Opinion
D078834
09-21-2021
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ANTONIO ARCHILA, Defendant and Appellant.
Randy Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Clara County No. F1554668, Richard J. Loftus, Jr., Judge. (Retired judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Vacated in part and affirmed as modified.
Randy Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin and René A. Chacón, Deputy Attorneys General, for Plaintiff and Respondent.
DO, J.
INTRODUCTION
Over a period of 12 years, Oscar Antonio Archila repeatedly molested K. Doe and L. Doe, the two young daughters of his then live-in girlfriend. A jury convicted him of 16 counts of sex offenses, including lewd acts on a child, aggravated lewd acts on a child, and aggravated sexual assault of a child by rape and oral copulation. The aggravated counts required the jury to find Archila accomplished the offense by means of force, violence, duress, menace, or fear of injury.
Pursuant to rule 8.90(b)(10) of the California Rules of Court, we refer to the victims using only the first initial of their first names. At all times, their identities have been protected by use of an anonymous surname.
On appeal, Archila argues his constitutional rights were violated when (1) the trial court conducted inadequate voir dire regarding prospective jurors' racial biases or connections with immigration officials; (2) the trial court excluded evidence of a recorded conversation between K. and L., and limited his counsel's examination of K. and L. about the conversation; (3) the jury convicted him of the aggravated offenses despite insufficient evidence of duress; (4) the trial court committed several instructional errors; (5) the foregoing errors resulted in cumulative error; and (6) the trial court imposed various fines, fees and assessments against him without first determining his ability to pay or, alternatively, his trial counsel was ineffective for failing to object to the fines, fees and assessments. We conclude that none of these contentions has merit.
After Archila was sentenced and while his case was pending appeal in this court, an ameliorative statute took effect that entitles Archila to have vacated the portion of the fee imposed against him under Government Code section 29550, et seq., that remained unpaid as of July 1, 2021. We vacate any unpaid balance of this fee, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Offenses
In a second amended information, Archila was charged with 16 felony counts related to his repeated molestation of K. and L.:
• Count 1: lewd act on a child under 14, committed against K. when she was six years old (Pen. Code, § 288, subd. (a));
All statutory references are to the Penal Code, unless indicated otherwise.
• Counts 2 to 4: aggravated lewd acts on a child under 14, committed against K. when she was six or seven years old (§ 288, subd. (b)(1));
• Counts 5 and 6: aggravated oral copulation of a child under 14, committed against K. when she was eight or nine years old (§§ 269, subd. (a)(4), former 288a, subd. (c)(2), now 287, subd. (c)(2)(B));
• Count 7: aggravated rape of a child under 14, committed against K. when she was eight or nine years old (§§ 269, subd. (a)(1), 261, subd. (a)(2));
• Counts 8 to 15: aggravated lewd acts on a child under 14, committed against L. when she was between six and 13 years old, one count for each year of age (§ 288, subd. (b)(1));
• Count 16: lewd act on a minor aged 14 or 15, committed against L. (§ 288, subd. (c)(1)).
As to each offense charged in counts 1 through 4 and 8 through 15, the People alleged there were multiple victims under California's “One Strike” law, a sentence enhancement that subjected Archila to 15 years to life on each count. (§ 667.61, subds. (b), (e)(4).)
At trial, the prosecution called K. and L., who were then 26 and 22 years old, respectively, as well as law enforcement witnesses and expert witness Dr. Blake Carmichael, a psychologist at the University of California Children's Hospital at Davis, who testified about child sexual abuse accommodation syndrome. Archila did not present affirmative evidence in his defense.
After one day of deliberation, the jury found Archila guilty on all 16 counts and found true all of the multiple victim allegations. The trial court sentenced Archila to a total prison term of 225 years to life, consecutive to two years.
The sentence consisted of the middle term of two years for Archila's conviction on count 16 for lewd act with a minor aged 14 or 15 under section 288, subdivision (c)(1), and consecutive sentences of 15 years to life on each of the remaining counts.
We summarize the trial evidence and state the relevant facts below and, because Archila's appeal implicates the substantial evidence standard of review, we do so in the light most favorable to the judgment. (People v. Jennings (2010) 50 Cal.4th 616, 638 (Jennings).)
II.
The Evidence
A. Archila's Molestation of K. and L.
K. and L. met Archila, their mother's boyfriend, when K. was five or six years old and L. was two years old. At the time, Archila was 47 or 48 years old. Shortly after the girls were introduced to Archila, he moved into the duplex they shared with their mother. The girls started calling him “Dad” right away. He would do “normal stuff dads do” like take care of them, take them out to eat, and buy them candy, toys, and other things. He became the “male figure” in their lives and was the “father figure in the household.” As part of this role, Archila was also “free to discipline” K. and L. when they were disobedient. He used physical methods of discipline that included spanking them, pulling their hair, and hitting them with a belt.
After he moved in with the family, Archila began sexually molesting K. Archila touched K. inappropriately “multiple times” when she was between five or six years old and 10 years old. These experiences of inappropriate touching became a “routine.”
The first incident K. could recall happened when she was about six. She was sitting on the living room couch with Archila while L. played outside. Archila moved closer to K., reached his hand under her clothing, and touched her vagina with his fingers. K. testified at trial that she remembered “that exact moment” when Archila touched her. She looked at him and he was “just smiling, ” and said something like “it's okay.” Archila put pillows over K. to hide what he was doing. He touched K.'s vagina with skin-to-skin contact for no more than 10 minutes. He told her not to tell her mom.
When K. was about eight years old, the family moved to an apartment where they lived until K. was 10. K. did not know if her memories were “in chronological order, ” but she remembered that by age eight, the sexual contact “was more of a regular thing” and it happened on “a regular basis.” Archila was now touching K.'s genital area and breasts, and these molests all happened in “a particular way.” He would molest K. on Saturdays when her mother was not at home. He would tell K. to go into the bedroom he shared with her mother, K. would go, and Archila would close and lock the door.
Inside the locked bedroom, K. “would end up without [her] clothes” and Archila “would tell [her] what to do, ” including to “lay on the bed” or “to perform oral on him.” “If he wanted [K.] to do something to him, he would tell [her].” She complied with his instructions more than once and, on multiple occasions between the ages of eight and ten, Archila performed oral sex on K., touched her breasts with his hand and mouth, and had K. perform oral sex on him.
On one occasion, when K. was eight or nine years old, Archila penetrated her vagina with his penis, putting the tip of his erect penis between the lips of her vagina. This incident of abuse, like the others, occurred in her mother's bedroom and behind a locked door, when her mother was not home, with K. on the bed without clothes. At some point, Archila “basically gave up.” K. recalled noticing a white fluid on her calf while getting dressed and using a piece of clothing to wipe it off. Archila did not perform this act on her again.
“ ‘Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person[.]” (Pen. Code, § 289(k)(1).)
Archila stopped molesting K. when she was 10. K. remembered it was “New Year's 2002” and the family had just moved to a different apartment. She was lying on a mattress on the floor of the new residence, when Archila “tr[ied] to encourage [her] to do it” and she repeatedly said “no.” That was “[t]he last time he ever tried to do anything” to her again.
Around this time, Archila began to molest L. As with K., L. was around six years old when Archila started sexually abusing her. L. could not clearly recall the earliest of these incidents but she knew it started with “inappropriate touching, like over [her] body.” Archila would use his hands to touch her, specifically on her arm, in a way that was “sexual in nature” or “leading to [sex].” The sexual contact was “barely starting”-he was “testing... how [she] would... react to it.”
“[A]s the years went by, it was more than just the hand rubbing.” By the time she was 11 or 12 years old, Archila was touching her breasts and vagina. This happened “very often, ” as much as “a few times a week.” “It was always in [her mother's] bedroom, ” sometimes while her mother was in the living room watching television. Archila would summon L. to her mother's bedroom and molest her there. Inside the bedroom, he would tell L. what to do, such as to remove an item of clothing or move her shirt to the side.
When L. was 11, Archila started touching her breasts under her clothing. When she was 12, Archila started touching her vagina with skin-to-skin contact. This would always occur in the bedroom because “[t]hat's where nobody was able to see.” Archila also started to make L. touch him. He would “grab” L.'s hand, put it on his penis, “move” her hand “up and down” on his penis, and “tell [her]... that's how [she] should do it[.]” The act would end when he ejaculated. This occurred repeatedly, from the time L. was about 12 until she was about 14.
Once, when L. was 13 or 14 years old, Archila penetrated her vagina. This happened as part of “[t]he same routine” that began with L. being “called in[to]” her mother's room. L. was lying on her back with her pants “down by [her] knees” when Archila put his whole body on top of her and put his penis “inside of... [her].” L. remembered her mother telling her that “nobody is supposed to go in there.” She started “freaking out” and Archila stopped.
Archila stopped molesting L. when she was about to turn 15 and have her quinceañera celebration. L. told him she did not want to “go to the room” anymore because she didn't “feel good inside” about the “stuff [that] would happen” there. When she was about 19 years old, in December 2014, Archila apologized to L. “[f]or the stuff that he had done to [her].” He claimed “he was a different person now” and that he had started going to church. This was the only time he acknowledged to L. “what had happened between [them].”
Although L. did not want Archila to touch her in a sexual manner, she would comply because she “was very young, and he would tell [her] to go” into the bedroom. Archila would also “bribe” her. Any time L. wanted things from the store, Archila would tell her, “I'll get them for you but you have to come to the room.” L. knew this meant “[t]hat he had to touch [her].” If she wanted anything, like a toy or a cell phone, she would have to submit to being touched inappropriately. Archila would molest her and then take her to the store to buy her the item promised. Other times, L. would say she wanted something while at the store and Archila would respond, “[w]ell, okay, I'll buy it for you, but you have to go to the room later.” L. “started to get the point, ” even at the age of six or seven, that she “wasn't supposed to say anything and it wasn't okay what was about to happen” in the bedroom.
L. never told her mother, K., or anybody else about Archila's sexual abuse. From the time he began molesting her when she was six or seven years old, Archila had told her she could not tell anyone because he could get in trouble. Although she did not want Archila to touch her sexually, Archila was six feet tall, whereas L. was a small child of only four feet tall or so when the abuse occurred. L. testified that “[d]espite everything... she still saw him as [her] dad; so that's why [she] wouldn't say anything.” She was afraid for her mother to find out because she “knew [she] would be in a lot of trouble.” She also felt her mother's feelings would be hurt if she found out.
K. also knew that “[she] couldn't tell anyone” about the abuse because Archila “told [her] not to tell.” When Archila started abusing her when she was around six, he told K. not to tell her mother. For years K. abided by this command, including because she was scared what her mother's reaction would be. She “didn't know if [her mother] would do anything drastic or anything that would put her in a position where she had to be, maybe, put away.”
K. did not remember physically resisting Archila's sexual abuse or telling him to stop. She did not recall believing as a child that she had that option, in part because the sexual contact “happened... on a regular basis” and she “knew it was going to happen.” K. did not remember believing as a child that “there was something [she] could do to stop it.” She complied because she “was just a kid being told what to do.” Archila, a six-foot-tall adult, was taller, heavier, and older than K. when she was a child. At the time of trial, K. was 26 years old and five feet tall.
At the ages when Archila was molesting her, no one had spoken to K. about “sexual encounters.” In her mind, she “didn't know if it was a good or bad thing. [She] just knew [she] couldn't tell anyone and... when it happened, [she] just went along with it.... [She] had no idea what it was.” K. explained that when she was eight years old and Archila penetrated her vagina, she did not “know that was sex.” When the prosecutor asked K. whether she “want[ed] him to put his penis on [her] vagina, ” K. testified, “[w]ell, now I would say no, but at that moment, I don't know what I thought or wanted or didn't want.” She explained that she did not understand as a child that what was happening to her was wrong. K. testified, “if I knew exactly what was happening and I understood that it wasn't supposed to happen, I would have [told him that I didn't want to do what he was telling me to do]. But I didn't have any understanding of what was happening at all.”
B. K. and L. Disclose the Molestation
Neither K. nor L. told anyone about the sexual abuse until they were adults. K. struggled through her adolescent years, trying to not think about the abuse and “pretend[ing] like it didn't happen.” When she was a senior in high school, however, a friend shared that she had been raped by her father and that “triggered all [of K.'s] memories to come back.” She “couldn't block it out anymore” and “wanted to say something just because [she] just couldn't live with it anymore.”
