P. v. Thipthammavong
Filed 11/15/13 P. v. Thipthammavong CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
RICKY LAMMONE THIPTHAMMAVONG,
Defendant
and Appellant.
E055864
(Super.Ct.No. SWF1100151)
OPINION
APPEAL
from the Superior Court
of
County. Mark Mandio,
Judge. Affirmed in part; reversed in
part with directions.
Edward J.
Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, William M. Wood, Gary W. Brozio and Lynne G. McGinnis, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant
Ricky Lammone Thipthammavong began inappropriately touching Jane Doe 1, his
biological daughter, when she was five years old. Defendant had sexual intercourse with Doe 1
numerous times. Defendant stopped
molesting Doe 1 when she was 11 years old.
Defendant also had sexual intercourse with Jane Doe 2, who is also his
biological daughter, starting when she was five years old, and ending when she
was almost eight years old.
Defendant
was convicted of seven counts of aggravated
sexual assault on a child (rape and sexual penetration by force) and one
count of committing a lewd act upon a child.
Defendant claims
on appeal as follows:
1. The jury should have been instructed
that a reasonable, good faith belief in consent is a defense to the aggravated
sexual assault counts, and the failure to allow such a defense violated his
federal constitutional rights to due
process and a fair trial.
2. Child Sexual Abuse Accommodation
Syndrome (CSAAS) evidence should be inadmissible for all purposes, and its
admission in this case was prejudicial.
3. CALCRIM No. 1193 erroneously advised
the jury that it may consider the CSAAS expert testimony in determining the
complaining witnesses’ credibility.
4. CALCRIM No. 330 improperly bolstered
Doe 2’s credibility in violation of his state and federal constitutional rights
to a jury trial, confrontation, due process of law, and the
5. His sentence of 15 years to life for
his lewd conduct conviction is erroneous because he was not convicted of offenses
listed in Penal Code section 667.61, subdivision (c),
victim.
6. The $240 restitution fine violates
must be reduced to $200 according to the law applicable when the offenses were
committed.
I
PROCEDURAL BACKGROUND
A
jury found defendant guilty of five counts of aggravated sexual assault (rape)
of Doe 1 pursuant to section 269, subdivision (a)(1) (counts 1, 4-7). The jury also found true the special
allegations for counts 5 through 7 that he committed the offenses against more
than one victim within the meaning of section 667.61, subdivision (e)(5). The jury additionally found defendant guilty
of committing a lewd and lascivious act against Doe 2 (§ 288, subd. (a)) (count
8). They also found him guilty of two
counts of aggravated sexual assault (rape and sexual penetration) of Doe 2 (§
269, subds. (a)(1), (5)) (counts 9, 11). For the counts against Doe 2, the jury found true
the special allegations for counts 8 and 9 that he committed the crimes against
more than one victim (§ 667.61, subd. (e)(5)).
Defendant
was sentenced to consecutive 15-years-to-life sentences on all counts (including
the lewd conduct conviction in count 8) for a total state prison sentence of
120 years to life. He was ordered to pay
a $240 restitution fine pursuant to section 1202.4.
II
FACTUAL BACKGROUND
A. People’s
Case-in-Chief
1.
acts against Doe 1
Doe
1 was 13 years old at the time of trial.
Her mother was M. K. and Doe 2 was her nine-year-old sister. Defendant was her biological father. When Doe 1 was in the third grade, defendant
and M.K. ended their romantic relationship.
Does 1 and 2 stayed with M.K. during the week and had visitation with defendant
on the weekends.
When
Doe 1 was in the third or fourth grade, she visited defendant in an apartment
where Doe 1’s aunt lived. Doe 1 and defendant
were lying on the floor in the living room.
Doe 1 believed that Doe 2 was in the shower. No other adults were home. Doe 1 was wearing a shirt but no pants. Defendant got on top of her. He put his penis in her vagina. She described it as feeling “awkward,†and it
“hurt.â€
On
another occasion, when Doe 1 was in the third or fourth grade, defendant had taken
Does 1 and 2 to a party. After leaving the
party, defendant drove Doe 1 and Doe 2 to their home. When they arrived home, Doe 2 went to take a
shower. Defendant again put his penis
inside Doe 1’s vagina that night. Doe 1
never told defendant that the sexual intercourse hurt her.
