Opinion
E071610
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. RUEBEN RAUL VASQUEZ, Defendant and Appellant.
Blumenthal Law Offices and Brent F. Romney for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1602174) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Blumenthal Law Offices and Brent F. Romney for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Rueben Raul Vasquez is a "resident child molester." (See People v. Johnson (2002) 28 Cal.4th 240, 242.) His niece lived with him and his wife. When his niece was nine, he started grabbing her breasts, and later her buttocks. When she was 13, he had sexual intercourse with her twice and made her orally copulate him twice. A few weeks after the last of these incidents, she disclosed the sexual abuse to relatives.
In a jury trial, defendant was found guilty of two counts of a lewd act on a child under 14 (§ 288, subd. (a)) and four counts of aggravated sexual abuse of a child (§ 269, subds. (a)(1) [by means of rape] and (a)(4) [by means of oral copulation].)
This and all further statutory citations are to the Penal Code, unless otherwise indicated.
He was sentenced to a total of 68 years to life in prison.
Defendant contends:
1. The trial court erred by excluding evidence that the victim lied about "sexting."
2. Defense counsel rendered ineffective assistance in multiple ways.
3. With respect to the lewd acts counts, the trial court gave the wrong unanimity instruction; it gave CALCRIM No. 3500, but it should have given CALCRIM No. 3501.
4. There was insufficient evidence to support defendant's conviction on three counts, which were based on "generic" or "non-specific" evidence.
5. With respect to the two counts of aggravated sexual abuse of a child based on oral copulation, there was insufficient evidence of duress.
We find no error. Hence, we will affirm.
I
STATEMENT OF FACTS
A. Prosecution Evidence.
1. Family background.
At the time of trial, Jane Doe was 15. Her mother had been addicted to methamphetamine; her father had been in prison on drug charges. Hence, from the time Jane was nine, she lived with defendant's wife and defendant.
The victim is referred to throughout the record by this fictitious name. However, we have not found any order by the trial court requiring this. (See § 293.5.)
Defendant was Jane's uncle; his wife was her mother's sister. He was 21 years older than Jane. She "looked at him as . . . her dad."
2. Lewd acts on a child, counts 1 and 2.
One time, when Jane was nine, she, defendant, and defendant's wife all arrived home together after grocery shopping. When defendant's wife went inside the house, defendant "grabbed" Jane's breasts. After that, he started grabbing her breasts and her buttocks "constantly." She "was scared of him" and "didn't know what to do or who to tell."
She told police, however, that, the first time defendant touched her sexually, they were "playing" in the living room.
In October 2015, Jane's mother — newly sober — moved in with them.
Jane was 13 when defendant started doing more than just touching her. One day, she went into his bedroom; he was making the bed. He pulled out his penis and pulled her shorts down. He said, "Come on, our friends want to play." She understood this to mean his penis and her vagina. She pulled up her shorts and left the room.
She had not told police about defendant's use of the word "friends."
3. Flashlight incident: rape, count 3 or 4.
In March 2016, when defendant's wife was at work and Jane's mother was asleep, defendant told Jane to come into his bedroom. She found him sitting on the bed, with "his penis out." He said, "Oh, come on"; from the "friends" incident, she knew this meant that she should take her pants and underwear off. She complied. She lay down on the bed, and he put his penis "halfway" inside her vagina; it hurt.
Jane told police, however, that defendant took off her shorts.
Jane told police that she tried to push him off, but he said "Stop."
Defendant heard a bathroom door closing. He jumped up and dressed quickly. Jane heard her mother asking for her. Defendant told her mother that Jane was in the back yard; he grabbed a flashlight and went outside. Meanwhile, Jane ran to her own bedroom and hid in the closet.
Her mother came in and found her. She said, "[W]here were you? I was looking for you." Jane said she had been in the closet. Her mother said, however, that she had looked in the closet. Jane lied because she was scared that her mother would find out she had been in defendant's bedroom and would blame her.
Jane's mother testified about this incident, from her point of view. According to her, Jane eventually said she had been in defendant's wife's bedroom, watching TV. When the mother told defendant's wife that Jane had been in her bedroom, defendant's wife started crying. Defendant's wife confronted Jane and said, "Stay away from my man." After that, Jane was not allowed to be home alone with defendant.
4. "That's close" incident: oral copulation, count 5 or 6.
In March 2016, when Jane was sleeping, defendant came in, got in bed with her, and told her to suck his penis. She said no, but he said, "Come on, just do it." She then complied. There was a "weird," "like, fishy" taste. "Clear stuff" or "white stuff" came out of his penis.
Just then, Jane's mother came home. As defendant was "cleaning his penis" in a bathroom, with the door open, she walked past. Later, defendant told Jane, "Oh, that's close."
Initially, Jane testified that this was the first and only time she orally copulated defendant. Later, however, she testified that it was actually the second time; however, she did not have a good memory of the previous time.
Jane did what defendant told her to do because she was scared, for herself and for her mother; she did not know what he would do, but she did know he had a gun. She felt she had nobody to talk to and nobody would believe her. She did not tell her mother because they "didn't have . . . that bond, that relationship." Social workers regularly visited the home, but she did not tell them because she was scared they would not believe her. She also did not tell a good friend. She did not tell her great-great-aunt, even though they were "very close." She did not think she had anywhere else to go, other than into foster care.
Jane testified that defendant was not circumcised and that he had a black mole on the side of his penis.
5. Jane's disclosure.
In November 2015, Jane's two younger siblings were adopted by nonfamily members. Because of this and "[o]ther things," she became depressed and suicidal; she was hospitalized.
Nick G. was a cousin of the mother and of defendant's wife. Danielle T. was his long-time girlfriend. In April 2016, the mother called Danielle. She said she had found Jane in defendant's room when defendant's wife was at work. She also said Jane was suicidal. She wanted Nick and Danielle to talk to Jane while defendant and his wife were away on vacation.
When they arrived, Nick spoke to Jane alone, but she did not tell him the truth. Once Danielle spoke to her, however, "she just broke down and started crying . . . ." She then told Danielle and Nick "about all the things that had happened to [her]." Among other things, she said defendant had a mole "in his genital area." Jane later explained that she told Danielle because Danielle made her feel she was on her side.
Nick and Danielle immediately took Jane home to stay with them. Nick then talked to defendant and defendant's wife. A day or two later, Nick and Danielle called the police.
Jane admitted that there was always an adult other than defendant at the house — defendant's wife, the mother, or Jane's grandmother.
Jane also admitted that she used to ditch school. One time, she lied and told defendant and defendant's wife that she ditched school to be with her father.
Jane admitted that she sometimes lied, including about using her phone and social media when she was not supposed to. She admitted telling Danielle she thought she was pregnant, because at that time, she thought she was. However, she denied telling anyone that she was pregnant with defendant's child.
Nick confirmed that Jane lied "constantly" about her use of the phone and social media. Once, she posted a photo of Nick and Danielle's baby on social media and said it was hers. He added that Jane's "lies make it hard to believe some of the stuff she said before." However, she had never lied about anything "significant" that did not involve the phone or social media.
