Opinion
A097195.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. SUHAIR ALI AGHA, Defendant and Appellant.
Suhair Ali Agha appeals from the judgment entered upon (1) his conviction by a jury of continuing sexual abuse of a child (Pen. Code, § 288.5), coupled with (2) findings that the elements of the extended statute of limitations available pursuant to section 803, subdivision (g) (hereafter section 803(g)) were true. Section 288.5 requires that the resident child molester engage in three or more acts, as defined. Appellant admitted to two instances of sexual abuse upon his daughter. We conclude under the facts and procedure of this case that the trial court erred in failing to instruct the jury that section 288, subdivision (a) (lewd act on a child under the age of 14) is a lesser included offense of section 288.5, as charged. We also conclude, however, that the error was harmless. We reject appellants remaining contentions and affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
Recently, the United States Supreme Court held that the Constitutions ex post facto clause bars application of section 803(g) to a prosecution that was time-barred prior to the statutes enactment. (Stogner v. California (June 26, 2003, No. 01-1757) U.S. .) Stogner does not prevent application of section 803(g) here because the prior six-year statute of limitations ( § 800) had not expired when section 803(g) became effective in January 1994. (Stats. 1993, ch. 390, § 1, pp. 2224, 2226.)
I. OVERVIEW
Until 1998 or 1999, defendant lived with his wife and their four children: the eldest daughter, followed by the victim (hereafter Daughter) born in December 1986, the youngest daughter and a son. The family lived in a series of homes. Fatima, defendants mother, lived with the family part of the time. Defendants brothers, Ziad and Alia Agha, also spent time with the family.
At some point defendant went to prison. He was convicted of conspiracy to commit wire fraud and required to provide $ 2.7 million in restitution. After Daughter learned that her father had entered a halfway house, she wrote notes to her mother and older sister disclosing that her father had sexually abused her.
Mother brought Daughter to her own doctor and then to the police. Daughter told Officer McBride about the sexual abuse. He suggested that she phone her father, which she did. The telephone conversation was taped. On several occasions during the conversation appellant said, " It only happened two times "or a " couple of times. " Daughter maintained he abused her more often but did not correct him during the conversation.
The District Attorney of Marin County charged defendant by information with three counts of lewd acts upon a child under age 14 ( § 288, subd. (a)) and a fourth count of continuous sexual abuse of a child between 1992 and 1996 ( § 288.5). Each count also alleged that the offense was a serious felony under section 1192.7, subdivision (c)(6), and counts 1 through 3 alleged that appellant engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8).
During the jury trial the prosecution moved successfully to amend the information to allege one count of section 288.5 (continuous sexual assault of a child) between 1989 to 1996, and to dismiss counts 1 through 3. The jury found appellant guilty of violating section 288.5. The generally applicable six-year statute of limitations had expired, but the jury found that the elements necessary to extend the statute under section 803(g) had been proven. The court sentenced appellant to 16 years in state prison. This appeal followed.
Section 803(g) provides in part: "(1) . . . [A] criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section . . . 288.5 . . . . [P] (2) This subdivision applies only if both of the following occur: [P] (A) The limitation period specified in Section 800 or 801 has expired. [P] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victims allegation." (§ 803(g)(1), (2)(A), (B).)
II. FACTS
A. Peoples Case
Daughter testified that home life with her father was one of fear and violence. He hit her older sister, brother and mother. He also picked on the older sister and her brother. Appellant did not hit Daughter, but he sexually abused her. While the abuse occurred she did not tell her mother or siblings because she was afraid he would hurt them or kill or hurt her. She described the following incidents of sexual abuse.
1. Yellow House, Terra Linda: Daughter was in preschool when the family lived in a big yellow house in Terra Linda. One night while Daughter was going to bed, appellant told her mother that he would tuck her in. He took off her underwear, pulled down his pants and lay next to Daughter, putting his penis "near or around" her vagina. She felt his erect penis go through her legs.
2-3. Mission Street, San Rafael: Daughter related two encounters. One occurred in her parents room. Daughter was cuddling in bed with her mother; appellant was behind her mother, wearing boxer-type shorts. Appellant pulled Daughter toward him when her mother got up to go to the bathroom. He pulled her pants down and put his erect penis between her legs. Appellant made a "pumping" action; she felt a "liquid-y feeling" afterward in her underwear.
Another encounter took place in the living room. Her mother and siblings went shopping, but Daughter could not find her other shoe so she stayed behind and watched television. Appellant came up behind her and made the pumping action.
4-8. First House, Pleasant Lane, San Rafael: Daughter recalled several sexual encounters. One occurred in the kitchen. Daughter was doing math homework at the kitchen table. Appellant picked her up, put her on his lap. He removed her underwear, unzipped his pants and sat her on his penis. He was doing the pumping action. She thought his penis was inside her vagina.
On another occasion she returned home from school in her swimsuit and pants, it being "swimsuit" day at school. Somehow she ended up on the bed. Appellant pulled her pants down, put cream on her, penetrated her vagina with his penis and did the pumping action.
He also put his erect penis in her vagina and did the pumping action when she was on the couch in the living room. Once he got under the sheets with Daughter when she was playing on her bed. That is all she could remember. Another encounter happened in her bedroom as well. Appellant put her face down on the bed and inserted his penis in her vagina.