Another
time, when Doe 1 was 10 or 11 years old, defendant was living with Doe’s aunt
in Perris or Menifee. Defendant had his
own bedroom. Defendant and Doe 1 had sex
in the bedroom. Defendant had some type
of camera. Doe 1 had no clothes on below
her waist. Defendant took a picture of
her from the waist down while her clothes were off. He put a pillow over her face while he took a
picture.
On
another occasion, while they were living in Temecula, Doe 1 exited the shower
while she and Doe 2 were staying with defendant. Doe 2 went into the shower when Doe 1 came
out. Doe 1 went into defendant’s bedroom
to get clothes, as she was only wearing a towel. Defendant was lying on the bed wearing only
boxer shorts. He told her to sit on his
lap. Defendant took his penis out of the
hole in his boxers and put it in her vagina.
Initially at trial, Doe 1 could not recall the first time she had sex
with defendant, but she believed he started molesting her when she was nine or
ten years old. She later testified that
the first time she and defendant had sex, she was four to six years old. M.K. was in the room on her computer but had
her back to them. Doe 1 claimed it was
very “quick.â€
Defendant stopped having
sex with Doe 1 when she was between 10 and 11 years old but gave no reason for
stopping. Doe 1 could not recall all the
times that defendant had sex with her. Initially,
each time defendant would have sex with Doe 1, she would “kind of squirm†her
body and try to get away from him. After
some time, Doe 1 quit trying to squirm away from defendant because it would not
work. She knew she could not get
away. She continued to be “scaredâ€
throughout the time these incidents were happening. Defendant never threatened Doe 1, but he did
tell her not to tell anyone.
When
she was 12 yrs. old, Doe 1 finally told M.K. what had happened. M.K. caught her sending sexually explicit text
messages to a boy. M.K. told Doe 1 that
she was going to have to take a virginity test.
Doe 1 thought that such a test was real and was scared. She told her mother what defendant had done
to her because she did not want her mother to think she had had sex with her
boyfriend. She told M.K. that defendant
was “full-on raping†her since she was five years old.
Doe 1 claimed she never
talked to Doe 2 about any of these things.
They were not close. Doe 1 did
not tell her mother, in the presence of Doe 2, what defendant was doing to her. Doe 1 had not had sex with anyone else. In sixth and seventh grade, Doe 1 started
cutting herself. M.K. called the police.
2.
At
the time of trial, Doe 2 was nine years old and in the fourth grade. At trial, she claimed defendant began
inappropriately touching her when she was seven years old. On one occasion, Doe 2 was wearing a shirt
and defendant took her pants and underwear off.
Defendant took his clothes off. He
then touched her with the part of his body that “pee†comes out (his penis) on
her body where “pee†comes out (her vagina).
He put his penis inside of her.
When
defendant was inside her, it hurt a “little.â€
Defendant did this almost every time that she and Doe 1 had stayed with
him for visitation. This stopped, at
eight years old, when she no longer had to stay with him. Doe 2 did not recall anything coming out of
his penis when this happened. She could
not recall any touching that occurred where her “poop†came out of her bottom.
Doe
2 thought that defendant might have touched her vagina with his fingers. She had a hard time talking about what
happened to her. She never told
defendant to stop but she knew that what he was doing was wrong.
The
jury heard a pretrial interview of Doe 2.
touched her in the “wrong place.†She
described it as her private place where she went to the restroom. Doe 2 told the interviewer that defendant
touched her when she was five years old.
She only remembered this because Doe 1 told her.
Doe
2’s preliminary hearing testimony was read to the jury. Doe 2 indicated that the first time defendant
touched her was while defendant was living with her aunt, when she was five
years old. Doe 2, defendant, and Doe 1
were in his bed. Doe 1 was
sleeping. Defendant put his penis in her
vagina. It “sort of†hurt her. Defendant never said anything to her, and she
never told him to stop. She knew what he
was doing was “wrong.†She did not tell
anyone because she was “afraid.†He continued
to do this until she was eight years old.
Doe 2 also had testified at the preliminary hearing that he sodomized
her several times when she was seven years old.
He also put his fingers in her vagina.
Yellow liquid came out of his penis when they had sex.
3.
On
January 28, 2011, County Sheriff’s Detective Fred Collazo set up a pretext
telephone call between defendant and Doe 1.
Doe 1 told defendant that she had received good grades. She then told him that they were studying how
babies were made in science class. She
asked defendant why she never had a baby when they had sex together. At first, defendant responded that he did not
know what she was talking about. He then
told her he would talk to her in person.