Jane's mother testified that Jane lied "when she knows she's not supposed to be doing something . . . ."
6. Jane's statements to the police.
On April 4, 2016, Officer Aaron Jarvis conducted an initial interview with Jane. Her statement to him was consistent with her disclosure to Nick and Danielle. Among other things, she mentioned a mole on defendant's penis.
Officer John Lenton, a trained forensic child interviewer, then conducted a more detailed interview. Jane was sad, crying, and upset. She drew a picture of the mole on defendant's penis.
Defendant did, in fact, have a "tiny" mole on the underside of his penis; it was not visible from the front.
Defendant asserts: "Jane Doe's description of a 'black mole' on defendant's penis is inaccurate. There is no mole on defendant's penis. There is a very small 'skin tag' on his penis that is hardly noticeable, and it is not black." He cites no portion of the record supporting this assertion (see Cal. Rules of Court, rule 8.204(a)(1)(C)), and we have found none. Photos of defendant's penis were admitted into evidence but have not been transmitted to us. (See Cal. Rules of Court, rule 8.224.)
a. Earlier rape, count 3 or 4.
At trial, Jane testified to only one instance of sexual intercourse; however, she told Officer Lenton about an earlier instance, although with fewer details.
She was 13 at the time. She was in defendant's room. It was around 10:00 a.m. His penis went in "barely," "[l]ike not halfway, just a little bit." She pushed him away. Defendant's young son then came in the room, so defendant hurriedly pulled his pants up.
b. Earlier oral copulation, count 5 or 6.
Jane also told Officer Lenton about the earlier instance of oral copulation. It occurred a couple of months before the interview. On that occasion, defendant did not ejaculate.
7. Expert testimony.
Dr. Veronica Thomas, a forensic psychologist, testified as an expert on child sexual abuse. In her opinion, it is possible for a child to be abused yet still appear to have a good relationship with the abuser. The majority of abusers are persons the child knows. Victims do not always report abuse; 70 percent or more never report it. Delayed disclosure is also "quite common." "Children disclose when they feel safe to do it . . . ." Children with a "supportive female parent" are more likely to disclose. Contrariwise, not having a supportive female parent could cause delayed disclosure.
B. Defense Evidence.
Social workers, who met with Jane on January 15, 2013, August 13, 2013, October 8, 2014, and February 2, 2016, testified that Jane denied any sexual abuse.
On both the first and last of these dates, however, the social workers were told that defendant and defendant's wife were separated. On the latter date, his wife indicated that they were hiding the possibility of divorce from their children.
Defendant and defendant's wife both denied ever being separated. They testified that the social workers lied in their reports so they would not have to do a background check on him.
Defendant's mother, who sometimes babysat Jane before Jane's own mother moved in, testified that the interactions between Jane and defendant appeared to be "[l]ike normal child and parent . . . ."
The divorced wife of defendant's brother, who had known defendant for 30 years, testified that defendant never appeared to be sexually attracted to young girls, such as her younger cousins. She admitted, however, that between 2010 and 2015, she "wasn't talking to [defendant and his wife]."
Her daughter, defendant's niece, who considered Jane "a close friend," testified that Jane never complained about defendant.
According to a prosecution investigator, Danielle told her that Jane claimed to be pregnant with defendant's child.
Defendant took the stand and denied all of Jane's allegations.
In his opinion, Jane was not trustworthy. Once in 2014, she was absent from school; she claimed she was having lunch with her father. She gave a detailed account, which she later admitted was false. She also lied about whether she had done her homework.
As of April 2016, defendant was working as a sheriff's service officer. After Nick told him what Jane had said, he went to the police voluntarily to "clear [his] name."
In defendant's account of the flashlight incident, the mother found Jane in the mother's own room, but Jane falsely claimed that she had been in defendant's room.
Jane could have seen his penis because he sometimes slept in the nude; however, he had never knowingly been naked in her presence.
Defendant told police that he, his wife, and Jane once had a conversation about moles in which his wife mentioned that he had a mole on his penis. However, he also told a different officer, "Even my wife doesn't know I have a mole on my penis." He testified that the former statement was true and the latter statement was a lie.
Defendant's wife confirmed that, in 2014, Jane had falsely claimed she had been meeting her father to explain her absences from school.
According to defendant's wife, defendant and Jane were never alone together. She had not seen any inappropriate contact between defendant and Jane. Defendant had not shown any sexual attraction to children.
After the flashlight incident, the mother told defendant's wife that Jane had been in the wife's room. Jane explained that she was in the wife's bedroom watching cartoons on TV, and she did not come out because she was "messing" with her mother. The wife did not like Jane going in her bedroom, but only because Jane would steal things, such as her makeup, and then lie about it.
The wife had had a miscarriage. She speculated that Jane may have been angry because she told Jane, "I'm mad that [you] killed my baby." Also, Jane overheard defendant saying they should send her back to her mother or put her in foster care. Defendant's wife conceded, however, that Jane "loved" defendant and never expressed any dislike of him.
She testified that, in a conversation about moles, she told Jane that defendant had a mole on his penis. Jane may also have overheard a conversation between her and his mother in which the mole was mentioned.
II
THE EXCLUSION OF EVIDENCE THAT JANE LIED ABOUT SEXTING
Defendant contends that the trial court erred by excluding evidence that Jane lied about "sexting."
A. Additional Factual and Procedural Background.
The prosecution moved in limine to exclude evidence of Jane's "prior sexual conduct," including evidence that she "uploaded nude selfies on the KIK app or sent videos/texts of herself to another man . . . ." It argued that such evidence was irrelevant or more prejudicial than probative, and that it violated the rape shield law. (Evid. Code, § 782.)
After a discussion in chambers, the trial court noted for the record that there was new evidence that Jane was still sexting.
Defense counsel argued that what was relevant was that Jane lied about sexting. He made an offer of proof that, although Nick learned that Doe was sending nude photos of herself to other people and/or posting them on Instagram and Snapchat, when he confronted her, she denied sending them.
The trial court "tentatively" excluded the evidence under Evidence Code section 782, because it did not "go[] to an element of the crimes alleged." However, it indicated that it would do further research.
The next day, the trial court announced, "I'm going to rule out sexting." It explained that the evidence was more prejudicial than probative. However, it added, "[L]ying and being deceitful is something for the jury's consideration." It therefore ruled that the evidence should be "sanitized"; defense counsel was free to show that Jane lied about texting, but not specifically about sexting.
Accordingly, when Nick took the stand, the trial court cautioned him outside the presence of the jury to refer to texting rather than sexting.