In March 2015, when she was 23 years old, K. decided to report the sexual abuse to the police. She texted L. to come home and when L. arrived, K. told her about the abuse and then called the police. A police officer responded to their home and, after taking K.'s report, he asked them to come to the police station so he could conduct a recorded interview. L. accompanied K. to provide emotional support and without realizing she would also be interviewed. In separate interviews, the girls each reported multiple incidents of sexual abuse by Archila.
C. Archila's Admissions in a Recorded Pretext Telephone Call
After the girls' police interviews, a detective had K. conduct a recorded pretext telephone call with Archila. K. and Archila spoke in Spanish and the conversation was later transcribed and translated into English.
A transcript of the pretext call, in Spanish with English translation, was attached as an exhibit to the prosecution's motions in limine. Although at least a part of the transcript was entered in evidence at trial, our efforts to have this exhibit transmitted to this court have not succeeded. During closing argument, and without objection from defense counsel, the prosecutor read verbatim the transcript of the English translation of the call to the jury. We rely on this unchallenged recitation by the prosecutor for the content of the pretext call.
K. began the conversation by telling Archila that she was calling because she had spoken with L., who told her that he had done the “same thing” to L. that he had done to her “a long time ago.” Archila claimed to not remember or to not know what he did to K., several times. K. told Archila that he had asked L. for “forgiveness” and she “also want[ed] [her] forgiveness.” Archila said, “well that is fine.... [w]hen you come here, I will get on my knees to forgive you.... [¶] So that you will forgive me.” K. then asked Archila, “why did you do it?” Archila responded, “Because you, you would give me the opportunity.”
Archila asked K., “Did I harm you?” K. responded, “Yes.” He then told her: “[I]f I had been another person, I would do you more harm, but I was only playing with you.... You were a little girl.... I would not penetrate you or anything. [¶]... But you were a little girl, I was playing with you. [¶]... But tell me, ... tell me one thing. Did I take away your virginity?”
K. then told Archila that she has “ugly, bad memories” and asked him, “[w]hat did you do to [L.]?” Archila answered: “[I]t's that she, she would get together with me. [¶]... She would get together with me and well yes, ... it was an insignificant thing, [K.]. It was not something of that of a man wanting to do with a little girl. It was a passing thing. Not thinking in that I wanted more and more and more. [¶] It was a -- like a toy right? If it had been a thing of a man, I would have taken away your [meaning “your” plural]... virginity. But I didn't. I never thought about that.... It is, it is -- have you seen -- you have heard about cases that they even get them pregnant and all of that. They penetrate them and everything. I never had intention of doing that. [¶]... I was only playing with both of you, but nothing of man to woman. [¶]... I would touch you but without malice.”
The English translation of the pretext call filed with the prosecution's motions in limine indicated that Archila, speaking in Spanish, used the plural word for “your.”
Before the call ended, Archila asked K. if he should leave the house and K. said that “[w]ould be better.” Archila then asked her, “who is going to sign the papers so that you will continue living there?” K. told him, “we'll get out of there.” Archila responded, “[l]et me do my taxes and I will leave here so that you won't have any bad memories.”
D. Child Sexual Abuse Accommodation Syndrome (CSAAS)
Dr. Carmichael testified that CSAAS explains a pattern of behaviors commonly observed in children known to have been sexually abused. The syndrome includes five characteristics: secrecy, helplessness, entrapment or accommodation, delayed and unconvincing disclosure, and retraction or recanting. Secrecy refers to the dynamics that tend to cause a child not to disclose, such as being taught to respect authority or the fear of getting the perpetrator in trouble. Helplessness means “you have a bigger, stronger, more sophisticated perpetrator and a smaller, more vulnerable emotionally, physically and cognitively, victim. [¶]... So when that child is looking to that authority figure or someone they love or even trust, that power imbalance is even greater.”
Dr. Carmichael was not familiar with the facts of the charges against Archila, did not know how many victims were involved, and had not reviewed any materials related to the case. The jury was instructed that his testimony could be considered only to understand K. and L.'s behavior and to evaluate the believability of their testimony, not to prove the molestation occurred.
The syndrome is also marked by “entrapment and accommodation, ” which Dr. Carmichael explained meant that “if something is happening in secret and the child is isolated from others knowing, except for the perpetrator and they're powerless or helpless to stop it, they're sort of trapped in this sexual relationship.” Some abused children cope with this situation by disassociating, or “numb[ing] themselves.” He further explained it is a misconception that kids “voluntarily” submit to the sexual acts, rather “a lot of times it's unavoidable that they're around their perpetrator, ” with whom they live and are entrusted to for their daily care. “They don't have the opportunity to be away from [their perpetrator], and so they have to deal with the reality of being around the perpetrator on a day-to-day basis and they make accommodations to the reality of the need to have that occur.”
Another aspect of the syndrome is delayed disclosure. Dr. Carmichael explained that the closer the relationship the child has with their perpetrator, the more difficult it can be for the child to reveal what happened, and the longer the child will tend to delay reporting the abuse. Delayed and unconvincing disclosure is also common to child sex abuse victims: “It's a minority of children that tell quickly.” Factors associated with unconvincing disclosure are related to problems of memory. If a child is disassociating during abuse and “not paying attention to... details as they're happening, ” they are not encoding details of events and “aren't able to retrieve that information” later. Second, if “something happens multiple times over the course of many weeks, months or years, it's far more difficult to discriminate between each incident and tell about each incident singly.” “[S]pecific incidents start to merge together[.]” These memory issues can make a victim's report of sexual abuse “unconvincing because the order of events or specific events are not recalled[.]”
E. The Defense Case
Archila did not present affirmative evidence. His defense focused instead on attempting to undermine the credibility of K. and L. and on emphasizing positive aspects of Archila's character. In her closing argument, defense counsel argued K. and L. were not credible, including because their accounts of abuse were not detailed and they had not previously disclosed the abuse until they went to the police. Counsel further argued Archila's statements during the pretext call were ambiguous and did not amount to an admission of sexual molestation. The defense urged the jury to conclude the prosecutor had failed to prove beyond a reasonable doubt that Archila had sexually abused K. or L.
DISCUSSION
I.
Voir Dire Was Not Constitutionally Inadequate
On appeal, Archila challenges the adequacy of the trial court's jury voir dire. He asserts that although he is Latino, and used a Spanish interpreter at trial, jurors were not sufficiently examined about possible racial bias or “connections with immigration personnel.” He claims the trial court gave his counsel insufficient time to pose questions about racial bias which permitted jurors to “conceal a possible bias against [him] based on his race, ethnicity and nationality, ” thereby violating his constitutional right to a fair and impartial jury. Archila's contentions are not borne out by the record, and we conclude that he fails to establish any abuse of discretion in the trial court's handling of voir dire.
“ ‘There is no constitutional right to voir dire per se. Nor is there any constitutional right to conduct voir dire in a particular manner. [Citation.] Rather, the voir dire process serves as a means of implementing the defendant's Sixth Amendment right to an impartial jury. [Citations.] [¶] Consistent with applicable statutory law, the trial court has wide latitude to decide the questions to be asked on voir dire [citation], and to select the format in which such questioning occurs [citation]. The court likewise has broad discretion to contain voir dire within reasonable limits.' ” (People v. Landry (2016) 2 Cal.5th 52, 83 (Landry).) “Thus, ‘ “ ‘content' questions, ” even ones that might be helpful, are not constitutionally required. [Citation.] To be an abuse of discretion, the trial court's failure to ask questions “must render the defendant's trial fundamentally unfair.” [Citation.] “Such discretion is abused ‘if the questioning is not reasonably sufficient to test the jury for bias or partiality.' ”' ” (Ibid.) The entire voir dire must be considered in determining whether it was adequate. (People v. Holt (1997) 15 Cal.4th 619, 661 (Holt).)
First, while “adequate inquiry into possible racial bias is... essential” (Holt, supra, 15 Cal.4th at p. 660), we disagree with Archila's assertion that racial bias was not sufficiently addressed during jury selection.
Preliminarily, the parties dispute whether the record supports the conclusion that Archila is a member of a particular race. The People maintain that “[a] Latino or Hispanic person can be of any race or color.” Archila cites Apodaca v. General Electric Co. (D.N.M. 1978) 445 F.Supp. 821, 823, a federal employment discrimination case, and asserts that “Spanish-surnamed persons” may be perceived “as non-white.” We need not resolve this dispute, however. Voir dire was adequate because the jurors were asked about racial bias. Our Supreme Court has advised that “[t]rial judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards [of Judicial Administration (Standards)] to ensure that all appropriate areas of inquiry are covered in an appropriate manner.” (Holt, supra, 15 Cal.4th at p. 661; accord People v. Mello (2002) 97 Cal.App.4th 511, 516.) The record reveals the trial court did this.
Specifically, the court stated in its voir dire of each new panel of prospective jurors, “[a] party, attorney or a witness may come from a particular national, religious or racial group or have a lifestyle different from your own” and asked, “[w]ould that fact affect your judgment or the weight and credibility you would give their testimony in this case?” The trial court's question was almost word for word the language the Judicial Council recommends that trial courts use when examining jurors for bias based on national or racial groups. (Cal. Rules of Court: Standards of Judicial Administration, Standard 4.30(20) [“It may appear that one or more of the parties, attorneys, or witnesses come from a particular national, racial, or religious group (or may have a lifestyle different from your own). Would this in any way affect your judgment or the weight and credibility you would give to their testimony?”].) It was sufficient for the court to pose this question during voir dire. And because the adequacy of voir dire is considered as a whole (Holt, supra, 15 Cal.4th at p. 661), the court was not additionally required to ask jurors about racial bias in the juror questionnaires despite defense counsel's request at trial to include such questions.
Due to the number of jurors excused, a total of three panels of prospective jurors were called and the trial court posed this question to all three panels. On appeal, neither of the parties appears to have recognized that the trial court asked this question multiple times during voir dire. When we pointed this out to Archila's appellate counsel during oral argument, he graciously conceded that by including the recommended question in its examination, the trial court sufficiently addressed racial and national origin bias.
Moreover, we have examined the record of voir dire and conclude it lends no support for Archila's contention that his counsel was provided inadequate time to ask jurors about racial bias. The trial court gave defense counsel 45 minutes to question the first 18 prospective jurors seated in the jury box. After defense counsel used up her initial 45-minute allotment, she objected that she “ha[d] still not even gotten into [her] questions” (although she did not specify what those questions were) and stated she needed more time to finish her examination. The court gave defense counsel more time. When proceedings resumed, defense counsel continued her voir dire without interruption from the court and concluded her examination voluntarily, indicating she was done by stating, “[n]othing further, your Honor.”
At oral argument, Archila's counsel cited a handful of other points during voir dire when the trial court interrupted defense counsel's questioning or instructed her to move on from examining a particular juror. However, none of these interruptions coincided with questions about racial or national origin bias because, as we discuss post, Archila's counsel asked none.
All told, jury selection consumed six court days, including three days of voir dire. Defense counsel was given a total of over three and a half hours in which to examine prospective jurors. Each time new prospective jurors were seated in the jury box, defense counsel was allowed to voir dire them individually, and she completed her questioning without objecting that her time had been unduly constrained. Virtually every time defense counsel questioned the jurors during this process, she voluntarily ended her questioning by telling the court she had “[n]othing further.”
Archila does not cite, and we have not located, any instance in which his counsel either asked a prospective juror about racial or national origin bias or was prevented from asking such a question. Counsel simply did not address the topic of his racial identity during her examination. Instead, she concluded her questioning of each prospective juror by asking whether they would want themselves as a juror in a case like Archila's. This broadly-worded question seems to have been intended to uncover anything that might cause that juror to be unfair, and would necessarily encompass any bias they harbored based on Archila's apparent Hispanic or Latino affiliation. We conclude defense counsel was afforded an adequate opportunity to ask jurors the questions of her choice and simply elected not to address racial bias using those terms.
Second, we also find no merit in Archila's contention that voir dire was inadequate because the questionnaire omitted questions about connections with “immigration personnel.” Archila's appellate briefs do not present separate argument about this purported omission or its effect on the adequacy of voir dire. He also fails to identify record support for the assertion that he is an immigrant. He implies that relying on a Spanish-language interpreter at trial established that he is an immigrant, a debatable proposition. He also fails to cite legal authority for the proposition that questions about connections with immigration personnel were required. Archila's failure to develop any argument on the need to question jurors about links with immigration personnel forfeits the claim. (See, e.g., People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 [appellant forfeited due process claim by failing to “develop the argument”].)