Doe 1 told him it was too awkward to talk to him in person. Doe 1 again asked him why she did not get
pregnant, and he responded that they didn’t do anything. She told him that she was having flashbacks
about having sex with him.
Defendant then
told her she was too young to get pregnant.
He then confirmed that she had now started menstruating. Doe 1 asked him if that is why he stopped
having sex with her, and he again said he would talk to her about it in
person. Doe 1 then asked him if he was
sorry “this has happened?†Defendant
responded that he was sorry. She asked
him if he would do it again and he promised he would not. She then asked if he ever did it to Doe 2,
and he responded, “No, no, no, no, no, no.â€
After
the call, defendant was arrested and interviewed. Defendant admitted he had rubbed his penis
against Doe 1’s vagina but claimed it was only once. He never put his penis in her vagina and did
not ejaculate. He claimed they were
wearing clothes, and he was just “dry humping†her. He later said they were naked but he denied
he ever penetrated her vagina. He denied
ever having sex with Doe 2.
Defendant
wrote an apology letter to Doe 1. In it,
he asked her to forgive him for what he had done to her. He told her that he loved her and would never
do anything to her again. He said he was
sorry, and he loved her. He also told
Doe 1 to tell Doe 2 that he loved her.
Does
1 and 2 were given sexual assault examinations on February 1, 2011, by a
forensic pediatrician. Doe 1 had
evidence of cutting on her arms. There
were no findings of abuse or injury in her genital and anal regions. The pediatrician opined that it was common
for no injury to appear, especially if some time had passed since the last
abuse. Her hymen was intact, but that
was not conclusive as to whether there was penile penetration. There was no conclusive test to determine if
a person was a virgin. There were no
findings of abuse or injury on Doe 2’s genital or anal area. The pediatrician again stated that any injury
would heal quickly. Doe 2 had no injury
to her hymen.
4.
Dr.
Veronica Thomas was a clinical psychologist. Dr. Thomas explained that there were five
components of CSAAS. The first component
was secrecy, which could be either implicit or explicit actions by the
perpetrator to the victim not to tell anyone.
A young child could be intimidated by fear or not understand what is
happening. The second component was
helplessness and depression, which was due to the confusing experience of being
sexually assaulted by a trusted person. It
could take a child a long time to figure out that the sexual molestation by
this trusted person was wrong. The third
component was called entrapment and accommodation. This occurred when a child recognized that
there was nothing she could do about the abuse and just compartmentalized it in
her life. Further, the child might
realize that she was dependent upon the abuser for shelter and food. The fourth element was disclosure; the child
finally disclosing what was happening to her.
It was common for children who were molested to delay disclosing the
molestation when it was by a trusted person, as opposed to a stranger. Even young children could feel a responsibility
to not upset the family.
The
final component of CSAAS was recantation.
Once the child discloses the molestation, she will have to answer very
personal sexual questions from social services and the police. Further, there are consequences, such as being
removed from the home. It would be
easier to recant in order to stop the consequences. The victim might try to minimize what had
occurred. A child’s memory of the event
might be inconsistent. A child might
repress the memory of what happened, and something may trigger a memory of what
happened.
Dr.
Thomas had not met anyone involved in the instant case and had not reviewed the
records.
B. Defense
Defendant’s
brother and sister both testified that they had been with defendant throughout
the years while he was with Does 1 and 2.
Does 1 and 2 did not appear afraid of defendant. They acted like normal, happy children.
One
witness, B.B. was friends with M.K. M.K.
called B.B. after Doe 1 disclosed the abuse by defendant. B.B. went to M.K.’s house the following
day. She talked to Doe 1 and told her to
be strong and tell the police officer everything that had happened to her. She also talked to Doe 2. She asked her if anyone had ever touched her
private parts, and Doe 2 was confused. B.B.
then pointed to her own vagina and breasts.
Doe 2 dropped a cup that she had in her hand, said “yes,†and then ran
out of the room.
Dr.
Mitchell Eisen was a psychologist who specialized in suggestibility and memory
of victims after tragic events or sexual abuse.
Dr. Eisen indicated that there was research that supported a child having
a dream about being sexually molested and incorporating it into a genuine
memory. Dr. Eisen also indicated that a
child could be influenced by family members, especially if another sibling is
being abused, to state that abuse has occurred when it had not.
