Opinion
E074436
06-09-2021
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY BREDEMEIER, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF1807737 F. Paul Dickerson III, Judge. Affirmed as modified.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Michael Ray Bredemeier molested three young girls (J.P. [prior uncharged], Z.R., & M.D.) during separate times in his life. On October 30, 2019, a jury convicted him as follows: In connection with his acts against Z.R., the jury convicted defendant of one count of sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b), count 1), five counts of committing a lewd act involving a child under the age of 14 years (§ 288, subd. (a), counts 3-7), and one count of annoying or molesting a child under the age of 18 years (§ 647.6, subd. (a), count 8). In connection with his acts against M.D., the jury convicted defendant of one count of committing a lewd act involving a child under the age of 14 years (§ 288, subd. (a), count 9). Also, the jury found a multiple victim enhancement true as to these offenses. (§ 667.61, subd. (e)(4).)
All further statutory references are to the Penal Code unless otherwise stated.
Defendant was found not guilty of a second count of sexual penetration with a child 10 years old or younger involving Z.R. (§ 288.7, subd. (b), count 2.)
The trial court sentenced defendant to state prison for an aggregate term of 90 years to life. The court also imposed various fines, fees, and assessments, including a $500 sex offender fine (Pen. Code, § 290.3), a $270 criminal conviction assessment (Gov. Code, § 70373), a $320 court security fee (Pen. Code, § 1465.8), a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $1,800 fine payable to the “Division of Adult Institutions” (§ 288, subd. (e)), and a suspended $2,100 parole revocation restitution fine (Pen. Code, § 1202.45). The court found that defendant has the ability to pay.
On appeal, defendant contends: (1) the evidence is insufficient to support his convictions of one count of sexual penetration and two counts of committing a lewd act involving Z.R.; (2) the trial court erred in admitting (a) expert testimony on child sexual abuse accommodation syndrome (CSAAS), (b) evidence of his prior uncharged sexual offenses against J.P., and (c) pornographic materials on his cell phone; (3) he should be granted a new trial because he was not sentenced within the statutory time; (4) the trial court erred in imposing certain fines and fees; and (5) the cumulative effect of the trial court's errors denied him his constitutional right to due process and a fair trial. After examining the record, we conclude the trial court erred in calculating the criminal conviction assessment (Gov. Code, § 70373) and the suspended parole revocation restitution fine (Pen. Code, § 1202.45), and the errors must be corrected. We modify the judgment accordingly, and we affirm the judgment as modified.
I. PROCEDURAL BACKGROUND AND FACTS
A. Background.
Defendant was born in Kansas in 1953. By the 1980s, he was living in Murrieta, California, with his wife and children.
B. The Prosecution's Case.
1. Molestation involving J.P. (prior uncharged offenses).
Defendant was raised in a close-knit family. During a family gathering, defendant (age 16) was playing frisbee with his cousins, including seven-year-old J.P. At some point, defendant took the frisbee, ran into the house, and upstairs into a bedroom. J.P. followed. Once J.P. was inside the bedroom, defendant locked the door and jumped on the bed. He unzipped his pants and masturbated to ejaculation. He encouraged J.P. to “see what he was doing” and “asked [her] to touch it.” She refused.
When J.P. was eight years old and at a family campout, she told a cousin and the cousin's friend what defendant had done. The girls found defendant by the riverbank and asked him to show them what he had shown J.P., but he refused. The cousin and her friend left the riverbank, leaving J.P. Defendant told J.P. that what he did was only for her. He then unzipped his pants and proceeded to masturbate. He pulled her over, sat her on him, and asked if it felt good. She said, “‘No, it hurt[s],' and ‘Let me go. Let me go.'” He let her go, and she “took off.”
When she was nine or 10, J.P. spent the night at her aunt's home, where defendant also lived. While she was sleeping on the couch, defendant pulled down her pants and proceeded to perform oral sex on her. He stopped when she screamed loud enough for others to hear. On another occasion, when defendant was babysitting J.P. and her brothers, defendant went into her bedroom and tried to pull her pants down, but he stopped when J.P. started screaming.
J.P. never reported defendant's actions because she was afraid of what it would do to her family.
2. Molestation involving M.D. (count 9).
In 2000, when M.D. was 11 years old and in the fifth grade, she became good friends with defendant's daughter. One night, when M.D. spent the night at defendant's home, she woke up to defendant, who was around 47 years old at the time, lying behind her on the floor “with his fingers rubbing [her] vagina.” Defendant was wearing a robe, which was open, and she could feel his body against her. M.D. sat up quickly and asked why her pajama bottoms were pulled down. Defendant stood up, closed his robe, responded, “‘I don't know, '” and left the bedroom. M.D. woke up defendant's daughter, told her what had happened, and said she wanted to go home. The daughter thought M.D. had a nightmare and told her that “‘everything's fine.'” M.D. never reported the incident because she assumed no one would believe her. After she graduated from high school, M.D. told some friends about what had happened. Her friends convinced her to tell her mother, and her mother encouraged her to report it to the police.
3. Molestation involving Z.R. (counts 1-8, inclusive).
Z.R. lived with her adoptive family in Temecula. Through her adoptive family, she met defendant, a close friend and coworker of her adoptive father. In December 2012 or January 2013, defendant (around 59 years old) took Z.R. (around nine years old) and her siblings to see the movie, “Monsters, Inc. 3D.” During the movie, defendant put his hands “fully in [her] pants from the top, ” and asked her to kiss him. She testified that he touched her vagina; however, she did not know if this was the time his fingers went inside her “because [she] was young, but [she] believe[d] so.” Defendant told Z.R. that he touched her because “sometimes he thought [she] was hotter than his wife.” The same type of touching happened again when she went to see another movie, “Cowboys & Aliens, ” with her family and defendant. She did not remember if he put his finger inside her vagina during this trip to the movies.
During the summers of 2013, 2014, 2015, and 2016, Z.R.'s adopted family would go to defendant's home to swim in his pool. She recalled a time, before her 14th birthday, when defendant joined her in the spa. He touched her on her bathing suit bottoms near her vagina and asked if she had hair down there. During another time in the spa, defendant “stuck his hand in [her] bathing suit bottoms.” Z.R. testified that defendant touched her in the spa “more than two” times, but she could not recall it happening “more than three” times. She also testified that throughout four consecutive summers, defendant “repeatedly” touched her, near her vagina, in the spa.
