Opinion
H048783
09-27-2022
THE PEOPLE, Plaintiff and Respondent, v. NORMAN BARELA AGUSTIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1914577)
Grover, J.
A jury convicted defendant Norman Barela Agustin of multiple counts of forcible rape of a minor, forcible sexual penetration of a minor, and forcible oral copulation of a minor. On appeal following imposition of a 110-year prison sentence, defendant argues the interrogating officer violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); the trial court erred by admitting testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS); the pattern jury instruction about CSAAS evidence is legally erroneous; defense counsel provided constitutionally ineffective assistance by not objecting to the prosecutor's closing argument; the foregoing errors were cumulatively prejudicial; and the abstract of judgment must be corrected due to clerical error. Finding no prejudicial error, we will modify the judgment to correct the clerical error and affirm the judgment as modified.
I. TRIAL COURT PROCEEDINGS
Defendant was charged by information with 10 counts of forcible rape of a minor 14 years of age or older (Pen. Code, § 261, subd. (a)(2)); 10 counts of forcible sexual penetration of a minor 14 years of age or older (Pen. Code, § 289, subd. (a)(1)(C)); and 10 counts of forcible oral copulation of a minor 14 years of age or older (Pen. Code, § 287, subd. (c)(2)(C)). (Unspecified statutory references are to the Penal Code.) All counts involved the same victim, whom we refer to as Doe in the interest of privacy and consistent with her designation at trial.
A. Trial Evidence
1. Doe's Testimony
Doe was 17 years old at the time of trial in October 2020. She was born in the Philippines and lived there with her maternal grandmother until she moved in with defendant (Doe's biological father), his wife and family when she was nine years old. She ultimately moved to the United States to live with defendant when she was 15 years old. They initially lived in an apartment in Milpitas with several relatives, and later moved to a smaller apartment with other relatives. At both apartments Doe shared a bed with defendant. One of her half-brothers slept in another bed in the same bedroom.
Doe testified that defendant started doing "something bad" to her when she was 10 years old and still living in the Philippines. Asked about her first memory of defendant doing things to her, Doe related an incident during which defendant called her into a room, touched her thighs with his hands, and then pulled down her shorts and underwear and penetrated her vagina with his penis. Doe felt pain, and testified that she was "getting weak" and wanted to kill herself. Defendant repeated that conduct more than 10 times while they lived in the Philippines. When Doe tried to get defendant to stop, he would slap her.
The abuse continued after they moved to the United States. Doe testified the abuse usually occurred in the morning. Defendant would wake up Doe, remove her clothes, put his fingers into her vagina, put his mouth on her vagina, and put his penis in her vagina. Doe testified that defendant put his penis into her vagina more than 30 times while they were living in the United States. He put his fingers in her vagina more than 10 times while living in the United States, and put his mouth on her vagina more than 10 times while living in the United States. Doe acknowledged on cross-examination that she never saw her half-brother wake up during any of the incidents. Doe testified that defendant would give her pills that he said would keep her from becoming pregnant. (According to testimony, the pills were Midol brand over the counter pain reliever.) Doe was afraid to tell anyone about defendant's abuse because defendant told her no one would believe her.
Doe decided to disclose the abuse to an aunt and uncle. She told the uncle first because he was the only person home, and then the uncle informed the aunt. Doe moved in with the aunt and uncle. Doe testified that defendant later tried to contact her through her best friend Abigail. Doe disclosed the abuse to the police about two weeks after she told her aunt and uncle.
2. Doe's Aunt's Testimony
Doe's aunt confirmed in her testimony that Doe disclosed defendant's misconduct to her and her husband, Doe's uncle. The aunt went to the apartment where defendant was living and confronted him, with other family members present. She asked defendant what he had been doing to Doe, and defendant responded that they "were just hugging each other." The aunt told defendant not to deny what he was doing because Doe had already disclosed the conduct to the aunt. Defendant then looked away and remained silent.
3. Abigail's Testimony
Doe's friend Abigail testified that she and Doe met in high school. Abigail knew defendant because she used to spend time at their house. Abigail overheard defendant referring to Doe as a slut at some point. Defendant started contacting Abigail, apparently between the time Doe went to live with her aunt and Doe's disclosure to the police. Defendant asked Abigail where Doe was, and asked to speak with Doe. He told Abigail not to believe anything Doe told her.
