Opinion
H046808
11-18-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CHRISTOPHER AIRO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. B1583579)
ELIA, J.
Defendant Michael Christopher Airo was convicted by a jury of three counts of lewd act on a child under 14 by force or duress (Pen. Code, § 288, subd. (b)(1)) and one count of continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)). He was committed to state prison to serve a term of 15 years, which was the lowest term the court could impose under section 667.6, subdivision (d).
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, he claims that (1) his trial counsel was prejudicially deficient in presenting testimony by a defense expert that defendant was not attracted to prepubescent females because the expert testified on cross that his testing showed that defendant was attracted to pubescent females, (2) his new trial motion should have been granted because there was insufficient evidence of force or duress, (3) the prosecutor committed prejudicial misconduct by urging the jury to consider what was "reasonable," (4) the trial court erred in connection with the prosecution's CSAAS evidence, and (5) his sentence is unconstitutionally disproportionate. We reject his contentions and affirm the judgment.
I. THE PROSECUTION'S CASE
A. Doe lived with her older sister and her mother. When Doe was in elementary school, her mother worked fulltime so Doe attended an aftercare program at her school. Doe first met defendant, who worked at the aftercare program, when she was eight years old and in third grade. Defendant told her that "there was something different about [her]" and that she "had an aura," "just glowed," and "was special." These statements made her uncomfortable.
In the summer of 2000, between third and fourth grades, Doe attended a summer "sports and games camp" where defendant was a teacher. Doe's mother became acquainted with defendant when she came to pick up Doe, and a relationship developed between Doe's mother and defendant.
At some point, Doe's sister started working at the same aftercare program where defendant worked. Doe's sister noticed that defendant was "[v]ery playful" and "[v]ery attentive" to the children, and he would "often ask" the girls to sit on his lap. Doe's sister, who was eight years older than Doe and just two years younger than defendant, "wasn't a fan" of the relationship between Doe's mother and defendant due to the age difference. She was also uncomfortable with defendant's level of physical contact with Doe. Doe's sister noticed that defendant had Doe sit in his lap and often held her hand, but he did not engage in any public physical contact with Doe's mother.
When Doe was in fourth grade, defendant started "hanging out" at Doe's house with her and her mother. He began wanting to "tuck [her] into bed" and read her stories at bedtime. Doe's mother had begun dating defendant. Doe's mother and defendant would go out with Doe for ice cream or he would come to their home and watch movies with them. By the time Doe started fifth grade, defendant had moved in with her and her family. At that time, defendant was 20 years old, and Doe's mother was 41 or 42 years old. Defendant and Doe's sister did not get along, and he discouraged Doe from spending time with her sister.
Doe's mother had a sexual relationship with defendant, but the frequency of their sexual relations declined dramatically over time. He never initiated sex with Doe's mother. When defendant and Doe's mother went out, they almost always took Doe with them. Defendant encouraged Doe to call him" 'dad.'" He was rarely physically affectionate with Doe's mother in public, but he was "very affectionate" with Doe and usually held Doe's hand in public and gave her piggyback rides even when she was 10 and 11 years old.
Doe had had very little contact with her biological father when she was young due to his alcoholism. Nevertheless, when Doe was in third and fourth grades, she frequently spent the weekend with her father and his girlfriend. Doe had conflicted feelings about her father. She felt sick when she was supposed to see him because he "scared" her due to his alcohol abuse. Toward the end of fourth grade, when Doe was nine years old, Doe's mother and defendant pressured Doe to tell her father that she did not want to see him anymore, and she saw him no more. Doe's mother obtained full custody of Doe, and it was decided that Doe's last name would be legally changed to defendant's last name.By the time Doe was in fifth grade, she had started calling defendant "dad."
Doe changed her last name from defendant's last name before she graduated from college, shortly after she reported the touchings.
In 2002 and 2003, when Doe was in fifth grade, she no longer went to the aftercare program. Instead, defendant, who was no longer working there, picked her up from school each day, took her home, and helped her with her homework. They were typically the only two people home in the afternoons. Defendant often had Doe on his lap when she was in fifth and sixth grades. He also kissed her on the top of the head and on the cheek. When defendant would go into Doe's bedroom to read her books, he closed the door and said" 'We need our privacy.'" Defendant took photographs of Doe while she was sleeping when she was 9 or 10 years old and wrote her loving cards and notes.
Doe's mother kept Doe out of a sex education class in fifth grade because she thought she should teach Doe about that subject. Doe's mother never discussed inappropriate touching with Doe. Defendant persuaded Doe's mother that Doe should not attend a sex education class in seventh grade, and she "was not allowed to attend" that class.
When Doe was in sixth grade, defendant found out that she had kissed a boy, and he confronted her and told her that "it wasn't okay." By the time she was 10 or 11 years old, Doe had "already started to develop breasts," but was not yet wearing a bra. On one occasion, she was wearing a camisole and sitting with defendant in a car when defendant "kind of touched [her] boob and moved it around and said like, Oh, what these? These are only fat. These aren't anything." This made Doe "super uncomfortable." On another occasion, when Doe was heading to the bathroom to change her clothes, defendant said: "I am your father, you should be able to change in front of me . . . ." She tried to avoid changing her clothes in front of him, but she was not always able to. Doe did not start wearing a bra until she was 11 years old and in sixth grade. This was around the same time that she developed pubic hair.
When Doe was 10 or 11 years old, defendant would "ask [her] to sit on his lap a lot." Once, he put her on his lap while he was driving and had her steer. When defendant was driving, he would often put his hand on Doe's lower thigh or knee. If she tried to push it away or asked him to remove it, he would "be kind of offended . . . ." When they watched movies together, he always wanted to be next to her and sometimes asked her to sit on his lap. When Doe was 13 or 14 years old, defendant took a photo of her that was "cropped" to be just a photo of her chest.
Throughout middle school (sixth, seventh, and eighth grades), Doe was a cheerleader and had cheer practices and also theater rehearsals most days after school. Doe usually showered in the afternoon because she did not have time in the morning. Doe's sister several times saw defendant in Doe's bedroom while Doe was changing her clothes. Doe's sister told defendant that this was inappropriate, but he said it was "okay" because he was "going to be her father." Defendant told Doe's sister that "he was the parent and you're just the sister." Doe's sister raised this issue with Doe and Doe's mother, but neither of them expressed any concern about it. Doe was very sensitive and avoided confrontation.