Z.R. recalled that when defendant took her out for her 14th birthday, he told her she could ask him questions about sex, if she had any, and he would help her. By February 2017, Z.R. had moved to Indio to live with her biological grandmother because she “was having problems” and “needed a fresh start.” She missed defendant, who was like a grandfather to her, so she stayed in touch with him over social media. In July 2018, Z.R.'s grandmother found text messages from defendant to Z.R., “telling [Z.R.] that he loved her [and] missed her.” When the grandmother discussed the messages with Z.R., she disclosed that defendant had touched her, and the grandmother called the police. During her forensic interview, Z.R. revealed incidents when defendant touched her at the movies and in the spa. When asked about any other events, she said he had also inserted his finger in her vagina while they were in the “cry room” at church.
4. Evidence from defendant's cell phone.
On October 24, 2018, the Riverside County Sheriff's Department executed a search warrant at defendant's home and subsequently analyzed the data on his cell phone. The phone had been used to access pornographic videos entitled, “‘Father Fucks Schoolgirl Daughter'” and “‘Father and Daughter Live on Cute Baby Cam.'” The Web site links were no longer active, and officers were unable to view the videos. In the cell phone's notes section, there were references to the following self-help books: “The Bondage Breaker: Overcoming Negative Thoughts, Irrational Feelings, and Habitual Sins, ” “Healing the Wounds of Sexual Addiction, ” and “Cutting It Off: Breaking Porn Addiction and How to Quit for Good.” The Internet history on defendant's cell phone indicated searches for things like “‘father fucking daughter, '” “‘she male, '” “‘Japanese women, '” and “‘young girls.'”
C. Defense Case.
Although defendant did not take the stand, he did present the following defense:
C.R., Z.R.'s brother, testified about going to the movies with defendant. C.R. stated that (1) he remembered going to see “Monsters, Inc. 3D, ” (2) Z.R. sat between him and defendant, (3) he did not see anything unusual happen during the movie, and (4) Z.R. did not seem upset after the movie ended. C.R. also remembered seeing “Cowboys & Aliens” with his siblings and defendant. He stated he did not see anything unusual happen, and Z.R. never told him that anything unusual happened.
M.R., Z.R.'s adoptive mother, testified that Z.R. was alone with defendant twice, each time on her birthday when he took her to a restaurant. M.R. stated Z.R. did not seem upset after going with defendant, nor did she mention anything unusual happened. M.R. described defendant as a “large man, ” who used a cane to walk. She added that when they went to the movies, the children “always liked to sit next to” defendant.
J.R., defendant's daughter, testified that she had at least 10 different girlfriends spend the night at her house, and M.D. slept over two or three different times. J.R. recalled the night when M.D. turned on the light, woke J.R., and claimed defendant “had done something.” J.R. also testified that M.D. spent another night at her house when she attended a slumber party at J.R.'s house. After M.D. told J.R.'s friends about what had happened with defendant, J.R. ended their friendship. According to J.R., in 2000, defendant was very heavy, about 400 pounds, had bad knees, and “couldn't walk very well.”
The probation officer's report filed December 6, 2019, described defendant as six foot three inches tall, weighing 300 pounds, with no physical limitations or disabilities.
D. The People's Rebuttal.
The People recalled M.R., who testified defendant inappropriately commented on Z.R.'s social media picture by writing, “‘What a hottie.'” When Z.R.'s biological grandmother informed M.R. about defendant's social media conversation with Z.R., M.R. was concerned and scared. The People also called D.R., Z.R.'s adoptive father, who testified that he found defendant's messages to Z.R. to be a “mixture of surprise and unsettling.” When D.R. confronted defendant about the messages, he did not deny sending them.
II. DISCUSSION
A. Sufficiency of Evidence.
Defendant challenges the sufficiency of the evidence to support his convictions of sexual penetration and two counts of committing a lewd act involving Z.R.
“In considering a challenge to the sufficiency of the evidence..., 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.'” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
1. Count 1 (§ 288.7, subd. (b)).
Defendant contends insufficient evidence supports his conviction of sexually penetrating Z.R.'s vagina (§ 288.7, subd. (b)) when they were at the movie theatre watching “Monsters, Inc. 3D.”
Section 289 defines “‘[s]exual penetration'” as “the act of causing the penetration, however slight, of the genital or anal opening of any person” for the purpose of sexual arousal or gratification. (§ 289, subd. (k)(1).) Thus, “sexual penetration” does not require penetration of the vagina, but only penetration of the external genital organs, which include the labia majora. (See People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 [evidence that defendant penetrated the victim's labia majora was sufficient to establish sexual penetration within the meaning of § 289].)
Here, when asked whether defendant's fingers went inside her vagina while they were watching “Monsters, Inc. 3D, ” Z.R. testified, “Um, I don't know if it was that time that it did... because I was young, but I believe so.” Defendant argues this testimony is not substantial evidence that he violated section 288.7, subdivision (b), because “such equivocal testimony can hardly be considered evidence that is ‘of solid value, '” and “there was no testimony elicited as to what the basis of her ‘belief' that this happened was.” We disagree.
“Q. You say ‘he.' Are you referring to the defendant? [¶] A. Yes, the defendant. [¶]... [¶] “Q. When he put his hand inside your pants, did he actually touch your vagina? [¶] A. Yes, he did. “Q. Did his fingers actually go inside your vagina? [¶] A. Um, I don't know if it was that time that it did... because I was young, but I believe so. [¶]... [¶] “Q. At this time, when his fingers are, as you believe, going into your vagina, touching around it, do you have any comprehension of what's going on? [¶] A. Not really. I didn't really understand what was going on. [¶]... [¶] “Q.... [¶] You said at some point he told you why he was doing these things. Did I understand that right? [¶] A. Yes. But, um, he told me that sometimes he thought I was hotter than his wife, so-and I took that as why he was doing it.” (Italics added.) Z.R. testified as follows: “Q.... [¶] When you went to this movie with this group of people, what happened? [¶] A. Um, well, we watched the movie. It was a little hard to see because of the [3D] glasses, but- [¶]... [¶] [u]m, he started to stick his hands in my pants.
