Opinion
B336132
02-28-2025
THE PEOPLE, Plaintiff and Respondent, v. JOSE VASQUEZ, Defendant and Appellant.
Law Offices of Visco & Selyem and Michael S. Selyem for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from judgment of the Superior Court of Los Angeles County No. PA094619, Hayden A. Zacky, Judge. Affirmed.
Law Offices of Visco & Selyem and Michael S. Selyem for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
In November 2023, a jury convicted Jose Vasquez of eight counts of sexual abuse against his stepdaughter, Jennifer. The trial court sentenced Vasquez to an aggregate term of 58 years to life in prison.
Vasquez now asks us to reverse his convictions, advancing four arguments: (1) his conviction on count 6 pursuant to Penal Code section 288.7, subdivision (b) violates the state and federal ex post facto clauses and the Sixth Amendment right to a jury trial because the jury might have found him guilty based on conduct that occurred before section 288.7 took effect, (2) the trial court erred in excluding the testimony of Vasquez's proffered expert concerning false confessions and false allegations, (3) the prosecutor committed misconduct in closing argument and lowered the prosecution's burden of proof by misstating the reasonable doubt standard as merely requiring the jurors to be "confident" in their verdict, and (4) the cumulative effect of these purported errors compels reversal.
Unless otherwise specified, all statutory references are to the Penal Code.
We disagree. The record establishes that the jury convicted Vasquez on count 6 based on conduct post-dating section 288.7's effective date, the trial court acted within its discretion in determining that Vasquez's proffered expert lacked the requisite expertise, and the prosecutor's arguments in closing did not impermissibly lower the prosecution's burden of proof. Finding no individual errors, we necessarily also reject Vasquez's cumulative error argument.
Accordingly, we affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
In April 2020, Jennifer, then 21 years old, reported to police that Vasquez, her stepfather, had subjected her to sexual abuse on a weekly basis beginning in 2002, when she was four years old. She reported that the abuse continued until 2016, when she turned 18 and moved out of the family home.
Police interviewed Vasquez concerning Jennifer's allegations. During the interview, Vasquez confessed to some of the abuse, including that he touched Jennifer's vagina with his fingers and penis.
The district attorney charged Vasquez with nine counts of sexual abuse against Jennifer. As relevant here, the operative information charged Vasquez in count 6 with a violation of section 288.7, which "was enacted in 2006 and became effective on September 20 of that year. [Citation.] The statute created a new offense which imposes an indeterminate life sentence for sexual intercourse, sodomy, oral copulation, or sexual penetration of a child who is 10 years of age or younger." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1306 (Rojas).)
Mid-trial, the court granted the prosecution's motion to dismiss count 7, and to add two counts-violations of section 289, subd. (h) (count 9) and 261.5, subd. (c) (count 10)-to conform to proof.
Although the statute did not take effect until September 20, 2006, the information alleges that Vasquez violated subdivision (b) of section 288.7 by engaging in "the crime of . . . sexual penetration with [a] child 10 years old or younger" "[o]n or between September 11, 2006 and September 10, 2007." (Italics added.) Thus, the information-which the court read to the jury at the outset of trial-alleges that some of the offense conduct underlying count 6 occurred nine days prior to the date section 288.7 took effect.
Vasquez elected to proceed to trial. He disclosed during pretrial proceedings that he intended to argue that certain family members may have manipulated Jennifer into making false accusations against him and that he had falsely confessed to police. In support, Vasquez sought to introduce the testimony of Dr. Adrienne Meier, a forensic psychologist, concerning "the psychological concepts" related to false allegations and false confessions.
The trial court conducted an Evidence Code section 402 hearing to determine whether Dr. Meier qualified as an expert on the proffered topics. On direct examination, Dr. Meier testified that "one of [her] specialties is in the area of sexual offending and sexual abuse," that her graduate research involved six years of work with the Los Angeles Police Department aimed at improving policing, including interrogation methods, and that she appears on the list of expert witnesses maintained by the Los Angeles County Superior Court.
Evidence Code section 402 governs the procedure for determining foundational and other preliminary facts, and permits the trial court to "hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury." (Evid. Code, § 402, subd. (b).)
In response to questions from the court and prosecutor, however, Dr. Meier admitted that she had never conducted research in the field of false confessions or previously been qualified as an expert on the topic. And although Dr. Meier stated she had reviewed hundreds of articles and research publications on the topic of false allegations, she was unable to identify any such publications by name:
"[Prosecutor]: Let's talk about what did you review [regarding] false allegations of child sexual abuse?
