P. v. Cabrera
Filed 9/16/13 P. v. Cabrera CA2/6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
NELSON OLIVERIO CABRERA,
Defendant and Appellant.
2d
Crim. No. B242572
(Super.
Ct. No. 1397530)
(Santa
Barbara County)
Nelson Oliverio Cabrera
appeals his conviction by jury of continuous sexual abuse of a child under the
age of 14 years. (Pen. Code, § 288.5,
subd. (a).)
title="">[1] The trial court denied probation and
sentenced appellant to 12 years state prison.
Appellant claims that the trial court erred in admitting expert
testimony on Child Sexual Abuse
Accommodation Syndrome and not granting probation. We affirm.
Facts and Procedural History
In 2011, 12 year old
Jane Doe reported that her father, appellant, touched her breasts two years earlier. Jane kept it a secret until her mother
divorced appellant, made custody arrangements, and told Jane it was important
that she spend time with appellant. Jane
said: "You don't know what
happened." She broke down crying,
and told her mother about the sexual abuse.
The matter was reported
to Santa Barbara County Child Welfare
Services (CWS). On March 18, 2011, CWS Social Worker Puvanaspri
Singh interviewed Jane at school. Jane
said that appellant "accidentally" touched her breast in the fifth
grade. After the interview, Jane told
her mother that she was not truthful and did not want to get appellant in
trouble.
Singh interviewed Jane a
second time on March 22, 2011. Jane stated that appellant had moved back
into the house and had a big fight with her mother. Jane did not feel safe and told Singh that
appellant had molested her on prior occasions dating back to the third grade. When Jane was 10 years old, she awoke to find
appellant in bed with her. Appellant had
removed her training bra and was massaging her breasts and nipples. Jane asked what he was doing. Appellant told her that this is what dads do
with their daughters.
Jane told Singh about
another molestation in appellant's RV before church. Appellant positioned Jane on his lap and put
his tongue in her mouth.
Cecilia Rodriguez
conducted a SART forensic interview on March
29, 2011 that was recorded on DVD and played to the jury. Jane described a series of molestations in
which appellant touched and kissed her breasts, kissed her mouth, and rubbed
his penis over her clothing. Jane said
that she would nap after school and appellant would lay down next to her and
touch her. On one occasion, Jane woke up
and asked why her shirt was off.
Appellant said "I'm giving you a massage" and asked Jane to
take a shower with him.
Jane said that appellant
would touch her on "my chest" and "boobs," and put his tongue in her mouth. On one occasion, appellant laid next to Jane,
unzipped his pants, exposed his penis, and started touching it. Jane recalled six incidents of sexual contact
that took place in the fourth through sixth grades.
On March 30, 2011, Jane made a pretext call that was
recorded. Jane told appellant she was
uncomfortable visiting him because he had touched her "boobs and
stuff." Appellant said that it
"never happened" and
complained that people would think "I was abusing you. . . ." Jane persisted and appellant promised not to
touch or massage her again.
Jane testified that
appellant started touching her when she was in the third grade. Appellant touched her over a span of
"some years" and at least two of the incidents were more than three
months apart. On one occasion, appellant
removed her training bra, fondled her breasts and nipples with both hands, and
said "I'm just giving you a massage.
When Jane's grandmother opened the bedroom door, appellant quickly
pushed Jane away. On other occasions, appellant French kissed
Jane in his RV. Appellant would lay down
and "pick me up, like when somebody picks a baby up, and just put me on
top." Appellant kissed Jane,
fondled her breasts, and pressed his penis against her bottom.
Jane learned that
appellant's conduct was wrong and rejected appellant's sexual advances in the
sixth or seventh grade. On one occasion,
when friends were visiting, appellant gave Jane flowers and tried to hug
her. Jane pushed him away and told
appellant to leave her alone.
Appellant testified that
it "never happened." Appellant
said that he massaged Jane and her brothers when they were younger but there
was no sexual abuse.
Appellant's brother,
Emilio Flores, testified that appellant lived with him for 10 or 15 years
before appellant married. Appellant was
"very affectionate" with Flores' daughters. When the daughters were 10 or 12 years old,
Flores warned appellant that there were laws about touching children and that
people "can take it the wrong way."
Doctor Anthony Urquiza,
a clinical psychologist at U.C. Davis Medical Center, testified about Child Sexual Abuse
Accommodation Syndrome (CSAAS) which describes patterns of behavior experienced
by children who have been sexually abused.
Doctor Urquiza explained that CSAAS is not a diagnosis or syndrome but
is used to educate jurors about common child sexual abuse myths and
misconceptions. The doctor described
five CSAAC characteristic behaviors: (1) secrecy, (2) helplessness, (3)
entrapment and accommodation, (4) delayed, conflicted, and unconvincing
disclosure, and (5) retraction. Doctor Urquiza also described common
misconceptions associated with each CSAAS behavior.