The house where Doe and her family lived had three bedrooms but only one bathroom. The bathroom's shower door was see-through glass. When Doe was 10 years old, defendant started coming into the bathroom while she was in the shower. These shower incidents occurred about twice a month and continued until she finished eighth grade. Defendant would start by making an excuse for his presence in the bathroom, such as his need to use the toilet or brush his teeth. Then, he would "open up the shower door," and "[h]e would say that he would just want to give me a kiss or was just talking about something in general." When this happened, "[she] would try to stay closer to the shower head," which was on the opposite side of the shower from where defendant would open the shower door. Doe would say "I don't want you to do that," but defendant would respond "Oh, well why? I'm your father, I just want to kiss you really quick. Why can't I do this?" "And [Doe] would often just say, I don't know, I don't want you to and he would just keep on insisting and say why I'm your father. This is okay. It's just really quick like just let me kiss you and just say things like that to make me feel like I had no other choice but to let him do that." He would ask her to come over to him, and although she sometimes hesitated, she "always eventually" complied. She did not physically resist because she "was scared" due to the fact that he would "get upset and kind of defensive" when she asked him to leave. She worried that he would harm her if she physically resisted. Doe felt "[v]ery vulnerable" and "really confused" by these incidents. Defendant always ignored her requests that he leave.
Sometimes he would have his hands on her shoulders and would turn her around, and other times she "would say I really don't want to, I don't want to turn around, and he'd say but why, it's going to be really quick, I just want to kiss you. Again, I'm your father. Why are you not okay with this." Although Doe would ask him to "please leave," she did not specifically say "no, stop." She told him: "I really don't feel like it right now. I really don't want you to do this." Doe would also face away from him and cross her arms over her body. Defendant would respond to this by "us[ing] his hands to kind of pull mine away and just basically kind of move them to the side so that I would uncross my arms." "He would use his hands to absolutely push or move my hands down from being across my body."
After she complied with his commands to approach him and he had overcome her resistance, defendant would begin by "kiss[ing] both [her] breasts a little bit above the nipple. He would then lean down and kiss [her] stomach on either side of [her] bellybutton, but just above [her] bellybutton, and then he would ask [her] to turn around and then he would kiss both of [her] butt che[e]ks around in the center and occasionally he kind of would tap [her] butt with his hand and then once that was done, he would close the door of the shower and then leave." Doe described these incidents, which were always the same, in exacting detail. Defendant would kiss her "one to 2 inches above the nipple," and he would always start with [Doe's] right breast and then kiss her left breast. Defendant would then "lean over and kiss either side of [her] stomach" about an inch or two above her belly button. His hands were by his sides when he kissed her breasts, but he "would put his hands on [her] hips to kind of have a better grip" when he kissed her stomach. After kissing her stomach, defendant would ask her turn around, and he would "lean forward and kiss either side of [her] butt," beginning with the right side and following with the left. Finally, he would tap the underside of her butt cheek, which would make him "seem like happy all of a sudden."
Doe's sister grew concerned because she noticed that defendant was routinely in Doe's bedroom with the door closed when Doe was changing into her pajamas before he read her a story at bedtime. When Doe's sister raised her concern with defendant, he said that they needed the door closed "for privacy" and because it was "too noisy." Doe's sister brought this up with Doe's mother, and Doe's mother agreed with defendant. Doe's sister also noticed that defendant would put his hand on Doe's leg when they were watching television together and when he was driving the car and she was in the passenger seat. And she saw defendant kiss Doe on the lips. Every couple of months, Doe's sister asked Doe if defendant was touching her inappropriately. Doe always said that he was not.
Three times, while Doe was in middle school, Doe's sister saw defendant go into the bathroom when Doe was showering. The first incident happened in 2005 or 2006. Doe's sister told defendant that it was not okay for him to be in the bathroom while Doe was showering, but defendant said he saw no problem. There was a conversation about the showering issue between Doe's sister, Doe, Doe's mother, and defendant after Doe's sister first observed it, which was when Doe was in eighth grade, but none of them other than Doe's sister expressed any significant concerns. Doe was "very quiet" during this conversation, which was consistent with her general nonconfrontational character. Doe's mother told defendant that he should not be doing that, but Doe's sister later saw it happen again.
Although defendant did not stop kissing Doe in the shower after that conversation, "it started to trail off" once Doe started high school. Doe did not tell anyone about the shower incidents because she was "embarrassed" and afraid she "might get in trouble." The first person she told was her high school boyfriend, Steven, whom she dated for more than a year. Steven had noticed that Doe was an "emotional person" who often cried. Six months after they started dating, Doe told Steven that defendant had done something inappropriate to her from the time she was young up until she was 11 or 12 years old. Steven had observed that defendant seemed to care more about Doe and be more attracted to her than to her mother.
Doe's mother and defendant broke up in October 2007, and he moved out, but defendant told Doe that he wanted to continue to be a part of her life. He came to Doe's 16th birthday party, and he asked a week or so later if he could take Doe bowling on her actual birthday. Doe told her mother that she did not want to go. She "didn't want to see him anymore" and, rather than tell him directly, she told her mother that she did not want to see him. Doe did not see defendant again until 2013.
In 2013, Doe and Doe's sister saw defendant in a restaurant. When Doe saw defendant, she "freaked out and felt really scared," and she insisted that they leave the restaurant immediately. Doe then told her sister about the shower incidents. Doe's sister suggested that Doe see a therapist. After seeing defendant in the restaurant, Doe started having nightmares about defendant.
A couple of months later, in November 2013, Doe started seeing a therapist. Doe saw the therapist once a week for a year. She told the therapist about the shower incidents, but she did not initially refer to defendant by name. Doe told the therapist that the abuse had occurred when she was between the ages of 9 and 13. The therapist told Doe that she "would have to report it" if Doe disclosed the name of the person who had touched her. In April 2014, after learning that defendant was teaching elementary school students, Doe decided that she wanted to report the sexual abuse. She and the therapist reported the abuse to the San Mateo Child Abuse Hotline, which referred the report to the police in May 2014. The police interviewed Doe in June 2014. Doe's mother knew nothing about the shower incidents until Doe told her in May 2014 after the abuse had been reported to the police.
The prosecution presented the testimony of a CSAAS expert about how abuse victims may respond to the abuse.
II. THE DEFENSE CASE
Defendant testified on his own behalf. He started working as a teacher's aide at the aftercare program in 1999 or 2000, not long after he graduated from high school. He worked at a summer sports camp in 2000. He assumed responsibility for taking care of Doe after school at her home when she was in fifth grade and continued to do so during the summer after fifth grade. When Doe was in sixth grade, defendant was again responsible for picking Doe up from school each day and taking care of her in the afternoon. Throughout the time that Doe was in middle school, defendant was often responsible for picking her up from school in the afternoon and bringing her home.
Defendant testified that he was never in Doe's room when she was changing her clothes. He also testified that he had no recollection of touching Doe's leg in the car, but he conceded that he might have "tapped" her "knee." Defendant denied that he had ever been in the bathroom when Doe was taking a shower, and he denied ever seeing her naked in the shower or kissing her body in the shower. He also denied that he had ever walked into the bathroom when Doe was in the bathroom. He denied that he had ever helped Doe with her homework in her room with the door closed. He denied touching Doe's chest in the car. Defendant denied telling Doe that she had an aura and glowed. He denied ever inviting children at the daycare center to sit on his lap, though some did sit on his lap. Defendant denied ever kissing Doe on the lips, but he admitted kissing her on the cheek and forehead.