B. Discussion.
"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness's sexual conduct, for example, in order to prove consent by the complaining witness. [Citation.] Such evidence may be admissible, though, when offered to attack the credibility of the complaining witness and when presented in accordance with the following procedures under section 782: (1) the defendant submits a written motion 'stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness' [citation]; (2) the motion is accompanied by an affidavit, filed under seal, that contains the offer of proof [citation]; (3) '[i]f the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant' [citation]; and (4) if the court, following the hearing, finds that the evidence is relevant under Evidence Code section 780 and is not inadmissible under section 352, then it may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. [Citation.]
"The Legislature's purpose in crafting these limitations is manifest and represents a valid determination that victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. [Citations.] By affording victims protection in most instances, these provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders. [Citations.] Accordingly, our courts have properly exercised the discretion afforded by Evidence Code section 782 'narrowly' [citation], and we emphasize that '[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a "back door" for admitting otherwise inadmissible evidence.' [Citation.]" (People v. Fontana (2010) 49 Cal.4th 351, 362-363.)
Preliminarily, the People contend that the trial court properly excluded the evidence because defendant had not complied with the procedural requirements of Evidence Code section 782. The trial court excluded the evidence on the merits, not for procedural reasons. Moreover, defense counsel by and large did comply with the procedural requirements, except that he did not make a written motion and he did not submit an affidavit. If the trial court had excluded the evidence for these reasons, he could have asked for an opportunity to remedy his noncompliance. Hence, we do not rest our decision on this procedural point.
The trial court ruled that the fact that Jane had lied was admissible to impeach her; however, the fact that what she had lied about was sexual conduct was unduly prejudicial. We can find no fault with this ruling. We see no legitimate relevance to the specific fact that she was sexting, rather than texting. Its admission would only invite the jury to speculate that she welcomed defendant's sex acts or even that she initiated them.
The evidence that did come in showed that Jane lied "constantly" about her use of the phone and social media. She admitted lying about having lunch with her father. Nick testified that she posted a photo of his baby on social media and said it was hers. There was also evidence, albeit disputed, that she claimed to be pregnant with defendant's child. The trial court could reason that evidence that she lied specifically about sexting had no significant additional probative value.
Defendant argues that, because sexting is worse than texting, falsely denying sexting is a worse lie than falsely denying texting. Arguably, the opposite is true. Sexting may well be worse than texting, especially when done by a teenager who has been forbidden to do it; however, that provides a stronger motive to lie about it. In other words, the conduct may be worse, but the lie is more understandable. It is a lie about something that anyone would want to keep private. At a minimum, the trial court certainly could so reason.
Defendant also argues that Jane's sexting could have shown that she was knowledgeable regarding such matters as oral copulation and ejaculation. The offer of proof, however, was that Jane was posting nude photos of herself, not that she was receiving "dick pics" or pornography. Thus, defendant's reasoning is speculation.
Defendant also lists circumcision and "moles on a penis" as things Jane could have learned about by sexting.
Jane, however, was not knowledgeable about circumcision. She testified that she did not know what circumcision was. The prosecutor had to establish that Jane had changed a male baby's diaper, that the baby's penis "had skin on it at the tip," and that defendant's penis similarly had skin on the tip.
Moreover, even assuming that Jane knew generally that some penises have moles, her knowledge that defendant's penis had a mole was still damning evidence.
To counter this speculation problem, defendant argues: "At a minimum, the defense should have been allowed to explore these 'sexts' on cross-examination by asking Jane Doe about them, and by asking Danielle, Nick[] and others what they had observed in the 'sexting' photos or what was written in the sexting messages." Defense counsel, however, had the option of requesting a hearing pursuant to Evidence Code section 402, at which he could have questioned Nick, Danielle, and, if necessary, Jane herself to show that evidence of Jane's sexual knowledge was available and was relevant. He did not.
In the course of this general argument, defendant claims the evidence would have shown that Jane was "male crazy." This is precisely the kind of victim-blaming and shaming that the rape shield law was designed to prevent.
Finally, defendant argues that the prosecutor took unfair advantage of the trial court's ruling in closing argument, by stating that Jane lied only about "[r]egular teenage stuff" and that there was no evidence that she viewed pornography on her phone. Even if so, this would not mean the trial court's ruling was erroneous; it would mean that defense counsel should have objected but failed to do so, and thus forfeited any complaint. (People v. Hoyt (2020) 8 Cal.5th 892, 942-943, pet. for cert. filed May 12, 2020.) Defendant's opening brief does not assert that this constituted ineffective assistance.
In fact, however, there was no unfair advantage and no misconduct. Jane did lie about regular teenage stuff, in the sense that sexting is something that many teenagers do, and Jane lied about it only to stay out of trouble. The prosecutor's point was that there was no evidence that Jane lied just for the fun of it, or for attention, or to get others in trouble. And defense counsel made no offer of proof that she ever saw pornography.
Thus, the trial court did not abuse its discretion by excluding evidence that Jane lied specifically about sexting.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial counsel rendered ineffective assistance.
A. Applicable Legal Standards.
"A criminal defendant's federal and state constitutional rights to counsel [citation] includes the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. 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. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
B. Failure to Present Exculpatory Evidence.
First, defendant contends that, on three occasions, his counsel failed to present exculpatory evidence.
1. Failure to show that Jane had not had a medical examination.
Defendant argues that his counsel failed to introduce evidence that Jane had not had a medical examination. A medical examination, if it showed that she was a virgin, would have disproved her allegations. Thus, the lack of a medical examination showed that the authorities did not believe her.
The appellate record, however, fails to show that there was, in fact, no medical examination; that a medical examination would have shown that Jane was a virgin; or that a finding that Jane was not a virgin would be inconsistent with her testimony that defendant inserted his penis "halfway." For all we know, if defense counsel had asked about this, the evidence would have shown that Jane had a medical examination and was not a virgin, which would hardly have helped defendant.
Thus, defendant cannot show either deficient performance or prejudice.
2. Failure to show that Jane had falsely claimed to have been raped by her mother's boyfriend.
a. Additional factual and procedural background.
On cross-examination, defendant's wife testified:
"Q. . . . And you didn't believe [the mother]'s believing of what could have happened in that room or her worrying. You didn't believe them because you thought [the mother] was crazy, correct?
"A. No. Because she said that it happened — a case like this happened between (Jane) and her boyfriend. And that's why (Jane) was thrown out of the house."
b. Discussion.
Defendant argues that this exchange showed that Jane had falsely claimed to have been raped by her mother's boyfriend; thus, defense counsel should have questioned both Jane and her mother about the incident, which would have impeached Jane.
Preliminarily, we do not know what defendant's wife meant by "a case like this." It is not clear that she meant a false claim of rape, or even a false claim of anything.
More fundamentally, on this record, we cannot know whether either Jane or her mother would have testified in accordance with defendant's interpretation of the wife's testimony.
Once again, defendant cannot show either deficient performance or prejudice.
3. Failure to call Jane's grandmother to testify that Jane said defendant "didn't do it."
a. Additional factual and procedural background.
Before trial, defense counsel told the court that, according to a defense investigator, Jane's maternal grandmother could testify that Jane told her defendant "didn't do it." Jane also told the grandmother "she just wanted this to stop," but "she was afraid that she would get into trouble for all the things that she had said previously."