According to the evidence, on two separate occasions when defendant accompanied Z.R. and her siblings to see a movie, he touched her vagina; however, Z.R. implied that defendant only penetrated her vagina on one of those occasions. Z.R.'s use of the word, “believe, ” concerned the time they saw “Monsters, Inc. 3D” (“I don't know if it was that time”) when defendant put his fingers inside her vagina, not whether defendant actually did it. When interpreted in the light most favorable to the judgment, this testimony provided sufficient evidence from which the jury could infer penetration, however slight, of Z.R.'s genital organ. “‘We do not reweigh evidence or reevaluate a witness's credibility.'” (People v. Brown (2014) 59 Cal.4th 86, 106.) Accordingly, sufficient evidence supports this conviction.
2. Counts 3 through 7, inclusive (§ 288, subd. (a)).
Defendant contends there is insufficient evidence to support two of his five convictions of committing a lewd act involving Z.R. because she did not indicate she had been touched more than three times in the spa, and her “‘generic'” testimony failed to reveal at least five lewd acts. We disagree.
Counts 3 through 7 charged defendant with committing five lewd acts on Z.R. while she was under the age of 14 years. (§ 288, subd. (a).) At trial, Z.R. testified she did not know “exactly” how many times, in the spa, defendant had touched her near her vagina; however, she remembered three times. She explained that she did not want to think about it. While she could not “count... on her hand” the number of times defendant touched her in the spa, she testified that she “just [knew] it happened.” Later, she stated that her family used defendant's pool in the summers of 2013, 2014, 2015, and 2016, and defendant repeatedly touched her each summer. During her forensic interview, Z.R. recalled defendant inserting his finger in her vagina while they were in the “cry room” at church.
“Q. Not exactly. Well, was it more than one? [¶] A. Yes, it was more than one time. “Q. Was it more than two? [¶] A. Yes. “Q. Was it more than three? [¶] A. I don't remember. [¶]... [¶] “Q. When he would go in the pool, however, would it happen frequently? [¶] A. If I was in the spa, yes.” She later testified as follows: “Q. So you think you remember a few more times when [your sister] was in the hot tub and [defendant] was abusing you? [¶] A. Yes. “Q. If you can, describe those times for us. [¶]... [¶] A. I don't remember. “Q. Well, a moment ago, you remembered at least a few other times; is that right? [¶] A. Yes. “Q. As you sit, think about those other times, were you able to count them on your hand, or do you just know it happened multiple times? [¶] A. I just know it happened.” Z.R. testified as follows: “Q. Do you know how many times in that hot tub the defendant touched you near your vagina while you were in the water? [¶] A. Not exactly.
“Q. And also fair to say you would have been ten years old at that point? [¶] A. I believe so, yes. “Q. Would you have gone to his home in the summer of 2014? [¶] A. Yes. “Q. And how about the summer of 2015? [¶] A. Yes. “Q. And then the summer of 2016? [¶] A. Yes. [¶]... [¶] “Q. When... you were at this home during those summertimes... this happened over repeated summers: is that right? [¶] A. Yes. “Q. And is it fair to say that this would not just happen one time each summer, that this would happen repeatedly each summer? [¶] A. Yes.” Z.R. further testified: “Q.... Safe to say you would have gone to his home in the summer of 2013? [¶] A. Yes.
The prosecutor argued that counts 3 through 7 were based on defendant's molestations in the spa and the cry room at church.
Z.R.'s testimony satisfies the requirements of People v. Jones (1990) 51 Cal.3d 294 (Jones). In Jones, the defendant challenged the sufficiency of the evidence to support six counts of lewd conduct on the grounds the victim was unable to specify the exact time, place, or circumstances of various alleged incidents. (Id. at pp. 299, 301, 303.) According to the victim, the abuse occurred “once or twice a month during the entire period in which [he] lived with defendant (Aug. 1983 through June 1985), although there may have been some ‘breaks' in the period when no molestation occurred for more than a month.” (Id. at p. 302.) The California Supreme Court held that the victim's generic testimony constituted substantial evidence supporting the six convictions: “[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim's failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. [Citations.] [¶] The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month' or ‘every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,' or ‘during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period.” (Id. at pp. 315-316.)
Here, although Z.R. could not recall each separate touching, she testified that throughout four specific, consecutive summers, defendant “repeatedly” touched her, near her vagina, in the spa. She specifically recalled three times, but she knew it was more. She also recalled him touching her in the cry room at church. “Nothing more is required to establish the substantiality of the victim's testimony in child molestation cases.” (Jones, supra, 51 Cal.3d at p. 316.)
B. The Trial Court Properly Admitted the Challenged Evidence.
Defendant asserts the trial court erred in admitting (a) expert testimony on CSAAS, (b) evidence of his prior uncharged sexual offenses against J.P., and (c) pornographic materials on his cell phone. As we explain, we conclude the trial court properly admitted the challenged evidence.
1. Expert evidence on CSAAS.
Defendant contends: (1) the trial court abused its discretion in allowing expert evidence on CSAAS because “certain ‘myths' that [Jody Ward, Ph.D., ] was permitted to discuss (e.g., recanting, and unconvincing disclosure) were not even brought up by the defense, ” and “the ‘myths' discussed by [Dr.] Ward are, in fact, not myths at all any longer and, as such, there is no need to continue to permit such testimony in the courts of our state”; and (2) CSAAS is no longer accepted within the scientific community and, thus, the admission of [Dr.] Ward's testimony violated due process. Defendant further asserts the admission of CSAAS evidence “was not harmless in that it cannot be said beyond a reasonable doubt that the result of the trial would have been more favorable without the evidence.” On the merits, we conclude defendant's contentions fail; however, assuming the court erred in admitting the CSAAS evidence, the error was harmless.
a. Further background information.
Before trial, the prosecutor moved to introduce expert testimony on CSAAS. The trial court granted the request, stating, “I'm going to allow it. A substantial amount of time passed. [¶] I did read your opposition there, too, but the jury needs to be informed as to why a child may or may not delay disclosure. I think it's critical for them to be provided information by an expert because this is not information that most people would have researched or have access to, so I'm going to allow the expert to testify.” The court further granted the request to instruct the jury with CALCRIM No. 1193.