Further still, as Archila acknowledges, the questionnaire asked the prospective jurors about bias based on his use of an interpreter. During voir dire, only one person was determined to have identified a potential bias in response to this question. When defense counsel examined this person, it turned out their concerns had to do with the interpreter, not the defendant. This prospective juror explained that the judicial system had not always worked “in [their] favor, ” essentially questioning whether the interpretation would be accurate. After eliciting this explanation, defense counsel advised the court she had no further questions. Counsel did not address Archila's immigration status with this prospective juror or any others, and did not object that she was denied the opportunity to question jurors about this topic.
We conclude the voir dire process as a whole was reasonably sufficient to test the jury for bias, and the trial court acted well within its discretion by declining to add additional questions on the topic to the juror questionnaire. And contrary to Archila's assertions, his defense counsel was not unduly limited in her examination of prospective jurors. The record belies his claim that the trial court “acted to cause [defense counsel's] questioning to appear frivolous”; even if this were true, Archila fails to establish that any such conduct affected the fairness of his trial.
In the event that we conclude voir dire was sufficient, which we have, Archila argues the loss of the juror questionnaires compels reversal because they would have shown no questions on racial bias were included. We disagree. “ ‘[T]he record on appeal is inadequate... only if the complained-of deficiency is prejudicial to the defendant's ability to prosecute his appeal. [Citation.] It is the defendant's burden to show prejudice of this sort.' ” (Beck and Cruz, supra, 8 Cal.5th at p. 609.) As we have discussed, the entire voir dire must be considered in determining whether it was adequate. (Holt, supra, 15 Cal.4th at p. 661.) Here, even if we assume Archila is correct and the juror questionnaires failed to inquire about racial bias and connections with immigration officials, we conclude from our review of the record of the voir dire, as a whole, that it was adequate and did not render the trial unfair. Although the loss of the questionnaires is regrettable, it is not prejudicial.
On July 22, 2020, the superior court clerk filed a certificate stating that the questionnaires of the impaneled jurors could not be located despite a due and diligent search. We derive our understanding of the questionnaires' content from undisputed representations in the record, and only to the extent necessary to evaluate defendant's arguments on appeal. (See, e.g., People v. Beck and Cruz (2019) 8 Cal.5th 548, 609 (Beck and Cruz) [determining content of missing juror questionnaire from trial court's representations offered without objection].)
II.
No Prejudicial Error in the Trial Court's Evidentiary Rulings
In March 2015, while at the police station waiting to speak with the detective, K. and L. sat in the waiting room. A video recording of the waiting room captured a brief conversation in which K. told L. about an alleged false accusation made years ago by the sister of her boyfriend, Juan, against Juan's father. On appeal, Archila claims the trial court erred when it excluded evidence of the video recording and limited his counsel's cross-examination of K. and L. regarding the conversation. He asserts the court's evidentiary rulings violated his right of confrontation under the Sixth Amendment to the United States Constitution and article I, section 24 of the California Constitution, and his right to present a defense under the due process guarantees of the United States Constitution and California Constitution. We reject these challenges as lacking merit and because we find the asserted errors were not prejudicial.
A. Additional Background
Defense counsel proffered the video recording contained the following conversation between K. and L. in the waiting room in March 2015:
“L[.]: I just kept blocking it away.
“K[.]: Oh.
“L[.]: I have never told anyone either.
“K[.]: Got to tell your boyfriend.
“L[.]: (*).
“K[.]: Cause one day I just couldn't... I had to tell someone, he wasn't my boyfriend yet though.... [¶] Cause I remember after we did start dating he asked me again, he was like, did you take care of that, because I told him I wanted to.
“L[.]: Um hum.
“K[.]: Say something. And then I said no.
“L[.]: Cause he always (*) it always ruined my (*).
“K[.]: He gets mad. Cause his sister accused her dad, their dad of doing it, but his dad didn't do anything. And they arrested his dad and his dad said yeah, he did it. And they deported him.
“L[.]: But he told, he said he did do it?
“K[.]: That, yeah, the sister falsely accused him and he was pretty much just like, cause apparently the dad was kind of like not depressed, but he was just not like, he didn't wanna be with them anymore, so he pretty much said like yeah, he did it.
“L[.]: Hmm.
“K[.]: And then they deported him and after everything pretty much this girl was like no, like it isn't true like...
“L[.]: And they didn't believe her then?
“K[.]: Yeah.
“L[.]: It's too late.
“K[.]: Yeah, it is too late. So.
“L[.]: So then why did she make that up?
“K[.]: I don't know.
“L[.]: She, he must of done something to her to piss her off.
“K[.]: I think he was trying to leave them that's why. Or maybe I'm thinking maybe the mom told her to. So the dad could leave or leave them alone.
“L[.]: That's weird.”
Defense counsel first informed the trial court that she intended to use the video recording of the conversation on October 24, 2017, the morning of opening statements to the jury. Although there had been hearings on numerous motions in limine by both parties on June 13, 2017 and October 11, 2017, defense counsel had not sought to admit evidence of the video recording. Thus, in response to defense counsel's announcement before opening statements, the trial judge stated, “[t]hat's new information to me.” The prosecutor, having received the transcript of the video recording that morning, raised concerns that the evidence “can only come in as impeachment” and that the defense's use of the “entire transcript if only a portion is being used to impeach wouldn't be appropriate.” The judge provided the prosecutor time to review the transcript and told the attorneys the court would hear any objections “at some point in time when the jury is not here.” Defense counsel nevertheless previewed the victims' recorded conversation to the jury in her opening statement.
After defense counsel started cross-examination of L. (who testified before K.), the court and parties discussed the video recording at a jury break. The prosecutor stated she had no objection to defense counsel's use of any “specific [inconsistent] statement” from the video recording to impeach L. The trial judge then told defense counsel: “If it's impeachment, it's going to be limited to the statement you think is inconsistent. The rest needs to be redacted.” Defense counsel agreed, and confirmed she intended to use any inconsistent statements only to impeach, not to refresh L.'s recollection, but she would not know how to redact the video until she “ask[ed] the questions.”
When defense counsel resumed cross-examination, L. testified she did not remember K. telling her “a story about Juan's sister” in the police waiting room. Defense counsel then asked: “And you don't remember saying, ‘he must have done something to her to piss her off'? You don't remember saying that?” The prosecutor objected and, after an unreported sidebar, the trial court sustained the prosecutor's relevance objection. Defense counsel continued asking L.: “Do you know the situation as to why the father was deported?” and “Do you know if Juan's sister was molested?” The trial court sustained the prosecutor's relevance objections to both questions.
During another jury break, defense counsel raised her ability to introduce the video again. The trial court stated that it was “not tracking” the relevance of the conversation “to this case.” Defense counsel then made several attempts to explain its relevance, arguing: It was relevant to L.'s (and K.'s) “state of mind, ” in that at the time they are reporting Archila's sexual abuse, they are “conversing about... a sexual molestation situation that was falsely reported.” And “L[.]'s explanation as to why that person lied was because he pissed her off. K[.]'s explanation as to why that girl lied was her mother probably told her. Why would they have those explanations? That's for the jury to decide.” The trial court observed that L. had no recollection of the conversation and “there is nothing in this conversation that is in any way inconsistent with anything she's testified to.” The court stood by its ruling “for now, ” and reiterated that it was “frankly not tracking” and “having a hard time” understanding defense counsel's theory of relevance.
Subsequently, the defense filed a motion in limine seeking admission of the evidence under Evidence Code sections 210 (defining “relevant evidence”), 356 (rule of completeness), 780 (general rule as to witness credibility), and 1202 (credibility of hearsay declarant). The defense argued “[t]he knowledge that false allegations exist at the same time that [K. and L.] are reporting their allegations show bias and motive.” The prosecutor argued the statements should be excluded because they were inadmissible hearsay, not relevant, and subject to exclusion under Evidence Code section 352.
At a hearing outside the presence of the jury, the court told defense counsel it was “struggling” with the defense's motion because, it “cannot find any inconsistent statement” in K. or L.'s testimony or in the transcript of the video recorded conversation. The court reiterated that it did not see the relevance because “the subject... of the conversation is almost exclusively about a different subject conversation about others, and there is no evidence that [it] can see of an improper motive, bias, plot, fabrication in the transcript[.]” The court gave defense counsel another opportunity to explain the relevance of the conversation.
By way of example, defense counsel argued that if Archila testified he “didn't do it, ” any statement by him made in the “back of a police car” that “he did [do it]” would be admissible. In the same vein, she argued, “[t]hese victims are saying this happened but they're in the back seat of the [police] car where they're saying it didn't happen.” The court then asked defense counsel to identify the inconsistent statement, and counsel responded that “the inconsistent statement is the allegation [of abuse against Archila] itself.”
The trial court denied the defense motion. It found the evidence of the conversation, including the transcript, irrelevant and inadmissible under Evidence Code section 352. The trial judge found that: “Its context is so slight that it's irrelevant to the issues in front of the court. The probative value is outweighed by the risk of misleading the jury under 352. There is no credible evidence that the witness' credibility has been challenged by the statements made in this transcript and I think it would be an undue expenditure of time.” However, the court permitted defense counsel to ask K. about the conversation and to testify about the conversation if she remembered it, but ruled the transcript was not admissible “unless” the court “see[s] evidence of an inconsistent statement or that there is [an] element of bias or fabrication[.]”
When K. was cross-examined, defense counsel elicited that Juan's sister had made “a false accusation” against Juan's father. K. could not recall whether or not she shared this story with L. Defense counsel then sought to refresh her memory with the video recording, and the court sustained the prosecutor's relevance objection and told defense counsel she needed to establish a foundation. Defense counsel then elicited that K. did not know how long ago the false accusation occurred or “the ages of anyone” involved but Juan said “he was young.” K. learned about it when she asked Juan “why his dad wasn't around” and that Juan knew the accusation was false because “his sister basically told him that it was false.” Defense counsel asked K. if she had “an opinion as to why someone would make a false allegation.” After K. answered “[n]o, ” the trial court ruled, “at this point... I'm going to find this is irrelevant.”
At a recess, defense counsel requested that she be allowed to show K. and L. the video recording in a “402 hearing” to refresh their recollections and then to call them as defense witnesses to testify about the conversation. The court denied defense counsel's requests based on its earlier rulings that the evidence was not admissible and would cause an undue consumption of time.
After the close of evidence, defense counsel moved for a mistrial. She argued, among other things, that she had previewed the victims' conversation in her opening statement and that its exclusion from evidence would cause the jury to question her credibility and deny her client “his due process.” The trial court denied the motion, finding that defense counsel made “a tactical decision” to preview the conversation to the jury without first securing the court's ruling on its admissibility.
B. No Violation of the Sixth Amendment Right of Confrontation
Archila asserts the trial court's evidentiary rulings violated his right of confrontation under the Sixth Amendment. He contends the limitations on his counsel's cross-examination of the victims regarding their conversation prevented him from pursuing the defense theory that “K[.], L[.], and their mother were angry at [Archila] for repeatedly moving out of their house and disrupting what had been a stable family, and that L[.] and K[.] had fabricated the allegations, reflecting their mother's wishes, as revenge.” He also contends he could have used the video recording to impeach K. and L. by showing their failure to remember the waiting room conversation was “mendacious.”
At the outset, we reject the Attorney General's response that Archila has forfeited his challenge because he failed to invoke the Sixth Amendment at trial. “ ‘As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to the one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.' ” (People v. Partida (2005) 37 Cal.4th 428, 436 (Partida).) Since, as the Attorney General concedes, Archila sought admission of the challenged evidence to show “the victims' state of mind, their credibility or bias, and as inconsistent statements, ” we consider Archila's Sixth Amendment challenge under Partida but ultimately we reject it on the merits.
It is well settled that “ ‘ “a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.' ”' ” (People v. Chatman (2006) 38 Cal.4th 344, 372 (Chatman), quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall).) “ ‘However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.' ” (Chatman, at p. 372.) “ ‘Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses'] credibility” (Van Arsdall, at p. 680), the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' ” (Chatman, at p. 372.)