Defendant admitted that Doe was a compliant child. "If I would have asked her to do something, [Doe] was the type of person to do it. At that time, [Doe], she was not someone that talked back. And she was not someone that was difficult or talked back. If I asked her to do something as her father, she would probably have done it." Defendant testified that he and Doe's mother talked about getting married, and they had an understanding that he would adopt Doe if they got married.
The defense called a CSAAS expert who characterized CSAAS as "junk science." A second defense expert, Brian Abbott, testified that his testing and interview of defendant "did not find any evidence of sexual deviance" or pedophilia, and he expressed the opinion that defendant "has a non-disposition to commit sexual acts against children." The defense presented testimony by defendant's friends, co-workers, and brother that they had never seen him be sexually inappropriate with children, that they believed defendant to be "very, very honest" and "of very, very high integrity," and that they did not believe it possible that he would "sexually assault children."
III. PROCEDURAL BACKGROUND
The prosecutor argued to the jury that to return not guilty verdicts it would "have to believe that they are making it up for no reason." The jury returned guilty verdicts on all four charged counts. After the jury's verdicts, defendant replaced his trial counsel with the attorney who now represents him on appeal. His appellate attorney brought a motion for a new trial on three grounds: ineffective assistance of counsel in presenting Abbott's testimony; insufficient evidence of force or duress to support the three section 288, subdivision (b) counts; and prosecutorial misconduct. The new trial motion was denied, and defendant's request for reconsideration was also denied. The court imposed the minimum 15-year term. Defendant timely filed a notice of appeal.
The new trial motion was heard by a different judge than the one who had presided at the jury trial.
IV. DISCUSSION
A. Ineffective Assistance of Counsel
Defendant contends that his trial counsel was prejudicially deficient in presenting Abbott's testimony at trial. He argues that competent trial counsel would have realized that Abbott's testimony was of little value but posed a substantial risk of prejudice. Defendant claims that he was prejudiced because Abbott ended up testifying that defendant was attracted to pubescent females, which included Doe at the time of at least some of the counts.
1. Background
Before trial, defendant's trial counsel had available to him photographs of Doe at ages 9 and 10 that showed her to be physically undeveloped and photos of her at ages 11 and 13 that showed her to be physically developed. Trial counsel asked Brian Abbott, a psychologist, to evaluate defendant "to determine if the defendant exhibits a nondisposition for committing sexual acts with children as charged by the People." Abbott reviewed only the police report and the information to assess the facts of the case before interviewing and testing defendant and producing a report. Abbott did not review Doe's preliminary examination or deposition testimony.
The prosecutor conceded at the new trial hearing that "some of [the] charges are postpubescent."
Abbott's report noted that defendant "demonstrated clinically significant sexual interest in slides depicting adult and adolescent females," but Abbott asserted that this was "considered nonpathological, as the [adolescent] females are fully physically developed and may be perceived as young adult females." Abbott concluded that defendant did not suffer from a "pedophilic disorder," which Abbott defined as "a sexual preference for engaging in sexual activity with children who are in the prepubescent stage of physical development." He opined that defendant "demonstrates a nondisposition to commit the charged sexual offenses." The prosecution moved in limine to restrict Abbott's testimony to defendant's "sexual deviance." At the in limine hearing, defendant's trial counsel told the court that he planned to present only Abbott's opinion concerning "sexual deviancy."
At trial, defendant testified before Abbott, and the prosecutor cross-examined defendant using Abbott's report of defendant's statements to Abbott, some of which were inconsistent with defendant's trial testimony. Abbott then testified as a defense expert on "the non-disposition to commit sex offenses against children." Abbott testified that he had met with defendant for four and a half hours on a single occasion. He administered a personality test to defendant, and that test showed that defendant was "the type of person who tends to lack insight into himself" and "tend[s] to present in a favorable light." Abbott also administered a sexual interest test that asked defendant to rate his own level of sexual interest in 160 slides of males and females of different ages and that also measured his "viewing time" for each slide. Based on his testing and interview, Abbott "did not find any evidence of sexual deviance," and he expressed the opinion that defendant "has a non-disposition to commit sexual acts against children." Abbott also testified that he did not "identify any pedophilia in" defendant. Abbott defined "pedophilia" as a "mental disorder, where a person prefers to engage in sexual activity with prepubescent children, those that are not physically developed."
On cross examination, the prosecutor elicited Abbott's testimony that "non-disposition occurs because of lack of evidence of some kind of paraphiliac disorder," and "[i]n this case I would be looking for a pedophilic disorder." The prosecutor asked Abbott if a person would be a pedophile if he was interested in "a teenager, let's say 11 to 13, and they are starting to develop" and "have breasts and . . . pubic hair." Abbott said "No" and explained that, in his opinion, this type of sexual interest would just be an interest in "[i]llegal behavior," which would not be revealed by his testing because he had considered only whether defendant had an interest in "prepubescent children." Abbott clarified that, for his purposes, "prepubescent" meant "children that are not developed at all" though he also mentioned that the "DSM [Diagnostic and Statistical Manual of Mental Disorders] . . . defined [prepubescent] as 13 years or younger." Abbott explained that the slides used in the sexual interest test he administered to defendant had "four different age groups:" "kids under age 5;" kids "6 to 13;" "teenagers, 14 through 17;" and adults. The sexual interest test showed that defendant had a significant sexual interest in "females 14 to 17." Abbott testified that "arousal to adolescent females to 17 is not a sign of sexual deviance" because "the 14 to 17 year olds are pretty much fully developed" in the sexual interest test he administered. In his view, "being sexually interested in a developed female is not considered a sexual deviant."
The prosecutor pointed out in his opening argument to the jury that, when the offenses began, "[s]he was already developing" breasts and had pubic hair. "And remember, she has breasts, pubic hair, and she is going through puberty . . . ."
Defendant's trial counsel's closing argument relied on Abbott's testimony. He argued that Abbott had found that defendant "exhibited a non-disposition to commit sexual offenses against children" and that Abbott had "found no pedophilia in" defendant, which defendant's trial counsel characterized as a finding that defendant did not have "an interest in children."
The prosecutor focused on Abbott's testimony in his rebuttal argument. He first pointed out that Abbott's opinion was only that "defendant isn't attracted to prepubescent children," and he noted that Abbott "defined prepubescent [as] underdeveloped, not developed at all children." "Well, that's great. So he is not a pedophile. No one is claiming that he is a pedophile. [¶] So he is not attracted to underdeveloped children. Why were you testing for that? [¶] 'Well, I was not asked to be testing for anything else.' Interesting, he was not asked to be [testing for] developed developed [sic] children teenagers 11 to 13 year olds. He based his decision on the defendant -- he said that he had to assume what the defendant was telling him was true. [¶] He also based his decision on two tests, meeting the defendant one time, talking to him for two hours, and having two tests for two hours. This is his ultimate conclusion. He admitted that he was looking for a non-disposition to commit sexual deviance."