On the stand, Jane was asked whether she told her grandmother that defendant "didn't do it"; she did not remember saying that. She did admit saying "I don't want to come to court. I want this to stop[.]"
Defendant's witness list included Jane's grandmother. However, defense counsel never called the grandmother.
b. Discussion.
There could have been any number of appropriate reasons why defense counsel did not call the grandmother. She may have gotten sick or become otherwise unavailable. She may have recanted her supposed statement to the defense investigator. Or defense counsel may have determined that she lacked credibility.
Defendant therefore cannot show either deficient performance or prejudice.
C. Failure to Object to Evidence.
Next, defendant contends that, on two occasions, his counsel failed to object to inadmissible evidence.
Preliminarily, we note that "'[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citation.]" (People v. Carrasco (2014) 59 Cal.4th 924, 985.)
1. Failure to object to the mother's reasons for not asking Jane for details of the sexual abuse.
a. Additional factual and procedural background.
On direct, Jane's mother testified:
"Q. Have you asked your daughter . . . [¶] . . . [¶] . . . about the details of what happened between her and the defendant?
"A. No.
"Q. Why is that?
"A. Because there's some things that I don't want to know. I mean, I just don't want to know what — what's been done to her. I just don't want to know about it. As far as I know, what has been done to her is what I've caught and what I've seen.
"Q. You don't want to know what happened in the bedroom?
"A. No.
"Q. Is it hard for you to imagine something?
"A. Mm-hmm. Yes."
b. Discussion.
Defendant argues that his counsel should have objected when the prosecutor asked, "Why is that?" He claims the question was irrelevant and the mother's answer was prejudicial.
The question was relevant. Jane admitted that she did not tell her mother about the sexual abuse before disclosing it to Nick and Danielle. Still, the jurors might reasonably have expected her to talk to her mother about it later. Thus, they might also reasonably expect that the mother would either corroborate Jane's testimony (with prior consistent statements) or contradict it (with prior inconsistent statements).
The prosecutor appropriately shored up this hole in her case by having the mother testify that she never talked to Jane about the details. The jurors, however, could be skeptical of this testimony, standing alone. Why would a mother who learned that her daughter claimed to have been raped not talk to her about it? Thus, having the mother explain why she did not ask supported her testimony that she did not ask.
For these reasons, if defense counsel had objected, the objection would have been overruled. Thus, defendant cannot show either deficient performance or prejudice.
Defendant also cannot show prejudice for an additional reason: The mother's answer did not particularly hurt his case. He claims she "testif[ied] that in her opinion, her daughter had, in fact, been sexually molested by defendant. She was allowed to vouch for the credibility of her daughter." (Italics omitted.) Not so. She merely testified that she did not want to hear Jane describe the alleged sexual abuse; she did not want to "imagine" it. This could be true even if Jane's claim of sexual abuse was false.
Finally, even assuming the jury could understand the mother to be vouching for Jane's testimony, the answer would still be harmless. The mother had no better information about whether Jane was lying than the jury did. There was ample evidence that she and Jane were not close. She admitted that Jane did lie. Thus, we see no possibility that, absent her supposed vouching, defendant would have enjoyed a more favorable outcome.
2. Failure to object to evidence of the effect of Jane's allegations on her family members.
a. Additional factual and procedural background.
Jane's mother also testified:
"Q. BY [THE PROSECUTOR]: When — since this case, have you had a relationship with your sister?
"A. No. [¶] . . . [¶] . . .
"Q. And you haven't talked since this incident came to light.
"A. No.
"Q. Has your mom tried to get you two to talk?
"A. Yes.
"Q. Does she have a relationship with you?
"A. Yes.
"Q. Is it difficult for her to see the family break apart?
"A. Yes.
"Q. Does she, as far as you know, want [defendant's wife] to be either divorced or separated from her family and her husband?
"A. No.
"Q. Is it tough on the family watching everybody break apart?
"A. Yes.
"Q. Has your mom tried calling you to get you to reconcile with your sister?
"A. Yes.
"Q. Has your mom tried calling you to get her to talk to you before you came to testify here?
"A. Yes."
b. Discussion.
Defendant argues that his counsel should have objected, because the mother's "feelings towards her sister and/or the impact the case was having on their mother was not relevant to any issue in this case."
However, this line of questioning was, in fact, relevant. It showed that defendant's wife was biased, in that she supported defendant even at the cost of her family ties.
It must also be remembered that, at this point, the defense was apparently going to call the grandmother. (See part III.B.3.a, ante.) This line of questioning also tended to show that the grandmother was biased; because she wanted the sisters to reconcile, she would be motivated to deny the sexual abuse.
Yet again, then, defendant cannot show either deficient performance or prejudice.
Defendant also cannot show prejudice because this testimony was not particularly prejudicial. He argues that it "would create animosity towards appellant, the person who was 'breaking apart the family.'" That assumes, however, that the jurors believed Jane; if they did not believe her, it would create animosity toward Jane, who would be the person "breaking apart the family." The testimony shed no light on who was more believable. As the People observe, "jurors certainly would understand that intra-family conflicts might arise where accusations are made against family members."
D. Failure to Object to Prosecutorial Misconduct.
Defendant also contends that, in two respects, his counsel failed to object to prosecutorial misconduct.
'"'A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] In other words, the misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"' [Citation.]" (People v. Hoyt, supra, 8 Cal.5th at p. 943.)
"'[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853-854.)
"'A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made "a timely and specific objection at trial" and requested an admonition.' [Citations.]" (People v. Potts (2019) 6 Cal.5th 1012, 1035.) Here, defense counsel did not object to any of the asserted instances of prosecutorial error, and thus forfeited them.
1. Failure to object to questions about defendant's marital sex life.
a. Additional factual and procedural background.
In several instances, the prosecutor asked questions related to defendant's marriage, including his sex life with his wife.
i. Cross-examination of social worker.
On cross-examination, one of the social workers who had interviewed Jane testified that defendant's wife told her that she and defendant were separated. The prosecutor then asked:
"Q. So back in February of 2016, there was trouble in paradise, if you will?
"A. That is correct."
ii. Cross-examination of defendant's mother.
On cross-examination, the prosecutor asked defendant's mother:
"Q. Did you know that there was trouble in the marriage between your son and [his wife] for years on?
"A. I did not know.
"Q. Did you know that there were times that they were separated?
"A. Not that I'm aware of, no. [¶] . . . [¶] . . .
"Q. Did you know that there were times when they hid the potential of divorce from their children?
"A. No.
"Q. So would it be fair to say you don't know all the ins and outs of the family's private life?
"A. Not all of it, no. [¶] . . . [¶] . . .
"Q. . . . You don't know your son's sexual life with his wife; is that correct?
"A. No, I do not know. [¶] . . . [¶] . . .