“ ‘The trial court is accorded broad discretion in determining the relevance of evidence' ” (People v. Hardy (2018) 5 Cal.5th 56, 104), including “evidence offered for impeachment” (People v. Rodriguez (1999) 20 Cal.4th 1, 9 (Rodriguez)). A defendant does not have an “ ‘absolute right' ” to cross-examine a prosecution witness about matters purportedly relating to bias. (People v. Brown (2003) 31 Cal.4th 518, 545 (Brown).) A trial court's “reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination.” (Ibid.) We review a trial court's exercise of discretion in admitting or excluding evidence for abuse, and reverse only upon a showing that the trial court exercised its discretion in “an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (Rodriguez, at pp. 9-10.)
At trial, the defense's chief theory for admissibility of the recorded conversation was that it constituted a prior inconsistent statement (Evid. Code, § 1235). Defense counsel stated that she intended to use the recording for any inconsistent statements only to impeach the victims' trial testimony, and not to refresh their recollection. Despite being given numerous opportunities to identify any inconsistent statement in the conversation, the defense could point to none. Instead, she told the court “the inconsistent statement is the allegation [against Archila] itself.” Thus, the trial court found, and we agree, “there [was] nothing in this conversation that is in any way inconsistent” with the victims' testimony. Perhaps that explains why Archila has all but abandoned his chief trial theory of admissibility on appeal.
On appeal, Archila argues the video recording “could have indirectly advanced the defense by showing L[.]'s and K[.]'s stated memory failures to have been mendacious.” Not so. “In normal circumstances, the testimony of a witness that [s]he does not remember an event is not ‘inconsistent' with a prior statement by [her] describing that event.” (People v. Green (1971) 3 Cal.3d 981, 988 (Green).) However, “[w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's ‘I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.)
Relying on People v. Debouver (2016) 1 Cal.App.5th 972 (Debouver), Archila argues an exception to the usual rule that prior statements are generally not admissible for their truth when a witness testifies they do not recall the fact or event recounted in their out-of-court statement applies here. We do not agree. In Debouver, a career criminal was caught in someone's garage leaning into a vehicle with a smashed window and holding a backpack that contained stolen goods and burglary tools. He confessed to the crime in his police interview, but testified at trial that he had no recollection of breaking into the garage. (Id. at pp. 979-980.) The Court of Appeal, relying on Green and Johnson, held the trial court did not err in admitting the defendant's confession for impeachment because the defendant's claimed lack of recall had a “false aura of veracity.” (Id. at p. 980.)
In this case, we do not perceive, nor does Archila argue, that the victims' failure to recall their waiting room conversation had any “false aura of veracity.” (Debouver, supra, 1 Cal.App.5th at p. 980.) The conversation was brief and happened years before trial and in the midst of an emotionally difficult situation. L. could only remember “crying” in the waiting room after leaving her interview with the officer. And K. did not deny knowledge of the story about Juan's sister's false accusation; she simply could not remember specifically telling L. about it. We therefore disagree the video recording demonstrated that the victims' lack of recall was mendacious.
Archila further contends the video would have supported the defense theory that “K[.], L[.], and their mother were angry at [Archila] for repeatedly moving out of their house and disrupting what had been a stable family, and that L[.] and K[.] had fabricated the allegations, reflecting their mother's wishes, as revenge.” We first note that there was no evidence whatsoever of the mother's feelings about Archila; she did not testify. But on this theory, the trial court found no evidence in the recorded conversation of “an improper motive, bias, plot, [or] fabrication” by the victims. Our review of the record evidence compels the same conclusion. The conversation itself, when considered as a whole, does not support the conclusion that K. and L. harbored the same biases or motivations they may have attributed to Juan's sister. Nothing about their short conversation indicated that they supported the sister's actions or had any intention to copy what she had done; to the contrary, their comments about her behavior were critical. They agreed the sister's admission of falsification came “too late” and L. called her behavior “weird.”
Archila's reliance on Holley v. Yarborough (9th Cir. 2009) 568 F.3d 1091 (Holley) does not persuade us that the trial court erred. In Holley, the Ninth Circuit reversed the district court's denial of a habeas petition arising from the defendant's convictions of, among other offenses, two counts of lewd conduct on a child. An 11-year-old victim accused the defendant of having touched her under her clothes while he was babysitting her. (Id. at p. 1095.) The trial court denied a defense request to impeach the victim's credibility with evidence of her prior statements to third parties revealing her sexual knowledge. (Id. at pp. 1096-1097.) The Ninth Circuit concluded the trial court improperly excluded the evidence in violation of the defendant's Sixth Amendment rights. It reasoned that the evidence tended to show the victim's “tendency to exaggerate or overstate, if not outright fabricate, ” and it was admissible to counter the prosecution's characterization of the victim as “a little girl” who “would not fabricate things of a sexual nature.” (Id. at p. 1099.) That is not this case.
Unlike the evidence excluded in Holley and as the trial court reasonably found, the evidence of K. and L.'s “conversation is almost exclusively about a different subject conversation about others” and their discussion of someone else allegedly falsifying an allegation did not establish K. and L.'s own tendency to falsify or motive to lie. As acknowledged in Holley, under Van Arsdall, supra, 475 U.S. at page 679, a trial judge “ ‘ “retain[s] wide latitude” to limit reasonably a criminal defendant's right to cross-examine a witness' ” on matters that are “ ‘ “only marginally relevant.”' ” (Holley, supra, 568 F.3d at pp. 1098-1099.) We find no abuse of discretion in the court's evidentiary rulings, and conclude that the court's “reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time... does not contravene [Archila's] constitutional rights to confrontation and cross-examination.” (Brown, supra, 31 Cal.4th at p. 545.)
Further still, Archila does not specifically argue, nor do we find, that the jury would have received a “significantly different impression” of K. or L.'s credibility had the trial court admitted the video evidence or had it not imposed the challenged limits on the defense cross-examination. (Van Arsdall, supra, 475 U.S. at p. 680.) No other limitations were placed on the defense cross examination other than the ones Archila now challenges. Defense counsel was allowed to ask and did ask K. repeatedly about the false allegation by Juan's sister. The defense was permitted to ask K. and L. about their feelings about Archila and the times he had previously left their mother. The defense explored the many people K. and L. could have disclosed the abuse to but did not, and questioned their delayed reporting. As Archila emphasized in his opening brief on appeal, the defense questioned K. and L. extensively on the “substantial inconsistency” in their testimony about the sexual abuse. Because Archila has failed to “ ‘show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses'] credibility” (Van Arsdall, supra, 475 U.S. at p. 680), the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' ” (Chatman, supra, 38 Cal.4th at p. 372 .)
However, even assuming error in the trial court's limitations on cross-examination and exclusion of the video recording, we would conclude it to be harmless. Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Van Arsdall, supra, 475 U.S. at pp. 681, 684.) “Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” (Ibid.) “The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' ” (People v. Geier (2007) 41 Cal.4th 555, 608 (Geier), overruled on another ground by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) Here, the answer is yes.
Importantly, any speculation the recording might have generated in jurors about whether K. and L.'s discussion of Juan's sister indicated they, too, were “pissed” at Archila and were, like Juan's sister, falsifying their accusations, would have been dispelled by Archila's admissions in the pretext call that happened later that day. We disagree with Archila that he did not admit sexual activity with K. or L. during this call. His unforced statements-that he was only “playing with both of [the victims]” “like a toy, ” but “would not penetrate [them] or anything” and would not “take away [their] virginity”- are not innocent and cannot reasonably be taken as anything but an acknowledgement of unlawful sexual contact with two minor children. Contrary to Archila's claim, the prosecution's overall case against Archila was strong. K. and L.'s claims of Archila's sexual abuse were materially corroborated by his own incriminating admissions during the pretext call, which also corroborated L.'s testimony that Archila apologized to her when she was 19 years old “[f]or the stuff that he had done to [her].”
Archila, however, claims any constitutional error arising from the trial court's rulings is not harmless because his counsel previewed it in her opening statement and lost credibility with the jury by failing to uphold this promise. As the trial court observed, defense counsel elected not to seek a ruling on the admissibility of the video recording prior to trial. By delaying the ruling on its admissibility, counsel took the risk the evidence would be excluded. We agree with the People this tactical defense decision cannot be deployed to inject reversible error in an otherwise legally adequate proceeding.
For all of these reasons, we reject Archila's claim that the trial court's evidentiary rulings relating to K. and L.'s recorded conversation violated his Sixth Amendment right of confrontation. We further conclude that it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the asserted errors. (See Geier, supra, 41 Cal.4th at p. 608.)
C. No Violation of Article I, Section 24 of the California Constitution
Archila separately argues that the same evidentiary rulings challenged under the Sixth Amendment violated his right of cross-examination under article I, section 24 of the California Constitution. This claim of state law error explicitly relies on the same arguments that we have already addressed and dispensed. Archila's citation to Evidence Code sections 773 (cross-examination of witnesses) and 780 (credibility of witnesses) does not alter our conclusion that the court did not abuse its discretion or that, assuming error, it is harmless error. Errors of state law are reviewed for harmlessness under the standard established in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). The Chapman standard for determining harmless error is “more stringent” than the Watson standard. (See People v. Nicolas (2017) 8 Cal.App.5th 1165, 1179.) Thus, because the challenged rulings, even if erroneous, were harmless beyond a reasonable doubt, they were necessarily harmless under Watson.
D. No Due Process Violation Resulted from Exclusion of the Video Evidence
Finally, Archila argues the trial court's rulings excluding the video recording from evidence “on the grounds of relevance, prejudicial impact substantially exceeding its probative value[, ] and time concerns” violated his right to due process under the federal Constitution and California Constitution. This claim is but another iteration of the same challenges to exclusion of the video evidence, which we have already rejected.
Archila's additional reliance on United States v. Stever (9th Cir. 2010) 603 F.3d 747 (Stever) does not change our conclusion. Stever involved an appeal of a conviction under federal law for conspiracy to manufacture marijuana plants, in which the Ninth Circuit found the Oregon district court's ruling excluding evidence of operations in the area by Mexican drug trafficking organizations on grounds of relevance was erroneous and deprived him of a defense. (Id. at pp. 755-758.) Stever is too far afield in terms of its facts to be persuasive here. Stever also did not involve rulings under Evidence Code section 352 or its federal counterpart, and thus it offers Archila no assistance in establishing that the trial court's ruling in this case constituted an abuse of its discretion under Evidence Code section 352. Having failed to establish there was an error of state evidence law, it follows Archila also falls short of establishing the trial court committed constitutional error. (Rodriguez, supra, 20 Cal.4th at pp. 9-10; Brown, supra, 31 Cal.4th at p. 545.) But even if the court's ruling was erroneous, we have already determined that any error arising from exclusion of this evidence was harmless under either Chapman or Watson.
III.
Substantial Evidence Supported Archila's Convictions for Aggravated Sexual Assault and Lewd Acts by Means of Duress
Archila's convictions for aggravated sexual assault of a child under 14 (counts 5-7) and aggravated lewd acts on a child under 14 (counts 2-4 and 8-15) required the jury to find he committed the offenses by “force, violence, duress, menace or fear of immediate and unlawful bodily injury.” (See §§ 269 subd. (a)(1), 261, subd. (a)(2), 269, subd. (a)(4), 287, subd. (c)(2)(A), former 288a, 288, subd. (b)(1).) Because the statutory language is in the disjunctive, a conviction may be supported by evidence of force, violence, menace, or fear of immediate and unlawful bodily injury. (People v. Young (1987) 190 Cal.App.3d 248, 259.) Here, the People prosecuted the case on the theory that Archila committed the offenses by means of duress.
Archila contends the evidence of duress was insufficient to support his convictions for the aggravated offenses. In evaluating that claim, we review the entire record in the light most favorable to the judgment and determine whether it contains substantial evidence from which a reasonable trier of fact could find Archila guilty beyond a reasonable doubt. (People v. Jackson (2014) 58 Cal.4th 724, 749.) We indulge the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment (ibid.), and we do not substitute our judgment for that of the jury or reverse merely because the evidence might also support a different finding (Jennings, supra, 50 Cal.4th at pp. 638-639). On the record before us, we conclude Archila has not carried his “ ‘enormous burden' ” of demonstrating insufficient evidence to require reversal of his convictions. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071 (Thomas).)