9-10. Second House, Pleasant Lane, San Rafael
Daughter recalled being on the porch with her sisters and her cousin Adam. Appellant came out with cream in his hand. Daughter kicked and screamed; appellant dragged her into the house to her bed, pulled down her underwear, put cream on her vagina and penetrated her.
Also at this location she awoke one morning to find appellant in her bed. Her underwear was already off and he was inside her. He started pumping when she woke up.
Daughter recalled having a burning sensation when she urinated during the time of the sexual abuse. She found blood in her underwear once when she lived here. Her father had just violated her in her bedroom.
Daughter testified that she tried to resist-by kicking, moving and pushing her legs together-but he would force them open. She resisted the most when they lived at this house.
When her father went to prison home life was more peaceful. Daughter did not tell her mother what had happened at that time because appellant was gone and she no longer lived in fear. She wanted their lives to be normal.
Daughter eventually reported the abuse to her mother and sister when she learned appellant was going to be released. She wanted her mother to take legal action against her father. She felt she was protecting the family-if she could keep the negative influence of her father out of their lives, the family could "change and grow."
Dr. Flores examined Daughter five years after she had been sexually abused. She is not a forensic expert. Daughter was uncomfortable when Dr. Flores inserted her index finger to conduct the vaginal examination. Such discomfort was consistent with someone who had not had intercourse for five years. Daughters hymen was not intact. Dr. Flores could not tell what caused the rupture. However, sexual penetration could cause a rupture, so her findings were consistent with the history Daughter presented to Dr. Flores.
B. Cross-examination of Daughter
Daughter testified on cross-examination that she disclosed the abuse because her father was getting out of prison and she was worried about violence toward her siblings. Daughter wanted her father out of her life. She was also worried that if people did not believe her, her mother might be prosecuted or jailed.
Daughter testified that before she reported the abuse to the police or her mother, she told someone about the molestations in an Internet chat room.
Daughter agreed that of the incidences of molestation that she remembered, she could not recall when she was penetrated. After a weekend trial recess, Daughter stated that she had spoken with the prosecutor on the telephone. Daughter indicated that she misunderstood the meaning of penetration, and that "the actual meaning that we had was . . . any slight penetration of the labia majora. And if that is the case, then there was penetration . . . all ten times that I can remember." She explained that when she said she felt the penis between her legs, "what I meant by between my legs was actually [the] labia majora."
Daughter stated that she told Officer McBride that the sexual abuse was the same each time. She also told Officer McBride the abuse happened over 300 times, over a six-year period, with no one in the family having any inkling and she never felt pain. She agreed that she never told the officer what kind of sexual activity took place and never told him that her father placed his penis near or around her vagina. Rather, it was Officer McBride who described sexual activity as appellant putting his penis into her vagina. Daughter just agreed with that definition-she was embarrassed and "it was like a general agreement thats what I meant but kind of didnt." A couple days before coming to court she told the prosecutor that she remembered "that it wasnt all the way in. And so, that was when I came up with in or around. I wasnt quite sure which ones, though."
C. Defense
1. Appellants Family: Appellants mother, nephew and brothers testified.
Fatima is appellants mother. She lived with the family in several of their homes, did the housework, cooking, cleaning and laundry, including Daughters clothes. She never saw semen stains in Daughters underwear. As well, she never saw appellant alone with Daughter; she was always with the children. The houses they lived in were kind of small, and noise carried through the houses. Fatima had a good relationship with Daughter. Daughter never told her that appellant was not treating her properly, nor did she see anything that would cause her to believe in any mistreatment or abuse.
Adam, appellants nephew, visited the family often. Daughter was always happy. He never saw appellant drag her off the porch, resisting.
Ziad is appellants brother and Adams father. His family frequently socialized with appellants family. During visits, the adults would congregate in one room while the children usually played outside. Appellant never left the adults to spend time with one of the children. Ziad described the yellow house as having small rooms. The Mission Street home was smaller; Daughter shared a room with her brother and younger sister. The family homes on Pleasant Lane were very small. The kids all slept together on a king-size bed. You could hear everything that was going on in those houses.
Ziad took Daughter and her younger siblings to visit appellant in prison. Daughter had the option of not going, but she wanted to go see appellant. All the kids ran to greet appellant; they hugged and kissed each other and cried. Daughter and her dad walked to a table with their arms around each other. She hugged and kissed appellant when she left and told him she loved him.
Over the Christmas 2000 holidays Ziad asked the children if they were excited that appellant would be coming home. Daughter could hardly wait to see him and never indicated anything negative about his homecoming. Ziad had a close relationship with Daughter; she would talk to him about troubles in school, etc. Ziad never observed anything causing him to suspect that appellant molested his children.
Alia, appellants sister, also visited appellants family at least weekly, and the children often spent weekends with her. She generally confirmed what Ziad said about the small houses, sleeping arrangements and lack of insulation against sound. Appellant had been away from the family a couple of times during the period in question. Daughter never expressed concern about his return. Talking about him during these absences, Daughter said she liked her dad and really loved him. When Daughter was around age 11 she asked her aunt about menstruation and dating, but not about sexual abuse. Daughter was enthusiastic about her father getting out of prison and told her aunt she wanted to go shopping with him and do things they had done before as a family. She never expressed hesitancy or negativity about her fathers impending return from prison. Alia also discovered that Daughter spent time in Internet chat rooms. She warned Daughter of the dangers of engaging in certain types of conversations.