"Q. . . . [Y]ou don't know what kind of sexual preferences your son has; is that fair? . . . [¶] . . . [¶]
"[A.] Yes.
"Q. You don't know what kind of activities your son engages [in] sexually; correct?
"A. No, I don't know."
iii. Cross-examination of defendant's former sister-in-law.
On cross-examination, the prosecutor asked defendant's former sister-in-law:
"Q. . . . Were you aware that . . . [defendant] and [his wife] had separations back in 2011, '12 '13, their relationship was on and off?
"A. No.
"Q. Did you know that back in February of 2016, they weren't even spending every night together and, in fact, they were hiding divorce from their children?
"A. No."
"Q. When it comes to [defendant's] sexual preferences, let's say he's home watching porn, for example, do you know what he's into?
"A. No.
"Q. You wouldn't know what he masturbates to.
"A. No.
"[DEFENSE COUNSEL]: Objection. Assumes facts not in evidence.
"THE COURT: Sustained.
"Q. . . . You don't know anything about the defendant's preference when it comes to sex, would you agree? [¶] . . . [¶] . . .
"A. Correct.
"Q. And you don't know whether or not, when they were having trouble in the marriage, if [defendant] was having sex with his wife or not. [¶] . . .
"[A.] I wouldn't know."
iv. Cross-examination of defendant.
On cross-examination, the prosecutor asked defendant:
"Q. You also had told the officers that the past five months of your marriage, they're great. Right?
"A. I believe I said something to that effect.
"Q. In fact, your marriage . . . was so great that you told him you haven't even masturbated in two to three years. Remember that?
"A. I don't believe the wordage but
"Q. Would you like me to refresh your recollection?
"A. If it's in the transcript, then —
"Q. You told the police, 'In the last five months, she's changed her attitude.' Talking about your wife. 'I guess her view on life and everything else.' And you explained that, 'She used to be . . . a bitch, but now she's more loving. And our relationship, we've had the best five months of our life.'
"Do you remember that?
"A. I believe so.
"Q. And you explained, 'We have sex probably twice a week.'
"Remember that?
"A. I believe so.
"Q. And . . . that's when you told him, 'My wife is so willing, I haven't masturbated in two to three years.'
"A. I believe so.
"Q. But, in fact, in February, just two months before this interview, your wife was talking about hiding divorce from your children and that you don't even sleep certain nights at the house; right?
"A. At no point were we gonna get divorced. And the only time that I would not sleep at the house was when I was at work."
v. Closing argument.
In her closing argument, the prosecutor stated: "[N]o one is saying that the defendant is the type of guy who's going to go sit at . . . a child playground and wait until he finds the vulnerable girl to prey on. . . . But he is an opportunistic guy. . . . He needed sexual gratification. [Jane] was there. She was vulnerable. She was available. She wasn't objecting when he would do things. She was growing in places that he found pleasing. Her boobs were bigger than his wife's at some point at her young age. He watched that happen. [¶] . . .
" . . . Are [child molesters] all the kind of people that go sit at a playground and wait for the right girl . . . — no. They prey on the person who is available to them. And it's most of the time a family member, because that's who they have access to . . . ."
b. Discussion.
"A prosecutor commits misconduct by intentionally eliciting inadmissible testimony. [Citation.]" (People v. Abel (2012) 53 Cal.4th 891, 925.) Defendant argues that the testimony quoted above was inadmissible character evidence under Evidence Code section 1101, subdivision (b). He also argues that it was more prejudicial than probative under Evidence Code section 352.
The fact that defendant was seeking sexual gratification was an element of the lewd act counts. (§ 288, subd. (a).) However, this intent was already clearly shown by his acts of repeatedly grabbing Jane's breasts and buttocks, so that further evidence of an intent to obtain sexual gratification was arguably cumulative. Moreover, this intent was not an element of the aggravated sexual abuse counts.
All of the cited evidence and argument, however, was relevant for reasons unrelated to whether defendant was seeking sexual gratification.
Regarding the social worker: The social worker was a defense witness. Defense counsel called her to establish that Jane had an opportunity to disclose any sexual abuse but did not do so. Accordingly, on cross-examination, the prosecutor appropriately brought out that, when that particular social worker interviewed Jane, defendant and his wife were separated, and he was not living in the home. In other words, Jane could have reasoned that she was safe and there was no immediate upside to disclosure. Calling the separation "trouble in paradise" was just a memorable way to emphasize the point. This evidence was probative and not particularly prejudicial.
Regarding defendant's mother: On direct, defendant's mother testified that she babysat Jane, and that she never saw defendant "in any inappropriate contact" with Jane. On cross-examination, it was relevant to establish that she did not know about everything that went on in the house — particularly not intimate, sexual conduct that defendant would not want her to know about. Consistent with this strategy, most of her answers were that, in fact, she did not know. This was not evidence of character or propensity in any way. It was also not particularly prejudicial.
Regarding defendant's former sister-in-law: Much the same analysis applies. She testified on direct that defendant showed no sexual interest in young girls. She also testified that, when she visited defendant's home, he and Jane did not interact much. Again, it was appropriate to bring out the fact that she was not aware of defendant's intimate sexual conduct. Her testimony did not reflect on his character or propensities, and her lack of awareness was in no way prejudicial.
Defendant is particularly offended that, after the trial court sustained defense counsel's objection to the question, "You wouldn't know what he masturbates to," "the prosecutor immediately returned to the same subject . . . ." That objection, however, was "Assumes facts not in evidence," presumably referring to the assumed fact that defendant masturbated. It was perfectly proper for the prosecutor to continue to ask questions related to sex but not to masturbation.
Regarding defendant himself: The prosecutor's questions were relevant to show that defendant lied to the police. Once he took the stand, the prosecutor was entitled to impeach him with his previous lies. (Evid. Code, § 1101, subd. (c); In re Freeman (2006) 38 Cal.4th 630, 640, fn. 5.) When offered for that purposes, defendant's statements were not more prejudicial than probative. Indeed, they were particularly probative, because they showed consciousness of guilt; defendant was trying to convince the police that he would never sexually abuse Jane because his marital sex life was so great.
Regarding the prosecutor's closing argument: "[P]rosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. [Citation.]" (People v. Leon (2015) 61 Cal.4th 569, 606.)
"'[W]hen attacking the prosecutor's remarks to the jury, the defendant must show that, "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."' [Citation.]" (People v. Bell (2019) 7 Cal.5th 70, 111.) "This court does not '"'lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]"' [Citation.]" (Ibid.)
The prosecutor argued that defendant preyed on Jane because he was opportunistic and she was available. This was a reasonable inference based on the evidence. She also said, "He needed sexual gratification." However, this is a truism. She did not say that he needed sexual gratification because he was not getting it from his wife. Somewhat to the contrary, she said that defendant noticed that Jane's breasts were larger than his wife's, suggesting that his wife was sexually available to him, but he was more attracted to Jane.