Noticing that no written opposition is included in the clerk's transcript, the People assert defendant has forfeited any claims he failed to make at the trial level. (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) They further contend defendant cannot show that his counsel rendered ineffective assistance because any objection would have been meritless and could not have prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 687-695.) We reach the merits because, according to the trial court and the prosecutor, a written opposition was filed, the written opposition alleged that CSAAS was inappropriate under the People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 54 U.S.App.D.C. 46 (Frye) line of cases, and defendant raises an objection of a constitutional nature.
“You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [J.P.'s, M.D.'s and Z.R.'s] conduct is not inconsistent with the conduct of someone who has been molested and in evaluating the believability of their testimony.”
During the trial, Dr. Ward, a clinical and forensic psychologist, testified regarding CSAAS, which describes a “pattern of behaviors many children exhibit when they've been sexually abused.” She explained how children abused by a family member in an ongoing relationship tend not to report the abuse right away. She added that when children do report the abuse, they tend not to be believed, do not receive support, and tend to experience more consequences as a result of that sexual abuse. Dr. Ward described five components of CSAAS: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, unconvincing disclosure, and (5) retraction or recantation. She did not review police reports, meet with the victims, interview witnesses, or review witness statements because her only role in the case was to “explain generally how children respond to sexual abuse when it occurs within an ongoing relationship.”
b. Legal principles.
Expert witness opinion testimony is limited to a subject “that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Although expert testimony regarding CSAAS is inadmissible to prove a victim had been sexually abused, California courts consistently have held that such evidence is admissible to disabuse the jury of myths and misconceptions it might hold about the behavior of abuse victims. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1301; People v. Munch (2020) 52 Cal.App.5th 464, 468 [CSAAS evidence “‘“is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'”']; People v. Julian (2019) 34 Cal.App.5th 878, 885 [same]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino) [When a victim's credibility is placed in issue due to seemingly counterintuitive behavior, CSAAS evidence is admissible to rehabilitate the victim's credibility by showing that his or her reactions are not inconsistent with abuse.]; People v. Bowker (1988) 203 Cal.App.3d 385, 394 [“[W]here a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust.”].)
c. CSAAS evidence was relevant and admissible.
Initially, we reject defendant's suggestion that jurors no longer harbor confusion or misconceptions about how children react to sexual abuse. It is enough that a juror “might hold” misconceptions “about how a child reacts to a molestation” (Patino, supra, 26 Cal.App.4th at p. 1744), and we decline to ignore California's long-standing rule allowing CSAAS evidence where, as here, the credibility of each victim is placed in issue due to counterintuitive behavior (People v. McAlpin, supra, 53 Cal.3d at pp. 1299-1301). As defendant acknowledges, we must follow the California Supreme Court's holdings on this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We, therefore, conclude that the trial court properly admitted the CSAAS evidence to rebut the misconceptions the jurors “might hold.” (Patino, at p. 1744.)
Likewise, we reject defendant's claim that CSAAS is no longer accepted within the scientific community and, thus, the admission of Dr. Ward's testimony violated due process. “Under the [Kelly rule], when expert testimony based on a new scientific technique is offered, the proponent of the testimony must first establish the reliability of the method and the qualifications of the witness. ‘Reliability of the evidence is established by showing “the procedure has been generally accepted... in the scientific community in which it developed.”'” (People v. Harlan (1990) 222 Cal.App.3d 439, 448.)
“Formerly known as the Kelly-Frye rule, based on the rulings of People v. Kelly (1976) 17 Cal.3d 24... (Kelly) and Frye v. United States (D.C. Cir. 1923) 54 U.S.App.D.C. 46 , the rule is now the Kelly rule in California after changes to the Federal Rules of Evidence that superseded Frye. (People v. Bolden (2002) 29 Cal.4th 515, 545....)” (People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8.)
“The [Kelly rule] consists of three prongs and was adopted by the California Supreme Court to analyze the reliability of expert testimony based on new or novel scientific methods or techniques. [Citation.] The rule ‘governs the admissibility of evidence derived from new scientific techniques.' [Citation.] The rule applies only ‘“to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.” [Citation.]' [Citation.] [¶] The purpose underlying the rule is to protect a jury from expert testimony that conveys a ‘“misleading aura of certainty”' about a scientific technique. [Citations.]... [¶] Under the [Kelly rule], ‘the proponent of evidence derived from a new scientific technique must establish that (1) the reliability of the new technique has gained general acceptance in the relevant scientific community, (2) the expert testifying to that effect is qualified to give an opinion on the subject, and (3) the correct scientific procedures were used.' [Citation.] ‘Whether a new scientific technique has gained general acceptance is a mixed question of law and fact.' [Citation.] However, ‘proof of such acceptance is not necessary if a published appellate opinion affirms a trial court ruling admitting evidence obtained through use of that technique, at least until new evidence is admitted showing the scientific community has changed its attitude.'” (People v. Tran (2020) 50 Cal.App.5th 171, 186-187.)
For more than three decades, California courts have held that expert testimony regarding CSAAS is not subject to the Kelly rule analysis when it is not offered as proof that a molestation occurred but to rehabilitate the child victim's credibility when the defense suggests the victim's postabuse conduct is inconsistent with having been abused. (See People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301 [citing collected cases]; People v. Gray (1986) 187 Cal.App.3d 213, 219-220 [admissibility of the CSAAS testimony was not subject to the Kelly rule]; People v. Harlan, supra, 222 Cal.App.3d at pp. 448-449; People v. Wells (2004) 118 Cal.App.4th 179, 188 [CSAAS testimony is admissible “‘for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation'” and “must be tailored to address the specific myth or misconception suggested by the evidence.”].) Here, Dr. Ward's testimony on CSAAS did not constitute a new scientific method that purported to provide any proof that J.P., Z.R., or M.D. had been molested by defendant, and the trial court admonished the jury that the expert's testimony was admitted for the sole purpose of rehabilitating the victims' credibility. (CALCRIM No. 1193.) As such, the expert testimony was not subject to the Kelly rule.
Moreover, the expert testimony did not violate defendant's constitutional right to due process. (Patino, supra, 26 Cal.App.4th at p. 1747 [“introduction of CSAAS testimony does not by itself deny appellant due process”]; see Estelle v. McGuire (1991) 502 U.S. 62, 70 [admission of relevant evidence of battered child syndrome-which is analogous to CSAAS evidence-did not violate the defendant's due process rights].) Defendant essentially asks this court to find that Patino was wrongly decided. We decline to do so.