Duress is “ ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' ” (People v. Leal (2004) 33 Cal.4th 999, 1004-1005 .) This definition is “objective in nature and not dependent on the response exhibited by [the] victim.” (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto).) For that reason, “[t]he fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress.” (Thomas, supra, 15 Cal.App.5th at p. 1072.) The trial court correctly instructed the jury on the definition of duress and that it had to find beyond a reasonable doubt Archila's use of duress. (CALCRIM Nos. 1015, 1111, 1000 [omitting “hardship”].) The jury was further instructed to “consider all the circumstances, including the age of the [victim] and her relationship to the defendant” when deciding whether the act was accomplished by duress. (See ibid.)
“The totality of the circumstances includes the victim's age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child.” (Thomas, supra, 15 Cal.App.5th at p. 1072.) California appellate courts have recognized that “duress involves psychological coercion.” (People v. Schulz (1992) 2 Cal.App.4th 999, 1005 (Schulz); see People v. Cochran (2002) 103 Cal.App.4th 8, 15 (Cochran) [“The very nature of duress is psychological coercion.”], overruled on other grounds by Soto, supra, 51 Cal.4th at p. 248, fn. 12.) The defendant's position of authority and dominance within the family and “ ‘continuous exploitation of the victim' ” are relevant to the existence of duress. (Schulz, at p. 1005.) So are “a defendant's attempts to isolate the victim and increase or maintain her vulnerability to his assaults.” (Cochran, at p. 15.) “When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest of cases.” (Thomas, at pp. 1072-1073.)
Contrary to Archila's contentions, this is not one of those rare cases. The evidence established that Archila was a father figure to both K. and L. and that he physically disciplined both victims when they were disobedient. He isolated the victims physically and psychologically by molesting them inside the master bedroom away from their mother and in K.'s case, by closing and locking the bedroom door. He summoned the victims into the bedroom and there he instructed them on what he wanted them to do, directives that a jury could infer were “orders to be obeyed.” (Thomas, supra, 15 Cal.App.5th at p. 1074; People v. Reyes (1984) 153 Cal.App.3d 803, 811 (Reyes).) Additionally, with L., he grabbed her hand, put it on his penis, manipulated her hands “up and down” and told her how to do it until he ejaculated. He told both victims to keep the sexual abuse a secret, and even told K., when he started abusing her at age six, that the sexual touching was “okay.” Both victims did not tell their mother of the abuse they endured out of fear of harming her and the family, including Archila. Further still, there were significant disparities in age, physical stature, and cognitive sophistication that marked the power dynamics between Archila and the victims. All of this established that both victims were young, “vulnerable and isolated child[ren] who engaged in sex acts only in response to [their] father's parental and physical authority.” (Cochran, supra, 103 Cal.App.4th at p. 15.)
The totality of the evidence is sufficient, when viewed objectively and in the light most favorable to the judgment, to support the jury's finding of duress. (See Thomas, supra, 15 Cal.App.5th at p. 1072.) In arguing otherwise, Archila ignores the totality of the evidence and focuses too narrowly on the victims' testimony that they “participated” in the sexual acts because, as with K., “she was a kid and did not understand what was happening, ” or as with L., she “participated” so Archila “would buy her things she wanted, ” a “sort of bribery.” But as our high court has said, duress is determined objectively and it is “not dependent on the response exhibited by [the] victim.” (Soto, supra, 51 Cal.4th at p. 246.) “The fact that the victim testifies the defendant did not use force or threats does not preclude a finding of duress.” (Thomas, at p. 1072.)
Archila reads too much into K.'s testimony that she did not “know what [she] wanted or didn't want” when Archila penetrated her vagina with his erect penis and that he stopped molesting her after she said “no” multiple times during the encounter on the mattress when she was 10 years old. We disagree these facts undermine the totality of the evidence otherwise supporting a finding of duress. Other courts have found sufficient evidence of duress despite similar facts. (See Cochran, supra, 103 Cal.App.4th at p. 15 [victim's testimony that she was not afraid of defendant and that he stopped if she said anything hurt did not preclude a finding of duress]; People v. Veale (2008) 160 Cal.App.4th 40, 43, 44, 47 [despite the lack of threats or physical force, the jury could reasonably find duress based on an implied threat from the victim's fear, combined with age and size disparities].) We also disagree with Archila that evidence a perpetrator uses bribery to coerce a child into submission cannot support a finding of duress. “The very nature of duress is psychological coercion.” (Cochran, at p. 15.)
Archila's reliance on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza) does not compel a different conclusion. The victim in Espinoza was 12 years old and was molested by the defendant, her father, on five occasions in the middle of the night. (Id. at pp. 1292-1293.) The victim felt uncomfortable but was “ ‘too scared to do anything' ” (id. at p. 1293) and “ ‘didn't know what to do' ” so she “ ‘just stayed there' ” (id. at p. 1294). Once, she “ ‘moved' ” to prevent the defendant's penis from going inside her vagina. (Id. at p. 1293.) Other than saying “ ‘[d]o you still love me' ” during one of the molests, the defendant did not speak to the victim. (Id. at p. 1295.) Among other offenses, the defendant was convicted of aggravated lewd conduct on a child under 14 and attempted rape, both of which were prosecuted on a theory of duress. (Id. at pp. 1295, 1319.)
The Court of Appeal sustained the defendant's challenge to the convictions, finding insufficient evidence these crimes were perpetrated using duress. (Espinoza, supra, 95 Cal.App.4th at pp. 1318-1322.) It reasoned that the defendant did not “grab, restrain, or corner” the victim during the incident when he attempted to penetrate her, and she did not cry or offer resistance. (Id. at p. 1320.) It noted that in People v. Hecker (1990) 219 Cal.App.3d 1238, 1250-1251 (Hecker), overruled in part in Soto, supra, 51 Cal.4th at page 248, footnote 12, the appellate court held that “ ‘ “[p]sychological coercion” without more does not establish duress' ” and that there must be at minimum an “ ‘ “implied threat of ‘force, violence, danger, hardship or retribution.' ”' ” (Espinoza, at p. 1321.) The Espinoza court found no evidence defendant had done anything to cause the victim to fear him other than “to continue to molest her.” (Ibid.)
We disagree that the result reached in Espinoza should obtain here. First, subsequent courts have disagreed with Hecker, on which the Espinoza court relied, that psychological coercion without more is insufficient to establish duress. (See, e.g., Cochran, supra, 103 Cal.App.4th at p. 15 [calling the language in Hecker “overly broad” because “[t]he very nature of duress is psychological coercion”]; accord Veale, supra, 160 Cal.App.4th at p. 48.) Moreover, the California Supreme Court defined duress as “ ‘us[ing] some form of psychological coercion to get someone else to do something.' ” (Soto, supra, 51 Cal.4th at p. 243.) We side with the views expressed in Cochran and Veale.
Second, this case is distinguishable from Espinoza on its facts. Archila started molesting K. when she was only six years old, half the age of the victim in Espinoza. She was only eight or nine when Archila committed the aggravated sex acts, still several years younger than the victim in Espinoza. (See Thomas, supra, 15 Cal.App.5th at p. 1073 [distinguishing Espinoza on this ground]; Veale, supra, 160 Cal.App.4th at pp. 49-50 [same].) And quite unlike Espinoza, Archila used physical methods of discipline to punish both victims when they disobeyed him. Archila's pattern of molesting the victims included summoning them into the bedroom, instructing them on what to do, and, as “a kid being told what to do, ” they complied. The jury could reasonably infer from this evidence that each victim was habituated to expect physical discipline for disobedience such that Archila's commands contained an implied threat. In other words, the jury could properly conclude that “defendant's directives to [her] were orders to be obeyed.” (Thomas, at p. 1074; see Reyes, supra, 153 Cal.App.3d at p. 811 [where the victim testified the defendant “ ‘told' ” her to touch his genitals and anus, “[t]he jurors could reasonably conclude that the use of ‘told' by the witness infers an ‘order,' not a request”].) Such facts were absent in Espinoza, and they compel a different conclusion here than the one reached by the Espinoza court.
In sum, we conclude the evidence of duress was sufficient to support Archila's convictions for aggravated sexual assault against K., as charged in counts 5 to 7, and for aggravated lewd conducts against K., as charged in counts 2 to 4, and against L., as charged in counts 8 through 15.
IV.
No Instructional Errors
A. CALCRIM No. 1191B
The trial court instructed the jury with pattern instruction CALCRIM No. 1191B, as follows:
“The People presented evidence that the defendant committed the crimes of Lewd or Lascivious Acts on a Child Under 14 as charged in Count 1, Lewd or Lascivious Act on a Child by Force, Violence, Duress, Menace or Fear as charged in Counts 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, and 15, and Aggravated Sexual Assault of a Child under 14 and 10 or More Years Younger than the Defendant as charged in Count 5, 6, and 7, and Lewd and Lascivious Act on a Child Age 14 or Fifteen as charged in count 16. [¶] If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offense charged in this case. [¶] If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove the charge and allegation beyond a reasonable doubt.”
Archila claims the giving of this instruction violated his rights to due process under the federal and state Constitutions because it authorized the jury to make irrational permissive inferences and unreasonably risked causing jurors to convict him based on his character. We reject these contentions.
1. The Instruction Did Not Authorize Irrational Permissive Inferences in Violation of Archila's Federal Due Process Rights
The pattern instruction CALCRIM No. 1191B derives from Evidence Code section 1108, which provides, in pertinent part, that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a); see People v. Villatoro (2012) 54 Cal.4th 1152, 1158-1160 (Villatoro) [discussing derivation of an instruction similar to CALCRIM No. 1191B].)
Archila's federal due process challenge is based on Ulster County Court v. Allen (1979) 442 U.S. 140, 156-157 (Ulster County). In Ulster County, the Supreme Court explained that “[i]t is often necessary for the trier of fact to determine the existence of an element of the crime -- that is, an ‘ultimate' or ‘elemental' fact -- from the existence of one or more ‘evidentiary' or ‘basic' facts.” (Id. at p. 156.) However, such evidentiary devices implicate the due process clause of the federal Constitution if they “undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” (Ibid.) A statute that authorizes the jury to infer the existence of an elemental fact from proof of an evidentiary fact violates the due process clause when “there is no rational way the trier could make the connection permitted by the inference.” (Id. at p. 157.) The constitutionality of a law authorizing such an inference must be assessed under the particular facts of a given case. (Id. at pp. 155-156.)
Relying on Ulster County, Archila argues the challenged instruction authorized the jury to make three irrational permissive inferences: “1) that finding appellant committed any of the 16 charged sex offenses, which ranged from rubbing L[.]'s arm with his hand to rape, authorized the inference he had the propensity to commit the other alleged sex offenses; 2) that finding a propensity to commit sex offenses based thereon authorized the inference [he] likely committed all the charged sex offenses[;] and... 3) that finding a propensity to commit sex [sic] authorized the inference appellant in fact committed all the charged sex offenses.” He further contends that the language in the instruction precluding the jury from convicting him based solely on these inferences were insufficient to cure the due process violation.
The California Supreme Court has previously considered, and rejected, constitutional challenges to Evidence Code section 1108 and jury instructions derived from it. In People v. Falsetta (1999) 21 Cal.4th 903, 913-917 (Falsetta), our high court rejected a claim that Evidence Code section 1108 was invalid as a violation of due process, holding the statute did not offend fundamental principles of fairness. The court subsequently upheld a jury instruction based on Evidence Code section 1108-that told jurors they could infer a propensity to commit charged sexual offenses from uncharged offenses proved by a preponderance of evidence-against a claim that the instruction unconstitutionally lowered the prosecution's burden of proof. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1014 (Reliford) [upholding the 1999 version of CALJIC No. 2.50.01].)
And in Villatoro, supra, 54 Cal.4th at pp. 1165-1168, our high court held that a jury instruction much like the one issued in this case did not violate the defendant's due process rights, although it cautioned it was not deciding “whether courts should give such an instruction in the future.” (Id. at p. 1169.) The pattern CALCRIM No. 1191B instruction given by the trial court in this case is based on the instruction approved in Villatoro. (See, e.g., People v. Meneses (2019) 41 Cal.App.5th 63, 68 [finding Villatoro dispositive of defendant's due process challenge to CALCRIM 1191B].)
Archila acknowledges that under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales), we are bound by the decisions of our high court. He claims, however, that his due process challenge differs from the challenges decided in the foregoing cases, because he relies on Ulster County, which those cases did not address, and because his challenge concerns the rationality of the inferences authorized in the CALCRIM No. 1191B instruction under the unique facts of his case, an issue necessarily unaddressed by prior opinions.