"What does that mean that he is not a diagnosed pedophilia [sic]? [¶] That doesn't mean that he was not attracted to [Doe]? Just because the defendant is not a diagnosed pedophilia [sic], not attracted to prepubescent children, does not mean he did not molest [Doe]. [¶] Being a pedophile, that's not what he is charged with. Don't let this diversionary tactic throw you off. He is charged with: Did he molest [Doe] when she was 11? This is what he is charged with. [¶] Did he touch [Doe] when she was already developing into a 13 year old girl?"
The prosecutor told the jury that "[Abbott] did give us some good insight into the defendant" by testifying that defendant "lacks insight into why he does certain things." "[H]e doesn't accept responsibility for his actions. He is never wrong. He is always the victim." The prosecutor also pointed out inconsistencies between what defendant had told Abbott about his dating history and what he had testified to at trial. Finally, the prosecutor pointed out that Abbott's testing "strongly suggests [that defendant] has a high sexual interest in 14 to 17 year olds as a 35 year old man," which the prosecutor argued supported a conclusion that, as a 21-year-old at the time of the offenses, defendant would have had a high sexual interest in an 11-year-old.
Defendant's new trial motion claimed that his trial counsel had been prejudicially deficient in calling Abbott to testify as an expert because Abbott had testified on cross-examination that defendant was sexually attracted to pubescent girls, which was consistent with Doe's stage of development at the time of at least some of the charged offenses. Defendant submitted declarations from both his trial counsel and Abbott. Abbott declared that "[i]f I had been aware of [Doe's] physical development at the time of the alleged sexual crimes after completing the evaluation of [defendant], I would have informed [trial counsel] that the [test] results related to developed adolescent females would likely implicate [defendant] has [sic] having committed the alleged crimes." Trial counsel admitted that he had not provided to Abbott the preliminary examination transcripts or any photos of Doe, and he did not recall discussing with Abbott Doe's "sexual development, physical appearance or whether she was pre- or post-pubescent . . . ." Defendant's trial counsel asserted that his "tactical reason" for calling Abbott to testify at trial was to show that defendant "has a nondisposition to commit sexual offenses against children" and did not "have any mental disorders," and to present Abbott's finding that there was "no evidence of sexual deviance or pedophilia."
At the hearing on the new trial motion, the court initially observed that the defense had "a very viable argument in terms of deficiency of performance" and asked defendant's appellate counsel to address prejudice. After hearing argument, the court stated that "it is certainly arguable that putting on Dr. Abbott in this case fell below the objective standard of reasonableness pursuant to prevailing norms." However, the court found that "even if" trial counsel was deficient in this regard, "I do not believe that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The court found that prosecution witnesses other than Doe, including Steven, Doe's sister, and Doe's mother, had corroborated Doe's testimony "in significant and credible ways." The court placed great emphasis on Doe's sister's testimony. It concluded that defendant had failed to show prejudice.
2. Analysis
"To succeed on an appellate claim of ineffective assistance, a defendant must establish that his trial counsel's performance was deficient and that his defense was prejudiced by the deficiency. [Citations.] 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] Whenever counsel's conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and the defendant must overcome that presumption to establish ineffective assistance. [Citation.]" (People v. Fromuth (2016) 2 Cal.App.5th 91, 113.)
"[T]he defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Id. at p. 694.) Nevertheless, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
Defendant contends that no reasonably competent trial counsel would have presented Abbott's testimony and that his trial counsel's deficient decision to present this testimony necessarily establishes that trial counsel inadequately investigated the case by failing to read Abbott's report or look at the photos of Doe showing that she was pubescent. Defendant maintains that his trial counsel's purported tactical reasons for calling Abbott to testify were incompetent.
The Attorney General, on the other hand, contends that defendant's trial counsel's "strategic gamble" in presenting Abbott's testimony was a "reasonable tactical choice" and a "sound legal strategy" because it was aimed at rebutting the "most damaging aspect of the prosecution's case- that appellant was a pedophile who became sexually attracted to [Doe] when she was still a prepubescent eight-year-old child in his care." The Attorney General also argues that defendant's trial counsel could have reasonably concluded that Abbott's testimony was helpful to defendant in providing evidence that "It was not abnormal to have an interest in girls who have undergone puberty" and that defendant "was most attracted to adult females."
Defendant counters that his trial counsel's "tactical" choice was not "reasonable" because Abbott's testimony was "harmful to the defense." He points out that whether defendant's sexual interests were "abnormal" and whether he was attracted to adult females were not relevant issues at trial. And he notes that none of the charges concerned his conduct with Doe when she was eight years old.
We agree with defendant that his trial counsel's decision to present Abbott's testimony was deficient and was not a reasonable strategic decision. Trial counsel admitted that he had not given Abbott the preliminary examination transcripts or any photos of Doe and that he and Abbott did not discuss Doe's "sexual development, physical appearance or whether she was pre- or post-pubescent . . . ." Nevertheless, trial counsel asserted that his "tactical reason" for presenting Abbott's testimony was to show that defendant "has a nondisposition to commit sexual offenses against children" and did not "have any mental disorders," and that Abbott found "no evidence of sexual deviance or pedophilia." Had trial counsel considered the evidence in his possession showing Doe's state of development (the photos and the preliminary examination transcript showing that Doe was not prepubescent) and reviewed Abbott's report (limiting his "non-disposition" opinion to defendant's sexual interest in prepubescent females and noting that defendant was sexually interested in pubescent females), trial counsel would have realized that presenting Abbott's testimony would pose a high risk of exposing the jury to evidence that defendant was sexually interested in females at Doe's stage of development at the time of the charged offenses. No competent trial counsel would have presented Abbott's testimony given that risk because, due to Abbott's narrow definition of pedophilia and "sexual deviance," his "non-disposition" and "no evidence of sexual deviance or pedophilia" testimony was not significantly helpful to the defense. Abbott's report and his testimony were based on his view that sexual interest in physically developed females was not pedophilia or sexually deviant. Taking such a substantial risk where there was little benefit to be gained was not a competent strategy. We therefore conclude that defendant's trial counsel was deficient in presenting Abbott's testimony.
Because defendant's new trial motion on this issue put evidence before the court below regarding trial counsel's rationale, this is not a case in which defendant's only avenue is a habeas corpus petition. (See People v. Pope (1979) 23 Cal.3d 412, 426, overruled on a different point in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10)
Although we agree with defendant that his trial counsel was deficient in this respect, we do not agree with him that this deficiency was prejudicial.