Last but not least, even assuming there was some evidence or argument to the effect that defendant's marital sex life was unsatisfactory, there would be nothing wrong with that. It would not be inadmissible character evidence; it would be admissible evidence of motive. (Evid. Code, § 1101, subd. (b); see generally People v. Thompson (2016) 1 Cal.5th 1043, 1114.)
Defendant huffs that this is "preposterous": "What the prosecutor was inferentially suggesting to the jury is that any single male adult who is not having sex with someone probably has pedophilic tendencies!" Not "any" and not "pedophilic." Some men who have no other sexual outlets will turn to outlets they would not ordinarily choose. Thus, such evidence would explain why defendant, although not a pedophile (as defense witnesses testified), would sexually abuse a child.
Such evidence, if offered for this purpose, would not be more prejudicial than probative. "'"[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence." [Citations.]' [Citation.]" (People v. McKinnon (2011) 52 Cal.4th 610, 655.) Nor would the evidence be particularly prejudicial. "'Prejudicial' means evidence '"that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues."' [Citation.]" (People v. Johnson (2019) 8 Cal.5th 475, 521.) The public disclosure that defendant's marital sex life was unsatisfactory might be embarrassing, but it would not bias the jury.
For these reasons, defense counsel's failure to object was not deficient performance and was not prejudicial.
2. Failure to object to the prosecutor's use of the word "excuse."
a. Additional factual and procedural background.
During her rebuttal examination of Officer Lenton, the prosecutor asked:
"Q. . . . [T]he very first time you talked to the defendant, did he have any excuse for why (Jane) would have seen his mole?
"A. No. I specifically asked him. [¶] . . . [¶] . . .
"Q. It wasn't until [a later] interview . . . , after being pressed and pressed, that he began to make different excuses for why (Jane) would have known where the mole is; isn't that right?
"A. That's correct.
"Q. . . . After several excuses of sleeping naked and having photographs, it was the defendant, for the first time in your interview, the third interview with him, that he said, Well, you know what? I heard my wife describe the mole to him, correct? To her, I mean, (Jane).
"A. Yes."
b. Discussion.
Defendant argues that, by characterizing his explanations as "excuses" rather than explanations, the prosecutor was (1) calling for information that was outside Officer Lenton's personal knowledge, and (2) offering her own personal opinion as evidence. Officer Lenton, however, could appropriately give a lay opinion that defendant's explanations were excuses, because those explanations changed over time. (Evid. Code, § 800.) Thus, this was not merely the prosecutor's personal opinion.
Defendant also claims the questions were "argumentative." "'An argumentative question is designed to engage a witness in argument rather than elicit facts within the witness's knowledge.' [Citation.]" (People v. Anderson (2018) 5 Cal.5th 372, 413.) Thus, argumentative questions usually occur in cross-examination. (3 Witkin, Cal. Evid. (5th ed. 2019) § 182, pp. 281-282.) Here, the prosecutor was not arguing with Officer Lenton; they both concurred that defendant was making excuses.
In any event, the trial court has broad discretion in ruling on such an objection. (See People v. Gonzalez (2006) 38 Cal.4th 932, 951 ["'A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.' [Citations.]"].) If defense counsel had objected to the word "excuses" as argumentative, at a minimum, it would not have been an abuse of discretion to overrule the objection.
Accordingly, yet again, defendant has not shown either deficient performance or prejudice.
E. Inadequate Cross-Examination of Officer Lenton.
Defendant contends that his counsel failed to prepare transcripts of Officer Lenton's interviews with defendant before cross-examining him about them.
1. Additional factual and procedural background.
On rebuttal, the prosecution recalled Officer Lenton. He testified that he had interviewed defendant three times; he then testified about some of defendant's statements in the interviews.
Initially, defense counsel declined to cross-examine him. The next day, however, he recalled Officer Lenton and questioned him about the interviews. In a handful of instances, Officer Lenton did not recall particular statements. In another instance, Officer Lenton indicated that defense counsel was asking about the wrong interview.
Defense counsel then said: "Your Honor, under this circumstance, with the detective not recalling things, I'm going to need a bit of time to reorganize this transcript that I was just given —"
The trial court held a sidebar. It stated for the record that, earlier, it was discovered that the prosecutor had a transcript that defense counsel did not have; the prosecutor then turned it over during a break. The prosecutor represented that she had previously turned over the underlying recording, although not the transcript. Everyone agreed that the prosecutor was not required to turn over the transcript.
Defense counsel asserted, however, that the recordings alone were inadequate, because they did not indicate the dates and times of the interviews and did not indicate who was asking which question. For that reason, before Officer Lenton testified, defense counsel asked him if he had a transcript. "He said, Yes. I said, Well, I'm only going to be questioning from the transcript." Defense counsel complained that Officer Lenton then either denied or did not remember saying things that were in the transcript. The prosecutor responded that the interviews were "voluminous" and it was unfair to expect Officer Lenton "to remember the quotes exactly and now which interview they're coming from."
The trial court indicated that it would deny a continuance. Defense counsel labeled his own cross-examination "pathetic" because Officer Lenton "knows exactly the answers to the questions I'm asking him, but refuses to answer them, saying he doesn't recall." He added, however "I know that's not a legal argument."
He also complained again that he could not tell the dates or the sequence of the various interviews. The trial court suggested that he could ask Officer Lenton which was which. It also said that, in its view, Officer Lenton was not being evasive. It suggested that, if necessary, defense counsel should refresh Officer Lenton's recollection with the transcripts. Defense counsel responded, "I just got this this morning. . . . [I]t's voluminous. And I would need at least a little bit of time so I can assist the detective with page numbers . . . ."
Again, the trial court denied a continuance. However, it did take a break so defense counsel could "take a look at whatever you need to take a look at and go forward."
Once back on the record, Officer Lenton agreed that, during the break, defense counsel had shown him the transcripts and had specified the particular quotes that he intended to ask about. Defense counsel then questioned him about these quotes, without further incident.
2. Discussion.
We may assume, without deciding, that it was objectively unreasonable for defense counsel to fail to prepare his own transcripts of the interviews. Even if so, defendant cannot show prejudice. Clearly, defense counsel was generally familiar with the contents of the interviews, as he did question Officer Lenton about them. Before the sidebar, in a few instances, he was unable to refresh Officer Lenton's recollection. During the break, however, he showed Officer Lenton the transcripts and specified the quotes that he intended to ask about. As far as this record shows, he was able to do so to his satisfaction.
As the People aptly state, defendant "does not suggest how trial counsel would have questioned [Officer Lenton] more effectively, had he been more prepared." A fortiori, he has not shown how the ultimate outcome of the trial would have been more favorable to him.
In sum, then, this assertion of ineffective assistance of counsel fails because defendant has not shown prejudice.
Defendant asks us to consider cumulative prejudice from all of the asserted instances of ineffective assistance. In all of the other instances, however, we held that defense counsel's performance was not deficient. Moreover, in those instances, there was no prejudice because defendant's position on the underlying substantive issue is simply incorrect. It follows that there was no cumulative prejudice.