We have compared Archila's arguments on appeal with the issues decided in Falsetta, Reliford, and Villatoro. To the extent he asks us to revisit issues already decided in binding precedent, we identify those arguments below and refrain from considering them. To the extent his arguments concerning the rationality of inferences authorized by CALCRIM No. 1191B were not considered in prior high court precedent, we may and do address them. (See People v. Barragan (2004) 32 Cal.4th 236, 243 [“ ‘[C]ases are not authority for propositions not considered.' ”].) Moreover, our high court's statement in Villatoro that it was stopping short of deciding “whether courts should give such an instruction in the future” (Villatoro, supra, 54 Cal.4th at p. 1169) suggests a case-specific challenge like the one advanced by Archila may be entertained by an intermediate court of appeal. We thus consider Archila's case-specific challenges, taking care not to revisit issues decided by our high court.
The People argue that Archila's claim of instructional error has been forfeited because his trial counsel stipulated to the appropriateness of the trial court's jury instructions. However, “failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected. Here, [Archila] claims that the flawed instructions deprived him of due process, and because this would affect his substantial rights if true, his claim is not forfeited.” (People v. Mitchell (2019) 7 Cal.5th 561, 579-580.) Accordingly, we consider the merits of Archila's challenge.
Under Ulster County, a permissive presumption “affects the application of the ‘beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” (Ulster County, supra, 442 U.S. at p. 157.) As we discuss, the inferences authorized by CALCRIM No. 1191B were not irrational under the facts of this case. Moreover, the instruction did not undermine the jury's responsibility to convict Archila of the charged offenses based on proof beyond a reasonable doubt.
In People v. Van Winkle (1999) 75 Cal.App.4th 133, 143 (Van Winkle), the Court of Appeal considered the validity under Ulster County of a jury instruction similar to the one given here. The challenged instruction allowed the jury to infer from evidence of defendant's uncharged sexual misconduct that he had a disposition to commit similar sexual offenses, and that it could further infer from this disposition that “he was likely to commit and did commit” the sex offenses of which he was charged. (Id. at p. 139, fn. 4.)
The defendant in Van Winkle was alleged to have committed two lewd and lascivious acts against a seven-year-old victim, based on the victim's statements that the defendant “had put his hand down her pants” and had “held her in front of him, and once had held her from behind.” (Van Winkle, supra, 75 Cal.App.4th at pp. 136-137.) The jury was presented with evidence of defendant's prior acts of molestation against two other victims. One of these victims testified that the defendant had molested her when she was between three and six years old by taking baths with her naked, rubbing her vagina, placing his finger in her anus, having her orally copulate him several times, and kissing her and sticking his tongue in her mouth. (Id. at p. 137.) The other victim testified the defendant had touched her private parts with his hands, had made her orally copulate him, had tried to have intercourse with her, and had kissed her and put his tongue in her mouth. (Id. at pp. 137-138.)
The jury was instructed under CALJIC Nos. 2.50.1 and 2.50.01 that: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is charged or accused.” (Van Winkle, supra, 75 Cal.App.4th at p. 139, fn. 4.) The jury convicted the defendant of the charged offenses.
The Court of Appeal found the inferences authorized by these instructions rational under the facts of the case so as to satisfy the due process test articulated in Ulster County. (Van Winkle, supra, 75 Cal.App.4th at pp. 142-144.) The court reasoned that “a trier of fact could rationally infer (1) that a defendant who has previously sexually molested other young girls under similar circumstances has a disposition toward committing this type of offense, (2) that being predisposed to committing lewd and lascivious acts with children increases the likelihood of repeat offenses, and (3) that such a disposition increases the likelihood that he did commit the current offense, an offense supported by considerable evidence of its own.” (Id. at pp. 143-144.)
Van Winkle supports the conclusion that the inferences authorized by the challenged CALCRIM No. 1191B instruction here were rational under the circumstances of this case. Archila emphasizes the dissimilarity of the acts of rubbing L.'s arm in a sexual manner starting when she was six years old, and penetrating K.'s vagina when she was eight or nine. However, an even greater divide separated the uncharged acts of molestation in Van Winkle (coerced oral copulation and attempted intercourse) and the lewd touching offenses for which the defendant was tried in that case (putting his hand down the victim's pants and holding her “from behind”), and yet the appellate court was satisfied that the inferences authorized by the instruction met the standards of Ulster County. (Van Winkle, supra, 75 Cal.App.4th at pp. 142-144.)
The conduct underlying the charged offenses against Archila was sufficiently similar such that the jury could rationally infer from the determination he committed one charged offense that he had a propensity to commit, was likely to commit, and did commit, the others. All of the charges involved acts of sexual molestation of children in Archila's household with whom he had close familial ties, who were accessible to him and over whom he could exert and did exert disciplinary authority and control. Although the charges involved two different victims, each had an identical family relationship with Archila and viewed him as a father figure. Although his specific methods of manipulation varied, he used psychological coercion to isolate and control each girl. Moreover, the charges arose from a virtually unbroken “routine” marked by escalating acts of abuse, starting with conduct that was lewd but less invasive (fondling K.'s genitals; rubbing L.'s arm) and then escalated to more significant sex acts such as oral copulation and vaginal penetration. Archila acknowledges in his opening brief on appeal that his “apology to L[.] and some of his statements during the pretext call [to] K[.]... arguably corroborated some of the allegations, ” demonstrating the current offenses were supported by considerable evidence of their own.
Given the similarities in the conduct underlying the charged offenses, the jury could rationally infer in this case, as in Van Winkle, “that a defendant who has previously sexually molested other young girls under similar circumstances has a disposition toward committing this type of offense, ” that being predisposed to sexual molestation of children “increases the likelihood of repeat offenses, ” and “that such a disposition increases the likelihood that he did commit the current offense, an offense supported by considerable evidence of its own.” (Van Winkle, supra, 75 Cal.App.4th at pp. 143-144; see Francis v. Franklin (1985) 471 U.S. 307, 314-315 [“A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.”].) Thus, the inferences authorized by the instruction did not violate Archila's due process rights.
Archila cites several cases that he claims support a contrary conclusion and demonstrate that the inferences authorized by CALCRIM No. 1191B were irrational. However, most of these cases involve distinguishable evidentiary inferences, and they are not controlling or persuasive here. Of the cases Archila references, only one, People v. Earle (2009) 172 Cal.App.4th 372 (Earle), involves sex offenses. However, Earle fails to persuade us that Archila's due process rights were violated in this case.
These cases are Leary v. United States (1969) 395 U.S. 6, 10-11, 31, fn. 52 [trial court violated defendant's due process rights by instructing the jury it could presume from the defendant's testimony that “ ‘he received the marihuana in New York' ” that “ ‘the narcotic had been imported illegally and that he knew it had been imported illegally unless he explains his possession to the satisfaction of the jury' ”]; United States v. Moore (2d Cir. 1978) 571 F.2d 76, 82-87 [constitutional error for a trial court to instruct a jury in a kidnapping case it could presume from the fact that the victim was not released within 24 hours that the victim had been transported across state lines]; Hanna v. Riveland (9th Cir. 1996) 87 F.3d 1034, 1035-1038 [instruction that permitted a jury to infer recklessness solely from proof of excessive speed was unconstitutional].) Defendant also relies on People v. James (2000) 81 Cal.App.4th 1343 (James), a domestic violence case in which the Court of Appeal held that the prosecution's burden of proof was unconstitutionally reduced by use of instructions that permitted jurors to find by a preponderance of the evidence that the defendant had abused the victim in the past, and infer from this finding alone that he had committed the charged offense. (Id. at pp. 1346-1347, 1349-1350.) James has no application here. The jury in this case was properly instructed that the prior act of sexual misconduct was “only one factor to consider” and was insufficient, by itself, to prove defendant's guilt.
Evidence Code section 1108 defines “sexual offense” to mean, among other things, a crime involving “[a]ny conduct proscribed by subdivision (b) or (c) of Section 236.1, Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 287, 288, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6 of, or former Section 288a of, the Penal Code.” (Evid. Code, § 1108, subd. (d)(1)(A).)
In Earle, the defendant faced an indecent exposure charge based on one set of facts, and a charge of assault with intent to commit rape based on another. (Earle, supra, 172 Cal.App.4th at p. 384.) The trial court denied the defendant's motion to try the charges separately, ruling the defendant failed to show he would be prejudiced by having both charges tried together. (Id. at pp. 378-379, 385-386.) A divided Court of Appeal reversed. The majority considered whether evidence of one charge would have been cross-admissible in a trial of the other under Evidence Code section 1108. (See id. at pp. 388-389.) It concluded that “evidence of defendant's indecent exposure had [no] tendency in reason, on the evidence before the jury, to establish... a predisposition” to commit sexual assault. (Id. at p. 396.) The problem, in the view of the majority, was the difference in defendant's predisposition toward a particular “paraphilia[ ]” revealed by the prior sex act: “The psychological manuals are full of paraphilias, from clothing fetishes to self-mutilation, some of which are criminal, some of which are not. No layperson can do more than guess at the extent, if any, to which a person predisposed to one kind of deviant sexual conduct may be predisposed to another kind of deviant sexual conduct, criminal or otherwise.” (Id. at p. 399.) The majority could accept the proposition that a person who “lewdly expose[s] [his] genitals to strangers” is motivated by “a persistent and recurring desire to exhibit their sex organs.” (Id. at pp. 398-399.) But without expert evidence on the point, it disagreed that a defendant who exposed himself had a propensity to commit any other sex offense. It explained its concern rhetorically: “Is a pedophile more likely than a rapist or a member of the public to commit necrophilia?” (Id. at p. 399.) Thus, in the absence of expert evidence from the prosecution, a jury could not reasonably infer from an act of indecent exposure a propensity to commit rape. (Id. at p. 400.)
Justice Mihara, in dissent, criticized this reasoning: “It is simply not true, as the majority asserts, that the jury lacked a rational basis for drawing a relevant inference in the absence of expert testimony that it was more likely than not that an exhibitionist, in the abstract, would commit rape.” (Earle, supra, 172 Cal.App.4th at p. 421.) “Here, the question of fact that would be placed before the jury at trial was whether a man who summoned a lone female stranger to his car window to view his exposed erect penis was likely to commit other sexually motivated offenses against lone female strangers. The trial court could have reasonably concluded that these specific facts provided a rational basis for drawing such an inference. On this basis, the court could have concluded that the evidence was admissible under Evidence Code section 1108.” (Ibid.)
We do not find the reasoning of the Earle majority supportive of the conclusion that the challenged instruction here led the jury down an irrational path. We first observe that all of Archila's charged offenses involved acts of pedophilia. Even under the logic of the Earle majority, this degree of similarity would apparently suffice to make the instruction's permissible inferences rational. Second, we agree with the point made by Justice Mihara, which was that by focusing on the differences in defendant's charges in the abstract, the majority ignored the particular facts and circumstances that made the offense conduct similar and that demonstrated a rational basis for admitting the evidence under Evidence Code section 1108. The same critique applies to Archila's arguments here. His challenge focuses on the abstract difference between rubbing an arm of one victim and raping the other, but ignores other aspects of his underlying offense conduct that made the sexual offenses similar. As we have discussed, the charged offenses all involved acts of child molestation committed as part of a continuing pattern of abuse against the two young girls entrusted to Archila's care. Considering all of the relevant facts and circumstances, the instruction's permissible inferences were reasonable.
Archila argues that without additional “evidence [or] data, ” it is “baseless” to assert “that a defendant's propensity rendered it likely that he committed any particular crime” or that he “in fact committed some or all of the charged offenses.” We disagree, for the reasons we have already discussed.
Finally, even if certain charged offenses were dissimilar, the instruction guarded against any possibility that the inferences it authorized might lead the jury to convict him without finding the elements of each offense beyond a reasonable doubt. (Ulster County, supra, 442 U.S. at p. 156 [inferences violate the due process clause of the federal Constitution to the extent they “undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts [i.e., the elements of the offense] beyond a reasonable doubt”].) The instruction told the jury that if it determined Archila had committed one or more of the charged offenses, this was “only one factor to consider along with all the other evidence, ” was “not sufficient by itself to prove that the defendant is guilty of another crime, ” and that “[t]he People must still prove the charge and allegation beyond a reasonable doubt.”