Defendant relies heavily on the United States Supreme Court's decision in Buck v. Davis (2017) 137 S.Ct. 759 (Buck). In Buck, at the penalty phase of a capital murder trial, the jury was permitted to return a death verdict only if it found that it was probable that Buck "would commit criminal acts of violence" in the future. (Id. at p. 768.) Buck's trial counsel presented two experts on this issue. Both of them testified that Buck probably would not engage in violent conduct. However, one of the defense experts, who the jury was told had been appointed by the trial court to evaluate Buck, also testified that Buck "was statistically more likely to act violently because he is black." (Id. at pp. 767, 777) Both this testimony and the expert's report repeating that racial statistical likelihood were introduced into evidence by Buck's trial counsel. (Id. at p. 769.) On cross-examination, the prosecutor elicited the expert's reiteration of the racial statistical likelihood evidence. (Ibid.) During its deliberations, the jury requested and received the expert's report. (Ibid.)
Buck claimed that his trial counsel had been prejudicially deficient in introducing this evidence. (Buck, supra, 137 S.Ct. at p. 770.) The district court found that his trial counsel had been deficient but denied his claim because it concluded that he had failed to show prejudice. (Id. at pp. 775-776.) Before the United States Supreme Court, the main issue was whether Buck's claim was "debatable" and therefore he should have been granted a certificate of appealability from the district court's denial of his motion to reopen his case. (Id. at pp. 771-775.) The court had no difficulty concluding that Buck's trial counsel was deficient because the expert's reliance on Buck's race was" 'constitutionally impermissible.'" (Id. at p. 775.)
On the question of prejudice, the court disagreed with the district court. The court noted that Buck's future dangerousness was "the key point at issue" and that the jury had asked for the expert's report during deliberations. (Buck, supra, 137 S.Ct. at p. 776.) "Deciding the key issue of Buck's dangerousness involved an unusual inquiry. The jurors were not asked to determine a historical fact concerning Buck's conduct, but to render a predictive judgment inevitably entailing a degree of speculation." (Id. at p. 776.) "[W]hen a jury hears expert testimony that expressly makes a defendant's race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." (Id. at p. 777.)
We find Buck readily distinguishable. Unlike in Buck, in this case the jury was not asked to make a "predictive judgment" as to whether defendant was likely to commit future sexual offenses because he was sexually interested in teenagers in general or was a pedophile or sexual deviant. Instead, the sole issue before the jury was whether defendant had committed specific acts of sexual abuse on Doe. The prosecutor did not argue that defendant abused Doe because he had a general sexual interest in young females. Indeed, the prosecution did not present any evidence that defendant had ever exhibited a sexual interest in any child other than Doe. Unlike in Buck, the jury in this case was "asked to determine a historical fact concerning" defendant's conduct, and Abbott's testimony did not address any historical facts. Whether defendant was sexually interested in teenagers as a group was not a central issue at trial; the issue was whether he sexually abused Doe. Further, unlike in Buck, Abbott's report was not introduced into evidence, and there is no indication in the record that the jury focused on Abbott's testimony.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel [had] acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
Here, we find no reasonable likelihood that the result would have been different if only defendant's trial counsel had not presented Abbott's testimony. While Abbott's testimony was not helpful to the defense and suggested that defendant exhibited sexual interest in photographs of fully developed female teenagers, we can see no substantial probability that any member of the jury would have entertained a reasonable doubt about the truth of Doe's testimony about the abuse if only Abbott's testimony had been omitted. Doe's testimony about the abuse was clear, detailed, and unequivocal. No significant assault was made on her credibility, and the defense offered no explanation for why Doe would have come forward years later and reported abuse that had not actually occurred. Defendant's unequivocal denial combined with his character witnesses presented a clear question for the jury of who was telling the truth, and Abbott's testimony played little role in resolving this question.
Defendant argues that the introduction of Abbott's testimony allowed the prosecutor to attack defendant's credibility by pointing out some small inconsistencies between what defendant told Abbott and his trial testimony. This is true, but we see no significant likelihood that revelation of these minor inconsistencies was of any significance to the jury as they did not concern whether the abuse occurred. We conclude that defendant has not established that his trial counsel's deficiency was prejudicial, nor has he persuaded us that the introduction of Abbott's testimony undermined the reliability of the jury's verdict or "raise[d] the specter of unfairness."
B. Substantial Evidence
Defendant contends that the court below abused its discretion when it denied his motion for a new trial based on insufficiency of the evidence to support force or duress.
1. Background
Near the close of the prosecution's case, the defense made a motion to dismiss the lewd conduct counts on the ground that there was not substantial evidence of force or duress. The trial court denied the motion. The prosecutor argued to the jury that defendant had committed the lewd conduct offenses by duress.
After the jury's verdicts, defendant sought a new trial on the ground that the lewd conduct counts were not supported by substantial evidence of force or duress. The court noted that it "must independently weigh the evidence acting as a 13th juror" in resolving defendant's new trial motion on this ground. "In doing so, the Court extends no evidentiary deference. And if the Court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is contrary to the evidence."
The court found that the "totality of the circumstances" demonstrated that "defendant used duress" to commit these offenses because he "coerced her into complying with his demands so he could kiss her." "He was an authority figure in her life, repeatedly used coercive tactic[s] to assert his control up to and including physical control of her, and was heavily psychologically controlling when she expressed her resistance or hesitation to acquiescence to the assault." The court also found sufficient evidence of force. "Hands gripping her hips is substantially different than force that is necessary to kiss her body." It also found force in defendant's movement of Doe's crossed arms.
2. Analysis
Defendant acknowledges that a highly deferential abuse of discretion standard of review applies to his claim that the court erred in denying his new trial motion based on insufficiency of the evidence." 'In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." [Citation.] [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion." 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" '" (People v. Fuiava (2012) 53 Cal.4th 622, 729-730.)
Defendant criticizes the Attorney General for utilizing the sufficiency of the evidence standard of review, but he seems to ignore the fact that the abuse of discretion standard of review is at least as deferential to the court's decision as the sufficiency of the evidence standard is to the jury's decision. While the sufficiency of the evidence standard is deferential to the jury's decision rather than the court's decision, those two decisions were the same here, so defendant gains nothing from the application of the abuse of discretion standard. Defendant's claim that "[t]he question is whether independent review of the evidence required reversal" is without merit. The court below, acting as a 13th juror, had the power to independently review the evidence, but we exercise deferential, not independent, review on appeal.
Defendant contends that "there was no evidence that appellant made any direct or implied threat sufficient to show that [Doe] was under duress." He relies heavily on this court's decision in People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), which he claims involved facts "similar to" the facts in this case.