Finally, we reject defendant's claim that the admission of Dr. Ward's testimony was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) As the People point out, because defendant's “constitutional rights were not violated by admission of the evidence, the appropriate standard of review is the state law error test of People v. Watson (1956) 46 Cal.2d 818, 836.” Under that standard, any error in admitting CSAAS evidence was harmless if there is no reasonable probability of a more favorable result had the evidence been excluded.
According to defendant, M.D.'s testimony-that defendant had positioned himself behind her on the floor and then stood up and walked away when she confronted him-was discredited by the testimony that defendant weighed over 400 pounds and had difficulty walking. Also, defendant asserts that Z.R.'s testimony was discredited by her brother's recollection of the seating arrangements at the movies, his failure to observe anything unusual happen during the movie, and his memory that Z.R. did not seem upset after the movie ended. Defendant argues this evidence “represents a reasonable doubt and makes it such that the [trial court's] decision to admit [the CSAAS] evidence cannot be considered harmless error.” Not so. In addition to the victims' testimony, the jury was presented with evidence of defendant's abuse of J.P., his social media conversation with Z.R., and the data on his cell phone, including pornographic Web sites containing videos of adult males and school-aged girls, search terms like “‘father fucking daughter, '” “‘she male, '” “‘Japanese women, '” and “‘young girls, '” and titles of self-help books designed to overcome pornography addiction.
We recognize the inherent risk in admitting CSAAS evidence is that it “could be misconstrued by the jury as corroboration for the victim's claims.” (People v. Housley (1992) 6 Cal.App.4th 947, 958.) However, this risk exists “because the expert commonly is asked to offer an opinion on whether the victim's behavior was typical of abuse victims, an issue closely related to the ultimate question of whether abuse actually occurred.” (Ibid., italics added.) In this case, any risk the jurors would have mistaken Dr. Ward's testimony as support for the victims' credibility was eliminated by her clear statements that she did not review police reports, meet with the victims, interview witnesses, or review witness statements. She stated that the only purpose of her testimony was to “explain generally how children respond to sexual abuse when it occurs within an ongoing relationship.” When asked by defense counsel whether she agreed that her testimony was “not evidence that [defendant] committed any of the charges, ” she replied, “That is correct.” As we previously stated, the jury was advised that Dr. Ward's testimony about CSAAS was “not evidence that the defendant committed any of the crimes charged against him.” (CALCRIM No. 1193.) We must presume the jury understood and followed this instruction. (People v. Cain (1995) 10 Cal.4th 1, 34.)
For the above reasons, we conclude that the trial court properly admitted the CSAAS evidence. Nonetheless, assuming the court erred, the error was harmless because it is not reasonably probable defendant would have obtained a more favorable result.
2. Admission of testimony relating to prior uncharged sexual offenses.
Defendant contends the trial court abused its discretion in admitting evidence of his prior uncharged sexual offenses involving J.P., in violation of his state and federal constitutional rights to due process and a fair trial. He further asserts that the prior uncharged offenses were inadmissible because they were “not similar” to the charged offenses. We conclude the evidence was properly admitted.
a. Additional factual and procedural background.
Before trial, the prosecutor moved to admit evidence of defendant's prior sexual offenses involving J.P., under Evidence Code section 1108, on the grounds the evidence was highly probative of defendant's propensity to commit the charged offenses. The motion referenced defendant's 1984 misdemeanor conviction for indecent exposure (Pen. Code, § 314.1) for the purpose of showing “the defendant's conduct [involving J.P.] is not so remote as to warrant its exclusion under Evidence Code Section 352.” Defense counsel opposed the admission of the evidence on the grounds the conduct “occurred over forty years ago” and, therefore, “puts an undue burden on [defendant] that is too great to defend.” Counsel added that the admission of this evidence “would create substantial danger of undue prejudice to [defendant] and confuse the issues that are before the jury as to the charges.”
The trial court granted the prosecutor's motion and stated, “I don't think remoteness is an issue because I think that if... you're attracted to little girls, whether it was forty years ago or whether it was twenty years ago or it was five months ago, ... that is the object of your attraction, and I think that's the whole point with [Evidence Code section] 1108.... This goes back, at least for your client, decades. And, then, even though it's remote in time, you do have the case from 1984, the conviction for the indecent exposure; so I think this is clearly propensity evidence that the Legislature wanted the Court to consider.” The court further found that (1) defendant would be able to defend against the evidence of uncharged offenses through cross-examination, (2) the evidence would not confuse the issues because the jury would be given an appropriate limiting instruction, (3) the evidence was not prejudicial because it involved the “same sorts of conduct, ” and (4) the evidence's probative value “is strong.”
b. Applicable legal principles.
Evidence Code section 1108 is designed to allow the admission of evidence otherwise inadmissible under section 1101's prohibition against propensity evidence. (§ 1101, subd. (a); People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 822-823 (Daveggio and Michaud).) Under section 1108, when a defendant is accused of a sexual offense, “evidence of the defendant's commission of another sexual offense or offenses” is not excluded under section 1101 if the evidence is not inadmissible under section 352. (§ 1108, subd. (a); see People v. Lewis (2009) 46 Cal.4th 1255, 1286 [“Evidence Code section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant's propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352.”].) Under section 1108, subdivision (d)(1)(A), a “‘[s]exual offense'” includes sexual assault, lewd acts on a minor, unlawful sexual intercourse with a minor, rape by coercion, forcible rape, production of child pornography, exhibiting pornography to a minor, and indecent exposure, among several other offenses. “Thus, the admissibility of uncharged conduct pursuant to section 1108 turns on the existence of a preliminary fact-namely, that the uncharged conduct constitutes a statutorily enumerated ‘sexual offense.'” (People v. Jandres (2014) 226 Cal.App.4th 340, 353 [“‘Sometimes the relevance of evidence depends on the existence of a preliminary fact.'”].) “The trial court's ruling admitting evidence under these provisions is reviewed for an abuse of discretion.” (People v. Erskine (2019) 7 Cal.5th 279, 296.)
c. Analysis.