2. Dr. Joyce Adams, an expert in evaluation of child sexual abuse, reviewed Dr. Floress report and her trial testimony. She could not render an opinion as to whether Daughter had been sexually abused due to the lack of detail. A detailed description of the hymen is crucial in evaluating the possibility of penetrating trauma in an adolescent girl. Clefts in the edge of the hymen are equally common in girls who have, and have not had, sexual intercourse. Girls who have had forced or consensual intercourse had a cleft in the lower half of the hymen amounting to a very clear break.
Dr. Adams had reviewed many transcripts of interviews of children between the ages of four and 16 who were possible victims of sexual abuse. She also reviewed the transcript of Officer McBrides interview with Daughter. Dr. Adams found that "the way the questions were asked were not in line with what Ive been taught . . . . [P] . . . [P] . . . With a child of the age of 15 who is old enough to be able to give a spontaneous statement about possible abuse, its generally recommended that the interviewer not ask any type of leading questions at all and just say tell me about what happened rather than saying did someone do this, did someone do that, did he touch you here . . . . Those are considered leading questions." In response to an open-ended query to describe molestation episodes, children age 10 or older should be "able to give very specific details about where they were, how old they were, who was there, what the person said, what their reaction was afterwards, how they felt, whether it was painful during or afterwards, what was going on outside, where mom was . . . ." She did not find any of that detail in Daughters interview.
On recross-examination, and in response to a hypothetical with details similar to what Daughter revealed at trial, Dr. Adams stated that it was a reasonable amount of detail. Further, it would be unreasonable to expect the child to volunteer details if the interviewer did not ask for them.
3. Officer McBride was the juvenile crimes investigator assigned to the case. He did not adhere to a protocol at the time of interviewing Daughter. His preference is not to ask suggestible questions, although he may have asked Daughter suggestible questions. Officer McBride admitted that it is important to consider the possibility of a false or exaggerated allegation, but he did not consider such a possibility while he was interviewing Daughter because he did not have enough information.
The trial court denied the defense request to call him as an adverse witness.
From his training he knew that a pending divorce is a factor in determining the possibility of a false or exaggerated report of sexual abuse by a parent. Daughters mother had told Officer McBride that divorce was pending. However, after interviewing Daughter he did not consider that there might be a need to investigate a partially false report. Daughters mother also told him that appellant had sexual intercourse with Daughter, but did not know what that term meant to Daughter.
During the interview Officer McBride asked open-ended and closed-ended questions. Daughter was embarrassed to say certain terms in front of him. He testified he asked Daughter what happened. Reading from the interview transcript, the defense attorney asked him to recall the following: " Lets go back a little bit to when you were four years old. Was there sexual contact between you and your dad when you were four? And you say, Okay. What kind of sexual contact? And she answers, Um, I dont know. " Then the defense attorney asked: "[Daughter] never told you that there was penile penetration. That was your suggestion to her, wasnt it?" His response: "I believe I asked the question, He put his penis in your vagina? And she answered Yes. " Officer McBride then acknowledged that when he asked Daughter to tell what happened, she never said appellant put his penis in her vagina.
Although Daughter reported that she told three friends about the sexual abuse, the two friends Officer McBride located did not recall such a conversation and he could not find the third girl.
Asking Daughter about additional instances of molestation, Office McBride indicated she did not have to relate what appellant did because "he only did one act, one type of act. . . . [P] . . . [P] And that was established." As well, when Daughter told Officer McBride that appellant was wearing boxers, rather than asking what happened, he said, " So, he put his penis through his boxers. "Officer McBride admitted, based on his training, that he probably should not ask questions in that manner.
Officer McBride believed Daughter said lubrication was never used. She also said she did not recall any pain. He may have suggested that she blocked the pain. After reviewing the videotaped interview, he acknowledged that Daughter had agreed with him.
Officer McBride stated that this case was unusual because the suspect had not made any threats or promises to the victim.
During the interview Officer McBride told Daughter she was a victim and that he was her advocate, although such statements are not suitable in factfinding interviews.
Over defense objection, the prosecutor elicited that at the time of booking, as a routine inquiry, Officer McBride asked appellant if he had any suicidal thoughts. According to McBride, appellant told him "he wanted to die. That the world, as he knew it, was over. He wanted my handgun to shoot himself in the head. He wanted to die. He then began to cry and bang his head against the wall of the holding cell."
4. Psychologist Ron Meister testified as an expert on the subject of interview techniques for child victims of sexual abuse. Specific interviewing protocols are recommended to reduce any threats to the reliability of the interview. There are 13 accepted protocols for scientific interviewing: (1) secure agreement from the child to tell the truth; (2) explain that the child has the right to say "I dont know" in response to a question; (3) explain that it is the childs responsibility to correct the interviewer when he or she is incorrect; (4) be neutral in the approach to the child and (5) to the alleged events; (6) start the interview with the least suggestive prompt; (7) have the child report everything about the event from beginning to end, even things that may seem unimportant; (8) use open-ended questions; (9) avoid using words that are suggestive of child sexual abuse such as hurt, bad, abuse, victim, vagina, penis, erect, ejaculation; (10) prompt the child for a free narrative with a general probe instead of asking focused questions that tend to yield a confirmatory bias; (11) use open-ended questions to encourage the child to continue rather than supplying information; (12) use free narrative and other open-ended questions to avoid source monitoring or misattribution of the source; and (13) explore alternative hypotheses to develop other possibilities and prevent a single preconceived notion of how events occurred from biasing the interview.