"[Dr. Meier]: In terms of the articles and research? "[Prosecutor]: Yes. Articles. Books. Publications. Anything. [¶] Tell us.
"[Dr. Meier]: Sure. [¶] The information about false allegations, we could be here all day if you want me to go through all of it. But the main bullet points would be that individuals who are vulnerable are more susceptible to suggestibility and external factors that could result in false allegations.
"There is [sic] also other motivations, such as revenge. Motivations such as aligning with one parent as opposed to the other. So in the context of contentious divorces, [they] actually have the highest rates of false allegations in order to align with one parent versus another.
"[Prosecutor]: Okay. [¶] What publications have you reviewed specifically?
"[Dr. Meier]: I am not going to be able to recite the hundreds of documents and research articles that I have read.
"[Prosecutor]: Can you name one?
"[Dr. Meier]: No."
The trial court therefore denied Vasquez's request to present testimony from Dr. Meier at trial, explaining:
"The Court: Dr. Meier, I mean, she is a psychologist who runs a private practice. This seems, like I said, a little bit a side gig to her, or for her, to make some extra money, and perhaps it's an area of interest to her, which I do respect. However, there is no foundation for her to testify.
"She totally lacks the education, experience and training. She is testifying in a generic manner that's not above the common experience of a juror.
"She hasn't articulated any articles she has read, the number of articles she has read, what she has actually done, any research that she has done. In fact, she said she has done no research in any of these areas on a personal level.
"I have had and qualified expert witnesses in these areas many times, and their background, training and experience is vast. And, unfortunately, Dr. Meier, at this stage, lacks a foundation. So her testimony will be excluded." Vasquez did not attempt to qualify a different expert to testify concerning false allegations of sexual abuse or false confessions.
At trial, the prosecution presented testimony from Jennifer, as well as several other witnesses, and introduced a transcript and recording of the interview during which Vasquez confessed to certain sexual abuse against Jennifer. Vasquez testified in his own defense, denying that he had ever sexually abused Jennifer and claiming the police had tricked him into confessing.
In closing, the prosecutor made the following statement concerning reasonable doubt: "The proof that I need to prove to you is proof beyond a reasonable doubt. "I'm going to slow here so you can, you know, think about that.
"And, again, it's not complicated. It's not impossible. It's a lasting conviction, an abiding conviction, and one that lasts with you for a while. That you are confident in this decision that you are about to make.
"And it's not through any doubt, because anything is possible. It's not through any possible doubt, for the same reason. It's not beyond a shadow of a doubt, which we discussed during jury selection. That's just not the standard. "Ask yourselves two questions. Once the case has been proved, ask yourself, do you have a doubt?
"And don't stop there. If you do have a doubt, ask the next question. You only get to the next question if you even have a doubt. You might not even get to ask, do I have a reasonable doubt?
"Ask yourself, is there a doubt? And if you have no doubt, you have no reasonable doubt, you don't have to go there.
"But ask yourselves, do I have a doubt, and is that doubt reasonable. Is that doubt reasonable." Vasquez's trial counsel did not object to the prosecutor's closing argument.
The jury found Vasquez guilty of eight counts, including count 6. In contrast to the information's allegation that the relevant time frame for count 6 begins on September 11, 2006, the count 6 verdict form provides that the relevant date range begins on September 20, 2006-i.e., the date section 288.7 took effect:
The jury acquitted Vasquez on count 8, which alleged that that he sexually penetrated Jennifer while she was unconscious (§ 289, subd. (d)).
"We, the jury in the above-entitled action, find the Defendant, Jose Vasquez, guilty of the crime of sexual penetration with a child 10 years old or younger, upon Jennifer T., a child 10 years of age and younger, on or between September 20, 2006 and September 10, 2009, in violation of . . . [s]ection 288.7[, subd.](b), a felony, as charged in count 6 of the Information." (Capitalization omitted.)
Vasquez raises no challenge to the discrepancy between the end of the date range alleged in the information (September 10, 2007) and the end of the date range set forth in the verdict form (September 10, 2009).
Vasquez timely appealed.
DISCUSSION
Vasquez argues (1) the conviction on count 6 violates the ex post facto clauses in the state and federal Constitutions and the Sixth Amendment right to a jury trial, (2) the trial court erred by excluding Dr. Meier's proffered expert testimony, (3) the prosecutor committed misconduct in closing argument by mischaracterizing the reasonable doubt standard, and (4) the cumulative effect of these alleged errors compels reversal of his convictions.