IV
UNANIMITY INSTRUCTION
Defendant contends that, with respect to the lewd acts counts (counts 1 and 2), the trial court gave the wrong unanimity instruction; it gave CALCRIM No. 3500, but it should have given CALCRIM No. 3501, because these counts were based on "generic" or "[n]on-specific" testimony.
Both count 1 and count 2 charged a lewd act on a child (§ 288, subd. (a)) — count 1, "on or about" November 2012 through November 2013, when Doe was 10, and count 2, "on or about" November 2013 through November 2014, when Doe was 11.
In a prosecution for sexual offenses against a child, "generic" or "nonspecific" testimony is testimony about "repeated acts of molestation occurring over a substantial period of time but[] lacking . . . specific details, dates or distinguishing characteristics as to individual acts or assaults." (People v. Jones (1990) 51 Cal.3d 294, 299)
Preliminarily, defendant seems to think that one lewd act count was based on the incident in which defendant said, "[O]ur friends want to play." For this reason, he concedes that one lewd act count was supported by specific testimony, although he argues that the other count was necessarily based on generic testimony.
This is not at all clear. A lewd act requires that the defendant touch the child's body (People v. Memro (1995) 11 Cal.4th 786, 871), either on bare skin or through clothes. (See CALCRIM No. 1060). There was no testimony that, in the "friends" incident, defendant touched Jane's body. The evidence showed only that he pulled her shorts down. Arguably, it was inferable that he did touch her body; more likely, however, the jury would have found this element not proven.
Accordingly, the prosecutor argued that both lewd acts counts were based on what defendant calls "non-specific" testimony: "The first two counts are, basically, lewd and lascivious acts against a child under 14. . . . [R]emember, (Jane) said he would touch her pretty much every chance that he would get. . . . [W]e don't know if it happened once a week, twice a week, once a month, once every couple of months, but it happened often. . . . [¶] Instead of charging him [with] 30-something counts of lewd and lascivious conduct, one conduct per year for [two] years. And that's what we did. So Counts 1 and 2 are just simply two acts of touching, inappropriate touching, that occurred."
Thus, defendant's concession that one count was based on specific evidence is ill-considered. Both counts may have been based on non-specific evidence. We therefore consider his present contention as it applies to both count 1 and count 2.
CALCRIM No. 3500, as given in this case, stated:
"The defendant is charged with lewd and lascivious acts against a minor under the age of 14 sometime during the period of November to April 2016. The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
The written instruction said "November 2013 to April 2016." (Italics added.) In reading the instructions aloud, the trial court left this out.
Defendant does not complain about the omission. He also does not complain that the instruction did not track the dates alleged in the information.
CALCRIM No. 3501, if modified suitably for count 2, would have provided:
"The defendant is charged in Count 1 with a lewd and lascivious act against a minor sometime during the period of November . . . 2012 to November . . . 2013.
"The defendant is charged in Count 2 with a lewd and lascivious act against a minor sometime during the period of November . . . 2013 to November . . . 2014.
"The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless:
"1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed; or
"2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged." (Italics added.)
As the Bench Notes to CALCRIM No. 3501 indicate (Judicial Council of Cal. Crim. Jury Instns. (2019), Bench Notes to CALCRIM No. 3501, pp. 1030-1031), this instruction was promulgated in response to the following passage in People v. Jones, supra, 51 Cal.3d 294: "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at pp. 321-322.)
Thus, "CALCRIM No. 3501 provides an additional manner by which a jury may unanimously find a defendant guilty beyond that provided in CALCRIM No. 3500." (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1046.) "CALCRIM No. 3501 affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to the acts constituting each offense. But unanimity may also be found under CALCRIM No. 3501 if the jury agrees 'that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].'" (People v. Fernandez (2013) 216 Cal.App.4th 540, 556.)
Here, with regard to defendant's "constant[]" touching of Jane's breasts and buttocks, there was no reasonable likelihood that the jurors would disagree as to which acts were committed; the only question was whether defendant in fact committed all of them. On the authority of Jones, then, we agree that, as to the lewd act counts, the trial court should have given CALCRIM No. 3501.
The error, however — such as it was — was harmless under any standard. Giving CALCRIM No. 3501, rather than CALCRIM No. 3500, benefits the prosecution. Jurors who are given only CALCRIM No. 3500 may reason (mistakenly) that they cannot single out any one criminal act, and therefore they cannot agree unanimously that the defendant committed such an act. Giving CALCRIM No. 3501 offers the jurors an alternative way to find the defendant guilty. Contrariwise, giving CALCRIM No. 3500, rather than CALCRIM No. 3501, as here, benefits the defendant.
Defendant claims he was prejudiced because the jury may not have been unanimous: "[A] few jurors may have found some of the generic lewd/lascivious acts occurred, while other jurors concluded that different generic lewd/lascivious acts happened." Under Jones, however CALCRIM No. 3501 is required if, and only if, "there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them . . . ." (People v. Jones, supra, 51 Cal.3d at p. 322.) In this situation, if the jury is mistakenly given CALCRIM No. 3500, we must presume that they followed that instruction. Thus, there is no likelihood that the jurors will find the defendant guilty unless they agree unanimously that he committed all of the acts shown by the generic testimony.
Even if the jury had not been given any unanimity instruction at all, we would find the error harmless, based on People v. Matute (2002) 103 Cal.App.4th 1437. There, the child victim testified to several specific instances of rape (id. at p. 1440-1441); however, she also testified generically that, after a move to California, "a week never went by without appellant forcing sexual intercourse upon her." (Id. at p. 1441.) The trial court wholly failed to give any unanimity instruction. (Id. at pp. 1447.) The jury found the defendant guilty on 15 counts of rape. (Id. at p. 1440.)
The appellate court held that the trial court should have given CALJIC No. 4.71.5 (the predecessor of CALCRIM No. 3501), but the error was harmless beyond a reasonable doubt. (People v. Matute, supra, 103 Cal.App.4th at pp. 1448-1450.) It noted that the prosecutor explained in closing argument that the 15 counts were based on one rape per month during the 15 months after the move to California and before the victim disclosed the rapes. (Id. at p. 1449.) Thus, "[t]here could be no confusion in the jury's mind that they were being asked to decide whether appellant raped [the victim] 15 times over the period from August 1999 to November 2000." (Ibid.)
Here, similarly, the prosecutor told the jury it was being asked to decide whether defendant touched Jane sexually at least once a year for two years. Had CALCRIM No. 3501 been given, it would have posed the same question. Hence, it is clear beyond a reasonable doubt that the error did not affect the verdict.
V
SUFFICIENT EVIDENCE TO SUPPORT
COUNTS BASED ON GENERIC EVIDENCE
Defendant contends that there was insufficient evidence to support his conviction on counts 2, 4, and 6, which were based on generic evidence.