Defendant initially challenges the admission of the Evidence Code section 1108 evidence on the grounds it violates due process and his right to a fair trial. We reject this challenge. Our Supreme Court has held that section 1108 meets due process requirements (People v. Falsetta (1999) 21 Cal.4th 903, 913-918, 922-923 [rejecting due process challenge to § 1108 and noting with approval the rejection of an equal protection challenge in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185]; see Daveggio and Michaud, supra, 4 Cal.5th at p. 827 [rejecting due process challenge to § 1108]), and this court is bound by that ruling (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455).
Defendant also contends the trial court erred in admitting evidence of his prior uncharged offenses since they were “not similar” to the charged offenses. He asserts this evidence prejudiced him because the evidence was not so “overwhelming.” We disagree. Defendant's sole support for his claim, that the uncharged offenses are dissimilar, is because the offenses were committed when he was much younger and closer in age to J.P., while the charged offenses involved his actions as a middle-aged man. However, the dissimilarity in his age at the time he committed the offenses (whether uncharged or charged) is irrelevant. What is relevant is the similarity of his conduct with the victims. Here J.P. was about the same age as Z.R. and M.D. when defendant molested her. As the trial court observed, “[I]f... you're attracted to little girls, whether it was forty years ago or whether it was twenty years ago or it was five months ago, ... that is the object of your attraction, and I think that's the whole point with [Evidence Code section] 1108.” Also, the prior uncharged offenses were not unduly remote in time given defendant's 1984 conviction for indecent exposure. Moreover, numerous cases have allowed the introduction of incidents occurring 20 to 30 years earlier. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 992 [34-year-old prior sexual offense admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [sexual offenses committed over 20 years prior were not too remote]; see People v. Soto (1998) 64 Cal.App.4th 966, 991 [“passage of a substantial length of time does not automatically render the prior incidents prejudicial”].)
Regarding prejudice, we reject defendant's claim that the evidence supporting his convictions was less than “overwhelming.” He does not challenge the sufficiency of the evidence to support each conviction, and we found sufficient evidence supports the convictions he has challenged. (See § II.A., ante.) Given the other evidence discussed in section II.B.3.-his social media conversation with Z.R. and the data on his cell phone-it is unlikely the jury convicted defendant of the current offenses to punish him for his uncharged prior sexual offenses involving J.P. The jury was instructed with CALCRIM No. 1191, which stated they could not use the evidence of his prior uncharged offenses alone to convict defendant. Again, we presume the jury understood and followed this instruction. (People v. Cain, supra, 10 Cal.4th at p. 34.) Additionally, the jury found defendant not guilty of one count of sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b), count 2) involving Z.R. If the jury sought to punish defendant for his prior uncharged sexual offenses, it is reasonable to conclude that the jurors would have found him guilty of this offense as well.
In short, defendant cannot show an abuse of discretion in admitting evidence of his prior uncharged offenses involving J.P. Having found no error in admission of this evidence, we need not conduct any harmless error analysis. (See People v. Walker (2006) 139 Cal.App.4th 782, 808 [“‘[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded.'”].)
3. Admission of pornographic materials found on defendant's cell phone.
Defendant contends the trial court erred in admitting evidence obtained from his cell phone's files, including pornographic Web sites, search terms, and titles of self-help books, because the evidence “was admitted to show [his] character, ... he acted in conformity therewith, ” it confused the issues, was cumulative, and it violated his right to due process of law. We find no error.
a. Additional factual and procedural background.
Before trial, the prosecutor sought to admit evidence recovered from defendant's cell phone-specifically, pornographic Web sites he visited, his search history, and titles of self-help books referenced in the notes section-to show intent under Evidence Code section 1101, subdivision (b). Defense counsel objected on the grounds the evidence was only relevant if defendant was “being charged with possession of child pornography, ” and there is no evidence defendant “actually viewed them, ” “was the person who downloaded them, ” and whether others “also ha[d] access to his phone.”
The trial court concluded the evidence was admissible because it was “relevant to show that [defendant] has an interest in little girls. Not adult women, but little girls.” Regarding the self-help books on sexual addiction and pornography, the court found the evidence relevant to show that defendant “was seeking out information about how to stay away from this kind of pornography or his unnatural attraction to little girls, ” and “it would provide an incomplete picture if the jury didn't know that he's cruising websites that are called father-and-schoolgirl/daughter pornography, and then also at the same time understanding, ‘I have a problem. I can't overcome it. I'm addicted. I've lost the power to choose. I am looking for literature to help me resolve this problem, which goes back forty years.'” The court acknowledged the evidence was “somewhat prejudicial, ” but concluded its probative value outweighs the prejudicial nature. It further found the evidence would not “confuse[] the issue” or consume too much time. Because defendant would be able to cross-examine the officer as to his knowledge of others who may have had access to the phone, the court found the existence of any contrary inferences went to the weight of the evidence, not its admissibility.
b. Applicable legal principles.
While character evidence is generally inadmissible to prove a defendant acted in conformance with a character trait on a given occasion (Evid. Code, § 1101, subd. (a)), evidence otherwise prohibited by that section is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ...).” (§ 1101, subd. (b).) Thus, when evidence is admitted pursuant to section 1101, subdivision (b), it is not admitted to prove a defendant's disposition to commit a charged offense. “A trial court's ruling[] admitting evidence under Evidence Code section[] 1101... [is] reviewed for abuse of discretion.” (Daveggio and Michaud, supra, 4 Cal.5th at p. 824.)
c. Analysis.
Evidence concerning the pornographic Web sites visited, search history, and titles of self-help books referenced on defendant's cell phone is admissible pursuant to Evidence Code section 1101, subdivision (b), to show defendant intended to sexually assault Z.R. and M.D. (Cf. People v. Memro (1995) 11 Cal.4th 786, 864 (Memro).) In Memro, the defendant was charged with and convicted of first degree felony murder of a male child based on the commission or attempted commission of a lewd act upon a child. (Memro, at p. 861.) “In his confession, defendant said he lured [the child] to his apartment to photograph him in the nude. Once there, he... choked [the child] and tried to have sex with his body.” (Ibid.) Over his objection, the jury received evidence of defendant's sexual interest in youths, including pornographic magazines and photographs featuring young boys in the nude. (Ibid.) The magazines “contain[ed] sexually explicit stories, photographs and drawings of males ranging in age from prepubescent to young adult.” (Id. at p. 864.) The California Supreme Court held that the magazines and photographs of children in sexual poses were properly admitted under Evidence Code section 1101, subdivision (b), to show defendant's intent to molest a young boy in violation of Penal Code section 288. (Memro, at p. 864.) Although the evidence included material that “would undoubtedly be disturbing to most people, ” the court found the probative value “substantially outweighed” the prejudicial effect. (Id. at p. 865.)