A. The Jury Convicted Vasquez on Count 6 Based on Conduct Post-Dating Section 288.7's Effective Date
Vasquez contends that we must reverse his conviction on count 6 because, in finding him guilty on that count, the jury might have relied on conduct pre-dating section 288.7's effective date. We are not persuaded.
"Our state and federal Constitutions prohibit ex post facto laws. [Citations.] Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto." (Rojas, supra, 237 Cal.App.4th at p. 1306.) In addition, the Sixth Amendment requires that the prosecution prove "all of the facts necessary to authorize a judicial punishment." (United States v. Haymond (2019) 588 U.S. 634, 649.)
It therefore" 'is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment.'" (Rojas, supra, 237 Cal.App.4th at p. 1306.) And where "the jury was not asked to make findings on the time frame within which the offenses were committed, the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurring on or after" the effective date of the relevant statute. (People v. Hiscox (2006) 136 Cal.App.4th 253, 261 (Hiscox).)
Relying on these principles, Vasquez argues we must reverse his count 6 conviction because (1) the jury made no finding that he engaged in conduct prohibited by section 288.7 after the statute took effect on September 20, 2006, and (2) the record does not otherwise establish beyond a reasonable doubt that the jury relied on conduct post-dating section 288.7's effective date in convicting him on count 6.
The jury, however, did make an express finding that Vasquez violated section 288.7 after the statute's September 20, 2006 effective date. The face of the count 6 verdict form provides, in relevant part:
"We, the jury . . . find . . . Vasquez . . . guilty of the crime of sexual penetration with a child 10 years old or younger, . . . on or between September 20, 2006 and September 10, 2009." (Capitalization omitted &italics added.)
Vasquez nonetheless urges that the verdict form does not reflect a dispositive finding by the jury on this issue because (1) the information, which the trial court read to the jury, alleges that the count 6 conduct began on September 11, 2006, (2) the court instructed the jury that it could convict Vasquez if it determined the conduct occurred "reasonably close" to the alleged dates (CALCRIM No. 207), and that the jury must "consider [the instructions] together" (CALCRIM No. 200), and (3) the prosecutor argued in closing that the count 6 abuse occurred when Jennifer was "between the ages of eight to ten years old," and Jennifer turned eight on September 11, 2006, i.e., nine days before section 288.7 took effect.
As an initial matter, Vasquez cites no authority establishing that we may disregard the jury's express finding in the verdict form that he engaged in the offense conduct on or after September 20, 2006. Indeed, the Hiscox case on which Vasquez relies suggests that such a finding is dispositive. (See Hiscox, supra, 136 Cal.App.4th at p. 261, fn. 6 [noting, in reversing a sentence for violating ex post facto principles, that "[i]t would have been a simple matter for the verdict forms to ask the jury to find whether each offense was committed on or after [the relevant statute's effective date]"].)
Moreover-even assuming for purposes of argument that the verdict form is not dispositive-the record here establishes beyond a reasonable doubt that the jury convicted Vasquez on count 6 based on conduct post-dating section 288.7's effective date. With respect to count 6, the information alleges that Vasquez violated section 288.7 by subjecting Jennifer to sexual penetration between September 11, 2006 (her eighth birthday) and September 10, 2007 (the day before her ninth birthday). The only testimony Jennifer provided concerning sexual penetration within this date range was that Vasquez penetrated her vagina "maybe once or twice a week." Because Jennifer provided no other pertinent testimony, the jury must have credited her testimony that the sexual penetration occurred on a weekly basis between September 11, 2006 and September 10, 2007 in order to convict Vasquez on count 6. This time period includes 50 weeks following the September 20, 2006 date that section 288.7 took effect; therefore, the record demonstrates beyond a reasonable doubt that the jury relied on offense conduct post-dating section 288.7's effective date in convicting Vasquez.
Vasquez counters that, in returning the count 6 conviction, the jury might improperly have relied on Jennifer's testimony concerning abuse she suffered in 2002, when she was between the ages of 4 and 5, because (1) that testimony was more detailed than the purportedly "generic" testimony Jennifer provided concerning later abuse, and (2) the court instructed the jury that the prosecution need prove only that Vasquez committed the abuse "reasonably close" to the alleged dates. (See CALCRIM No. 207.)
