Opinion
H047465
02-28-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO BARAJAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CR003931
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Defendant Jose Francisco Barajas appeals after a jury found him guilty of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a); count 1), committing a lewd or lascivious act on a child (§ 288, subd. (c)(1); count 4), and dissuading a witness (§ 136.1, subd. (b)(1); count 6). The jury also found true the allegation regarding count 1 that defendant had engaged in substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). The jury found defendant not guilty of sexual penetration of a child under age 14 by a foreign object (§ 289, subd. (j); count 2) and was unable to reach a verdict on two counts of committing a lewd or lascivious act on a child (counts 3 & 5). The trial court sentenced defendant to 16 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court instructed the jury that counts 1 and 2 were charged in the alternative and that it could not find defendant guilty of both counts.
Defendant contends that the trial court improperly admitted evidence on Child Sexual Abuse Accommodation Syndrome (CSAAS), the court erred when it instructed the jury on the permissible use of CSAAS evidence, insufficient evidence supports the conviction of dissuading a witness, a unanimity instruction was required for the dissuading a witness charge, the court abused its sentencing discretion, and the court erred when it ordered defendant to undergo AIDS testing.
For reasons that we will explain, we conclude that the matter must be remanded for resentencing under newly amended section 1170, subdivision (b) and for further proceedings to determine whether there is sufficient evidence to require AIDS testing under section 1202.1. Accordingly, we reverse.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
1. Jane Doe's Testimony
Jane Doe was born in July 2002. Doe met defendant, who is her uncle by marriage, when she was 12 and defendant was dating Doe's aunt.
Once, when Doe was 12 and she and defendant were in the kitchen at her aunt's house, defendant told Doe that he would give her $5 if she could fit her lollipop "all the way in [her] mouth." Doe did not comply.
Later, at a family party when Doe was 12, Doe asked defendant for $5. Defendant told Doe to meet him in the front yard. Doe complied. It was dark out. Defendant gave Doe the money.
Defendant later sent Doe a direct message through Instagram telling her that she needed to pay him back. Defendant asked Doe to send him photographs of herself. Doe sent defendant a photograph of herself in a bra.
Also when Doe was 12, there was a family party for her aunt's birthday in the garage at the aunt's house. When Doe was heading upstairs to cousin1's room, defendant approached Doe from behind on the stairs. On a landing shielded from view, defendant grabbed Doe's arm, pushed her up against the wall, put his palms on her breasts, and started kissing her on the lips. Defendant moved his palms in a grabbing motion on Doe's breasts. Doe did not kiss him back. Doe tried to resist at first but then she "just let it happen." The incident lasted under a minute. Defendant stopped and went downstairs. Doe did not tell her parents.
Doe testified that the adults typically stayed in the garage during parties at the aunt's house.
When Doe turned 13, Doe slept over at her aunt's house, camping in the backyard with her cousins. Doe fell asleep closest to the tent's opening. Doe woke up and saw defendant, who was outside the tent. Defendant had his right hand in Doe's shorts. Defendant digitally penetrated Doe's vagina for about a minute. Doe said, "[N]o." Defendant told Doe," '[S]hhh, '" and," 'You'll wake the others.'" Defendant removed his hand and caressed Doe's thigh "for a long time." Doe said," '[N]o, '" and grabbed defendant's wrist, but defendant was "very forceful." At some point defendant left. Doe checked to make sure that her cousins had not woken up. Doe did not tell her parents because she did not think they would believe her.
Another time when Doe was 13, Doe walked to her aunt's house from school. Doe looked for cousin1 but he was not there. Defendant and Doe's aunt were in the garage with the door open. They were washing a car in the driveway. Doe sat on a couch in the garage. Defendant told Doe's aunt to get some towels and she went inside. Defendant sat down on the couch, said," 'Hey, stranger, '" and put his left hand between Doe's upper thighs. Doe asked defendant for money because he had given her money before and she assumed he would do it again. Defendant responded," 'That's fine.' "
At some point later that day, Doe told defendant to stop or she would tell her aunt. Defendant told Doe that her aunt would never believe her and that it would tear the family apart. Defendant said that they would have to go to court and that he would get Doe's father deported. Doe believed him. Defendant's statements discouraged Doe from telling anyone, including law enforcement. When Doe's father arrived to pick her up, defendant shook Doe's hand and passed her approximately $40.
When Doe was between the ages of 12 and 15, defendant sometimes sat next to Doe in the kitchen while Doe's aunt was doing the dishes or cooking. On approximately five or ten occasions, defendant would put his hand between Doe's thighs when the aunt's back was turned. Defendant would caress Doe's thigh for a couple of seconds. Doe would turn her legs away from defendant.
When Doe turned 14, she had a birthday party at her house. Defendant sent Doe a direct message stating," 'Meet me in the bathroom. I have your present.'" As defendant and Doe's aunt were leaving, defendant motioned his head toward the bathroom. Doe followed defendant. Defendant came out of the bathroom and turned off the hallway lights. Defendant reached into his pocket and pulled out "a load of money," around a couple hundred dollars. Defendant said," 'Happy birthday, stranger.'" Defendant put the money into Doe's back pants pocket.
Other times when Doe was 14, defendant would leave $100 for Doe at her aunt's house. Defendant would message Doe to tell her where the money was. Defendant asked Doe for photos and offered to pay her $100 per photograph. Doe sent defendant photos of herself five to ten times.
In February 2017, when Doe was still 14, Doe was with cousin1 in the mall parking lot. Doe and cousin1 were very close friends. Cousin1 asked Doe where she got her money. Although Doe was hesitant, she told cousin1 that defendant gave her money for photographs and because he touches her. Doe told cousin1 about the incident on the stairs. Cousin1 was shocked. Doe told cousin1 that he could not tell anyone. Doe did not want cousin1 to say anything because she "was looking out for [her] dad and [her] family." Doe also wanted to keep receiving money from defendant. Doe only told cousin1 about one of the incidents because she was embarrassed; she did not want him to know the whole story.
When Doe was 14 or 15, she was alone in a bedroom at her aunt's house. She had had a sleep over with cousin1 the previous night. Doe was on the bed and saw defendant pacing in the hallway. Doe activated the video recording application on her phone. Defendant walked into the room and tried to "throw himself on [her]." Defendant started kissing Doe on the mouth. Doe said," '[N]o, '" and tried to push defendant off, "but that never worked." Defendant's upper body was over Doe's chest and defendant's left hand was on her breast, making a grabbing motion. Doe did not kiss defendant back. At some point Doe stopped recording because she did not want defendant to see. Months later, Doe told defendant about the cell phone recording, but she could not remember what he said.