In Espinoza, this court found insufficient evidence of duress to support lewd conduct by force or duress and attempted rape counts. The defendant had repeatedly come into his daughter's bedroom at night while she was sleeping, pulled down her pants and rubbed her breasts and vagina. (Espinoza, supra, 95 Cal.App.4th at p. 1293.) His daughter did not" 'do anything'" because she was scared and frightened, and she did not report these initial molests because she was afraid that the defendant would" 'do something.'" (Ibid.) After molesting her several times, defendant came into her bedroom one final time. This final time was the basis for the lewd conduct by force or duress and attempted rape counts. Defendant put his tongue in her mouth, licked her vagina, and tried to put his penis in her vagina. (Ibid.) Her only response was that she "moved" and thereby prevented his penis from entering her. The defendant responded by apologizing and asking for her forgiveness. (Ibid.)
After a court trial, defendant was found guilty of all counts, and the trial court "found that duress[, an element of the lewd conduct by force or duress and attempted rape counts, ] was supported by [the daughter's] dependence on defendant, the size and age disparities, her limited intellectual level and her fear of defendant." (Espinoza, supra, 95 Cal.App.4th at pp. 1298, 1319.) On appeal, this court concluded that there was not substantial evidence of duress, and it expressly distinguished its prior decision in People v. Schulz (1992) 2 Cal.App.4th 999, where it had found sufficient evidence of duress. "We agree with this court's conclusion in Schulz that, where the defendant grabbed and restrained the nine-year-old distraught victim, cornered her and used his physical dominance in conjunction with his psychological dominance to overcome her resistance, the lewd act was accomplished by duress. However, the evidence before us is substantially different. Defendant did not grab, restrain or corner [his daughter] during the final incident out of which the Penal Code section 288, subdivision (b) count and the attempted rape count arose. [His daughter] did not cry, and she offered no resistance. Instead, defendant simply lewdly touched and attempted intercourse with a victim who made no oral or physical response to his acts." (Espinoza, supra, at p. 1320.)
The facts before us in this case are quite different from those in Espinoza. Here, defendant did "corner" Doe, when he opened up the shower, countered her verbal resistance ("I'm your father . . . Why can't I do this?"), and ignored her requests that he leave. He also overcame her physical resistance (by removing her arms from her chest and demanding that she come toward him) and even restrained her (by putting his hands on her hips and on her shoulders) at times. As a result of defendant's demands and physical actions, Doe was coerced into compliance because she "was scared" due to the fact that defendant would "get upset and kind of defensive" when she asked him to leave. She worried that he would harm her if she engaged in any overt physical resistance. In contrast, in Espinoza, the defendant's daughter merely passively permitted the molestations to occur. She did not verbally or physically resist, and the defendant neither did nor said anything to coerce her to permit the molestations.
We reject defendant's reliance on Espinoza, and we find no abuse of discretion in the court's denial of his new trial motion based on the sufficiency of the evidence of duress.
We therefore need not consider the parties' contentions regarding the court below's conclusion that there was sufficient evidence of force.
C. Prosecutorial Misconduct
Defendant contends that the prosecutor erroneously "lowered the prosecution's burden of proof" by arguing to the jury that it could convict defendant if it found that Doe's testimony "was reasonable."
1. Background
The court instructed the jury: "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The court told the jury that the prosecution was required to "prove a defendant guilty beyond a reasonable doubt" and that "beyond a reasonable doubt" meant "an abiding conviction that the charge is true." It also informed the jury: "[W]hen considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." In addition, the court told the jury that, "[i]n evaluating a witness's testimony," it could consider "how reasonable is the testimony when you consider all the other evidence in the case." Just before arguments began, the court reminded the jury: "If either lawyer misstates the evidence or the law that I gave you, you must rely on the evidence as it was presented in the trial and the law that I gave to you."
During his closing argument, defendant's trial counsel reiterated the reasonable doubt instruction and the circumstantial evidence instructions, in particular the emphasis on "reasonable conclusions." He urged the jury to find that the prosecution had not proved its case beyond a reasonable doubt.
At the beginning of her rebuttal argument, the prosecutor told the jury: "Now is my opportunity to address the Defense's case and tell you why the Defense does not create reasonable doubt." She began by noting the definition of "reasonable doubt." After pointing out that reasonable doubt was not "possible" doubt, the prosecutor queried: "What is reasonable? Is the Defense reasonable?" She argued that the defense claim that Doe had made up or dreamt that defendant had molested her in the shower was not reasonable doubt because, while "possible," it was not "reasonable." She argued that defendant's testimony raised only "possible" doubts where "[w]hat is reasonable" was that "he was molesting" Doe. The prosecutor presented an array of the defense arguments and queried: "Is that possible? Sure. What is reasonable?" "Possible, sure. Anything is possible. Reject the unreasonable. It is not reasonable. [¶] What is reasonable is this man . . . had this weird attraction for her . . . . That's what['s] reasonable." The prosecutor followed this up by urging the jury not to consider sympathy for defendant. "You are just here to decide the facts and what is reasonable. Did he do this to [Doe] on a particular day? This is the man that you are trying to decide [sic]. You are just here to look at the facts. And do the facts meet the law? [¶] The defense did not create reasonable doubt." Defendant's trial counsel did not object to these arguments.
Defendant sought a new trial based on prosecutorial misconduct premised on the prosecutor's "reasonable" references. The court below found this contention forfeited due to trial counsel's failure to object. It nevertheless considered the merits of the contention and found that "the defense has not met their burden of showing prejudice in the form of a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner." "In context, the prosecutor's statements were not a mischaracterization of the standard of proof but rather a permissible argument that the jury may reject unreasonable interpretations of evidence and a characterization of defense theory as such." "Consequently, this Court does not find misconduct or error on behalf of the prosecution's closing argument. And even if there was misconduct or error on behalf of the prosecutor, the Court does not find that prejudice has been established."
2. Analysis
Defendant acknowledges that his trial counsel failed to object to the portions of the prosecutor's argument that he now claims were erroneous. Nevertheless, he claims that we should address the merits of this issue.
Defendant's citations in support of his claim that we should review this forfeited claim are not on point. People v. Sanborn (2005) 133 Cal.App.4th 1462 did not involve prosecutorial misconduct; the alleged error was a double jeopardy violation. (Id. at p. 1466.) We see no analogy between the very unusual and critical violation there and the ordinary claim of prosecutorial error here. Section 1259 does not excuse a failure to object to prosecutorial error. And People v. Smith (2003) 31 Cal.4th 1207 and People v. Williams (1998) 17 Cal.4th 148 merely acknowledged that appellate courts have the discretion to review forfeited claims. (Smith at p. 1215; Williams, at p. 161, fn. 6.)