Without attempting to define the phrase "reasonably close" for all purposes, we reject Vasquez's contention that a reasonable juror applying the instructions here could conclude that abuse that occurred in 2002 is reasonably close in time to abuse that occurred in 2006 and 2007-at least four years later. (See People v. Barber (2020) 55 Cal.App.5th 787, 807 [an appellate court "assume[s] that jurors exercise common sense in construing instructions and deliberating"].)
Vasquez's challenge to the count 6 conviction therefore fails.
B. The Court Acted Within Its Discretion in Excluding Dr. Meier's Proffered Testimony
Vasquez next argues the trial court erred in excluding the expert testimony of Dr. Meier. We disagree.
"The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: 'The competency of an expert "is in every case a relative one, i.e., relative to the topic about which the person is asked to make his statement." [Citation.]' [Citation.] Absent a manifest abuse, the court's determination will not be disturbed on appeal. [Citations.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1175 (Ramos).)
We find no abuse of discretion on the facts here. We agree with Vasquez that Dr. Meier's testimony at the Evidence Code section 402 hearing established that she had at least some knowledge pertinent to the topics of false allegations and false confessions in sex abuse cases. Dr. Meier conceded, however, that she had never performed her own research on false confessions or previously been qualified as an expert on the topic. And notwithstanding her testimony that she had reviewed an extensive amount of published research concerning false allegations, she was unable to name a single such publication.
Nor are we persuaded by Vasquez's contention that exclusion of Dr. Meier's testimony violated his due process rights. (Ramos, supra, 15 Cal.4th at p. 1175 ["[t]he ruling [excluding proffered expert testimony] did not deprive defendant of a defense or violate any other constitutional right. The United States Supreme Court has repeatedly acknowledged 'the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citations.] This authority extends to conditioning admissibility of certain evidence on foundational prerequisites."].)
Accordingly, we conclude the trial court acted within its discretion in excluding Dr. Meier's testimony.
C. Vasquez Fails to Demonstrate the Prosecutor Committed Misconduct in Closing Argument
Finally, Vasquez contends the prosecutor committed misconduct by arguing in closing that the reasonable doubt standard requires the jury to be "confident in [its] decision." (Italics omitted.) He urges that this statement impermissibly "liken[ed] the concept of reasonable doubt to common . . . life decisions such as the decision to marry, the decision to invest in a certain stock, or the decision to get on an airplane." Vasquez bears the burden of demonstrating a reasonable likelihood the jury understood the prosecutor's remarks in an objectionable manner. (People v. Potts (2019) 6 Cal.5th 1012, 1036.) We conclude that Vasquez has not met that burden.
Unlike in People v. Brannon (1873) 47 Cal. 96, the primary case on which Vasquez relies, the prosecutor's comments here did not directly liken the level of confidence required by the reasonable doubt standard to that employed in making quotidian decisions. (See id. at p. 97 [trial court erred in instructing jury that it should convict if" 'satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life' "]; compare People v. Jasmin (2008) 167 Cal.App.4th 98, 115 (Jasmin) [no misconduct where prosecutor argued the reasonable doubt standard required the same level of confidence as that involved in "mak[ing] extremely important decisions"] with People v. Nguyen (1995) 40 Cal.App.4th 28, 35 [prosecutor committed misconduct by describing the reasonable doubt standard as" 'a very reachable standard [the jurors] use every day in [their] lives when [they] make important decisions, decisions about whether [they] want to get married, decisions that take [sic] [their] li[ves] at stake when [they] change lanes as [they are] driving' "].)
We therefore are not persuaded that the prosecutor's comment improperly diminished the reasonable doubt standard. (See Jasmin, supra, 167 Cal.App.4th at p. 116.) Vasquez thus has failed to demonstrate that the prosecutor committed misconduct.
In light of our conclusion, we need not address Vasquez's contention that his trial counsel rendered ineffective assistance by failing to object to the prosecutor's closing argument.
D. Vasquez's Cumulative Error Argument Fails
As set forth, ante, we conclude the trial court acted within its discretion in excluding Dr. Meier's proffered testimony and that Vasquez has failed to demonstrate the prosecutor committed misconduct in closing argument. Because Vasquez has failed to establish any individual errors, his cumulative error argument necessarily fails. (See People v. Butler (2009) 46 Cal.4th 847, 885 [no finding of cumulative error where there were no substantial individual errors].)
DISPOSITION
The judgment is affirmed.
We concur: WEINGART, J., KLATCHKO, J. [*]
[*] Judge of the Riverside County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.