In Villatoro, supra, 54 Cal.4th 1152, our high court found that such language “clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity” and ensured there was “no risk the jury would apply an impermissibly low standard of proof.” (Id. at p. 1168.) Archila disagrees that this aspect of the instruction was sufficient to protect his due process rights. However, we follow Villatoro, as we must. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
For all of these reasons, we reject Archila's claim that CALCRIM No. 1191B as applied to his case resulted in a violation of his federal due process rights.
2. The Instruction Did Not Unreasonably Risk Causing Jurors to Convict Him Based on His Character in Violation of Evidence Code Section 352 or His Due Process Rights
Next, Archila argues the CALCRIM No. 1191B instruction violated Evidence Code section 352 as well as the due process guarantees of the United States and California Constitutions. He claims the trial court failed to engage in an Evidence Code section 352 analysis before giving the instruction. He further contends the instruction “authorize[d] irrational inferences” and was therefore “bereft of probative value, ” and that it created a significant risk of prejudice because the charges of child sexual molestation were “inherently inflammatory.”
These arguments lack merit. Our high court has explained that before instructing a jury about propensity to commit sexual offenses, the trial court must conduct an Evidence Code section 352 analysis. (Villatoro, supra, 54 Cal.4th at p. 1168.) “ ‘Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of [Evidence Code] section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.' ” (Id. at p. 1163.)
Archila's assertion that the trial court failed to undertake the required Evidence Code section 352 analysis before deciding to issue the instruction is unaccompanied by any citation to the appellate record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [providing that appellate briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].) We are not required to comb the record in search of support for defendant's contentions on appeal. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) His failure to comply with this requirement allows us to conclude his assertion is unfounded. (See People v. Hyatt (1971) 18 Cal.App.3d 618, 624 [where a defendant's claim of evidentiary error rested on unsupported assertions about events in the trial court, “we may conclude there is no basis for the contention the court erred in refusing to admit evidence material and relevant to a triable issue and assume, there being no showing to the contrary, the record supports the action of the court in the premises”].) Moreover, the record does not appear to contain a transcript of the trial court's instruction conference. Thus, so far as we can determine, there is no record support for Archila's claim that the trial court issued the instruction without performing an Evidence Code section 352 analysis.
Moreover, we reject Archila's claim that the trial court abused its discretion under Evidence Code section 352 by electing to issue the instruction. Archila does not argue the court should have exercised its discretion to limit the charges used to demonstrate his particular criminal propensity; rather, he contends the court should have declined to give the instruction at all. However, his claim that the instruction as given was “bereft of probative value” because it “authorize[d] irrational inferences” merely repeats assertions we have already addressed and rejected. As we have discussed, the evidence at trial showed a substantial similarity in the charged offenses, all of which occurred as part of defendant's pattern of sexually exploiting the young girls with whom he was living.
We also disagree that the probative value the instruction permitted the jury to draw from this evidence was outweighed by its prejudicial impact. In Villatoro, our high court found no abuse of discretion in giving a similar instruction, reasoning that the charged crimes were sufficiently similar such that the value of the evidence “substantially outweighed any prejudice.” (Villatoro, supra, 54 Cal.4th at p. 1169.) The charged offenses in Villatoro involved rapes of five different victims. (Id. at pp. 1156-1158.) The offense conduct was similar, but not identical. Although all of the assaults involved forced sex acts that took place in a car, they were committed through the use of different weapons (a gun, a razor, or a stun gun) and involved different forms of sexual violation (the defendant forced all of the victims to engage in vaginal intercourse but committed additional, different sex acts against three of them). (Ibid.)
Here, the range of offense conduct committed by Archila was not markedly wider than the range of conduct underlying the charged offenses in Villatoro. It stands to reason that the prejudicial impact of instructing the jury about Archila's criminal propensity was no greater here than in Villatoro, which supports the conclusion that no abuse of discretion arose from giving the CALCRIM No. 1191B instruction in this case. Archila also argues that use of the instruction was prejudicial because of the inherently inflammatory nature of the child molestation charges. However, such charges are no more inflammatory than the violent rapes at issue in Villatoro.
Accordingly, we conclude that the trial court did not abuse its discretion under Evidence Code section 352 by giving the challenged instruction. It follows that the defendant has not established a violation of his constitutional rights. (People v. Henriquez (2017) 4 Cal.5th 1, 29 [trial court ruling involving a routine application of Evidence Code section 352 “ ‘ “does not implicate [a] defendant's constitutional rights”' ”].)
B. Lesser Included Offenses
Next, Archila argues the trial court should have instructed the jury sua sponte that unlawful intercourse with a minor under age 18 and more than three years younger than the defendant (§ 261.5, subds. (a) & (c)) was a lesser included offense of aggravated sexual assault by rape (§ 269, subd. (a)(1), count 7). He also contends that the court should have instructed the jury sua sponte that oral copulation with a person under 14 years of age and more than 10 years younger than the defendant (former § 288a, subd. (c)(1), now § 287, subd. (c)(1)) and oral copulation with a person under 18 years of age (former § 288a, subd. (b)(1), now § 287, subd. (b)(1)) were lesser included offenses of aggravated assault by oral copulation (§ 269, subd. (a)(4), counts 5 and 6). K. was the victim of the greater offenses that Archila claims required instructions on the identified lesser offenses.
The People do not dispute that unlawful intercourse with a minor is a necessarily included lesser offense of aggravated sexual assault by rape under the elements test or the accusatory pleading test. (See People v. Parson (2008) 44 Cal.4th 332, 349 [defining the elements test and accusatory pleading test].) They also do not dispute that oral copulation with a minor under 14 and oral copulation with a person under 18 are necessarily included lesser offenses of aggravated assault by oral copulation under the elements test or the accusatory pleading test. The People claim, however, that the trial court was not required to instruct the jury on these lesser offenses because there was substantial evidence of Archila's guilt of the greater crimes. They also argue that any error in failing to instruct on the lesser offenses was not prejudicial.
We need not decide whether the trial court was obligated to instruct on additional lesser offenses because we agree with the People there was no prejudice. Watson, supra, 46 Cal.2d 818, supplies the relevant standard of harmless error review. (See Breverman, supra, 19 Cal.4th at p. 165 [holding that “the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility”].) Under this standard, we focus “not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration.” (Id. at p. 177.)
Defendant argues federal constitutional error arose from the trial court's failure to sua sponte instruct the jury on the identified lesser included defenses. Not so. Defendant relies on People v. Dennis (1998) 17 Cal.4th 468, 502-503, a capital case. Our Supreme Court has observed that the rule requiring sua sponte instructions on lesser included offenses in noncapital cases is a California rule that exists independent of the federal Constitution. (People v. Breverman (1998) 19 Cal.4th 142, 168 (Breverman).)
We have examined the record and conclude that even if given the option, it is not reasonably probable the jury would have convicted Archila of unlawful intercourse with a minor instead of aggravated sexual assault by rape. Likewise, we conclude it is not reasonably probable the jury would have convicted Archila of oral copulation with a person under 14 or oral copulation with a person under 18 rather than aggravated sexual assault by forcible oral copulation. Archila argues we cannot reach such a conclusion because the trial evidence of duress was questionable. However, we have thoroughly evaluated the evidence of the circumstances under which K. submitted to Archila's demands and disagree the evidence of duress was as tenuous as he suggests.
In her closing argument, defense counsel focused on convincing the jury to disbelieve K. and L. and conclude that Archila had never molested them. However, counsel devoted just one sentence of her argument to questioning the strength of the evidence of duress: “The [P]eople want you to believe that duress or fear [sic] because he was taller or bigger, even though she never said anything, but what [the prosecutor is] trying to tell with you that is [sic] she wants you to transfer what was in K[.'s] mind for the duress, not the intention of Mr. Archila if, in fact, you believe that he did that.” The trial court instructed the jury on lesser included offenses that did not require proof of duress as to the charged counts of aggravated sexual assault by rape and aggravated sexual assault by oral copulation. Defense counsel did not discuss any of the lesser included offenses during her closing argument and did not invite the jury to convict Archila of a lesser offense based on purportedly insufficient evidence of duress. Despite being instructed on lesser crimes that did not require a finding of duress, the jury found Archila guilty of the greater offenses.
Archila argues that the jury may have rejected the lesser offenses on which it was instructed because they did not involve an act of sexual intercourse or oral copulation “in the absence of coercion.” However, Watson, supra, 46 Cal.2d at page 836, “requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial.” (People v. Blakely (2000) 23 Cal.4th 82, 94.) Having reviewed the entire record, we do not find the scenario that Archila identifies to be a reasonable probability.
C. The Jury was Properly Instructed that Consent is Not a Defense to Aggravated Lewd Acts with a Child Under Age 14
The jury was instructed that consent of the child is not a defense to the crime of lewd or lascivious act by force, violence, duress, menace, or fear on a child under the age of 14 (§ 288, subd. (b)(1), counts 2-4, 8-15). Archila contends it was error to so instruct the jury. He acknowledges that his argument is foreclosed by Soto, supra, 51 Cal.4th 229, in which the California Supreme Court explained that “children under age 14 cannot give valid legal consent to sexual acts with adults” and held that consent is not a defense to a violation of section 288, subdivision (b)(1). (Soto, at pp. 238, 248.) Archila argues, however, that to apply Soto, a 2011 decision, to his case arising from offense conduct committed in or before 2010, constitutes a “retroactive application of an unforeseeable enlargement of a criminal statute” that violates his federal constitutional right to due process.
Archila recognizes the Fifth District Court of Appeal has already rejected an identical claim about the retroactivity of Soto. (People v. Saavedra (2018) 24 Cal.App.5th 605, 612 (Saavedra).) However, he refers us to Harris v. Muniz (E.D. Cal. 2018) 2018 WL 6198452, *3-4 (Muniz), which he describes as a decision in which the federal district court held Soto was an unforeseen judicial enlargement of criminal liability and could not be applied retroactively. He argues that Muniz was correctly decided and Saavedra was not, and asks us to follow Muniz.
Archila appears to have misread Muniz, which was not a judicial decision but rather a set of findings and recommendations issued by a magistrate judge in proposed resolution of a federal habeas petition brought under 28 U.S.C. section 2254. As is the case with any such petition, given the requirement of procedural exhaustion, the trial court judgment that resulted in the petitioner's incarceration had already been challenged in all state courts of review. This process had resulted in an unpublished decision by the Third District Court of Appeal (People v. Harris, Case No. C075446). A subsequent petition for review to the California Supreme Court had been summarily denied. (See Muniz, supra, 2018 WL 6198452, at p. *1 [setting forth this procedural history].)
The federal magistrate judge, in reciting the procedural history of the case, opted to paste the Court of Appeal's unpublished decision into the findings and recommendations verbatim. (Muniz, supra, 2018 WL 6198452, at pp. *2-6.) In that unpublished decision, the Third District Court of Appeal observed that “Soto arguably constitutes an unforeseen judicial enlargement of section 288(b)(1)” and then considered whether any such error was harmless. (Id. at p. *4.) It is this part of the magistrate court's order reciting the contents of the unpublished appellate decision that Archila urges us to follow. We decline to do so. (See Cal. Rules of Court, rule 8.1115(a).) Further, we find the reasoning of Saavedra persuasive. Accordingly, we follow Saavedra and conclude that instructing the jury under Soto that consent was not a defense did not result in a due process violation. Anticipating that we might find Soto retroactive, Archila argues that Soto itself was wrongly decided and warrants reconsideration. As he surely recognizes, however, we are not at liberty to entertain such a request. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
V.
No Cumulative Error
Archila argues the cumulative error doctrine applies to his asserted claims of error. “Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant.” (People v. Capers (2019) 7 Cal.5th 989, 1017.) However, we have not found any errors to aggregate, nor has defendant established prejudice from any of the purported errors. (See, e.g., People v. Lua (2017) 10 Cal.App.5th 1004, 1019 [cumulative error doctrine did not apply where “we have found no error, though we have considered the issue of prejudice as an alternative basis for rejecting defendant's claims of error”].) Accordingly, we find there was no prejudicial cumulative error. (See People v. Hinton (2006) 37 Cal.4th 839, 872 [no cumulative error where “the errors are relatively few and... the prejudicial effect was in each instance minimal to nonexistent”].)