At some point toward the end of 2017, when Doe was 15, she was at the mall with her friends. Doe sent defendant a text message asking for money. Defendant responded," 'That's fine.'" Doe met defendant in the mall parking lot. Doe got into defendant's car and said," 'All right. Where's my money?'" Defendant responded," 'I have it. Just come here.'" Defendant started kissing Doe on the lips and grabbed her waist. When Doe would not kiss him back, defendant said," 'Come on. Why are you so shy, stranger?'" Doe said that she had to go. Defendant gave Doe at least $100.
As Doe got older, when she would ask defendant for money, she would threaten to tell her aunt if he did not give it to her. Sometimes defendant "would just say okay," but sometimes he would argue with Doe. Defendant would tell Doe that she was not going to do anything and sometimes he would not give her money. Once instead of asking for money, Doe sent a text message to defendant asking him for Nike Jordan shoes but defendant said no.
In 2016 and 2017, Doe and defendant sent each other text messages. Sometimes defendant would say," 'Hey, stranger, '" and ask Doe about school and her life. Defendant always told Doe "to make sure [she] delete[d] everything." Doe deleted the Instagram and text messages between them.
At age 15 to 16, Doe knew what was happening was wrong. It made her feel sick to her stomach. The Christmas before law enforcement became involved, Doe bought her father a $200 or $300 watch with defendant's money.
In January or February 2018, Doe was at home getting ready to go to school when defendant called. Defendant asked who was at the house. Doe said that no one else was there. Defendant said he was going to come over to drop something off for her.
Defendant came inside, locking the front door behind him. Defendant approached Doe in the kitchen, grabbed her waist, and kissed her neck. Defendant pushed his body over Doe and laid her down on a stool or bench. Defendant kissed Doe on the lips, pulled up her shirt, and groped her "whole body." Defendant kissed and grabbed Doe's breasts. Defendant tried to unbutton Doe's pants, but Doe stopped him. Defendant kept telling Doe to let him and kept trying to force his hand inside.
Doe got up, but defendant pushed her back onto the couch. Defendant kissed Doe and grabbed her waist, buttocks, breasts, and chest. Defendant tried harder to push Doe onto the couch using his full body weight. Doe told defendant to get off and started to get up. Doe pushed defendant off of her, telling defendant to stop. Defendant stopped. Defendant gave Doe over $100 and left.
Doe showered and went to school. Doe did not tell anyone because she loved her father and "would never jeopardize his welfare for [hers]." She thought the court process would lead to his deportation based on what defendant had said.
In February 2018, Doe's mother called Doe and asked "if it was true." Doe's mother had heard from friends, including cousin1's mother, that defendant was touching Doe and paying her not to talk about it. Doe responded," 'No. It's not true. Who told you?'" Doe's mother "was crying and crying and hung up."
Doe's father confronted Doe and took her to his room. Doe's father kept asking if it was true and yelled at her. Doe just cried. Doe's father asked," 'If it's not true then why are you crying?'" Doe's father started to get phone calls from family members.
Later that day, Doe's mother told Doe that she would believe her, that it was not her fault, and that if she told the truth no one would be mad at her. Doe told her mother what was happening. Doe spoke to the police the same day.
2. Pretext Call
At some point, Doe called defendant from the police station. Doe asked defendant about "[t]he story that [he] told [aunt]" that put "the blame on to [her]" when he knew it was not her fault and that she did not "purposely engage in this." Defendant responded, "Oh, you gotta just . . . I don't know. It's a mess." Doe asked defendant what she should do "about the messages" because her parents were "bugging [her]." Defendant said, "[J]ust say that nothing is true. I know that the police is [sic] talking with you." Defendant also told Doe to "just deny everything. Just say that you were lying." When Doe asked, "So, I'm supposed . . . to take all the blame," defendant stated, "No just don't take blame. Hey, tell them that nothing happened. Just say that nothing had happened. . . . [M]ake it go back to the old . . . like before. 'Cause nothing really happened."
Doe asked defendant what would happen if they searched her phone, and defendant responded that they would not search her phone. Defendant told Doe, "[W]hen the cops come, just say that you were . . . lying; that nothing happened. [¶] . . . [¶] And then . . . they'll just drop the case and then we'll go back to the old time. I have a lawyer - I talked to a lawyer already." Defendant denied that he told aunt anything. Defendant said, "I didn't say anything. I didn't do anything so, make it . . . go away." Defendant also stated that Doe was "blackmailing" him and that all he did was give Doe money. Doe called defendant a liar. Defendant responded that Doe was "the only one [who] can make it go . . . away." Doe stated that she was trying but that she had been lying since she was 12. When Doe asked defendant why he had to touch her, defendant responded that he did not touch Doe.
After a recording of the phone call was played to the jury, Doe testified that defendant "kept lying" during the call.
3. Doe's Police Interviews
Salinas Police Detective Pedro Gomez was present during Doe's forensic police interview. Doe told the interviewer that during the incident on the couch in her aunt's garage when she was 13, defendant tried to place his hand or fingers inside her pants. Doe tried to get defendant to stop and told him that she would tell her aunt. Doe stated that defendant told her that she would ruin everything and separate the family and that her grandparents would not want to interact with her. Defendant also told Doe that he had a lot of money and could get an attorney. Doe said," 'Then you need to pay me money.'" Doe stated that defendant paid her $40. Doe also stated during the forensic interview that during the incident at the mall, defendant immediately started to grab her when she got into the car. At some point Doe lifted her shirt and defendant photographed her.
During a subsequent police interview, Doe stated that at her 14th birthday party, defendant groped her breasts and buttocks over her clothes and kissed her on the lips. Doe also stated that when she told defendant about the cell phone recording, defendant threatened that her father would be deported and her family would be split up and ruined. Doe felt threatened by defendant's statements.
4. Cell Phone Evidence
Detective Gomez arrested defendant in April 2018, and seized his cell phone. There were no text messages, emails, photographs, or recordings on the phone prior to December 28, 2017. Phone records showed that defendant began using the phone in October 2016.
A district attorney investigator testified that software analyzing defendant's and Doe's phone records indicated that there 794 text messages and 25 voice messages or phone calls between defendant's and Doe's phones from October 11, 2016 to February 4, 2018. Phone records showed that on February 2, 2018, there were two outgoing calls from defendant's phone to Doe's phone. The final contact between the phones was a text message sent from defendant's phone to Doe's phone two days later.
5. Evidence of Argument Between Defendant and Aunt
In April 2018, one of Doe's family members, R.A., overheard an argument between defendant and Doe's aunt. The aunt asked defendant to tell her the truth about what he had done to Doe. Defendant responded that "he had only touched her, but it had not gotten any further, that it was just touching, and asked that she forgive him."