CSAAS Evidence
Before trial, appellant
moved to exclude Dr. Uriqaza's testimony on the ground that CSAAS evidence
should only be admitted to rebut defense attacks on the credibility of the
complaining witness. Appellant argued
that CSAAS is not relevant unless the prosecution identifies a cognizable myth
concerning child sexual abuse on which the jury should be educated. The trial court ruled that the prosecution
could not use CSAAS testimony to show that a specific person was a victim of
child abuse, that CSAAS testimony was admissible to show that a victim's
behavior was not inconsistent with being a victim of abuse, that the
prosecution could introduce CSAAS testimony in its case-in-chief to
rehabilitate a child abuse victim witness, and the prosecution did not have to
identify specific credibility issues with a witness's testimony before
introducing CSAAS testimony. Appellant
argues that the trial court abused its discretion in admitting Dr. Uriqaza's
expert testimony. It is settled that
CSAAS testimony may be admitted for the limited purpose of disabusing a jury of
misconceptions it might have about how a child reacts to a molestation. (People v. Patino (1994) 26
Cal.App.4th 1737, 1744.) CSAAS evidence
is relevant where the victim's credibility is placed in issue "due to the
paradoxical behavior, including a delay in reporting a molestation.
[Citations.]" (
1744-1745.) It is admissible to disabuse
jurors of specific myths or misconceptions suggested by the sexual abuse
evidence and to show that victims of child sexual abuse, as a group, often
delay reporting abuse and recant or minimize prior reports of abuse. (People v. Bowker (1988) 203 Cal.App.3d
385, 394.)
Appellant asserts
that California should follow the lead of Pennsylvania, Kentucky, and Tennessee
published cases which hold that CSAAS evidence is inadmissible. (See e.g., Com. v. Dunkle (1992) 529
Pa. 168 [602 A.2d 830]; Newkirk v. Com. (Ky. 1996) 937 S.W.2d 690; State
v. Bolin (Tenn. 1996) 922 S.W.2d 870.)
We decline appellant's invitation to rule that CSAAS evidence is
inadmissible in every child sexual abuse case.
Our state Supreme Court has recognized that CSAAS evidence may be relevant,
useful, and admissible in child sexual assault cases. (People v. Brown (2004) 33 Cal.4th
892, 905-906; People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) As an intermediate appellate court, we are
bound by its reasoning. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see e.g., People
v. Perez (2010) 182 Cal.App.4th 231, 245.)
Dr. Urquiza's CSAAS
testimony was relevant and properly admitted to explain the different stages of
reaction that child sexual abuse victims experience. It helped the jury evaluate why Jane delayed
reporting, why she tried to keep the molestation a secret and protect
appellant, and why she reported the sexual abuse in a piecemeal fashion and
made inconsistent statements. The trial
court did not err in admitting the CSAAS testimony to explain Jane's
contradictory statements and to explain why she acted as she did. (People v. Patino,
p. 1746.)
Appellant asserts that
the CSAAS testimony was highly prejudicial but forfeited the issue by not
objecting on that ground. (See e.g., People
v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.) Appellant brought an in limine motion to
exclude the CSAAS testimony on relevancy grounds but did not argue that the
evidence was unduly prejudicial. (See People
v. Barnett (1998) 17 Cal.4th 1044, 1130 [objection on relevancy grounds
does not preserve challenge under Evid. Code, § 352].) Appellant never asked the trial court to
weigh the probative value and prejudicial effect of the CSAAS evidence before
or during the trial. (See People v.
Champion (1995) 9 Cal.4th 879, 913.)
When Doctor Urquiza testified, appellant did not object on Evidence Code
section 352 grounds, forfeiting the issue.
(Evid. Code, § 353, subd. (a); People v. Kipp (2001) 26 Cal.4th
1100, 1124.)
On the merits, the CSAAS
evidence was highly probative and helped explain Jane's reaction to the alleged
sexual abuse. (Evid. Code, § 801, subd.
(a).) Doctor Urquiza provided a general
explanation of how children who are sexually abused sometimes act.
statements or opine that Jane manifested certain characteristics generally
exhibited by sexually abused children.
We reject the argument
that the trial court abused its discretion by not excluding the CSAAS evidence
or that Doctor Uquiza’s testimony was more prejudicial than probative. (Evid. Code, § 352.) The prejudicial impact, in any, was minimized
by a CALCRIM 1193 instruction stating that "Doctor Anthony Urquiza's
testimony about child sexual abuse accommodation syndrome is not evidence that
the defendant committed any of the crimes charged against him. [¶] You may consider this evidence
only in deciding whether or not [Jane's] conduct was not inconsistent with the
conduct of someone who has been molested, and in evaluating the believability
of her testimony." It is presumed
that the jury understood and followed the instructions.
225, 234 [145 L.Ed.2d 727, 738]; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 83.) There is no merit to the
argument that the CSAAS evidence rendered the trial fundamentally unfair or
denied appellant due process. (See e.g.,
People v. Patino, supra, 26 Cal.App.4th at p.