Here, the trial court did not abuse its discretion in admitting the evidence on defendant's cell phone. The information charged defendant with two counts of sexual penetration of Z.R. (§ 288.7, subd. (b)) and seven counts of committing a lewd act on Z.R. and M.D. (§ 288, subd. (a)). Defendant's intent to violate sections 288.7 and 288 was put at issue when he pleaded not guilty to the crimes charged (People v. Balcom (1994) 7 Cal.4th 414, 422-423 [“Defendant's plea of not guilty put in issue all of the elements of the offenses, including his intent.”]), and the prosecution was required to prove that when defendant committed the charged offenses, he did so for the purpose of sexual arousal or gratification. (§§ 288, subd. (a), 289, subd. (k)(1).) The information on defendant's cell phone was relevant to his intent to commit the charged offenses. That the evidence did not show child pornography, did not make it irrelevant. “The lowest degree of similarity between a charged crime and uncharged misconduct evidence is required in order to establish relevance on the issue of intent.” (People v. Byers (2021) 61 Cal.App.5th 447, 454.) Also, the issue is whether the jury could reasonably infer from the evidence that defendant “had a sexual attraction to young [girls] and intended to act on that attraction.” (Memro, supra, 11 Cal.4th at p. 865.)
Nor did the trial court abuse its discretion when it concluded the evidence was not unduly prejudicial. “‘“In applying [Evidence Code] section 352, ‘prejudicial' is not synonymous with ‘damaging.'” [Citation.]' [Citations.] It is not enough that the proffered evidence tends to make the defendant look guilty of the crimes charged. Instead, the ‘prejudice' which Evidence Code section 352 seeks to avoid is that which ‘“‘uniquely tends to evoke an emotional bias against the defendant as an individual....'”'” (People v. Ennis (2010) 190 Cal.App.4th 721, 734.) Here, the pornographic Web sites, search terms, and titles of self-help books found on defendant's cell phone were far less inflammatory than the testimony from the victims regarding how defendant sexually abused them.
Because the trial court properly conducted the required analysis under Evidence Code section 352 and acted within its discretion in admitting the evidence on defendant's cell phone, we reject his constitutional claims. (People v. Mills (2010) 48 Cal.4th 158, 195-196 [routine application of state evidentiary law does not implicate a defendant's constitutional rights]; People v. Falsetta, supra, 21 Cal.4th at p. 913 [“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.”].)
C. Right to be Sentenced within Statutory Period.
Defendant asserts he is entitled to a new trial because he was not sentenced within the time specified by section 1191 (20 judicial days), not advised of his right to a speedy sentence, and not asked to waive this right. He further asserts his counsel was ineffective by never seeking to obtain his waiver or secure a new trial in the court below. We reject his assertions.
1. Additional factual and procedural background.
On October 30, 2019, after receiving the jury's verdict, the trial court excused the jurors and indicated it was “going to refer this out for a probation report, Static-99.” The court asked defense counsel if there was a date that was “convenient” for sentencing, and defense counsel confirmed with the court that “six weeks out [was what they were] looking at.” Defense counsel requested December 5, and the court asked if December 6 would work. Defense counsel agreed, and sentencing was set for 2:00 p.m. on December 6.
“A common diagnostic tool for predicting violent sexual behavior is the Static-99, ‘an actuarial instrument that allows an evaluator to place sexual offenders in different risk categories based on historical (static) factors such as age, marital status, the number of prior offenses, the relationship of the offender to the victims and the gender of the victims.'” (People v. Roa (2017) 11 Cal.App.5th 428, 445.)
On December 6, 2019, the trial court sentenced defendant, and defense counsel did not raise any concern about the delay in sentencing.
2. Applicable legal principles.
Section 1191, in relevant part, provides, “In a felony case, after a... verdict of guilty, ... the court shall appoint a time for pronouncing judgment, which shall be within 20 judicial days after the verdict....” There are various circumstances listed under which this time may be extended. Section 1202, in relevant part, provides, “if [judgment is] not rendered or pronounced within the time... fixed... under the provisions of Section 1191, then the defendant shall be entitled to a new trial.” “A number of California cases have held that failure to impose sentence within the time specified by... section 1191 is not jurisdictional but is a procedural error only; that it is thus cognizable on appeal; that, even on appeal, there should be no reversal so as to allow a new trial under... section 1202.” (People v. Fritz (1969) 275 Cal.App.2d 866, 872; see Dix v. Superior Court (1991) 53 Cal.3d 442, 464 [time limits on pronouncement of sentence are not jurisdictional and may be waived by the parties].)
3. Analysis.
The parties agree that defendant's sentencing took place more than 20 judicial days after the verdict. However, the record shows that defense counsel waived the time limits on the pronouncement of sentence by requesting, and agreeing to, a sentencing date in December 2019, which was more than 20 judicial days after the verdict. Under these circumstances, defendant may not complain. (People v. Washington (1962) 204 Cal.App.2d 206, 209; see People v. Scott (1994) 9 Cal.4th 331, 353, fn. 15 [“Issues concerning noncompliance with the statutory requirements that sentencing occur within specified time periods are waived by the absence of an objection in the trial court.”].) Immediately after the verdict was read, defense counsel requested the sentencing hearing be held five weeks after the verdict and raised no concerns that the date would be outside the statutory period. On the day of the sentencing hearing, counsel voiced no objection to the delay in sentencing defendant nor moved for a new trial based on the delay. Defendant has, therefore, waived this issue on appeal.
“Moreover, failure to impose sentence within the time specified by section 1191 of the Penal Code is clearly an error of procedure and under California Constitution article VI, section [13], the judgment may not be reversed unless the error complained of has resulted in a miscarriage of justice.” (People v. Washington, supra, 204 Cal.App.2d at p. 209.) Here, defendant does not argue that the delay resulted in a miscarriage of justice. Nor do we find a delay of 17 days beyond the statutory time fixed for sentencing to have prejudiced him. Defendant was convicted of multiple counts of sexually abusing two young girls, and the trial court referred the matter for a probation report and a Static-99. The delay provided sufficient time to prepare a thorough probation report and defendant's response before sentencing.