Archila argues that because the jury was instructed it could infer from the finding defendant committed one charged offense that he had a propensity to commit others, that reversal of any of his convictions mandates reversal of all. As we have not found an error requiring reversal of any of his convictions, we need not and do not address the merits of this position. Archila further contends that if all charges involving either K. or L. are reversed, the jury's multiple victim findings must also be reversed. Given our disposition affirming the guilty verdict on all counts, there is no basis for reversing the multiple victim findings.
VI.
Fines, Fees, and Assessments
At Archila's sentencing hearing on March 16, 2018, the trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)(2)); a stayed $10,000 parole revocation restitution fine (§ 1202.45); a sex offender registration fine and assessment of $1140 (§ 290.3); a $480 court security fee (§ 1465.8); a $480 criminal conviction assessment (Gov. Code, § 70373); and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2). Defense counsel did not object to the imposition of these sums or request a hearing on Archila's ability to pay them. Archila now raises constitutional challenges to the court's imposition of these fines, fees, and assessments without an ability to pay hearing, and requests that we remand to the trial court for an ability to pay hearing. We decline to do so. However, we vacate any balance of the criminal justice administration fee that remains unpaid as of July 1, 2021, pursuant to recently enacted Government Code section 6111.
A. Archila's Due Process Challenge Is Forfeited
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Archila contends the trial court violated his right to due process under the Fourteenth Amendment to the federal Constitution by imposing fines, fees and assessments without first holding a hearing on his ability to pay. We agree with the Attorney General's contention that Archila forfeited this claim by failing to object to the financial obligations when they were imposed.
“At the core of the Dueñas opinion is its holding that imposition of fines, fees or assessments without a hearing on ability to pay denies due process. It was that court's view it was the trial court's duty to hold a hearing and thus failure to seek a hearing did not result in forfeiture. Further the court found that the burden to prove ‘present' ability to pay was on the prosecution. Other courts, including this court, have disagreed with Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861, 863 (Keene); see, e.g., People v. Cota (2020) 45 Cal.App.5th 786, 795; People v. Allen (2019) 41 Cal.App.5th 312, 326 [“[W]e would adopt the reasoning of the numerous courts that have rejected Dueñas due process analysis.”].) The California Supreme Court is currently considering the viability of Dueñas as it pertains to whether a trial court must consider a criminal defendant's ability to pay assessed fines and fines, and if so, which party bears the burden of proof. (People v. Kopp (2019) 38 Cal.App.5th 47 (Kopp), review granted Nov. 13, 2019, S257844.)
It is not necessary in this case for us to reach the broader issues of Dueñas because, even before Dueñas, it was clear that challenges to the imposition of a greater-than-minimum restitution fine based on inability to pay were expressly permitted by statute. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez) [“[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge.”].) And the failure to raise such a challenge in the trial court forfeits the claim of error. (People v. Nelson (2011) 51 Cal.4th 198, 227 [alleged erroneous failure to consider ability to pay a $10,000 restitution fine forfeited by the failure to object]; People v. Avila (2009) 46 Cal.4th 680, 729 (Avila) [forfeiture rule applies to claim that restitution fine amounted to an unauthorized sentence based on inability to pay].)
Section 1202.4 authorizes the trial court to impose a restitution fine of up to $10,000 in felony cases, and requires a minimum fine of $300 notwithstanding a defendant's inability to pay. (§ 1202.4, subd. (b)(1).) Section 1202.4, subdivision (d) provides in relevant part: “In setting the amount of the fine pursuant to subdivision (b) in excess of the minimum fine pursuant to paragraph (1) of subdivision (b), the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay[.]” The statute also makes clear that “[a] defendant shall bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, subd. (d).) Thus, even if Dueñas was unforeseeable, Archila was nevertheless on notice of his legal duty to object to the maximum restitution fine and create a record of his inability to pay to preserve an ability-to-pay challenge for appeal. It was his burden to explain to the court why it should impose a lesser amount. (§ 1202.4, subd. (d)); Avila, supra, 46 Cal.4th at p. 729 [“Had defendant brought his argument to the court's attention, it could have exercised its discretion and considered defendant's ability to pay, along with other relevant factors, in ascertaining the fine amount.”].)
Section 290.3 likewise authorizes the sentencing court to consider ability to pay. (See § 290.3, subd. (a) [stating the sex offender registration fine shall be imposed “unless the court determines that the defendant does not have the ability to pay the fine”].) Archila had the same notice and opportunity to object and thereby preserve any challenge to the sex offender registration fine and assessment. (See Gutierrez, supra, 35 Cal.App.5th at p. at 1033, fn. 12.)
Here, Archila did not object to the court's imposition of the maximum restitution fine of $10,000 or the sex offender registration fine and assessment of $1140 under section 290.3, nor did he request a hearing on his ability to pay or submit any evidence of his inability to pay. Had he done so, the trial court could have exercised its discretion and considered his ability to pay, along with other relevant factors, in ascertaining the amounts to be levied against him. Having failed to do so, Archila has forfeited his argument regarding his ability to pay the assessed restitution fine and sex offender registration fee and assessment. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Moreover, because he did not object to these sums, Archila has similarly forfeited any challenge to the remaining financial obligations. (Ibid.; see also People v. Smith (2020) 46 Cal.App.5th 375, 395 [“Smith's failure to object to a $10,000 restitution fine is inexcusable, as is his failure to object to the much smaller $300 assessment.”]; but see People v. Santos (2019) 38 Cal.App.5th 923, 932 (Santos) [sustaining a defendant's unpreserved challenge to prescribed assessments because “prior to Dueñas it was not reasonably foreseeable that a trial court would entertain an objection to assessments that are prescribed by statute”].) Archila asks us to follow the more permissive rule adopted in Santos, which we decline to do. We also reject his assertion that his counsel may have refrained from objecting to the $10,000 restitution fine because the objection would have resulted in imposition of a $300 minimum fine that he also could not pay. This contention lacks record support, and it is illogical.
B. Archila's Eighth Amendment Challenge is Forfeited and Unmeritorious
Next, relying on People v. Cowan (2020) 47 Cal.App.5th 32, 45, review granted June 17, 2020, S261952 (Cowan) and Kopp, supra, 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844, Archila claims the court's imposition of fines, fees, and assessments without first determining his ability to pay violated the prohibitions against excessive fines in the Eighth Amendment to the federal Constitution and article I, section 17 of our state Constitution.
In both Cowan and Kopp, defense counsel made timely objections to the imposition of the allegedly excessive amounts, a circumstance not present here. (See Cowan, supra, 47 Cal.App.5th at p. 36; Kopp, supra, 38 Cal.App.5th at pp. 93, 94, fn. 23.) We see no principled reason why the same silence in the trial court on the issue of Archila's ability to pay that forfeits his due process challenge should not lead to the conclusion he has forfeited this constitutional challenge as well. (See People v. Torres (2019) 39 Cal.App.5th 849, 860 [“A timely objection is required to claim constitutional violations, such as appellant makes here.”], citing People v. Trujillo (2015) 60 Cal.4th 850, 859; Gutierrez, supra, 35 Cal.App.5th at p. 1041 (conc. opn. of Benke, J.).)
And even if we were to consider the merits of this challenge, we would reject it. “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality.” (United States v. Bajakajian (1998) 524 U.S. 321, 334 (Bajakajian).) Thus, “a punitive [fine] violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.” (Ibid.; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (R.J. Reynolds).) To determine whether a fine is excessive, a court considers (1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. (R.J. Reynolds, at p. 728.) The California Supreme Court has adopted the same four factors to analyze whether a fine is constitutionally disproportionate. (Ibid.)
Here, Archila claims the fines, fees, and assessments were unconstitutionally excessive due to his purported inability to pay. However, even if we assume his inability to pay, as both the United States and California Supreme Courts have held, a defendant's ability to pay is but one factor to consider in the proportionality analysis. (Bajakajian, supra, 524 U.S. at p. 338; R.J. Reynolds, supra, 37 Cal.4th at p. 728.) Other factors, particularly Archila's more than 10 years of sexually molesting two young girls, and the relationship between the harm he caused and the financial penalty imposed on him, weigh heavily against a finding of gross disproportionality. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1072 [finding a $10,000 restitution fine and related assessments not grossly disproportionate to defendant's convictions for attempted murder of two police officers and possession of a firearm by a felon].) Accordingly, even if we were to entertain Archila's challenge, we would find that his rights under the Eighth Amendment to the federal Constitution and article I, section 17 of our state Constitution were not violated.
C. Archila Fails to Demonstrate Ineffective Assistance of Counsel
Archila contends that if his constitutional challenges are deemed forfeited, then his trial counsel was ineffective for failing to object to imposition of the challenged fines, assessments, and fees. To establish that his trial counsel was ineffective, Archila bears the burden of showing that counsel's representation was defective and that he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 690; see Keene, supra, 43 Cal.App.5th at pp. 864-865 [finding defendant failed to establish on appeal that his trial counsel was ineffective for failing to object to fines, fees, and assessments].)
Archila fails to meet his burden as to either of these elements. He claims the record “creates substantial reason to doubt” that he had the ability to pay the amounts levied against him. He relies on the fact that he was represented by the public defender in the trial court, which he claims demonstrates his indigency, and on the fact he was 67 years old at the time of sentencing and required a Spanish language interpreter for trial court proceedings, which he contends shows he would not be employable in prison.
However, as the People point out, representation by appointed counsel does not on its own indicate inability to pay a restitution fine, since the financial state that shows inability to afford private counsel does not necessarily equate to inability to pay restitution. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1397; People v. Vournazos (1988) 198 Cal.App.3d 948, 958.) When confronted with his offenses against K. during the pretext call, he threatened to leave, asked how the family would keep their apartment without him, and ultimately said he would leave after doing his “taxes.” This evidence tends to counter the assertions that Archila was unemployable or that his level of indigency was such that it rendered him incapable of paying the imposed restitution.
And while the record of Archila's finances is not fully developed, the state of the record is at least in part attributable to his election, on advice of counsel, not to be interviewed for the probation report. The section of the probation report where employment and salary information were to be set forth were thus left blank. The report then recommended imposition of the same fines, fees, and assessments that the trial court ultimately imposed at sentencing, and yet defense counsel failed to object. It is conceivable defense counsel had a strategic reason for refraining from challenging Archila's ability to pay the recommended sums.
We are unable to conclude on this record that Archila's trial counsel was defective or that he was prejudiced as a result. As another panel of this court has observed, “the defendant's remedy, if any, must be by way of petition for habeas corpus.” (Keene, supra, 43 Cal.App.5th at p. 865.)
D. Any Unpaid Portion of the Criminal Justice Administration Fee, as of July 1, 2021, is No Longer Enforceable and Shall be Vacated
The trial court imposed a criminal justice administration fee of $129.75 against Archila under Government Code sections 29550, 29550.1, and 29550.2, statutes which authorized the county to recoup costs associated with booking persons into county jail. In 2020, the Legislature passed Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (AB 1869) to “eliminate the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system.” (Assem. Bill No. 1869 (2019-2020 Reg. Sess.) § 2, eff. Sept. 18, 2020, operative July 1, 2021.) Among other provisions, AB 1869 repealed Government Code sections 29550.1 and 29550.2, and added Government Code section 6111, which became effective July 1, 2021. (Id. at §§ 11, 16.) Government Code section 6111 provides that “the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).)
Because this appeal was already fully briefed as of July 1, 2021, when these changes in the law became effective, we directed the parties to submit supplemental briefs addressing whether these statutory changes required us to vacate the criminal justice administration fee from the judgment. Both sides submitted supplemental briefs concurring that in light of AB 1869, the unpaid portion of the criminal justice administration fee imposed on Archila must be vacated. We agree. The plain language of the newly enacted statute mandates this result.
The parties suggest that we direct the trial court to vacate the fee. However, as we have found no error with respect to Archila's other contentions and affirm the judgment otherwise, this case requires no further action by the trial court. We will exercise our authority to modify the judgment as mandated by the new law. (See People v. Good (1963) 223 Cal.App.2d 298, 302 [“[A]n appellate court is authorized to modify the findings of fact, conclusions of law, order, and judgment to the end that the matter may be disposed of without further proceedings in the trial court.”].)
DISPOSITION
Any portion of the $129.75 criminal justice administration fee imposed pursuant to Government Code sections 29550, 29550.1, and 29550.2 that remained unpaid as of July 1, 2021 is vacated from the judgment. As modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., GUERRERO, J.