III
DEFENSE OF
REASONABLE, GOOD FAITH BELIEF IN CONSENT BY A MINOR UNDER THE AGE OF 14 TO
FORCIBLE SEXUAL ACTS
Defendant contends
that the trial court erred by omitting from the jury instructions on aggravated
assault –– rape and forcible sexual penetration –– that a
reasonable, good faith belief in consent was a defense to the crimes. Such error violated his federal
constitutional rights to a fair trial and due process.
A. Additional Factual
Background
During discussion
of the instructions, there was no objection by either party to the standard
instructions to be given for aggravated sexual assault for rape and sexual
penetration by force. These instructions
(CALCRIM Nos. 1000, 1045) included that the People had to prove that the acts
were accomplished against the will of Does 1 and 2, and that the “female did
not consent to the intercourse,†and it instructed the jury that “[t]o consent,
a female must act freely and voluntarily and know the nature of the act.†It did not include language that a defense to
the crime was that a defendant could have a reasonable, good faith belief that
the victim consented even if there was no actual consent.
During the
People’s opening argument, the prosecutor argued that Doe 1 did not consent to
the rape. When Doe 1 was first being
raped, she was only four to six years old and did not understand what was
happening to her. She also testified
that she would try to squirm away from defendant. As to Doe 2, the prosecutor argued there was
no consent because she was too young and did not know what was happening to
her. Defendant argued during closing
that, “[i]f [defendant]’s reasonably believing that she is not objecting to
this, that she is consenting to this, even though that’s not the case, that’s a
complete defense to rape.â€
Prior to the
People’s closing argument, the trial court noted that it had not included in
the instructions that defendant could have a good faith, reasonable belief that
Does 1 and 2 consented because “society will not tolerate, even if it’s a
actual belief that a child 13 or under consented.†The trial court stated that there was no
evidence of reasonable belief.
Defendant’s counsel argued there was sufficient evidence because Does 1
and 2 were not protesting. The trial
court ruled that it did not believe that a defendant could reasonably believe
that a child under the age of 13 years could consent. However, a child could actually consent,
which would be a defense.
The trial court
informed the jury that it had inadvertently failed to advise defendant’s
counsel of the proper instructions on consent.
It then instructed the jury as follows:
“[R]egarding the law of rape, sodomy, and sexual penetration. [¶] In
a case in which the alleged victim is an adult, a defendant is not guilty of
rape if he actually and reasonably believed the alleged victim consented to the
intercourse, sodomy, or sexual penetration. [¶] However, in a case in which the alleged victim
is a minor, that is a person under 18 years of age, it is not
that the defendant reasonably believed the alleged victim consented to the
intercourse, sodomy, or sexual penetration.
[¶] However, the People still
must prove beyond a reasonable doubt that the alleged victim did not actually
consent to the intercourse, sodomy or sexual penetration.â€
B. Analysis
The crime of an
aggravated sexual assault on a child by means of rape requires an act of
“[r]ape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.†(§ 269, subd. (a)(1).) Subdivision (a)(2) of section 261 requires
that the act of rape be “accomplished against a person’s will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another.†(§ 261, subd. (a)(2).) The crime of aggravated sexual assault of a
child by means of sexual penetration also requires that the act be committed
against the victim’s will and through the use of force, violence, duress,
menace, or fear. (§ 289, subd. (a)(1).)
Defendant contends
that he was entitled to instruction to the jury that he had a reasonable, good
faith belief that Does 1 and 2 consented to the acts. The People contend that the California
Supreme Court made it clear in People v.
Soto (2011) 51 Cal.4th 229, 233, 248 that no child under the age of 14
years of age can consent to any lewd act under any circumstance. However, in Soto, the crime committed (forcible lewd act) did not require that
it be committed against the will of the victim.
(Id. at p. 237.) The aggravated rape and sexual penetration
here both required that the acts be committed against the will of the
victim. For purposes of this case, we
need not decide whether a defendant is entitled to instruction on a reasonable,
good faith belief in consent for aggravated sexual assault involving a minor. We will assume, without deciding, that the
trial court did err by ruling that a reasonable, good faith belief of consent
was not a defense. As we will discuss,
the error was harmless.
“The trial court
has a sua sponte duty to instruct on defenses where there is substantial
evidence to support the instruction. [Citation.]â€
(People
v. Felix (2001) 92 Cal.App.4th 905, 911.)