5. Appellant testified on his own behalf. Upon release from federal prison he went to a halfway house in San Francisco, where he received the call from Daughter. She accused him of sexually abusing her. Appellant admitted to Daughter that he sexually abused her, stating at least four times that it happened twice. Both molestations occurred in spring 1990. The first time appellant and Daughter were home alone; when he awoke she was next to him in bed. Appellant was erect and rubbed against her for less than a minute; both of them were fully clothed. The second episode occurred around the same time. Again, he woke up and Daughter was next to him. They were fully clothed. The same thing happened, but this time he became ill, ran to the bathroom and vomited. When he returned to the bedroom, Daughter was gone. Appellant sat down and wept. He was ashamed and could not believe he had committed such a monstrous act.
Appellant admitted that neighbors called the police twice-once when his son was yelling after being spanked, and once when appellant was yelling at his son. The police left on both occasions after talking to them. Appellant denied ever using his fist to punch his son or punching his oldest daughter with a closed fist.
D. Rebuttal
The prosecution called psychologist Mitchell Eisen as a rebuttal witness and expert on memory and suggestibility. He testified that children, and adults as well, have a hard time consistently reporting the details of a repeated event. Consistency within a story or interview is not an indication of the reliability or validity of the report. Even older children are inconsistent in their reports of abuse across interviewers. Disclosing the abuse is related to matching in gender and in race. Some interviewers are also more skilled in eliciting information than others.
Preschoolers are more prone than school age children to being misled by leading questions or assumptions in an interview. School-age children are more able to say no to a leading question or acknowledge that they do not understand a question, and thus are less likely to accept false information. A 15-year-old is less likely to go for a tricky question related to a major life experience.
Child sexual abuse accommodation syndrome is a theory explaining how children tend to disclose abuse, accounting for delayed or inconsistent disclosures or recantations. There are five elements: First, secrecy-the abuse happens in secret, often perpetrated by a person of great power in the childs life. Children most often keep the secret, frequently blaming themselves, fearing that others will blame them, or suffering from implicit or explicit threats. Thus, children generally do not disclose the abuse right away.
The second element is helplessness in the face of the powerful adult abuser who is in charge. Third is entrapment and an accommodating passivity which unwittingly makes the child a better target for a sexual predator. The child is still reliant on the abuser for love and support. If the child talks, everything explodes, so the child in effect takes on keeping the family together through accommodation. The fourth element is delayed, inconsistent and unconvincing disclosure. The child finds the courage to throw up a trial balloon to see how people react-send a note, tell a friend something. Usually some family members are very disbelieving and angry. Maybe no one believes the child. Such "retraumatization" is worse than the original trauma because the child has lost support. If the child is believed and supported, the situation can become resolved and move forward. But if the situation deteriorates, the child commonly is inconsistent and unconvincing in his or her disclosure. The final element is retraction. If there is insufficient support, the child will retract the disclosure.
III. DISCUSSION
A. Section 288, subdivision (a) is a lesser included offense of section 288.5, under the facts alleged in the accusatory pleading.
Appellant is adamant that the court had a sua sponte duty to instruct that section 288, subdivision (a ) is a lesser included offense of section 288.5. We agree.
Even in the absence of a request, the trial court has a duty to instruct on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.) This obligation pertains even when as a matter of trial tactics the defendant objects to the instruction. (Ibid.) Just as the People have no legitimate interest in convicting a defendant of an offense greater than that established by the evidence, a defendant has no right to acquittal when that evidence is enough to establish a lesser included offense. This sua sponte instructional rule serves an important purpose: "It prevents the strategy, ignorance, or mistakes of either party from presenting the jury with an unwarranted all-or-nothing choice, encourages a verdict . . . no harsher or more lenient than the evidence merits" [citation], and thus protects the jurys truth-ascertainment function [citation]." (People v. Breverman, supra, at p. 155, italics omitted.)
A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense or the facts actually alleged in the complaint include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117, 960 P.2d 1073.)
The offense of continuous sexual abuse of a minor has two elements: the person (1) resides in the same home with, or has recurring access to, the minor child; and (2) engages with the child in three or more acts of substantial sexual conduct or lewd or lascivious conduct over a period of time not less than three months in duration. ( § 288.5, subd. (a); see §§ 1203.066, subd. (b) [defining substantial sexual conduct] 288, subd. (a) [defining lewd or lascivious conduct].)
This statute reads in part: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
Enacted in 1989, the statute aimed at solving the problem inherent in prosecuting "so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defenses ability to respond to specific charges arguably was impaired." (People v. Johnson (2002) 28 Cal.4th 240, 242.) Now, in a section 288.5 prosecution, the jury need unanimously agree only that the requisite number of defined acts occurred, not on which particular acts constitute the requisite number. ( § 288.5, subd. (b).) However, section 288.5 prohibits the prosecution from charging a defendant with any other felony sex offense involving the same minor and occurring during the same time frame, unless the offenses are charged in the alternative. (Id. at subd. (c).) Our Supreme Court has also recently clarified that section 288.5 precludes multiple convictions for the alternative offenses of continuous sexual abuse and specific felony sex offenses against the same victim during the same time frame. (People v. Johnson, supra, 28 Cal.4th at p. 248; People v. Torres (2002) 102 Cal.App.4th 1053, 1057.)