Abigail met Doe one day at a mall. Doe told Abigail that defendant had sexually assaulted her. Regarding the incident that led to Doe moving in with her aunt and uncle, Doe told Abigail that defendant "almost raped" her. Doe also told Abigail that defendant had been raping her since she was a small child in the Philippines.
4. Defendant's Interrogation
Defendant was interrogated by a Milpitas Police Department detective shortly after he was arrested. The detective used the "AT&T language line" service to translate her questions to Tagalog and to translate defendant's responses to English. Defendant answered some questions in English. A video recording of the interview was admitted into evidence and played for the jury. The following summary is taken from the transcript of the interrogation that was admitted into evidence along with the video.
The detective started the interrogation by reading defendant a Miranda advisement. As relevant to this appeal, when the detective informed defendant in English that "You have the right to the presence of an attorney before and during any questioning," the interpreter translated it in Tagalog as, "You have the right to the presence of an attorney before or at this very moment." When the detective informed defendant in English that "If you cannot afford an attorney one will be appointed for you free of charge before any questioning if you want," the interpreter translated it in Tagalog as, "And if you cannot afford an attorney, we can appoint for - for you free of charge before any questioning if you want." Defendant indicated he understood the Miranda advisements and never requested an attorney or otherwise invoked his Miranda rights.
Defendant initially denied abusing Doe. The detective told defendant there was a video recovered from Doe's phone "about you guys having sex." Defendant responded, "I don't know she had the videos." He stated his sexual contact with Doe started when she was 15 years old. He admitted performing oral sex on Doe, digitally penetrating Doe's vagina, and penetrating Doe's vagina with his penis. He indicated that Doe tried to touch his penis over 100 times. Asked how many times he put his penis into her vagina, defendant responded: "Not every - only, uh, kiss like that. Uh, the sex is like, uh, ten like that." Defendant answered in the affirmative when the detective asked him, "And then ten time[s] of the sex?" He claimed Doe would initiate the sexual encounters, and stated he could not control himself because he was "only a boy." Defendant moved unsuccessfully to exclude his statements as obtained in violation of Miranda.
5. CSAAS Expert Testimony
A psychologist testified as an expert on Child Sexual Abuse Accommodation Syndrome, which she described as an "educational tool to help people better understand the experiences of children who have been sexually abused, and also to help dispel some common myths that people may hold about children who have been sexually abused." The expert made clear that CSAAS evidence is not a diagnostic tool to determine whether a child has been abused and is rather an educational framework to provide information about how children who have been sexually abused might behave. The expert further made clear that she was not aware of the facts or charges of defendant's case. The expert then discussed four aspects of CSAAS: secrecy; helplessness; entrapment and accommodation; and delayed, conflicting, and unconvincing disclosure.
B. Verdicts and Sentencing
Defendant was found guilty of all charges. He was sentenced to 110 years in prison, consisting of the upper term of 11 years for each of the 10 rape counts, fully consecutive. The trial court imposed concurrent middle terms for the sexual penetration and oral copulation counts.
II. DISCUSSION
A. Adequacy of Miranda Advisement
Defendant argues the trial court wrongly denied his motion to exclude statements from his interrogation based on an asserted violation of Miranda. No "talismanic incantation" by a peace officer is required to satisfy Miranda. (California v. Prysock (1981) 453 U.S. 355, 359; accord, Florida v. Powell (2010) 559 U.S. 50, 60.) We review the advisement de novo (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033), and determine whether it "reasonably 'conve[yed]'" to defendant his rights as required by Miranda. (Duckworth v. Eagan (1989) 492 U.S. 195, 203 (Duckworth).) "A translation of a suspect's Miranda rights need not be perfect if the defendant understands that he or she need not speak to the police, that any statement made may be used against him or her, that he or she has a right to an attorney, and that an attorney will be appointed if he or she cannot afford one." (U.S. v. Hernandez (10th Cir. 1996) 93 F.3d 1493, 1502.)
Defendant focuses on the advisement that he had the right to the presence of an attorney before and during any questioning, which was translated into Tagalog as, "You have the right to the presence of an attorney before or at this very moment." Defendant argues the trial court should have suppressed the statements he made during the interrogation because the "translation did not convey to appellant that he had the right to an attorney during questioning by the police."