A. Lewd Act on a Child.
As discussed in part IV, ante, both lewd act counts were based on generic testimony. However, People v. Jones, supra, 51 Cal.3d 294 held that generic testimony can be sufficient to support multiple sexual abuse charges. (Id. at pp. 300, 313-316.) "[T]he particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us') to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (People v. Jones, supra, 51 Cal.3d at pp. 315-316.)
Doe told police that defendant first touched her sexually when she was "9 or 10." When asked, "[H]ow old . . . were you when he touched you next," she said, "[It w]ould be the same age. . . . [I]t started with my boobs, . . . and then when I gr[e]w up he would go to my butt . . . ." At trial, she testified that he grabbed her breasts and her buttocks "constantly."
This evidence described the number of acts with sufficient certainty to support two lewd act counts. The jury could reasonably and unanimously find that, as the prosecutor argued, defendant committed one lewd act when Jane was 9 and another lewd act when she was 10.
Defendant complains that we cannot tell what rationale the jury actually relied on. There is no authority that this is necessary; certainly defendant does not cite any. To the contrary, "on appeal a judgment is presumed correct, and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. [Citation.]" (People v. Garza (2005) 35 Cal.4th 866, 881.) "An appellate court necessarily operates on the assumption that the jury has acted reasonably, unless the record indicates otherwise." (People v. Guiton (1993) 4 Cal.4th 1116, 1127.) Thus, it is enough that there was sufficient evidence to support the jury's verdicts. The People are not required to show that the jury did not rely on some other, insufficient evidence.
B. Aggravated Sexual Assault on a Child by Means of Rape.
Both count 3 and count 4 charged aggravated sexual assault on a child by means of rape (§ 269, subd. (a)(1)) "on or about" the dates when Doe was 13.
At trial, Jane testified to one instance of rape, when she was 13. However, she told Officer Lenton about an earlier instance of rape, also when she was 13. In conformity with Jones, her statement was sufficient to show that that the earlier act constituted rape of a child, that it was a second and separate rape, and that it occurred within the applicable limitations period. Thus, it was sufficient to sustain a second conviction for aggravated assault on a child by means of rape.
C. Aggravated Sexual Assault on a Child by Means of Oral Copulation.
Both count 5 and count 6 charged aggravated sexual assault on a child by means of oral copulation (§ 269, subd. (a)(4)) "on or about" the dates when Doe was 13.
Jane testified at trial to an instance of oral copulation, in March 2016, when she was 13. However, she also testified that that was "the second time [she had] ever done that," although she did not "have a good memory of the very first time[.]" She told Officer Lenton that there was an earlier instance when "he put his penis in [her] mouth," a "couple [of] months" before the interview. That instance was different, in that defendant did not ejaculate.
Again, this was consistent with Jones; Jane's statement was sufficient to show that the act constituted oral copulation of a child, that it was a second and separate act, and that it occurred within the applicable limitations period. Accordingly, it was sufficient to sustain a second conviction for aggravated assault on a child by means of oral copulation.
VI
THE SUFFICIENCY OF THE EVIDENCE OF DURESS
Defendant contends that, with respect to the two counts of aggravated sexual abuse of a child based on oral copulation (counts 5 and 6), there was insufficient evidence of duress.
Aggravated sexual abuse of a child requires the commission of a specified sex act on a child who is under 14 years and at least seven years younger than the defendant. (§ 269, subd. (a).) One of the sex acts specified is oral copulation "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 269, subd (a)(4), incorporating § 287, subd. (c)(2).)
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.]" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626, italics added.)
For purposes of a sex offense, "'duress . . . mean[s] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1004; see also id. at pp. 1004-1010.)
"'[D]uress involves psychological coercion. [Citation.] Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] "Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim" [are] relevant to the existence of duress. [Citation.]' [Citation.]" (People v. Veale (2008) 160 Cal.App.4th 40, 49.) "When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases. [Citations.]" (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072-1073.)
Here, defendant was Jane's father figure. When she was 13, he was 34. The probation report indicates — and the jury would have been able to see — that he was large and imposing, carrying 230 pounds on a five foot ten inch frame. He began exploiting Jane by grabbing her breasts and buttocks; he did this "constantly," starting when she was nine and continuing until she was 13. The jury could reasonably find that this created an atmosphere in which Jane was not free to refuse to comply with his sexual demands. Whenever Jane tried to do so, he said, "Come on," indicating that he would not take no for an answer. Jane was afraid that, if she disclosed the sexual abuse, defendant would hurt her or her mother. She was also afraid that she would have to go into foster care.
In Veale, this court found sufficient evidence of duress, as follows: "A reasonable inference could be made that defendant made an implied threat sufficient to support a finding of duress, based on evidence that [the victim] feared defendant and was afraid that if she told anyone about the molestation, that defendant would harm or kill [the victim], her mother or someone else. Additional factors supporting a finding of duress include [the victim]'s young age when she was molested; the disparity between [the victim's] and defendant's age and size; and defendant's position of authority in the family. The totality of this evidence is sufficient to support a finding that defendant molested [the victim] by means of duress, in violation of section 288, subdivision (b)." (Veale, supra, 160 Cal.App.4th at p. 47.) The same factors were present here.
Defendant relies on People v. Espinoza (2002) 95 Cal.App.4th 1287. There, the defendant sexually abused one of his daughters when she was 12. (Id. at pp. 1292-1295.) When the abuse occurred, she "was 'really scared' and 'didn't know what to do' so she 'just stayed there' . . . ." (Id. at p. 1294.) She did not report the abuse immediately because she was afraid the defendant "'would do something to her.'" (Id. at p. 1293.)
The appellate court held that there was insufficient evidence of duress. (People v. Espinoza, supra, 95 Cal.App.4th at pp. 1318-1322.) In particular, it found insufficient evidence of an implied threat. (Id. at p. 1321.) It stated: "While it was clear that L. was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Ibid.)
In Thomas, we distinguished Espinoza on two grounds. (People v. Thomas, supra, 15 Cal.App.5th at p. 1073.) First, we noted that the victim in Espinoza was twelve when the sexual abuse began; in Thomas, it began when the victim was four or five. (People v. Thomas, supra, at pp. 1067, 1073.) "Second, in Espinoza the only proffered basis for the victim's fear was that the defendant continued to molest her. [Citation.]" (People v. Thomas, supra, at p. 1073.) In Thomas, the defendant physically beat the victim. (Ibid.)
We distinguished Espinoza similarly in Veale. Once again, we noted "that the victim in Espinoza was considerably older" than the six or seven-year-old victim in Veale. (People v. Veale, supra, 160 Cal.App.4th at p. 49; see id. at p. 43.) And once again, we noted that that the victim "feared defendant would kill her mother . . . ." (Id. at p. 50.)
Here, the victim was only nine. And here, the victim was not merely afraid that defendant would continue to molest her; much as in Veale, she was additionally afraid that defendant would hurt her or her mother or that she would have to go into foster care. There was none of the circular reasoning that concerned the Espinoza court.
We therefore conclude that there was sufficient evidence of duress in connection with counts 5 and 6.
VII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.