The Johnson court has stated generally that continuous sexual abuse of a minor and other sexual offenses lack certain common elements and thus do not stand in the relation of greater and lesser included offenses. (People v. Johnson, supra, 28 Cal.4th at p. 246; accord People v. Torres, supra, 102 Cal.App.4th at p. 1058 and People v. Palmer (2001) 86 Cal.App.4th 440, 444-445 [both citing People v. Avina (1993) 14 Cal.App.4th 1303 in support of this proposition].) The court in Avina rejected the claim that section 288 was necessarily included within section 288.5 because section 288 always requires the specific intent to arouse, etc., while continuous sexual abuse in the form of acts involving substantial sexual conduct lacks a specific intent requirement. Thus, section 288.5 could be violated without necessarily also violating section 288. (People v. Avina, supra, at pp. 1313-1314.)
However, in this case the amended information charged that appellant committed three or more section 288 offenses. Accordingly, the trial court instructed the jury: "Defendant is accused of the crime of continuous sexual abuse of a child in violation of Section 288.5(a) of the Penal Code. Every person who either resides in the same home with a minor child or has recurring access to a child, who over a period of time not less than three months in duration engages in three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense, is guilty of the crime of continuous sexual abuse of a child . . . . [P] A lewd or lascivious act means any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party."
In this particular case, the section 288.5 offense charged in the accusatory pleading rendered section 288 a lesser included offense because all the elements of section 288 are included in the charged offense. (People v. Birks, supra, 19 Cal.4th at p. 117; see also People v. Adames (1997) 54 Cal.App.4th 198, 213 [at the relevant time, the AIDS testing mandate of § 1202.1 for enumerated sexual offenses identified violation of § 288 but not § 288.5; reviewing court held that the mandate applied to a § 288.5 conviction when such conviction necessarily encompassed a violation of § 288].)
Did the sua sponte instructional duty to instruct on lesser included offenses surface in this case? It did, because the evidence raised a question as to whether all elements of the charged offense-in particular the requisite three or more episodes of lewd and lascivious conduct-were present. (People v. Breverman , supra, 19 Cal.4th at p. 154.) Specifically, there was substantial evidence to support appellants defense that he committed less than the three baseline offenses. He admitted at trial that he sexually molested Daughter twice, but only twice. This testimony was entirely consistent with his admission to her over the telephone.
Was the omission of instructions on lesser included offenses prejudicial? We conclude that it was not.
In a noncapital case, we review failure to instruct sua sponte on all lesser included offenses which are supported by the evidence under the "reasonable probability" test set forth in People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243. (People v. Breverman, supra, 19 Cal.4th at p. 178.) This means that a conviction of the charged offense will be reversed as a result of this type of error only if, " after an examination of the entire cause, including the evidence (Cal. Const., art. VI, § 13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836.)." (People v. Breverman, supra, at p. 178, fn. omitted.) Posttrial review under Watson concentrates on what a reasonable jury is likely to have done in the absence of the instructional error in question, not what a reasonable jury could do. Undertaking that evaluation, we may consider, among other points, "whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Id. at p. 177, italics omitted.)
The evidence of the fact of sexual abuse was uncontradicted: appellant said it only happened twice; Daughter testified to a long history of abuse, including acts that involved sexual penetration. Appellant maintained that there never was any sexual penetration by him of Daughter. The jury, by its verdict on the section 803(g) allegation which requires a finding of penetration, rejected appellants testimony. This finding is a rather clear indicator, aside from the guilty verdict itself, that the jury believed Daughter and disbelieved appellant. On this record, appellant has failed to establish a "reasonable probability" that had the jury been instructed on the lesser offense of section 288, subdivision (a) it would have concluded that only two lewd and lascivious acts had occurred rather than the three or more as alleged under section 288.5. Watson "requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial. For the reasons given above, we do not find such a reasonable probability here." (People v. Blakeley (2000) 23 Cal.4th 82, 94, 999 P.2d 675; People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Appellant was not prejudiced by the amendment of the information.
Appellant contends that it was an abuse of discretion to allow the amendment of the information to eliminate, as separately charged offenses, the three counts of lewd and lascivious acts with a child in violation of section 288, subdivision (a). Although it is unusual for an accused to complain about the dismissal of criminal charges, appellant contends that he was prejudiced by the amendment because it removed from the jurys consideration separate counts of lewd acts and forced the jury into "an all or nothing situation."
A court may permit the amendment of an information at any stage of the proceedings "unless the substantial rights of the defendant would be prejudiced thereby . . . ." ( § 1009.) Because we have already concluded that appellant was not prejudiced by the failure to instruct on these lesser offenses, we also conclude that he was not prejudiced by the amendment eliminating these offenses.
C. There was substantial independent evidence of corroboration.
Section 803(g) authorizes prosecution of old, but recently reported, child molestation cases. In order to invoke its extended limitations period, three requirements must be met: (1) the filing must occur within one year of the victims report to law enforcement (§ 803(g)(1)); (2) the crime must involve "substantial sexual conduct"; and (3) there must be "independent evidence that clearly and convincingly corroborates the victims allegation" (§ 803(g)(2)).