6. Expert Testimony
Dr. Anthony Urquiza testified as an expert in the behaviors of child molestation victims. Dr. Urquiza stated that there are common misconceptions about child molestation victims' behavior, including that a child can prevent the abuse and that a child who was sexually abused will disclose the abuse immediately and clearly. Dr. Urquiza testified that it is a misperception that strangers are the people who sexually abuse kids or that children hate the abuser. Dr. Urquiza stated that most of the time kids do not scream or try to "beat off the perpetrator." Dr. Urquiza testified that children will delay disclosure because they feel afraid or coerced or may have been threatened by the abuser that something bad will happen if they disclose. Children disclose sex abuse differently; some disclose everything that happened at once while others describe some of the abuse at first and disclose more if the environment is supportive. Dr. Urquiza testified that he was not familiar with any of the facts of this case.
B. Defense Case
1. Testimony by Defendant's Family Members and Business Partner
Doe's cousin2 testified that defendant attended family functions at Doe's aunt's house. Cousin2 never saw defendant and Doe "together in a private way" and never saw defendant bothering Doe.
Cousin2 stated that she participated in the backyard sleep over. Doe, cousin1, and another cousin were present. At some point when they were tired, before they went to sleep, everyone went inside. Cousin2 did not see defendant at the house on the evening of the sleep over but she saw defendant and the aunt leave the house the next morning.
V.A. is cousin2's mother and is related to defendant through marriage. V.A. testified that she attended family parties at Doe's aunt's house. V.A. never saw defendant "pay special attention to [Doe]."
E.R. testified that Doe's aunt is her sister-in-law. E.R. attended family gatherings at the aunt's house. E.R. never saw defendant "pay special attention" to a teenager at the party. E.R. never saw anything suspicious between defendant and Doe and never saw defendant "pay[] too much attention to [Doe]."
Defendant's business partner and friend testified that he attended defendant's birthday party at aunt's house. The party was in the backyard. There was no tent in the backyard.
Doe's aunt testified that she is married to defendant. Aunt stated that in December 2014, she, defendant, and several others went to a club to celebrate her birthday. She did not have a party for her birthday at her house.
Aunt stated that she and defendant rarely wash their cars at home, but that when they do, they already have all the necessary supplies, including towels, in the garage. Aunt does not remember an instance when Doe was there while they were washing their cars.
Aunt testified that there was never an occasion when Doe was visiting with her in the kitchen when defendant was sitting next to Doe. Aunt only remembers Doe visiting with her and aunt's mother. There was never an occasion while aunt and defendant were dating that aunt had defendant over to her house and introduced him to family members.
Aunt stated that she and defendant were out when Doe and her cousins camped in the backyard and that they returned to the house around 2:00 or 3:00 a.m. and went to sleep. Defendant did not wake up until 9:30 or 10:00.
Aunt testified that she never had an argument with defendant after his arrest in this case while he was released on bail. Aunt's brother never told her that he overheard an argument between aunt and defendant about Doe's accusations.
Aunt once saw a text message from Doe asking defendant for money. Aunt questioned defendant about the message. Defendant said that he was paying Doe because she needed the money and for babysitting. Aunt also saw a text message from Doe to defendant about Jordan athletic shoes. Aunt never asked defendant about it. Defendant did not buy the shoes for Doe.
2. Defendant's Testimony
Defendant testified that he was born in August 1976. Defendant helps his mother manage a restaurant and is a co-owner of a smog repair shop. The restaurant's hours are 10:00 a.m. to 9:00 p.m. and 10:00 a.m. to 8:00 p.m. on Sundays. Defendant usually leaves home either at 6:30 or 8:30 a.m.
Defendant stated that Doe's allegations were untrue and that Doe had been blackmailing him. In the fall of 2016, Doe sent defendant a text message asking if he wanted to see something. Defendant "had nothing in mind" so he said, "Okay." "[O]ut of the blue," Doe sent defendant a photograph of herself in a bra. Defendant immediately sent Doe a text message in response asking what was going on and what she was doing. Doe told defendant to "[c]alm down" and that it was nothing. Defendant deleted the image. At no point had defendant ever asked Doe for something like that.
A few weeks later, Doe sent defendant a text message stating that she needed money. Doe asked for $50 for the photo she sent him. Defendant responded," 'What picture?'" Defendant told Doe that he never asked her to send a photo and that he told her not to do that. Doe responded," 'Well, it's going to cost you $50.'" Doe also told defendant to give her $50 because she needed to buy something. Defendant gave Doe $50 and thought that would be the end of it.
Defendant stated that after a month had gone by, Doe texted him again saying that she needed more money. Doe said that if defendant did not give it to her she was" 'going to tell . . . everybody that [he is] touching [her] and . . . giving [her] money.'" Defendant felt trapped and gave Doe more money because he did not think he had any other option.
Defendant testified that at the point "when this was getting out of hand," Doe would send him text messages saying," 'Where is my fucking money? I need my fucking money now.'" Defendant was scared. Doe would tell defendant to leave the money for her under the sink in a downstairs bathroom and to send her a photo showing that the money was there. Defendant usually complied although there were three or four times when he did not do as Doe said. Doe would be furious and would threaten to tell everyone. This went on for some time. Defendant estimated that Doe sent him text messages asking for money 15 to 18 times. Defendant stated that he never gave Doe money in person; he always left it for her. During this period he had almost no physical contact with Doe. He only saw her when she was around the whole family. Doe would act like nothing was going on.
Defendant testified that Doe once sent him a text message stating," 'I need some money. Bring it to the mall because I need to buy some stuff.'" Defendant brought Doe the money. Doe did not get into defendant's car. Their interaction only lasted a few seconds.
Defendant stated that he once gave Doe money when he was at her house. Doe texted defendant saying that she needed money. Defendant said okay. Defendant was at Doe's house three or four times between October 2016 and December 2017, always with aunt.
Defendant testified that he never attended family functions at aunt's house before he moved into the house in October 2013 and never had any contact with Doe before he moved in. In April 2014, there was a baby shower for aunt in the backyard. Defendant does not recall whether Doe was there; he had no interaction with her.
When aunt's parents were visiting, Doe would come over approximately once a week with her family. Defendant did not have "a special relationship" or ongoing contact with Doe when she visited.
Defendant's daughter was born in May 2014. Three months later aunt was in a serious car accident and was hospitalized for a week with a broken back and shin. When she came home, she could not walk. Doe came over a few times to visit with her family. Defendant did not interact with Doe when she came over because he was busy taking care of his daughter.