Under People v. Mayberry (1975)
15 Cal.3d 143, a defendant charged with a forcible sex offense is not guilty if
he or she had a mistaken but good faith and reasonable belief that the adult victim
consented. (Id. at pp. 153-158.) “If a
defendant entertains a reasonable and bona fide belief that a prosecutrix
voluntarily consented . . . to engage in sexual intercourse, it is apparent he
does not possess the wrongful intent that is a prerequisite . . . to a
conviction of . . . rape by means of force or threat [citation].†(Id.
at p. 155.)
“[T]he
one subjective, and one objective. The
subjective component asks whether the defendant honestly and in good faith,
albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a
defendant must adduce evidence of the victim’s equivocal conduct on the basis
of which he erroneously believed there was consent. [¶] In
addition, the defendant must satisfy the objective component, which asks
whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant
may subjectively believe a person has consented to sexual intercourse, that
belief must be formed under circumstances society will tolerate as reasonable
in order for the defendant to have adduced substantial evidence giving rise to
a Mayberry instruction.’ [Citation.]â€
(People v. Dominguez (2006) 39
Cal.4th 1141, 1148.)
The test for
prejudice from the court’s failure to instruct the jury on a defense is not
entirely clear. (See, e.g.,
382, 391, [“[w]e need not determine whether the applicable standard of
prejudice is whether the error in failing to instruct regarding the defense of
accident was harmless beyond a reasonable doubt or the less stringent standard
articulated in People v. Watson (1956)
46 Cal.2d 818, 836â€]; People v. Rogers
(2006) 39 Cal.4th 826, 868, fn. 16 [an exception to the Watson standard may exist “when the error deprives the defendant of
the federal due process right to present a complete defenseâ€];
1415, 1431 [“[e]rror in failing to instruct on the mistake-of-fact defense is
subject to†Watson test].) In an abundance of caution, we apply the more
stringent beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 especially in light of
defendant’s argument that his federal constitutional
rights were violated.
Here, defendant
did not take the stand; thus, he did not testify that he subjectively believed
that the victim consented. When he spoke
with Detective Collazo, he admitted that he touched his penis to Doe 1’s vagina
but denied penetration. He claimed it
only happened once. He never implicitly
or explicitly stated that she consented to the act. In fact, he apologized for his actions. Defendant completely denied that he ever
touched Doe 2. Defendant’s counsel
argued in closing that the decision the jury had to make was to what extent Doe
1 was molested and whether Doe 2 was molested at all. There simply was no evidence to support an
instruction that defendant was claiming he had a reasonable, good faith belief
that Does 1 and 2 consented to the sexual assaults. As such, he was not entitled to the
applicable.
Additionally, Doe 1
testified that in the beginning she would try to squirm away from defendant in
order to get him to stop. She was unable
to get away. This was not “equivocal
conduct†upon which defendant could base his belief that there was
consent. Doe 1’s attempts to squirm away
from defendant could be interpreted only one way: she did not want to have sex with him.
Moreover, there
was no evidence of a mistaken belief in consent that society would tolerate as
reasonable under the circumstances. Defendant
was the victims’ father, giving him an unparalleled level of control over the
children, along with their having complete trust in him. Moreover, Doe 2 was between five and seven
years old when the abuse occurred. She
was completely unaware of what was happening to her. Based on Doe 2’s age when these acts were
committed, even if the jury was instructed as averred by defendant, it is clear
beyond a reasonable doubt that it would have rejected that such a reasonable belief
in consent could exist.
Moreover, based on
the instructions, the jury had to conclude that defendant used force or duress
in committing the acts, which is further evidence that it would reject that
defendant believed Does 1 and 2 were consenting to the acts. Finally, the jury necessarily rejected that Does
1 and 2 actually consented.
We are convinced
beyond a reasonable doubt that, even if the jury had been given a
found that defendant did not actually entertain an objectively reasonable
belief in consent. As such, any
conceivable error was harmless.
IV
CSAAS
TESTIMONY
Defendant contends
that CSAAS testimony should not be admitted in any trial in California. He further argues that the admission of the
evidence was prejudicial in this case.
In California,
when a defendant avers that a child’s allegation of sexual abuse is
inconsistent with her actions, expert testimony on CSAAS has been held
admissible to disabuse jurors of commonly held misconceptions about how child
sexual abuse victims behave. (See, e.g.,
People v. Yovanov (1999) 69 Cal.App.4th
392, 406-407; People v. Housley (1992)
6 Cal.App.4th 947, 954-957.) Defendant
relies on cases in other states that limit or exclude CSAAS evidence, and urges
this court to follow these other states.