The "substantial sexual conduct" referred to in the statute is as described in section 1203.066, subdivision (b), excluding masturbation which is not mutual. ( § 803(g)(2)(B).) According to that provision, "substantial sexual conduct" is "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).)
Appellant maintains there was no independent evidence which clearly and convincingly corroborated that he engaged in "substantial sexual conduct," namely, penal penetration of the vagina.
"Clear and convincing evidence" is evidence that establishes a high probability of truth as to the disputed fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal. Rptr. 637, 623 P.2d 198; see Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1090, 959 P.2d 715; People v. Mabini (2001) 92 Cal.App.4th 654, 662-663.) In Mabini, the reviewing court concluded that a single uncharged offense against a different victim sufficed to meet the clear and convincing standard. (People v. Mabini, supra, 92 Cal.App.4th at p. 659.)
Here, Dr. Flores testified that Daughters hymen was not intact. Although Dr. Flores could not identify the cause of the injury, nonetheless it was consistent with sexual penetration. Further, Daughter experienced discomfort with Dr. Floress digital vaginal examination. Such discomfort was consistent with a state of no intercourse for the past five years.
As well, appellant admitted in his phone conversation with Daughter that he sexually abused her on two occasions. At trial he maintained that he was erect but clothed when he rubbed against Daughter. The admission from appellants own mouth that he was sexually aroused and touched Daughter in a sexual way on more than one occasion, coupled with Dr. Floress testimony, constituted substantial evidence of the disputed fact.
D. Charging the jury in the language of CALJIC No. 2.27 was not misleading.
Appellant contends that the trial court erred in instructing the jury in the language of CALJIC No. 2.27, that the testimony of one witness is sufficient for the proof of any fact. He argues that to overcome the expired statute of limitations pursuant to section 803(g), there must be independent evidence corroborating the victims allegations. The jury, of course, was instructed on the need for independent corroborating evidence when the trial court instructed on the elements of section 803(g). Appellant contends, however, that the jury may have been confused and found the section 803(g) allegation true based solely upon the victims testimony. We disagree.
The record reflects that CALJIC No. 2.27 was given as part of the general instructions relating to witnesses: "You must not decide an issue by the simple process of counting the number of witnesses who have testified on opposing sides. The final test is not in the relative number of the witnesses but in the convincing force of the evidence. You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness, which you believe, concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends."
After defining the elements of the crime charged, the trial court specifically instructed on the elements of section 803(g) and the necessity of evidence corroborating the victims allegations: "Penal Code Section 803(g) extends the statute of limitations for certain criminal conduct under certain circumstances. In order for Section 803(g) of the Penal Code to apply the following elements must be proved: One, a criminal complaint must have been filed against a defendant within one year of the date of a report to a California law enforcement agency, and, two, the report to Law Enforcement must have alleged that while under the age of 18 years the reporting party was the victim of a crime described in Penal Code Section 288, lewd and lascivious sexual act with a child under 14 years of age, or Penal Code Section 288.5, continuous sexual abuse of a child. And, three, the limitation period specified in Penal Code Section 800 has expired. And, four, the crime involved substantial sexual conduct, namely penetration of the vagina by the defendants penis. And, five, there is independent evidence that clearly and convincingly corroborates the victims allegations. [P] . . . [P] Clear and convincing evidence denotes proof that is clear, explicit and unequivocal and leaves no substantial doubt."
In People v. Noguera (1992) 4 Cal.4th 599, 842 P.2d 1160, the appellant was convicted on the basis of the testimony of Abrams, an accomplice. The trial judge gave both CALJIC No. 2.27 and instructions on the necessity of corroboration of an accomplices testimony. In rejecting the same argument presented herein, our Supreme Court concluded "that nothing in the combined instructions suggested to the jurors that corroboration of Abrams testimony was not required: A reasonable juror would have recognized CALJIC No. 2.27 as setting forth the general rule and the charge on accomplice testimony as an exception to it. [Citations.] Nothing before us indicates that the jurors may have acted otherwise. " (Id. at p. 631, quoting People v. Andrews (1989) 49 Cal.3d 200, 217, 260 Cal. Rptr. 583, 776 P.2d 285.)
Under Noguera, appellants contention must be rejected.
E. The trial court had no sua sponte duty to give CALJIC No. 10.64 more than once.
Appellant concedes that the testimony of Dr. Eisen concerning child sexual abuse accommodation syndrome (CSAAS) was properly admitted. He also concedes, as he must, that the trial court gave a cautionary instruction to the jury in the language of CALJIC No. 10.64, admonishing the jury that the testimony concerning CSAAS was "not received and must not be considered by you as proof that the alleged victims molestation claim is true" and that the jury "should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions as demonstrated by the evidence are not inconsistent with her having been molested." Notwithstanding the foregoing, appellant contends that the trial court had a sua sponte duty to give the cautionary instruction both before and immediately after the testimony of Dr. Eisen.
We are unaware of any such sua sponte duty and are satisfied that the cautionary instruction given by the trial court as part of the instructions to the jury was adequate and sufficient.
F. Appellant has failed to establish a claim of ineffective assistance of counsel.
Appellant contends that defense counsel was ineffective in failing to present expert testimony to rebut the testimony of Dr. Eisen concerning CSAAS.