We invited supplemental briefing about People v. Wash (1993) 6 Cal.4th 215 (Wash), in which the California Supreme Court found no Miranda violation where the advisement omitted mention of the right to counsel during questioning. Wash was advised:" '[Y]ou have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to have an attorney present before any questioning if you wish one, if you cannot-if you cannot afford ... an attorney one will be provided to you at no cost before any questioning begins. Now do you understand those rights?'" (Id. at p. 236.) The Wash court reasoned that "[a]lthough the warning given to [Wash] [t]here deviated from the standard form in failing to expressly state that [he] had the right to counsel both before and during questioning, we are not persuaded- as [Wash's] argument implies-that the language was so ambiguous or confusing as to lead [him] to believe that counsel would be provided before questioning, and then summarily removed once questioning began." (Ibid.) The court concluded that the advisement given reasonably conveyed to defendant his right to have an attorney present during questioning. (Ibid.)
We find the translated advisement here to be essentially the same as the one found adequate in Wash. The challenged sentence here informed defendant of his right to counsel "before or at this very moment," and the next sentence made clear that if defendant could not "afford an attorney, we can appoint for - for you free of charge before any questioning." Consistent with the Wash court's analysis, we see nothing so ambiguous or confusing in the translation to lead defendant to believe that counsel would be provided before questioning and then summarily removed once questioning began.
Focusing solely on the translated advisement about the right to counsel "before or at this very moment," defendant argues that because there was "no mention made of any future rights, he had no way of knowing his right to counsel extended beyond that very moment." He also contends he "was not advised of his right to counsel in reference to any questioning that might take place." But the next translated statement informed defendant that if he could not "afford an attorney, we can appoint for - for you free of charge before any questioning." (Italics added.) Read together, the two advisements were functionally identical to those the Supreme Court approved in Wash.
Defendant's authorities relating to imperfect translations involved other parts of the Miranda advisement and are therefore of limited application to the challenge he raises. (E.g., U.S. v. Perez-Lopez (9th Cir. 2003) 348 F.3d 839, 848 [Miranda violation where advisement did not inform Perez-Lopez that the government was required to appoint counsel for him upon request].) In U.S. v. Noti (9th Cir. 1984) 731 F.2d 610, the Ninth Circuit found a Miranda violation where the advisement did not inform Noti he had the right to counsel both before and during questioning. (Id. at p. 615.) But that case was decided before the United States Supreme Court clarified in Duckworth that the test for Miranda compliance is whether an advisement reasonably conveys to a defendant his or her rights. (Duckworth, supra, 492 U.S. at p. 203.) We are also bound by our own Supreme Court's Wash decision, which found an advisement that fails to mention the right to counsel during questioning does not necessarily violate Miranda. (Wash, supra, 6 Cal.4th at p. 236; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
B. CSAAS Evidence
Defendant argues broadly that CSAAS evidence should be inadmissible because it is unreliable and will always support the conclusion that abuse actually occurred. The trial court denied defendant's in limine motion to exclude CSAAS evidence, finding that such testimony is generally accepted. The Evidence Code provides that expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" and is "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing." (Evid. Code, § 801, subds. (a), (b).) We review a trial court's decision to admit expert testimony for abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
In McAlpin, the Supreme Court reviewed a challenge to expert testimony about "whether a parent might not report a known child molestation, and if so, why." (McAlpin, supra, 53 Cal.3d at p. 1298.) Finding no abuse of discretion, the Supreme Court analogized the challenged testimony "to expert testimony on common stress reactions of children who have been sexually molested ('child sexual abuse accommodation syndrome'), which also may include the child's failure to report, or delay in reporting, the abuse." (Id. at p. 1300.) The court noted that several decisions from the courts of appeal had found that while "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness'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." (Ibid.)
Based on decisions from Supreme Courts in other states, defendant asks us to find CSAAS evidence inadmissible for all purposes as a matter of law. (Citing Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830; Blount v. Commonwealth (Ky. 2013) 392 S.W.3d 393, 395.) But to the extent the California Supreme Court expressly approved the admissibility of CSAAS evidence in McAlpin, we are bound by that precedent. (Auto Equity, supra, 57 Cal.2d at p. 455.) Defendant acknowledges that intermediate courts in California have consistently found expert testimony about CSAAS admissible based on McAlpin. (See People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Lapenias (2021) 67 Cal.App.5th 162, 172.) Defendant's authorities from other states offer no compelling reason to depart from California precedent.
We find no abuse of discretion in admitting expert testimony about CSAAS. And because the evidence was admissible, defendant's federal constitutional rights to due process and a fair trial were not violated.