In December 2014, after aunt had recuperated, defendant, aunt, and some others went out for aunt's birthday. Doe did not join them. There was no party at aunt's house for her birthday that year. Defendant did not grope Doe that day
Defendant stated that when there were parties at the house, they were in the backyard although some of the adults went inside. He stayed in the backyard.
On defendant's 39th birthday on August 2, 2015, they had a party for 40 or 50 people with a band and a jump house. There was no tent. Defendant does not recall seeing Doe that day. Nothing that Doe said about defendant touching her in the tent was true.
Defendant stated that when Doe turned 15, there was a quiceañara for her at aunt's house. Defendant was out of town on a golf trip.
Defendant did not recall ever visiting with Doe in the kitchen while aunt was there and never saw Doe visit with aunt in the kitchen.
Defendant testified that two or three days before February 2, 2018, Doe contacted him stating that she was going to need some money for Friday. Defendant did not respond. Doe sent him another text the next day saying," 'I'm serious. I'm going to need money for Friday.'" Defendant responded," 'Okay.'" Defendant texted Doe the morning of February 2 asking where he should drop the money. Doe told defendant to call her. Doe told defendant to bring the money to her house. Defendant asked Doe if she was crazy. Doe said that no one was home and he could put the money under the front doormat. Defendant put the money under the mat and called Doe to tell her. Defendant did not go inside.
Defendant stated that the prosecution's video footage shows him getting money to give to cousin1 for tacos. Defendant went into a room to get the money and looked back because his daughter was following him. Defendant did not grope or touch Doe on the bed. Cousin1 was right next to Doe.
Defendant was apparently referencing the video recording Doe made on her cell phone.
When Doe called defendant from the police station, defendant was having a stressful day at the restaurant. At first defendant could not hear Doe because of static but "then she start[ed] saying stuff" that caused defendant to ask her what was going on and what happened. When Doe asked defendant," 'Why did you tell that dumb-ass story, '" defendant did not know what Doe was talking about. After some back and forth and Doe accusing defendant of blaming her, defendant figured that Doe's "allegations were already out and that the big scandal was going to open." Defendant told Doe to say that she had lied because that would have been the truth. Defendant told Doe several times that he had not done anything and referenced Doe's blackmailing him. When defendant told Doe that things could go back to the way they were, he meant before the blackmailing began.
Defendant testified that he never threatened Doe that if she told it would tear the family apart and he would get her father deported. Doe was in control of the situation, not him. Defendant did not go to the police initially because he thought it would stop after he gave Doe $50. It was a couple months later when he realized "it was already trouble." He was new to the family and did not know how aunt would take it. Defendant never had a conversation with aunt where he stated that he only touched Doe once and apologized.
Defendant did not wipe his phone clean and does not know how to do a "factory wipe." He regularly deletes messages to prevent the memory from getting full, which slows the phone down.
C. Rebuttal
Sixteen-year-old cousin3 testified that when he was 11 or 12, he camped out with his cousins, including Doe, and a friend. Cousin3 stated that they all slept in the tent. Doe was in front of the tent's opening. At some point cousin3 woke up and saw defendant's upper body in the tent. Defendant was kneeling. Cousin3 saw defendant groping Doe, grabbing her chest, and moving his hand toward her crotch area. Cousin3 closed his eyes because he was scared.
The next day, cousin3 asked Doe what defendant was doing. Doe did not respond. Cousin3 did not tell anyone what he saw until the week before he testified.
Detective Gomez testified that he interviewed aunt in April 2018. Aunt stated that she found some text messages in December 2017. In one message Doe told defendant to buy $600 Jordan shoes for her. There were other messages where Doe asked defendant for money. Aunt told Detective Gomez that she also saw text messages from defendant to Doe. In one text message, defendant asked Doe how school was. Aunt said that defendant told her that he had photos of Doe on his phone. Aunt stated that she broke defendant's phone because she got mad. Aunt stated that she threw the phone on the floor in front of defendant and that she broke the screen in half.
R.A. testified that in December 2014, about 20 people were over at aunt's house to celebrate her birthday. They set four tables in the garage. At some point the group left to go to a club. R.A. stated that they also had a get together that year for Christmas and to celebrate aunt's daughter's birthday and baptism.
D. Surrebuttal
Defendant testified that he found text messages on his phone from 2016 the day before his surrebuttal testimony that he forwarded to his attorney. For example, there was a text message from May 2016.
Defendant stated that aunt did not have a birthday party at her house in December 2014. If people had dinner there together it was only the people who lived in the house.
E. Charges, Verdicts, and Sentence
The prosecution charged defendant with continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a); count 1), sexual penetration of a child under age 14 by a foreign object (§ 289, subd. (j); count 2), three counts of committing a lewd or lascivious act on a child (§ 288, subd. (c)(1); counts 3-5), and dissuading a witness (§ 136.1, subd. (b)(1); count 6). Regarding counts 1 and 2, the prosecution alleged that defendant engaged in substantial sexual conduct with the victim who was under age 14 (§ 1203.066, subd. (a)(8)).
A jury found defendant guilty of counts 1, 4, and 6 and found the substantial sexual conduct allegation true regarding count 1. The jury found defendant not guilty of count 2, which was charged in the alternative to count 1, and was unable to reach a verdict on counts 3 and 5. The trial court declared a mistrial as to counts 3 and 5.
The trial court initially sentenced defendant to 16 years 8 months in prison, consisting of the upper term of 16 years on count 1, a concurrent midterm sentence of 2 years on count 4, and a consecutive 8-month sentence on count 6, which was one-third the midterm. The court subsequently modified the sentence to a total of 16 years by imposing a concurrent midterm sentence of 2 years on count 6.
III. DISCUSSION
A. CSAAS Evidence
Defendant contends that the trial court erred when it admitted evidence on Child Sexual Abuse Accommodation Syndrome. Defendant argues that the evidence should have been excluded under Evidence Code section 352 as unduly prejudicial and that its admission violated his due process and fair trial rights. The Attorney General asserts that defendant's claim fails because defendant elicited the CSAAS evidence during cross-examination of the prosecution's expert and that, in any event, the evidence was properly admitted.
1. Trial Court Proceedings
The prosecution moved in limine to present in its case-in-chief expert testimony by Dr. Urquiza on the behavior of child sex abuse victims. The prosecution argued that the evidence was admissible to dispel common misconceptions about child molestation dynamics and to restore Doe's credibility. The prosecution stated that Dr. Urquiza's testimony would be "general and about victims as a class" and that the expert would "in no way vouch for [Doe's] credibility . . . or opine that she suffers from a 'child molestation syndrome' or some other syndrome."