To prevail on a claim of ineffective assistance of counsel, appellant must establish that counsels performance was deficient and that counsels deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Scott (1997) 15 Cal.4th 1188, 1212, 939 P.2d 354.) To establish prejudice, appellant must show that it is reasonably probable that a more favorable result would have occurred but for counsels deficient performance. (People v. Cain (1995) 10 Cal.4th 1, 28, 892 P.2d 1224.) Under this established standard, we conclude that appellant has failed to carry his burden.
First of all, as the record heretofore summarized reveals, counsel for appellant presented a very lengthy and vigorous defense on behalf of appellant. Eight witnesses were called, including members of appellants family who observed the interaction and relationship between Daughter and appellant; Dr. Adams, an expert in child sexual abuse; Officer McBride, concerning his interview of Daughter; psychologist Ron Meister, concerning the proper protocol for interviewing a minor alleging sexual abuse; and appellant.
Second, the record also reveals that counsel was very familiar with CSAAS, having filed a pretrial motion to address the limited admissibility of the syndrome evidence.
Third, Dr. Eisens testimony concerning CSAAS was limited to the common behavior of abused victims as a class and did not involve any diagnosis or conclusion of molestation as to Daughter. This testimony was clearly proper and admissible. (See People v. Harlan (1990) 222 Cal. App. 3d 439, 271 Cal. Rptr. 653; People v. Gray (1986) 187 Cal. App. 3d 213, 231 Cal. Rptr. 658.) Aside from characterizing CSAAS as a "controversial theory," we are not informed, nor does the record disclose, what it is that would have been, or could have been, rebutted.
Finally, assuming that rebuttal evidence could have been presented criticizing CSAAS, it is inconceivable that the presentation of such evidence would have produced a more favorable result. In short, appellant has failed to demonstrate on this record that any assumed deficiency in counsels performance resulted in prejudice. (People v. Cain, supra, 10 Cal.4th at p. 28.)
G. The trial court did not abuse its discretion in admitting appellants statement and in admitting the videotaped interview of the victim.
Officer McBride testified that after his arrest and during booking, appellant stated "he wanted to die. That the world, as he knew it, was over. He wanted my handgun to shoot himself in the head. He wanted to die. He then began to cry and bang his head against the wall of the holding cell." Appellant does not challenge the admissibility of the statement as showing a consciousness of guilt, but argues that the trial court abused its discretion in failing to exclude the statement under Evidence Code section 352.
It is well settled that the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Dyer (1988) 45 Cal.3d 26, 73, 246 Cal. Rptr. 209, 753 P.2d 1.) The exercise of that broad discretion "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79.) We find no such abuse of discretion in admitting appellants statement.
The statement had substantial probative value not only in establishing consciousness of guilt but the depth of that guilt, a guilt consistent with the actions of a father engaging in a history of sexual abuse of his own daughter and now apprehended. The probative value of the statement clearly outweighed any undue prejudice under Evidence Code section 352.
Appellant also contends that the trial court abused its discretion under Evidence Code section 352 in admitting the entire videotape of Officer McBrides interview of Daughter.
The record discloses that during his examination of Officer McBride, who had been called as a defense witness, defense counsel played various portions of the tape in an effort to establish that McBride had not followed the proper interview protocol and had suggested certain answers to Daughter. The use of this videotape was so fragmented that the witness, the prosecutor, the court, and even defense counsel became confused. At the conclusion of the examination, the prosecutor sought leave to play the entire videotape to the jury, stating "[defense counsel] has taken out specific portions of that tape. He mentioned the beginning. Hes mentioned the middle. Hes mentioned the end. Hes taken out individual questions by the police officer without putting them in context. Hes taken out particular statements here and there out of context. And because of that I believe, especially since the entire history of the tape was brought into, that under [Evidence Code section] 356 Im permitted to go into every aspect of that tape, and thats what I propose to do."
The trial court agreed with the prosecutor, stating "And it seems to me that where there have been questions about the nature of questions that were propounded by the questioner . . . and the generality of them is presented, and he has answered those, that it does make it necessary or appropriate, at least, for the whole of it to be demonstrated so that the jury sees if, in fact, that was the fact in which the investigation or inquiry or questioning took place, and to put in context those detached portions that they have been given."
The court also informed counsel, before taking the weekend adjournment, that "if there is some portion of it [tape] that either you believe to be improper in the sense that it is unduly prejudicial and really irrelevant, then youre to point that out." When the court reconvened on Monday and before the playing of the tape to the jury, there was no objection or request for redacting made by defense counsel. After the tape was played to the jury, counsel then moved for a mistrial on the ground that the tape was "incredibly inflammatory and highly prejudicial." In denying the motion for mistrial, the court stated in part: "And I did indicate at our last session that I ruled under [Evidence Code section] 356 that the entire tape was relevant, and I specifically said to both of you if there were portions of it that you wanted to point out to me that you had some objection to, that was the time that that should be done. And I think your objections to some portion of this is untimely. [P] And in any event, Im going to overrule your objection, and the motion for mistrial is also denied."
We first observe that there was no timely objection under Evidence Code section 352. The trial court provided counsel with the opportunity to object to any portion of the tape that was "unduly prejudicial" and no objection was made until after the tape had been played. Failure to object in a timely manner on Evidence Code section 352 grounds precludes review herein.