C. CALCRIM No. 1193
Defendant argues the jurors may have interpreted the CALCRIM No. 1193 instruction as allowing them to consider CSAAS evidence for the improper purpose of determining whether Doe's allegations against defendant were true. Although defendant did not object at trial to giving CALCRIM No. 1193," '[w]hether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim.'" (People v. Ngo (2014) 225 Cal.App.4th 126, 149; § 1259.) In reviewing a purportedly erroneous instruction, we must decide whether it is reasonably likely that the jury applied the instruction in a way that violates the Constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We review a challenged jury instruction in the context of the instructions as a whole, and not in isolation. (Ibid.)
The jury was instructed with CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Anna Washington regarding child sexual abuse accommodation syndrome. Dr. Washington'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 [Doe's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
As defendant acknowledges, multiple courts "have held the pattern jury instruction accurately informs the jury on the limited use of CSAAS evidence, [and] the instruction does not: (a) improperly allow an alleged minor victim of sexual abuse to corroborate her own testimony; (b) violate due process; or (c) misapply the burden of proof." (People v. Lapenias, supra, 67 Cal.App.5th at p. 175, citing People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504; accord, People v. Munch, supra, 52 Cal.App.5th at pp. 473-474.) We find those authorities persuasive.
CALCRIM No. 1193 properly instructs the jury not to use CSAAS evidence as proof that the defendant committed the charged crimes. The expert here made clear she was testifying based solely on her general knowledge of the subject, and that her opinion was about children generally, not specifically about Doe's believability. Further, the words believability and credibility are synonymous, and our Supreme Court has suggested that CSAAS evidence is relevant and admissible to "rehabilitate [a] witness's credibility when the defendant suggests that the child's conduct after the incident ... is inconsistent with his or her testimony claiming molestation." (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) We find it not reasonably likely the jury misunderstood CALCRIM No. 1193 to allow the CSAAS expert's testimony to be used as proof that Doe was in fact abused by defendant.
The expert's testimony here distinguishes this case from People v. Bowker (1988) 203 Cal.App.3d 385, 393-395, which found error in allowing an expert to apply CSAAS concepts to the specific allegations at issue in the case. (See id. at p. 395 ["[B]y delineating each stage of the CSAAS theory, [the expert] constructed a 'scientific' framework into which the jury could pigeonhole the facts of the case."].)
D. Trial Counsel's Performance was not Prejudicially Deficient
Defendant argues his trial counsel provided ineffective assistance by not objecting to statements by the prosecutor during closing argument that defendant contends amounted to prosecutorial misconduct. To establish ineffectiveness of trial counsel infringing on the right to counsel under the Sixth Amendment, a defendant must show both a deficiency in counsel's performance and a prejudicial effect of the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) The "decision whether to object, move to strike, or seek admonition ... is highly tactical, and depends upon counsel's evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight [it]." (People v. Catlin (2001) 26 Cal.4th 81, 165 (Catlin).) An attorney does not provide deficient assistance if she fails to make a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa).) To prove prejudice, a defendant must affirmatively show a reasonable probability that, but for trial counsel's errors, the result would have been different. (Ledesma, at pp. 217-218.)
During closing argument, the prosecutor argued as follows (italics indicating challenged statements): "I thought about a lot of adjectives to describe [defendant's] defense. And I could say it's preposterous. I could say it's ridiculous. But ultimately, all I have to prove to you is that it is simply not reasonable. [⁋] What would you have to believe in order to believe [defendant's] story? First, you would have to believe that [Doe] wanted to have sex with her father. Not just any teenage girl, but this girl. A girl who testified in front of you and whose entire testimony was steeped in her pain. [⁋] You would have to believe all of that, all of that pain that she feels that she experienced was just a lie, because she is some girl who just loves to have sex with her biological father. That is not reasonable. [⁋] Now, let's say you come back and you say to me, well, maybe. Okay. Maybe I think that's reasonable. Okay. What else would you have to believe? [⁋] You would have to believe that [defendant], a grown man, was seduced or forced into having sex with his biological daughter against his will. That is not a thing. A man is not seduced into having sex with his biological daughter against his will. Not reasonable." (Italics added.) The prosecutor also stated defendant's excuse "doesn't make any sense" and was "ridiculous." Later the prosecutor argued: "As I explained before, there's only one account here that is reasonable, and that's afforded by the other evidence, and that is [Doe's] account. [⁋] [Defendant's] account is not reasonable." (Italics added.)