Defendant filed written opposition, arguing that the proffered testimony was inadmissible under Evidence Code section 352 because it was irrelevant and highly prejudicial.
At the hearing on the motion, defendant asserted that CSAAS does not apply in this case because Doe was "in charge" and was "blackmailing [him]." Defendant contended that the evidence "ha[d] little to no probative value" here, rendering it more prejudicial than probative. Defendant also argued that CSAAS evidence is improper because it presumes that abuse occurred and that the evidence would "improperly influence the jury as to whether [Doe was] telling the truth."
The prosecution responded that it would "not . . . be asking Dr. Urquiza about a syndrome. If they want to ask about it they can." The prosecution stated that it would ask Dr. Urquiza "to enlighten the jury as to some of those counterintuitive behaviors that practitioners see in this area that lay jurors would know nothing about." The prosecution argued that the evidence was relevant because witnesses would testify that Doe never seemed to be distressed or to be avoiding defendant.
The court ruled that Dr. Urquiza could testify "to address potential myths and misconceptions," such as those surrounding delayed disclosure, initial denial, gradually more complete disclosure, and lack of obvious trauma. The court found that the prosecution could present the evidence in its case-in-chief because Doe's credibility was in issue and that child sex abuse victims' "general characteristics, typical behavior, common characteristics, all that is fair game." The court also offered to give the jury a limiting instruction.
Dr. Urquiza was designated an expert "as to behaviors of victims of child sexual abuse." Immediately after the expert designation, the trial court instructed the jury: "As I indicated to you before in the trial an expert can give you opinions based on his or her training or experience. [¶] Dr. Urquiza's testimony about behaviors of victims of child sexual abuse is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not Jane Doe's conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
As we detailed above, on direct examination, Dr. Urquiza testified about common misconceptions of child sex abuse victims' behavior, such as the perception that children can prevent the abuse, that they will immediately and clearly articulate what happened, and that they will fear or hate the abuser. Dr. Urquiza also discussed children's responses to sexual abuse, such as delayed and incomplete disclosure, secrecy, and shame. Dr. Urquiza stated that he did not know any of the facts of this case.
On cross-examination, Dr. Urquiza stated that he was testifying "[t]o provide information about children's responses to being sexually victimized." Defendant asked if Dr. Urquiza's testimony was "essentially . . . based on the work of Dr. Roland Summit." Dr. Urquiza responded that he is "often . . . questioned about Dr. Summit's work and a syndrome that he put forward. . . . [¶] What I provide is information that's based upon the research related to sexual abuse." When asked if he "testified about Dr. Summit's . . . 'child sexual abuse accommodation syndrome, '" Dr. Urquiza stated that he "ha[s] previously."
Defendant then asked, "And . . . that syndrome as described by Dr. Summit explained what confirmed sexually abused children do or don't do in response to being sexually abused?" Dr. Urquiza responded, "Dr. Summit wrote an article in 1983 and he wrote it specifically to therapists educating therapists about what he believed at the time, again 1983, were common responses to kids who had been sexually victimized." When asked whether Dr. Summit had subsequently written a report stating that "the syndrome" was being used incorrectly in the prosecution of child sex abuse cases, Dr. Urquiza testified that in 1992, Dr. Summit wrote an article "in which he supported the notion of using [CSAAS] in court to educate people, but disagreed with any effort by a prosecution or defense to say that it could be used by an individual to make a determination as to whether somebody was abused or not." Dr. Urquiza stated that Dr. Summit asserted that CSAAS's purpose was to educate therapists and jurors; it was not a diagnostic tool. Dr. Urquiza also stated that his job was to "provide information as to what the body of research of which there are now literally thousands of articles that have been conducted over the last 20, 30, 40 years, about . . . how children respond to the experience of being sexually victimized."
On redirect examination, the prosecution asked Dr. Urquiza, "And in your prior testimony where you have been asked about child sex assault accommodation syndrome were you ever coming in and making an opinion as to the truth of the charges based on whether behaviors were consistent or inconsistent?" Dr. Urquiza responded that it was not his role to opine on the truth of the charges. When asked about the Dr. Summit's "follow-up study," Dr. Urquiza stated that the gist of the article was that CSAAS could be used to educate jurors but should not be used to determine whether a child has been abused.
2. Analysis
Defendant contends that "[t]he trial court erred when it admitted [Dr.] Urquiza's CSAAS testimony into evidence." However, as the Attorney General points out, it was defendant who first elicited Dr. Urquiza's testimony pertaining to CSAAS by asking him about Dr. Summit's work and "th[e] syndrome [he] described." (See People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3 (Bowker) [crediting Dr. Summit with "first delineating" CSAAS].) "Thus, any error [in the CSAAS evidence's admission] was invited, and defendant may not challenge that error on appeal." (People v. Williams (2009) 170 Cal.App.4th 587, 620 [finding the defendant was barred from contesting expert testimony on ultimate issues because the evidence was elicited by defense counsel]; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [holding that the doctrine of invited error foreclosed the defendant from challenging the ruling that he could be impeached with a prior conviction where defense counsel first elicited the evidence after asking court to rule the prior conviction admissible]; People v. Brooks (1965) 234 Cal.App.2d 662, 681, fn. omitted [a defendant "cannot complain of the prejudicial effect of evidence elicited in support of his own case"].)
Moreover, we observe that defendant's questioning of Dr. Urquiza on cross-examination and the prosecution's follow-up questioning on redirect did not elicit evidence on CSAAS itself. At no point did Dr. Urquiza testify to "[the] five stages involved in CSAAS" or otherwise inform the jurors of what the syndrome entailed. (People v. Patino (1994) 26 Cal.App.4th 1737, 1742; id. at pp. 1742-1743 (Patino) [describing expert's CSAAS testimony].) Rather, defendant asked if Dr. Urquiza's testimony was based on CSAAS, which Dr. Urquiza denied. When defendant questioned if CSAAS "explain[s] what confirmed sexually abused children do or don't do," Dr. Urquiza responded that Dr. Summit wrote an article to educate therapists regarding what he believed were children's common responses to sexual abuse. Dr. Urquiza also discussed Dr. Summit's subsequent support of expert testimony on CSAAS to educate jurors but repudiation of the use of CSAAS as a diagnostic tool.