In
231, the court rejected a similar challenge to the admissibility of CSAAS
evidence, and we find it is well reasoned. It found “no reason to depart from recent
precedent, to wit: ‘CSAAS cases involve
expert testimony regarding the responses of a child molestation victim. Expert testimony on the common reactions of a
child molestation victim is not admissible to prove the sex crime charged
actually occurred. However, CSAAS
testimony “is admissible to rehabilitate [the molestation victim’s] credibility
when the defendant suggests that the child’s conduct after the incident –– e.g.,
a delay in reporting –– is inconsistent with his or her testimony claiming
molestation. [Citations.]â€â€™ [Citations.]
Moreover, it appears that our Supreme Court reached the same conclusion
in People v. Brown (2004) 33 Cal.4th
892, 906, in which case we are bound by its reasoning (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455).†(Id. at p. 245.)
The CSAAS evidence
was relevant in this case. Does 1 and 2
delayed reporting the molestation by defendant.
They never told M.K., despite having to attend weekend visitation with
defendant. Additionally, Doe 2 disclosed
the abuse at the preliminary hearing, but had failed to do so during a pretrial
interview. Further, Doe 2’s trial
testimony was inconsistent with her previous testimony. It was clear that Doe 2 was terrified to be
face-to-face with defendant.
Moreover, the
court instructed the jury with the pattern instruction on CSAAS evidence, CALCRIM
No. 1193, as follows: “You have heard
testimony regarding Child Sexual Abuse Accommodation Syndrome. [¶]
Testimony about Child Sexual Abuse Accommodation Syndrome is not
evidence that the defendant committed any of the crimes charged against
him. [¶]
You may consider this evidence only in deciding whether or not (Jane Doe
1)’s or (Jane Doe 2)’s conduct was not inconsistent with the conduct of someone
who has been molested, and in evaluating the believability of their
testimony.†The instruction clearly
stated that the jury was not to consider the evidence as showing defendant’s
guilt but that it was only to assess credibility. The evidence is properly admitted for this
purpose.
Even if we were to
consider that the CSAAS testimony should not have been admitted, such error was
harmless. Defendant claims that the
testimony of Does 1 and 2 was the only evidence against him, and the CSAAS
evidence bolstered their credibility. Defendant
discounts his admissions in both the pretext phone call and the police
interview that he had touched Doe 1. We
find this was strong corroborating evidence supporting the testimony of each of
the girls. Further, it is clear that the
jury carefully considered the testimony of Does 1 and 2 and did not consider
the CSAAS testimony as evidence that defendant committed all of the crimes
charged against him. The jury found two
of the charged aggravated assaults against Doe 1 not true, and it rejected the
forcible sodomy charge alleged as to Doe 2.
Accordingly, any error in the admission of the CSAAS evidence in this
case did not constitute prejudicial error. (People
v. Watson, supra, 46 Cal.2d at p. 836; People
v. Bowker (1988) 203 Cal.App.3d 385, 395[applying Watson standard to improper use of CSAAS evidence].) Defendant has not shown a violation of his
in the admission of the CSAAS evidence, and its admission was not prejudicial.
V
CALCRIM NO. 1193
Closely related to
the previous argument, defendant contends the trial court erred by instructing
the jury with CALCRIM No. 1193 because it erroneously advised the jurors that
they could consider the CSAAS expert’s testimony in determining the complaining
witnesses’ credibility. We disagree.
As fully
explicated, ante, CSAAS evidence is
relevant because it can assist the jury in assessing the credibility of the
victim’s claim of abuse. (
at p. 245.) If the evidence demonstrates
(as it did here) that the child delayed reporting the alleged abuse, CSAAS evidence
can be admitted to disabuse the jury of the notion that a child who was really
abused would have reported the abuse immediately. Accordingly, the relationship between CSAAS
evidence and the victim’s credibility that is reflected in CALCRIM No. 1193 is
not improper, and the trial court here did not err in giving the instruction.
VI
CALCRIM NO.
330
Defendant
further contends that instruction to the jury with CALCRIM No. 330 violated his
federal constitutional rights to due process and a jury trial because it
unfairly bolstered Doe 2’s credibility by telling the jury not to consider her
level of cognitive development, and that it could treat her testimony like any
adult witness. In addition, it violated
his right to present a defense, as it unfairly impaired his ability to impeach
Doe 2’s credibility.