1747.)
Sentencing
Appellant claims that
the trial court erred in not granting probation or sentencing appellant to the
low term of six years state prison. The
trial court imposed a 12 year midterm sentence because "the aggravating
and mitigating factors are substantially in balance." Although Jane was particularly vulnerable and
appellant took advantage of a position of trust or confidence (aggravating
factors), appellant had no prior criminal record (a mitigating factor).
Appellant complains that
the trial court did not consider other mitigating factors or appellant's
statutory eligibility for probation (§ 1203.066) but waived the error by not objecting. (People v. Scott (1994) 9 Cal.4th 332,
356.) The failure to raise specific
mitigating factors at time of sentencing bars appellant from asserting on
appeal that the trial court erred its discretion in not considering those
factors. (People v. Kelley (1997)
52 Cal.App.4th 568, 582.)
Appellant also claims
that the trial court abused its discretion in not granting probation but
probation is an act of clemency, not a right.
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822,
831; People v. Johnson (1993) 20 Cal.App.4th 106, 109.) Because a trial court possesses broad
discretion to grant or deny probation, its decision will not be set aside
unless it was arbitrary, capricious, or unreasonable. (People v. Warner (1978) 20 Cal.3d
678, 683.) The trial court denied
probation after "very carefully balanc[ing] both the favorable and
unfavorable factors" and after "consider[ing] the nature,
seriousness, and circumstances of the crime as compared to other instances of
the same crime. . . ." If found
that Jane was particularly vulnerable and that appellant took advantage of a
position of trust.
Appellant argues that a
court is prohibited from finding that a child victim is particularly vulnerable
due to the victim's age because age is an element of the offense. (Cal. Rules of Court, rule 4.420(d); People
v. Garcia (1985) 166 Cal.App.3d 1056, 1069.) The trial court, however, found that Jane was
particularly vulnerable because appellant was her father, told her "this
is what dads do," and molested her when she was alone and had no other
adult to turn to for help. The probation
report noted that appellant took advantage of a position of trust "in the
worst possible way." Victim
vulnerability based on a parent-child relationship or the defendant's
supervision or control over the victim is a valid sentence consideration. (Id., at p. 1070.)
Appellant complains that
the trial court found that the duration and frequency of the molestations was
an aggravating factor. Section 288.5,
subdivision (b) required that the jury find that three acts of sexual abuse
were committed over a period of at least three months (CALCRIM 1120), but
appellant sexually abused Jane on six occasions over a two year period. Appellant showed no remorse and told Jane
that it never happened and that she was crazy to talk about it. The probation report stated that the sexual
abuse deeply impacted Jane and that she was trapped in a cycle of
molestation. Jane broke down crying many
times during the trial, and "[d]espite being in counseling for over a
year, . . . [was] very conflicted about what [appellant] has done to her . . . ."
The trial court reviewed
the probation report recommending a 12-year sentence, appellant's sentencing
memorandum, letters from Jane and other family members, victim impact
statements from Jane, Jane's mother and grandmother, and the prosecution's
request for a 16-year upper term sentence.
The court denied probation on an assortment of grounds including
"the vulnerability of the victim.
The fact that [appellant] inflicted emotional injury . . . [and] took
advantage of a position of trust.
[Appellant] has failed to show remorse, and . . . there is a likelihood
that if he is not imprisoned he will be a danger to others."
Appellant makes no
showing that the trial court abused its discretion in denying probation or that
the 12-year sentence was arbitrary or capricious. (People v. Superior Court (Alvarez)
1997 14 Cal.4th 968, 977-978; People v. Superior Court (Du),
5 Cal.App.4th at p. 831.)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Jean M. Dandona, Judge
Superior Court County of Santa Barbara
______________________________
Sharon M. Jones, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Marc A. Kohm, Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
name="_ftn2" title="">[2] Relying on People v. Bledsoe (1984) 36
Cal.3d 236 [rape trauma syndrome], appellant argues that Doctor Urquiza's
testimony exceeded the permissible scope of expert testimony. "Fundamentally, Bledsoe must be
read to reject the use of CSAAS evidence as a predictor of child
abuse." (People v. Bowker,
203 Cal.App.3d at p. 393.) CSAAS
testimony may, however, be used to disabuse jurors of common misconceptions
concerning children who have been subjected to sexual abuse. (Id., at pp. 393-394; see Couzens & Bigelow
Sex Crimes (The Rutter Group 2013) Cal.
Law & Procedure, §12.8, p. 12-32.) Doctor
Urquiza emphasized that CSAAS should not be used to diagnose child sexual abuse
and that he had no opinion on whether or not Jane was sexually abused. Appellant complains that Doctor Urquiza's
expert testimony was "so broad as to be useless." The jury was instructed that it may disregard
expert witness testimony that was unbelievable, unreasonable, or unsupported by
the evidence. (CALCRIM 332.)