Lastly, to the extent that CSAAS evidence was admitted here, such evidence has long been admissible in California to disabuse jurors of commonly held misconceptions about child sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales); Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384, superseded on other grounds by CALJIC No. 10.41, as recognized in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117; Bowker, supra, 203 Cal.App.3d at pp. 393-394.) The evidence was probative here because Doe's credibility was "placed in issue due to [her] paradoxical behavior," which included delayed disclosure, only disclosing some of the abuse initially, and initially denying the abuse to her mother. (Patino, supra, at p. 1744.) The evidence's admission therefore did not violate Evidence Code section 352 as it was properly admitted to demonstrate that Doe's reactions were not inconsistent with having been molested. (See McAlpin, supra, at p. 1300; Gonzales, supra, at p. 503.)
Nor did the admission of CSAAS evidence violate defendant's due process and fair trial rights. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair. [Citations]." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) As we have explained, the CSAAS evidence was relevant to the issues presented in the case and, as it was properly limited, did not render defendant's trial fundamentally unfair. (See Patino, supra, 26 Cal.App.4th at p. 1747; see also Estelle v. McGuire (1991) 502 U.S. 62, 69-70 [the admission of relevant evidence of battered child syndrome does not violate the due process clause of the Fourteenth Amendment].)
Defendant contends for the first time in his reply brief that he received constitutionally ineffective assistance of counsel. Defendant asserts that counsel improperly "allowed the jurors to consider the CSAAS expert's testimony in determining [Doe's] credibility" and "failed to ask any questions about whether children are capable of lying, how often they do so, or what circumstances are likely to provoke a child to make false allegations." Because defendant raises his ineffective assistance claim for the first time in his reply brief, the claim "is forfeited. 'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief.'" (People v. Rangel (2016) 62 Cal.4th 1192, 1218 (Rangel).)
B. Modified CALCRIM No. 1193 Instruction
Defendant contends that the trial court's instruction with a modified version of CALCRIM No. 1193 erroneously "advise[d] the jurors that they may consider the CSAAS testimony in evaluating the complaining witness['s] veracity." Defendant argues that such testimony is only admissible to disabuse jurors of misconceptions about sexually abused children's behavior and asserts that the erroneous instruction lowered the prosecution's burden of proof in violation of his due process rights. The Attorney General contends that the instruction was proper under McAlpin.
The Attorney General contends that defendant forfeited his claim regarding the modified CALCRIM No. 1193 instruction because he did not object to the instruction below. However, "[f]or those claims of instructional error that challenge a given instruction . . . generally or as a whole, we review [a] claim of error 'to the extent [the defendant's] substantial rights were affected.' [Citation.]" (People v. Lucas (2014) 60 Cal.4th153, 281, fn. 47, disapproved of on another ground by People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; see also § 1259.) Accordingly, we will consider the merits of defendant's claim.
1. Trial Court Proceedings
As we stated above, after Dr. Urquiza was designated an expert on child sex abuse victims' behaviors, the trial court instructed the jurors with a modified version of CALCRIM No. 1193 as follows: "[T]he witness will be allowed to testify as to behaviors of victims of child sexual abuse. [¶] As I indicated to you before in the trial an expert can give you opinions based on his or her training or experience. [¶] Dr. Urquiza's testimony about behaviors of victims of child sexual abuse is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not Jane Doe's conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
2. Analysis
When we review a purportedly erroneous instruction, we consider" '" 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." '" (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson), superseded by statute on another ground as stated in People v. Nieves (2021) 11 Cal.5th 404, 509.) We consider the instructions as a whole and" 'assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (Ibid.)
The modified version of CALCRIM No. 1193 given by the trial court was a cautionary instruction that warned the jurors that they could not consider Dr. Urquiza's testimony as evidence that defendant committed the offenses. It informed the jurors that they could use the evidence to evaluate whether Doe's behavior that appeared inconsistent with being molested was actually not inconsistent. To the extent that the instruction allowed the jury to consider Dr. Urquiza's testimony when it evaluated Doe's credibility, such evidence is relevant and admissible when an alleged victim's credibility has been attacked, as it was here. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Thus, considering the instruction as a whole (Richardson, supra, 43 Cal.4th at p. 1028), it is not reasonably likely that the jury understood the instruction as allowing the use of Dr. Urquiza's testimony for the improper purpose of proving that Doe was in fact abused by defendant (see People v. Munch (2020) 52 Cal.App.5th 464, 474 [rejecting claim that CALCRIM No. 1193 reduced the prosecution's burden of proof]).
C. Dissuading Conviction
Defendant contends that insufficient evidence supports his conviction of dissuading a witness in violation of section 136.1, subdivision (b)(1). Defendant argues that the prosecution failed to prove that he attempted to dissuade Doe from reporting the abuse to law enforcement as opposed to "reporting it to anyone." The Attorney General asserts that substantial evidence supports the conviction.
In determining a sufficiency of the evidence claim, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).)
Section 136.1, subdivision (b)(1) punishes "every person who attempts to prevent or dissuade . . . the victim of a crime or [a] witness to a crime" from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge." It is a specific intent crime, requiring the prosecution to prove that the defendant intended to dissuade the victim or witness from reporting the offense to law enforcement. (See People v. Ford (1983) 145 Cal.App.3d 985, 989-990; People v. Womack (1995) 40 Cal.App.4th 926, 929-930.)
" 'Unless the defendant's acts or statements are intended to affect or influence a potential witness's or victim's testimony or acts, no crime has been committed under this section.' [Citation.] The circumstances in which the defendant's statement is made, not just the statement itself must be considered to determine whether the statement constitutes an attempt to dissuade . . . . [Citation.] If the defendant's actions or statements are ambiguous, but reasonably may be interpreted as intending to achieve the future consequence of dissuading the [victim] from [reporting the victimization to law enforcement], the offense has been committed. [Citation.]" (People v. Wahidi (2013) 222 Cal.App.4th 802, 806 (Wahidi).) There is"' "no talismanic requirement" '" that a defendant utter certain words in order to commit the offense. (People v. Pettie (2017) 16 Cal.App.5th 23, 54.)
Here, substantial evidence supports the jury's determination that defendant attempted to dissuade Doe from reporting her victimization to law enforcement. Defendant made multiple statements that "reasonably may be interpreted as intending to achieve the future consequence of dissuading" Doe from reporting the victimization to law enforcement. (Wahidi, supra, 222 Cal.App.4th at p. 806.)
Doe testified that when she was 13, on the day defendant put his hand between her thighs while they were in the garage, Doe told defendant to stop or she would tell her aunt. Defendant responded that the aunt would never believe Doe and that it would tear the family apart. Defendant said that they would have to go to court and that he would get Doe's father deported.
