructing the jury on how to use the evidence under Evidence Code section 1108. A.C.'s testimony about the incident with the nude photograph was relatively brief, and the details of the incident were not particularly inflammatory. However, the evidence was largely irrelevant and may have disparaged Simpson's character. Simpson later denied that he ever showed A.C. a nude photograph, and if the jurors credited A.C.'s testimony, they may have believed that Simpson lied when he testified at trial.
Considered together, "we conclude [that the errors] created a negative synergistic effect, rendering the degree of overall unfairness to [Simpson] more than that flowing from the sum of the individual errors." (Hill, supra, 17 Cal.4th at p. 847.) Courts of Appeal have generally held that when a case rests on credibility," 'any substantial error tending to discredit the defense, or to corroborate the prosecution'" may be considered prejudicial error. (Jandres, supra, 226 Cal.App.4th at p. 360.) In particular, the combined effect of trial counsel's failure to object to the statistical evidence and his failure to present a defense expert to rebut Dr. Carmichael's testimony meant that the jury was presented with uncontroverted expert testimony that improperly suggested that the victims were likely telling the truth, which invaded the" 'province of the jury'" (Julian, supra, 34 Cal.App.5th at p. 886) and" 'boost[ed] the credibility of the main witness[es] against [Simpson]'" (ibid.). (Cf. Wilson, supra, 33 Cal.App.5th at p. 572 [concluding that the erroneous admission of the statistical rarity of false child sex abuse allegations was harmless partly because there was effective defense expert testimony in rebuttal].) The jury was also deprived of hearing evidence that Simpson did not have a mental disorder that predisposed him to commit sexual offenses and was further deprived of hearing expert testimony that questioned the validity of CSAAS and highlighted the suggestive nature of victim1's police interview. And the jury was presented with evidence that Simpson had inappropriately showed a minor a nude photo of a cartoon character-evidence that was largely irrelevant to the case-and was erroneously instructed on that evidence. Combined, "there exists a reasonable probability that the outcome of the [trial] would have been different but for the cumulative impact" of the errors. (Jones, supra, 13 Cal.4th at p. 587.)
In reaching this conclusion, we acknowledge that the evidence against Simpson was relatively strong. There were two victims, and the victims did not offer contradictory accounts of the events that occurred. Moreover, there was no evidence that the victims had lied or had been untruthful during the investigatory process. The victims had also made disclosures to various witnesses at various times, including mother, sister-in-law, J.G., C.A., and A.C.2, and the victims specifically identified Simpson as the one who molested them. There is also no evidence that the victims were biased against Simpson or had a reason to dislike him.
The evidence, however, was not overwhelming. There was no physical evidence that linked Simpson to the crimes, and the case largely rested on the jury's assessment of the credibility of Simpson and the two victims. Victim1 could not recall going to Simpson and wife's apartment in San Jose and she could not recall any inappropriate incidents taking place during a family beach trip. Victim2 also testified that she told stories when she was a child. The false "stories" told by victim2 included stories about pets, that she went on trips to Disneyland, and that her father had broken his legs after falling off a tractor. And the jury in this case was unable to reach a verdict on count 1, which was the "nightmare" incident that victim2 alleged occurred when she had a nightmare while her parents were away in Colorado.
In his supplemental rehearing brief, Simpson argues that victim2 "told people at camp that her father beat her." However, the record reflects that victim2 once told her friends at a summer camp that her father had spanked her on one occasion. Victim2 denied that she ever used the word "beat" when describing the incident, and she stated that "[she] had deserved it" and she "had done something wrong and . . . was being punished for it."
In view of trial counsel's shortcomings and in combination with the trial court's errors, we conclude based on our careful examination of the record that there is "a reasonable probability" that the trial outcome may have been different absent the combination of these errors. (Jones, supra, 13 Cal.4th at p. 587; see Hill, supra, 17 Cal.4th at p. 847.) Here, Simpson "was deprived of that which the state was constitutionally required to provide and he was entitled to receive: a fair trial." (Hill, supra, at p. 847.) He is "thus entitled to a reversal of the judgment and a retrial free of these defects." (Ibid.)
Simpson forfeited his claim of error by failing to object to the juror's dismissal below. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 ["' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"' "]; People v. Ashmus (1991) 54 Cal.3d 932, 987, fn. 16 ["As a general rule, a defendant may properly raise in this court a point involving a trial court's allegedly improper discharge of a juror only if he made the same point below."], overruled on a different point as stated in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Moreover, Simpson did not argue that his trial counsel was ineffective for failing to object to the juror's dismissal in his opening brief. Simpson only raised a claim of ineffective assistance of counsel on this ground in his reply brief, and claims raised for the first time in a reply brief are generally not considered by the reviewing court. (See People v. Mickel (2016) 2 Cal.5th 181, 197 ["Ordinarily, we do not consider arguments raised for the first time in a reply brief."].) Because the claim has been forfeited and we determine that Simpson was cumulatively prejudiced by the errors discussed above, we do not further address the trial court's erroneous discharge of Juror No. 11. Although we conclude that the cumulative effect of the errors described above requires reversal of the judgment, we also note that Simpson argued on appeal that the trial court erroneously excused a juror during deliberations under section 1089. It was discovered during deliberations that the juror, Juror No. 11, had a son who had been accused of sexual misconduct with a minor. After questioning Juror No. 11 and several other jurors, the trial court eventually concluded that the juror had "explained it away adequately as far as [the court] [was] concerned [and] that [it was] not affecting her ability to deliberate on the evidence." The trial court, however, discharged the juror out of fairness to the prosecutor, who would have exercised a peremptory challenge. On appeal, the Attorney General concedes that the trial court applied a legally erroneous standard by dismissing the juror because her inability to perform as a juror was not a" 'demonstrable reality.'" (People v. Wilson (2008) 44 Cal.4th 758, 821.)
Disposition
The judgment is reversed.
WE CONCUR: ELIA, ACTING P.J., GROVER, J.