After the morning recess, the prosecutor concluded her review of the evidence and turned to the standard of proof (again with challenged language in italics): "So the standard in this case, as in all criminal cases, is beyond a reasonable doubt. Reasonable doubt is a high standard. [⁋] Do not take anything that I say as an indication that this is not an incredibly, incredibly high legal standard. But it is also not impossible to meet. And it is the same standard in every criminal case, from the most serious homicide down to the most insignificant misdemeanor. The key word is 'reasonable.' [⁋] Ladies and gentlemen, anything is possible. It is possible that I am an alien, and that we are in the matrix, and that [Doe] seduced her father. All of those things are conceivably possible. But are they reasonable? Is doubt reasonable given all of the evidence that you have heard in this case? And it is not. [⁋] And finally, the easiest way that I think to understand reasonable doubt is the further instruction that says that it's proof that leaves you with an abiding conviction that the charge is true. If you have an abiding conviction that these things happened, then [defendant] is guilty." (Italics added.) The prosecutor ended the argument with: "I believe that when you go through that process you will find that the charges have been proven beyond a reasonable doubt, and that [defendant] is guilty."
"It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory." (People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno).) But "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Ibid.) It is likewise error to conflate proof beyond a reasonable doubt with simply rejecting unreasonable inferences, such as by "suggest[ing] that the jury could find defendant guilty based on a 'reasonable' account of the evidence." (Id. at p. 673.)
The prosecutor's argument before the morning recess focused on describing the defense case as "not reasonable." Because characterizing a defense theory as unreasonable is permissible argument (Centeno, supra, 60 Cal.4th at p. 672), there was no basis for an objection by defense counsel. (Ochoa, supra, 19 Cal.4th at p. 463.)
Regarding the prosecutor's comments after the morning recess, we acknowledge the important distinction for a jury to understand between merely rejecting unreasonable explanations versus affirmatively finding proof beyond a reasonable doubt. Despite some overlap in terminology, we are satisfied that the prosecutor adequately shifted from discussing the reasonableness of the defense case before the recess, to discussing the prosecution's burden and the concept of reasonable doubt after the break. The arguments, separated as they were by the court's morning recess, were not "intertwined" in the manner defendant suggests. We do not view the prosecutor's argument as equating proof beyond a reasonable doubt with a mere showing of reasonableness. The prosecutor emphasized that reasonable doubt is "an incredibly, incredibly high legal standard," and she properly reminded the jury to "not take anything I say as an indication" to the contrary. She then directed the jury's attention to "the further instruction that says that it's proof that leaves you with an abiding conviction that the charge is true." (CALCRIM No. 220.) Given the lack of clear prosecutorial error, trial counsel could make a reasonable, tactical decision to refrain from objecting to the prosecutor's language so as not to highlight the argument for the jury. (Catlin, supra, 26 Cal.4th at p. 165.)
Defendant has also not demonstrated prejudice from the lack of objection. The jury was properly instructed about the standard of proof beyond a reasonable doubt, and was also instructed that if the "attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) We presume the jury followed the court's instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) And strong evidence supported defendant's guilt, including testimony from Doe and defendant's admission during his interrogation to repeated sexual contact with her. We find no reasonable probability of a more favorable result had defense counsel objected to the prosecutor's closing argument.
E. Cumulative Prejudice
Defendant claims that the errors he identifies are cumulatively prejudicial. (Citing People v. Hill (1998) 17 Cal.4th 800, 844 .) As we have found no error, defendant's cumulative prejudice argument must fail.
F. Abstract of Judgment
The parties agree that the abstract of judgment must be corrected as to count 21 to reflect the trial court's oral imposition of sentence. The abstract of judgment includes a concurrent upper term of 10 years for count 21, whereas the trial court orally indicated that it would not impose an upper term for any count it sentenced concurrently (counts 11 through 30). We will direct the clerk of the superior court to prepare a new abstract of judgment.
III. DISPOSITION
The judgment is modified to reflect a concurrent middle term sentence of eight years for count 21. The clerk of the superior court is directed to prepare and transmit to the Department of Corrections and Rehabilitation a new abstract of judgment reflecting that modification. As so modified, the judgment is affirmed.
WE CONCUR: Greenwood, P. J., Lie, J.