Defendant contends that he has established that any objection would have been futile because his new trial motion was denied. His reliance on People v. Hamilton (1989) 48 Cal.3d 1142 to support his argument is misplaced. In Hamilton, the trial judge's ruling on a posttrial motion to modify the verdict "made clear" that the trial judge would have overruled an objection. (Id. at p. 1184, fn. 27.) Here, however, the ruling on the new trial motion was not made by the trial judge, so no inference can be drawn from the denial of the new trial motion that the trial judge would have overruled a timely objection. We also find no support for defendant's contention in United States v. Combs (9th Cir. 2004) 379 F.3d 564, which did not involve a forfeiture issue concerning prosecutorial error, or People v. Price (2017) 8 Cal.App.5th 409, which found a claim of prosecutorial error was forfeited due to the failure to object. Accordingly, we find the claim forfeited and decline to exercise our discretion to consider it.
D. CSAAS Evidence
Defendant claims that the "timing and nature of the CSAAS evidence in this case rendered the evidence prejudicial and inadmissible." He argues that the timing of Blake Carmichael's testimony, which was presented after Doe's testimony on direct but before the defense's cross-examination of Doe, "suggested that its purpose was not to rebut [defendant's] impeachment of [Doe]" but instead "to be an endorsement of [Doe's] testimony on direct examination that [defendant] had molested her." Defendant also asserts, citing two specific statements by Carmichael, that Carmichael's testimony improperly "strongly suggested that anyone who showed signs of CSAAS had in fact been molested."
1. Background
The prosecution sought an in limine ruling that Carmichael could testify as a prosecution expert on CSAAS. The defense responded that (1) CSAAS evidence was not necessary, (2) it should be limited to delayed disclosure, and (3) a limiting instruction should be given. The defense clarified at the in limine hearing that its contention was not that CSAAS testimony was irrelevant; instead the defense was making an Evidence Code section 352 objection based on undue consumption of time.
The court ruled that CSAAS testimony was relevant, particularly with respect to delayed disclosure, and it declined to limit the testimony to just that component. The court rejected the defense's Evidence Code section 352 objection and found the testimony would not be unduly prejudicial or consume an undue amount of time. The court agreed to give a limiting instruction both before the testimony and at the conclusion of the trial.
Due to scheduling issues, several witnesses testified out of order. One of these was Carmichael, who testified after Doe's testimony on direct but before her testimony on cross-examination. Defendant's trial counsel did not object to the timing of Carmichael's testimony. Before Carmichael began his testimony, the court told the jury: "[T]his testimony 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 had been molested and in evaluating the believability of her testimony."
Carmichael, a clinical psychologist, testified that he worked with children who had been sexually abused, and he was qualified as an expert on CSAAS. Carmichael explained that he knew nothing about the facts of this case. He described CSAAS as "a group of concepts" that provided a "foundation for understanding child sexual abuse" by someone the child trusted. "It is a group of concepts that applies to kids that we know were sexually abused." He was adamant that CSAAS could not to be used "to determine if a child has been abused," and he emphasized "[t]hat's what the legal process and juries are for." Carmichael described the five "categories" of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed or unconvincing disclosure; and (5) retraction. Carmichael's substantive testimony on direct examination was fairly short. During a brief cross-examination, Carmichael again emphasized the limited use of CSAAS evidence. "When a child has been abused, understanding how they react and why they react certain ways is important to understand. It is not used in reverse-they reacted in these five ways, therefore they have not been abused. We don't have anything to do with that." There was no redirect. Following Carmichael's testimony, Doe was cross-examined by defendant's trial counsel.
After Doe completed her testimony, the defense called its own CSAAS expert to testify. The court gave the same instruction before the defense expert's testimony that it had given before Carmichael's testimony. This expert was also a clinical psychologist who treated sexually abused children. He testified that CSAAS was "junk science" that "doesn't have much value" and is "misleading" and "false." The defense CSAAS expert acknowledged that the secrecy and delayed reporting components were valid, but he discounted the other components of CSAAS. His position was that children seldom recant or say inconsistent things about their abuse and that it was not possible to "measure entrapment and [a]ccommodation." The defense expert believed that post-traumatic stress disorder best described the reactions of children to sexual abuse. He noted that all of the components of CSAAS could be present with a false allegation of sexual abuse. On cross-examination, the prosecution elicited the defense expert's testimony that most allegations of child sexual abuse were true.
At the end of the trial, the court again instructed the jury on the limited purpose of the CSAAS evidence: "You have heard testimony from Blake Carmichael and William O'Donohue [the defense CSAAS expert] regarding [CSAAS]. Their testimony about [CSAAS] 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 had been molested and in evaluating the believability of her testimony."
The prosecutor argued to the jury that Carmichael's testimony "corroborates and proves" that Doe "is telling you the truth beyond a reasonable doubt," but he conceded that the jury could consider Carmichael's testimony "only in deciding whether or not [Doe's] conduct was consistent with the conduct of someone that has been molested in evaluating the believability of her testimony." The prosecutor went through the categories of CSAAS and explained how most of them applied to Doe.
The defense did not object to this portion of the prosecutor's argument.
Defendant's trial counsel argued that Carmichael had testified that "anything a child says or does, or doesn't say or doesn't do, is still going to be consistent, if not inconsistent, with having been molested." He argued that Carmichael's testimony was "meaningless" and "doesn't really help, in any way" in determining whether the allegations had been proved. Defendant's trial counsel pointed out that the defense CSAAS expert had deemed CSAAS "junk science."
2. Analysis
Defendant's appellate contentions were not raised below. He did not object to the timing of Carmichael's testimony, and he did not object to the two statements that he now claims exceeded the proper scope of CSAAS testimony. His objection below was a general, in limine objection on Evidence Code section 352 grounds. Ordinarily, under these circumstances, we would conclude that the claims he now makes were not preserved for appellate review. However, the Attorney General fails to argue forfeiture, so we address defendant's claims on the merits.
We find no error in the timing of Carmichael's testimony. Doe's testimony on direct examination reflected that she kept the abuse secret while it was ongoing, felt helpless to stop it, and delayed disclosing the abuse for many years. This testimony raised the question of whether "[Doe's] conduct was not inconsistent with the conduct of someone who had been molested" and established the relevance of Carmichael's CSAAS testimony. Permitting Carmichael to testify before Doe was cross-examined was not an abuse of the trial court's discretion.
We also find no error in the trial court's failure to exclude the two sentences of Carmichael's testimony that defendant targets. Defendant argues that these two sentences of Carmichael's testimony "strongly suggested that anyone who showed signs of CSAAS had in fact been molested." When Carmichael was being voir dired by the prosecutor, he testified that "contemporary research" on CSAAS "broadly supported and found what Dr. Summit[, who had written the original article about CSAAS, ] wrote in the early '80s about the kids that have been sexually abused." After he had been qualified as an expert, Carmichael testified that CSAAS was a "group of concepts that applies to kids that we know were sexually abused."