Second, to the extent appellant contends that the court abused its discretion in admitting the entire tape under Evidence Code section 356, this contention suffers the same vice of a lack of timely objection. Again, the trial court gave counsel the opportunity to object to anything "really irrelevant" on the tape. No objection was made prior to the playing of the tape.
Finally, we have reviewed the videotape (Peoples Exh. 10) on our own. We conclude, had timely objections been made, that there was no abuse of discretion in admitting the entire videotape under either Evidence Code section 356 or section 352. The tape presents the full context for assessing the questions asked by Officer McBride and the manner in which those questions were answered by Daughter, an area fully explored by defense counsel. Nor do we find that the information contained on the tape was unduly prejudicial when weighed against the substantial probative value. Accordingly, we find no abuse of discretion in the trial courts evidentiary rulings.
H. The trial court did not abuse its discretion in imposing the aggravated term.
Appellant finally contends that the trial court improperly relied on two factors in aggravation that were inapplicable. The two alleged inapplicable factors are (1) that the crime "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" (Cal. Rules of Court, rule 4.421(a)(1)); and (2) that "the victim was particularly vulnerable" (rule 4.421(a)(3)). Timely objection was made to these aggravating factors at sentencing.
All rule references are to the California Rules of Court.
With respect to the factor concerning "a high degree of cruelty, viciousness, or callousness," appellant argues that this factor is always present in a violation of section 288.5. The trial court, in responding to this same argument when made at sentencing, stated: "With regard to factors in aggravation and mitigation under Rule 4.421 subdivision (a)(1) it is suggested by the Probation Department as well as the People that this crime involved a great violence or great bodily harm or threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness. I believe that is significant here possibly in the extreme. The molestation by the account of the victim took place from the age of four for six years. It seems to me, as I said before, that there is a high degree of callousness when the father of the child, . . . the child was four years old. Also, the number of molestations as testified to by the child were always intercourse, and certainly the threat of great bodily injury, great bodily harm was present in virtually every one of those instances. [P] And it also seems to me that when one looks at how that could have been committed and the crime committed and yet not be aggravated noting that the legislature provided that there would be [a] range of 6, 12 or 16 years, if there were three molestations over three months or three days, it seems to me that is significant. Thats not what occurred here. There were probably hundreds of molestations over six years. It seems to me thats a high degree of callousness and viciousness, as the probation officer puts it, well above, far and above the minimum three times within a three month period I believe. I think thats a significant factor. I think its entitled to great weight. I dont believe that that is in any way a double use of the elements of the offense because of the numbers."
We agree with the reasons stated by the trial court in support of its finding that the particular facts of this case demonstrate a high degree of cruelty, viciousness, and callousness beyond that normally associated with a violation of section 288.5.
Concerning victim vulnerability, appellant contends that where vulnerability is based solely on age it is an improper aggravating factor when age is an element of the offense. (People v. Ginese (1981) 121 Cal. App. 3d 468, 477, 175 Cal. Rptr. 383.) However, appellant recognizes that particular vulnerability is determined in light of the "total milieu in which the commission of the crime occurred" (People v. Price (1984) 151 Cal. App. 3d 803, 814, 199 Cal. Rptr. 99), and that it is proper to consider "a victims extremely young age together with other circumstances like the time and location of the offense" (People v. Dancer (1996) 45 Cal.App.4th 1677, 1694, overruled on another point in People v. Hammon (1997) 15 Cal.4th 1117, 1123, 938 P.2d 986) in assessing particular vulnerability as an aggravating factor.
In referencing this factor, the trial court stated: "Secondly, with regard to the vulnerability of the victim, again it seems to me that this is a question of degree. Where a victim such as in the Flores case [People v. Flores (1981) 115 Cal. App. 3d 924, 171 Cal. Rptr. 777], I believe the victim was 16 years old, here we have a child, really a baby almost of age four versus somebody of eight or ten or 12 or 14, and thats when it began, and it didnt end until she was ten. I dont think that that vulnerability in that sense is inherent in the offense. [P] Furthermore, the testimony, as I recall it, in addition to the length of time in virtually every instance there was an effort or there was an advantage taken of seclusion in some kind. Many times it was created by the defendant that seclusion when the victim would be particularly vulnerable when the mother and others were not around. Obviously, also beginning with a child of age four and continuing this to age ten before the child has really a sense of what is appropriate and what is not appropriate, at age four it seems to me just demonstrates the vulnerability of the victim."
In our view, the trial courts consideration of this factor was appropriate under Price and Dancer.
Finally, as the Attorney General observes, a single aggravating factor is sufficient to support an aggravated term. (People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759.) Here, there were three additional aggravating factors relied on by the court that are not challenged on this appeal. They are (1) that appellant took advantage of a position of trust (rule 4.421(a)(11)); (2) that appellant was on probation at the time the crime was committed (rule 4.421(b)(4)); and (3) that his prior performance on probation was unsatisfactory (rule 4.421(b)(5)). Accordingly, it cannot be said, in light of the record and the additional aggravating factors, that it is reasonably probable that a more favorable sentence would have been imposed had the sentencing court not relied on the challenged aggravating factors. (See People v. Watson, supra, 46 Cal.2d 818.)
Judgment affirmed.
We concur: Kay, P.J., and Sepulveda, J.