Doe testified that she believed defendant and that defendant's statements discouraged her from telling anyone, including law enforcement. Doe stated that when she disclosed one incident of abuse to cousin1 when she was 14, she told cousin1 that he could not tell anyone because she "was looking out for [her] dad and [her] family."
Doe also testified that she did not tell anyone about the incident that occurred inside her house when she was 16, when defendant pushed her down, kissed her, and grabbed her waist, buttocks, and breasts, because she loved her father and "would never jeopardize his welfare for [hers]." Doe stated that she thought the court process would lead to her father's deportation based on what defendant had said.
In addition, defendant told Doe during the pretext call Doe made from the police station to "just deny everything. Just say that you were lying." Defendant stated that he knew the police were talking to Doe and advised Doe to "tell them that nothing happened. Just say that nothing had happened." Defendant also said, "[W]hen the cops come, just say that you were . . . lying; that nothing happened. [¶] . . . [¶] And then . . . they'll just drop the case and then we'll go back to the old time. I have a lawyer - I talked to a lawyer already." Defendant stated that Doe was "blackmailing" him, that all he did was give Doe money, and that Doe was "the only one [who] can make it go away."
The jury could reasonably infer from defendant's statements to Doe that if she told the aunt he would get her father deported, that "when the cops come," she should "say [she was] lying," and that she was "blackmailing" him, that defendant was attempting to dissuade Doe from reporting her victimization to law enforcement. Doe's testimony regarding defendant's statements, and the effect they had on her, as well as the recording of the pretext call, provided "evidence that is reasonable, credible, and of solid value- from which a reasonable trier of fact could find . . . defendant guilty [of section 136.1, subdivision (b)(1)] beyond a reasonable doubt." (Albillar, supra, 51 Cal.4th at p. 60.) We therefore conclude that defendant's dissuading conviction is supported by substantial evidence.
Defendant in his reply brief contends that "trial counsel's representation fell below an objective standard of reasonableness under professional norms and prejudiced [him] because there was insufficient evidence to support his conviction for dissuading a witness." However, as we explained above, defendant is precluded from raising claims in a reply brief. (See Rangel, supra, 62 Cal.4th at p. 1218.) Because defendant did not raise an ineffective assistance of counsel claim regarding his dissuading conviction in his opening brief, the claim "is forfeited." (Ibid.)
D. Lack of Unanimity Instruction on Dissuading Charge
Defendant contends that the trial court erred when it failed to give the jury a unanimity instruction regarding the dissuading offense because the prosecution relied on multiple statements to prove the charge. Defendant asserts that the failure to instruct on unanimity lowered the prosecution's burden of proof. The Attorney General contends that no unanimity instruction was required because the offense constituted a single course of conduct.
"In a criminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (Russo, supra, at p. 1132.)
However, "no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception." (Jennings, supra, 50 Cal.4th at p. 679.) The exception arises either" 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.' [Citation]." (Ibid.)
Here, the trial court did not instruct the jury on the requirement of unanimity as to the dissuading charge. The prosecution relied on defendant's course of conduct to prove the offense.
The trial court did instruct on unanimity regarding the lesser included offense to count 1 using CALCRIM No. 3500. The instruction stated, "The People have presented evidence of more than one act to prove that the defendant committed th[e] offense [of committing a lewd or lascivious act on a child under age 14]. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
As we stated above, section 136.1, subdivision (b)(1) punishes "every person who attempts to prevent or dissuade . . . the victim of a crime or [a] witness to a crime" from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge."
In People v. Salvato (1991) 234 Cal.App.3d 872, 883 (Salvato), the Court of Appeal concluded that "[t]he language of section 136.1 focuses on an unlawful goal or effect, the prevention of [crime reporting or] testimony, rather than on any particular action taken to produce that end. 'Prevent' and 'dissuade' denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal." The court therefore held that the offense "falls within the continuous conduct exception" to the unanimity requirement. (Ibid.) The court disagreed with the defendant's argument that "the reference to 'the act' in subdivision (c)(1) of section 136.1 indicates an intent to punish individual acts alone," finding that the use of "act" in the statute was synonymous with "offense," "referring to whatever conduct was employed to dissuade or prevent a witness's testimony." (Ibid.)
We concur with Salvato that based on section 136.1's language, dissuading a victim or witness constitutes a continuous-course-of-conduct crime. (Salvato, supra, 234 Cal.App.3d at p. 883.) Thus, a unanimity instruction was not required regarding the dissuasion charge, where the prosecution "proceeded on a 'course of conduct' theory." (Jennings, supra, 50 Cal.4th at p. 680 [involving torture special circumstance].)
E. Imposition of Upper Term on Count 1
In his opening brief, defendant contended that the trial court abused its sentencing discretion under former section 1170, subdivision (b) when it imposed the upper term of 16 years on count 1. Under former section 1170, subdivision (b), "[w]hen a judgment of imprisonment [was] to be imposed and the statute specifie[d] three possible terms, the choice of the appropriate term . . . rest[ed] within the sound discretion of the court." However, effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (ch. 731, § 1) amended section 1170, subdivision (b) to limit the trial court's ability to impose the upper term. (§ 1170, subd. (b)(1)-(3).) The amendment also requires the court to impose the lower term under certain circumstances. (§ 1170, subd. (b)(6).) We asked the parties for supplemental briefing on whether Senate Bill No. 567 applies retroactively to defendant and, if so, whether the matter must be remanded for resentencing.
The parties agree that Senate Bill No. 567 applies retroactively here but differ on whether remand is required. Defendant both contends that remand is unnecessary because the trial court's sentencing findings establish that he is entitled to the lower term and requests remand for an evidentiary hearing. The Attorney General contends that remand is not required because the jury found beyond a reasonable doubt that defendant had engaged in substantial sexual conduct with Doe (§ 1203.066, subd. (a)(8)), which satisfies the amended statute's requirements for imposition of the upper term.
1. Trial Court Proceedings
Defense counsel filed a sentencing memorandum asking that defendant "be given an opportunity at rehabilitation with a grant of probation." Counsel raised defendant's lack of a criminal record, community service, and community support. Counsel also asserted that defendant's conduct was "minimal" and "falls near the very bottom of the range of criminal conduct."
The prosecution did not file a sentencing memorandum.
The probation report stated that defendant was convicted of misdemeanor burglary (§ 459) in 1995 and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)) in 2013. Defendant scored a sexual reoffense risk of zero, out of -3 to 12, on the Static-99R, which was below average. The report stated that defendant was "clearly . . . a contributing member of society and ha[d] cared for his family," but that his conduct had "not only . . . adversely affected Doe, [but] will have lasting trauma within Doe's family, his own family and his circle of friends."