We disagree with defendant's argument that these two sentences of Carmichael's testimony "strongly suggested that anyone who showed signs of CSAAS had in fact been molested." Carmichael repeatedly told the jury that CSAAS could not be used "to determine if a child has been abused" and emphasized that "[t]hat's what the legal process and juries are for." And the trial court repeatedly instructed the jury that the CSAAS evidence could be used "only in deciding whether or not [Doe's] conduct was not inconsistent with the conduct of someone who had been molested and in evaluating the believability of her testimony."
The two sentences of Carmichael's testimony that defendant targets were not improper. Carmichael's references to "kids that we know were sexually abused" were references to the research that had been done on CSAAS, which had been done on known victims. Nothing about these references suggested, contrary to Carmichael's explicit testimony and the court's instructions, that the jury could conclude that Doe had been sexually abused simply because some of the components of CSAAS might explain some of her conduct.
We reject defendant's challenges to Carmichael's testimony.
Defendant contends that there was cumulative prejudice from the errors he claims. We have found no errors other than his trial counsel's nonprejudicial deficiency. Accordingly, there is no prejudice to cumulate.
E. Cruel or Unusual Punishment
Defendant argues that his 15-year prison term, which was the lowest term that the court could impose under the applicable statutes, is cruel or unusual punishment.
1. Background
Defendant filed a sentencing memorandum that sought a sentence of 15 years, which was the mitigated term recommended in the probation report. He later filed a supplemental sentencing memorandum arguing that a 15-year sentence, the minimum sentence possible under section 667.6, subdivision (d), which mandated fully consecutive terms, would be cruel or unusual punishment. Instead, defendant sought a sentence of nine years, which is what his sentence would be without application of section 667.6, subdivision (d). The prosecution, noting that 15 years was the minimum term, sought a 30-year sentence.
After Doe made an extensive statement at sentencing about the impact of the offenses on her, the probation officer retreated from the recommendation in the probation report and suggested that the court "rethink the penalty that is just." The court rejected defendant's cruel or unusual punishment argument, but it imposed the minimum 15-year term.
2. Analysis
Defendant argues that the 15-year term was unconstitutionally disproportionate. A punishment mandated by statute may be deemed "disproportionate" and therefore in violation of the California Constitution only if the punishment is" 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d 441, 478, overruled on a different point in People v. Chun (2009) 45 Cal.4th 1172, 1186.) Although three "techniques" are often utilized to evaluate whether a punishment is grossly disproportionate, defendant focuses solely on the inquiry that evaluates" 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.'" (Id. at p. 479.) The nature of the offense looks at "such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Ibid.) The nature of the offender "focuses on . . . the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Defendant claims that the federal constitution has "more exacting standards" for cruel and/or unusual punishment than the California Constitution. This is not true. "The analysis is the same under the state and federal Constitutions." (People v. Gonzales (2012) 54 Cal.4th 1234, 1300.)
Defendant argues that his offenses do not merit a 15-year prison term because his "conduct was de minimis. . . . Though the act of kissing [Doe] while she was naked in the shower technically established the elements of a violation of section 288, the conduct was minimal." We disagree. Defendant established a paternal relationship with Doe that he then used to repeatedly sexually abuse her many, many times over a period of several years. The offenses were not "minimal." He isolated her, ignored her pleas to leave her alone, and overcame her resistance. Defendant cornered Doe in the shower where she would be naked and vulnerable. Defendant did all of this knowing that Doe was a compliant, sensitive child, and therefore susceptible to his abuse. The consequences of his persistent sexual abuse were significant and long lasting. The nature and duration of defendant's offenses supports the imposition of the prison term prescribed by the Legislature.
We also find no merit in defendant's claim that consideration of the nature of the offender suggests that the 15-year prison term was grossly disproportionate. He points to "his lack of criminal history, age at the time of the offenses and evidence of good character," and he argues that the 15-year term "fails to account for the fact that this is [defendant]'s first criminal case and conviction, and that there were no allegations of misconduct in the nearly 15 years between the time of the offenses and the time of sentencing."
While it is true that defendant was a young man when he committed these offenses and that there was no evidence that he sexually abused anyone else after his years of abusing Doe ended, these factors were "account[ed] for" when the court chose to impose the lower term for each of defendant's offenses and thus imposed a total term of 15 years rather than the 30-year term sought by the prosecution. The absence of evidence that defendant committed other crimes does not make this sentence grossly disproportionate to his offenses on Doe.
Defendant argues that the application of section 667.6, subdivision (d) "unfairly required the court to impose a cruel and unusual sentence," and he argues that a sentence of nine years, the minimum sentence if section 667.6, subdivision (d) did not apply, "would be more commensurate with the evidence presented at trial." The "classic concerns of sentencing" are "retribution, deterrence, and incapacitation." (People v. Mesce (1997) 52 Cal.App.4th 618, 632; see also In re Nunez (2009) 173 Cal.App.4th 709, 730 ["Valid penological goals include retribution, incapacitation, rehabilitation, and deterrence"].) Section 667.6, subdivision (d) serves these goals by" 'provid[ing] increased punishment in cases of greater culpability based upon injury to the victims and society.' [Citation.] The severity of [the defendant's] sentence is directly proportionate to the number and violence of his crimes. Mandatory imposition of consecutive sentences for multiple violent [sex crimes] does not constitute cruel and unusual punishment." (People v. Preciado (1981) 116 Cal.App.3d 409, 412.)
There was no difference between the sentences for lewd conduct by force or duress and lewd conduct without force or duress at the time of defendant's offenses (Stats. 1998, ch. 925, § 2; Stats. 2004, ch. 823, § 7), but only lewd conduct by force or duress offenses fall within the provisions of section 667.6, subdivision (d), which is unchanged in this respect since these offenses were committed. (Stats. 2002, ch. 787, § 16.)
Section 667.6, subdivision (d) has long withstood challenges based on gross disproportionality. "The statute is directed at multiplicity of offenses by providing for full, separate, consecutive sentencing. In view of the outrageous nature of violent sexual offenses and the manifest danger to society from recidivism and multiplicity of offenses, we cannot say that the severity of the punishment is so disproportionate to the crimes so as to shock the conscience and offend fundamental notions of human dignity." (People v. Karsai (1982) 131 Cal.App.3d 224, 242, disapproved on a different point in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) The Legislature's decision to mandate full, separate, and consecutive terms for multiple violent sexual offenses clearly serves the goals of incapacitation, deterrence, and retribution. The offender is incapacitated by a longer prison term, and greater retribution is merited due to the offender's greater culpability. The offender and other potential offenders may be deterred by the lengthier prison term.
We find no gross disproportionality in the court's imposition of a 15-year sentence for defendant's years-long sexual abuse of Doe.
V. DISPOSITION
The judgment is affirmed.
WE CONCUR: GREENWOOD, P.J., GROVER, J.