The
jury was instructed with CALCRIM No. 330 as follows: “You have heard testimony from a child who is
age 10 or younger. As with any other
witness, you must decide whether the child gave truthful and accurate
testimony. [¶] In evaluating the child’s testimony, you
should consider all of the factors surrounding that testimony, including the
child’s age and level of cognitive development.
When you evaluate the child’s cognitive development, consider the
child’s ability to perceive, understand, remember, and communicate. [¶] While
a child and adult witness may behave differently, that difference does not mean
that one is any more or less believable than the other. You should not discount or distrust the
testimony of a witness just because he or she is a child.â€
Defendant’s exact
argument was recently rejected in People
v. Fernandez (2013) 216 Cal.App.4th 540.
In Fernandez, the court
approved of CALCRIM No. 330, finding it “simply instructs the jury to take into
account a child’s ability to perceive, understand, remember and communicate
when making a credibility determination. It does not instruct the jury to subject a
child’s testimony to a less rigorous credibility determination, nor does it
excessively inflate a child witness’s credibility. We reject appellant’s constitutional challenge
to CALCRIM No. 330.†(
559.) We find Fernandez well reasoned and follow it here. The trial court did not err in instructing the
jury with CALCRIM No. 330.
VII
15-YEARS-TO-LIFE
SENTENCE UNDER SECTION 667.61, SUBDIVISON (C)
Defendant contends
that the trial court erred by sentencing him to a consecutive 15-years-to-life
sentence on count 8, his conviction of committing a lewd act upon Doe 2 (§ 288,
subdivision (a)). Defendant was
convicted of violating section 288, subdivision (a) against Doe 2 and multiple
violations of section 269, subdivision (a)(1) against Doe 1. Thus, the court sentenced defendant using the
multiple victim enhancement of section 667.61, subdivisions (b) and (e)(5),
apparently on the theory that convictions under section 288 and 269 constituted
crimes against more than one victim for purposes of section 667.61, subdivision
(c). However, section 269 is not listed
in section 667.61, subdivision (c).
Section 667.61 is
known as the one strike law. Section
667.61, subdivision (b) provides as follows:
“Except as provided in subdivision (a), any person who is convicted of
an offense specified in subdivision (c) under one of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the state
prison for 15 years to life.â€
Subdivision (c) of section 667.61 includes numerous sex crimes,
including “[r]ape, in violation of paragraph (2) or (6) of subdivision (a) of
Section 261.†Subdivision (e)(5)
provides for the increased sentence if “[t]he defendant has been convicted in
the present case or cases of committing an offense specified in subdivision (c)
against more than one victim.â€
name="_ftnref4" title="">[4] Section 288 is expressly enumerated in
subdivision (c) of section 667.61, but section 269 is not.
Section 667.61,
subdivision (e)(5) requires a conviction of
an offense that is specified in the statute, and section 269 is not a specified
offense. In construing the relevant provisions
of section 667.61, “‘as with any statute, we strive to ascertain and effectuate
the Legislature’s intent.’ [Citation.] Because statutory language generally provides
the most reliable indicator of that intent [citation], we turn to the words
themselves, giving them their ‘usual and ordinary meanings’ and construing them
in context. [Citation.] ‘“If there is no ambiguity in the language of the
statute,’ . . . the Legislature is presumed to have meant what it said, and the
plain meaning of the statute governs.’’â€â€™ [Citation.]†(People
v. Lawrence (2000) 24 Cal.4th 219, 230-231.) “If the ordinary meaning of the language is
‘clear and unambiguous’ then we need look no further.†(Preston
v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.)
We need not look
past the clear language of section 667.61 to conclude that section 269 is not
an offense listed in subdivision (c). Therefore,
conviction of this crime does not trigger the multiple victims’ provision of
the one strike law.
The People rely on
this court’s case of People v. Figueroa (2008)
162 Cal.App.4th 95 [Fourth District, Div. Two] (Figueroa) to support their claim that rape, a violation of section
261, subdivision (a)(2), is necessarily included in a violation of section 269,
subdivision (a)(1).