The probation report listed the following factors in aggravation: the manner in which the crime was carried out indicates planning, sophistication or professionalism (Cal. Rules of Court, rule 4.421(a)(8)), and defendant took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(1)). The probation report listed the following factors in mitigation: defendant has no prior criminal record or an insignificant criminal record (rule 4.423(b)(1)); and defendant's prior performance on probation was satisfactory (rule 4.432(b)(6)).
All further rule references are to the California Rules of Court.
At the sentencing hearing, Doe's father stated that the experience had caused him stress, anxiety, sadness, and pain, making it "difficult to go on with [his] normal life," and had changed family relationships. The family had been "united," but now the family was "separated." Doe's father stated that his parents and some of his siblings no longer communicate with him.
Doe's mother stated that after the disclosure, Doe was suicidal and had to live with "the stigma of . . . being pointed at and being said that it's her fault." Doe's mother said, "We trusted them. We thought they were our family," and that defendant "destroyed [Doe]"; "took her innocence from her at a very young age"; and "threatened her." Doe's mother stated that it had "affected [her] whole family, all [of her] children."
In a written statement, Doe stated that" 'everything changed'" when she met defendant, who" 'took everything from [her].'" Doe stated that she was" 'sexually, verbally, and mentally abused from ages 12 to 15'" and was" 'completely stripped of [her] childhood and freedom.'" During the abuse, Doe stopped attending school, had daily anxiety attacks and suicidal thoughts, and" 'had given up.'" Doe stated that she was" 'disgusted with [her]self'" and" 'start[ed] experimenting with drugs.'" She twice attempted suicide in 2019. Doe stated that she had" 'lost half [her] family, '" who thought she"' "wanted and encouraged [defendant's] behavior"' "; that not a day goes by without her thinking that this was her fault; that she continues to think of suicide; and that she is afraid of men.
The prosecution stated that it agreed with the factors in aggravation listed in the probation report. The prosecution asserted that defendant abused a position of trust to commit the crimes and that Doe was a vulnerable victim based on her father's immigration status, which defendant exploited, and because she was asleep at the start of one incident. The prosecution conceded that defendant did not have a significant criminal history, but argued that defendant had not established "something that heavily mitigates what happen[ed] in this case." The prosecution urged the court to consider the impact of defendant's conduct on Doe and her family in its sentence. The prosecution asked the court to impose the midterm "at minimum."
Defense counsel asserted that Doe "carried on for a while with this blackmail" as "[s]he was the one . . . send[ing] text messages . . . demanding money" and was "in control." Defense counsel also raised defendant's "minimal record." Defense counsel conceded that defendant was probation ineligible and asked the court to impose the low term.
The court stated that defendant "ha[d] been leading two lives," one where people thought he was "a pillar in the community," and the other where he had "taken advantage of a young girl to satisfy [his] immoral and predatory objectives." The court found that defendant had maintained the secret sexual abuse "through financial leverage, through emotional leverage, and through fear." The court found "[t]he trauma here . . . evident and . . . powerful"; that the family had been torn apart; and that "[n]othing is going to be the same for either [Doe's or defendant's] family."
The court found "some mitigation present" based on "the positives in [defendant's] life and [defendant's] conduct in the case when you compare it to other [continuous sexual abuse] cases, unfortunately." The court found "a high degree of aggravation" based on Doe's trauma. The court also found the trauma to Doe's and defendant's families and defendant's abuse of trust were aggravating circumstances.
The court ruled, "The trauma is so pronounced, there's so much destruction here, the manipulation is so pronounced, the upper term of 16 years [on count 1] is imposed." The court imposed a concurrent midterm sentence of 2 years on count 4, and a consecutive 8-month sentence on count 6, which was one-third the midterm. The court subsequently modified the sentence to a total of 16 years by imposing a concurrent midterm sentence of 2 years on count 6.
2. Newly Amended Section 1170, subdivision (b)
As relevant here, amended section 1170, subdivision (b) provides that the trial court "shall, in its sound discretion, order imposition of a sentence not to exceed the middle term," except where "there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(1), (2).) In addition, "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence [¶] . . . [¶] (C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking." (§ 1170, subd. (b)(6)(A), (C).)
3. Analysis
We concur with the parties that Senate Bill No. 567 applies retroactively to defendant because the judgment is not yet final and there is no indication that the Legislature intended the law's ameliorative changes to operate solely prospectively. (See In re Estrada (1965) 63 Cal.2d 740, 742, 745; People v. Brown (2012) 54 Cal.4th 314, 323; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Regarding whether the case must be remanded, we observe that" '[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) In such circumstances, the California Supreme Court has held that "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Ibid.)
Senate Bill No. 567 altered the scope of the trial court's sentencing discretion under section 1170, subdivision (b). Moreover, although the jury found beyond a reasonable doubt that defendant had engaged in substantial sexual conduct with Doe, that was not an aggravating factor relied on by the trial court in its selection of the upper term. Thus, because the record does not" 'clearly indicate[]'" that the court would have imposed the upper term despite the amendment to section 1170, subdivision (b), we will remand the matter for resentencing. (Gutierrez, supra, 58 Cal.4th at p. 1391.)
F. AIDS Testing Order
Defendant contends that the trial court erred when it ordered him to undergo AIDS testing pursuant to section 1202.1. The Attorney General concedes that the order was improper because "there is no evidence of any act by [defendant] that established probable cause to believe there was a transfer of bodily fluid capable of transmitting HIV to Doe."
Section 1202.1 requires the court to order every person convicted of a qualifying sex offense to undergo AIDS testing within 180 days of conviction. (§ 1202.1, subds. (a), (e).) With respect to certain sex offenses, including lewd or lascivious conduct with a child in violation of section 288 and continuous sexual abuse of a child in violation of section 288.5, the testing must be ordered "if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (§ 1202.1, subd. (e)(5)(A); see id. at subds. (a), (e)(5)(A)(iii), (iv)(iii), (iv).)
Defendant was convicted of sections 288 and 288.5. We agree with the parties that there is not substantial evidence to support the trial court's implicit finding of "probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (§ 1202.1, subd. (e)(5)(A).) Thus, as the parties agree, the matter must be remanded "for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause." (People v. Butler (2003) 31 Cal.4th 1119, 1129.)
IV. DISPOSITION
The judgment is reversed. The matter is remanded for resentencing (Pen. Code, § 1170, subd. (b)) and for further proceedings to determine whether the prosecution has additional evidence to establish "probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from . . . defendant to the victim" (Pen. Code, § 1202.1, subd. (e)(5)(A)).
WE CONCUR: ELIA, ACTING P.J. WILSON, J.