In
reasoning in People v. Jimenez (2000)
80 Cal.App.4th 286 (Jimenez). (People
v. Figueroa, supra, 162 Cal.App.4th at p. 100.) The court in Jimenez held that a conviction for committing the offense of
aggravated sexual assault of a child in violation of former section 269 was
subject to the mandatory consecutive sentencing provision of section 667.6, subdivision
(d) if the predicate crime for the aggravated sexual assault of a child offense
is one of the crimes listed in section 667.6, subdivision (d). (People
v. Jimenez, supra, 80 Cal.App.4th
was convicted of aggravated sexual assault of a child by means of forcible
sodomy, and because forcible sodomy is listed in section 667.6, subdivision
(d), the mandatory consecutive sentencing provision of section 667.6,
subdivision (d) applied. (
The Jimenez court rejected the
defendant’s argument that section 667.6, subdivision (d) did not apply because
it did not specifically mention section 269, stating: “Defendant correctly points out that section
667.6, subdivision (d) does not explicitly provide that it applies to
violations of section 269. However, he
makes too much of this omission, ignoring the fact that violation of section
286 is one of the predicate offenses of section 269.†(Ibid.)
This same analysis
does not apply to the plain language of section 667.61. Section 667.6, subdivision (d) provides that
the section is applicable for every violation of an offense listed in subdivision (e) of section 667.6. Section 667.6, subdivision (d) does not
require a conviction of a qualifying offense, while section 667.61, subdivision
(e)(5) clearly provides for a conviction. Therefore, our decision in
in section 667.61, subdivision (e)(5) that a defendant must be
order to make sentencing under that scheme appropriate. The Legislature’s choice to use the word
“convicted†in subdivisions (b) and (e) of section 667.61 cannot simply be read
out of the statute.
We are concerned
with the inequity of this conclusion, as it provides further punishment for
those who commit forcible rape against an adult, but excludes those whose
victim is a child under the age of 14. However,
it is for the Legislature to fix this clear drafting error. As such, we find the trial court erred by
imposing an indeterminate sentence of 15 years to life under section 667.61,
subdivisions (b) and (e)(5) for the lewd act conviction in count 8. We will remand the matter so the trial court
can properly sentence defendant for count 8.
VIII
RESTITUTION
FINE
Defendant
contends that the trial court erroneously relied upon the amended version of
section 1202.4, effective after his crime was committed, to impose a $240
restitution fine. Such imposition of the
fine violated his federal constitutional right against ex post facto laws.
At
sentencing, the trial court noted that the probation report recommended a
$10,000 restitution fine pursuant to section 1202.4, and defendant agreed that
the current law supported such a fine. However,
the trial court chose to impose a restitution fine under section 1202.4 in the
amount of $240. The only statement
regarding the imposition of the fine was as follows: “I did not impose the fines as requested by
[the] probation officer, or recommended or impose maximum fines, because it’s
my belief that as much money as you can make in prison ought to go to pay
restitution.â€
Previously, section 1202.4 provided as
follows: “The restitution fine shall be
set at the discretion of the court and commensurate with the seriousness of the
offense, but shall not be less than two hundred dollars ($200). . . .†(Former § 1202.4, subd. (b)(1), Stats. 2011, ch.
45, § 1.) Effective January 1, 2012, the
minimum restitution fine was increased to $240.
(Stats. 2011, ch. 358, § 1.) “It
is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto
clause and other constitutional provisions.
[Citations.]†(
143.) Defendant committed his crimes
prior to the amendment to the statute.
As such, application of the increased minimum fine would violate the
prohibition against ex post facto laws.
However, under the
language of former section 1202.4, subdivision (b)(1), $200 was the minimum
amount the trial court could impose. There
is no dispute that the court had the discretion to lawfully impose a greater
fine of $240; therefore, there was no ex post facto error because the court
imposed a lawfully authorized fine.
Defendant claims
that circumstantial evidence supports that the trial court imposed the $240
fine based on the new statute. However,
the existence of “[e]rror is never presumed, but must be affirmatively shown,
and the burden is upon the appellant to present a record showing it, any
uncertainty in the record in that respect being resolved against him.†(People
v. Clifton (1969) 270 Cal.App.2d 860, 862.)
Defendant has failed to provide anything in the record before us
supporting that the trial court based the restitution fine on the newly amended
statute. We will not presume error.
IX
DISPOSITION
The
sentence on count 8 is vacated, and the matter is remanded to the trial court for
resentencing consistent with this opinion.
In all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
future statutory references are to the Penal Code unless otherwise indicated.
jury was hung on two additional charges of rape of Doe 1, and those charges
were dismissed in the interests of justice.
They also found defendant not guilty of a charge of forcible sodomy on
Doe 2.