California Constitution, article VI, section 13 provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
D. Correction of the Fines, Fees, and Assessments.
Defendant contends the trial court erred in calculating his sex offender fine (Pen. Code, § 290.3), criminal conviction assessment (Gov. Code, § 70373), and court security fee (Pen. Code, § 1465.8, subd. (a)(1)). Separately, the People contend the parole revocation restitution fine (Pen. Code, § 1202.45) must be corrected to match the restitution fine (Pen. Code, § 1202.4, subd. (b)). We agree that the criminal conviction assessment and parole revocation restitution fine must be corrected.
1. Additional factual and procedural background.
Defendant was convicted of committing one sex offense in 2000 (count 9 [§ 288, subd. (a)]) and seven sex offenses between 2013 and 2018 (count 1 [§ 288.7, subd. (b)], counts 3-7 & 9 [§ 288, subd. (a)], & count 8 [§ 647.6, subd. (a)]). His sentence on count 3 was stayed. (§ 654.) His convictions triggered the imposition of a sex offender fine, which requires defendant “be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (§ 290.3, subd. (a).)
All of defendant's offenses are listed in subdivision (c) of section 290. However, his offense against M.D. (count 9) took place in 2000, when the fine for the first offense was $200. (Former § 290.3, subd. (a); Stats. 1995, ch. 91, § 121); see People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 [the fine under § 290.3 is subject to the prohibition against ex post facto laws and is calculated as of the date of the offense].) His seven subsequent offenses against Z.R. took place between 2013 and 2018 and are governed by the current version of section 290.3 (Stats. 2008, ch. 699, § 9), which sets the fine for a second and subsequent offense at $500 for each conviction. (See People v. O'Neal (2004) 122 Cal.App.4th 817, 822 [authorizing imposition of multiple sex offender fines for multiple counts in the same proceeding]; see also People v. Walz (2008) 160 Cal.App.4th 1364, 1370, fn. 7 [“We do not read the ‘or' in section 290.3 to mean fines for each conviction are alternative. Although ‘or' is normally used for the disjunctive [citation] that is not always so.”].) However, because the fine under section 290.3 is punitive, it may not be “imposed on counts that are stayed pursuant to section 654.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)
As relevant to this appeal, the trial court ordered defendant to “pay a fine of $500. That includes a fine and penalty assessment pursuant to Penal Code section 290.3.” The court also ordered defendant to “pay an additional fine of $1,800, ” and the clerk's minute order, the probation report, and the abstract of judgment indicate this fine was imposed pursuant to Penal Code section 288, subdivision (e). The court further ordered defendant to pay a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a corresponding suspended $2,100 parole revocation restitution fine (Pen. Code, § 1202.45), a $270 criminal conviction assessment (Gov. Code, § 70373), and a $320 court security fee (Pen. Code, § 1465.8). Regarding defendant's ability to pay “all of these fines, ” the court stated: “The opinion of the Court is this, [defense counsel] was privately retained and that the [marital] community paid his attorneys fees, and therefore the community is liable for all of these fines. I am not going to waive them for-for him. I didn't find any case law on this, but because he's married and his wife makes approximately $12,000 a month, and [defense counsel] is privately retained, and that the community paid the attorney's fees-therefore, the community is able to pay for all the fines and fees, and I want to make sure that is on the record.”
2. Analysis.
Defendant asserts the trial court “imposed a fine of $1,800.00 pursuant to section 290.3, ” and the amount is “$1,500.00 too high.” (See People v. Walz, supra, 160 Cal.App.4th at p. 1369 [trial court's imposition of an incorrect amount under § 290.3 constitutes an unauthorized sentence; the error is jurisdictional; the issue may be raised for the first time on appeal].) We agree that the court erred in calculating the amount of the sex offender fine; however, we disagree that the $1,800 fine was imposed under section 290.3. As noted ante, the trial court imposed $500 under section 290.3 and $1,800 under section 288, subdivision (e).
However, defendant does not contend the court erred in imposing this fine under section 288, subdivision (e). The People aptly note the amount of the sex offender fine is incorrect; however, they concede the fine should remain at $500 because no objection was raised below. (People v. Walz, supra, 160 Cal.App.4th at p. 1371.) We accept their concession.
Section 288, subdivision (e)(1), provides: “Upon the conviction of a person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.”
The People assert the correct fine under section 290.3 is $3,700 rather than $500. We calculate it to be $3,200 ($200 (count 9) plus $3,000 ($500 for counts 1 and 4-8, inclusive). The fine is not assessed on count 3 because the sentence was stayed pursuant to section 654. (People v. Gonzales, supra, 16 Cal.App.5th at p. 504 [because § 290.3 fine is punitive, it may not be “imposed on counts that are stayed pursuant to section 654”].)
Defendant also contends the criminal conviction assessment (Gov. Code, § 70373 [$30 for each conviction]) should be reduced to $210 because (1) he was convicted of eight offenses, not nine, and (2) this provision went into effect on January 1, 2009, but the offense charged in count 9 occurred in 2000. The People agree defendant was convicted of eight offenses but argue ex post facto principles do not apply. (People v. Cortez (2010) 189 Cal.App.4th 1436, 1443-1444 [Because the assessment is tied to a defendant's conviction, it is meant to apply to any conviction suffered after the Jan. 2009 effective date of the statute, regardless of the date of the offense.].) We agree with the People. Because defendant was convicted of eight felonies, the trial court should have imposed a criminal conviction assessment of $240.
Regarding his $320 court security fee (§ 1465.8), defendant asserts it should be reduced to $280 because the offense charged in count 9 occurred before August 17, 2003, the date the fee became operative. We disagree. The court security fee is not punitive and “does not violate either federal or state prohibitions against ex post facto statutes.” (People v. Alford (2007) 42 Cal.4th 749, 759.)
Finally, the trial court incorrectly stated the amount of the parole revocation restitution fine. The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and a corresponding $2,100 parole revocation restitution fine (§ 1202.45). However, the two must match. (§§ 1202.4, subd. (b), 1202.45.) The People raised this issue in their respondent's brief, and defendant did not address it in his reply brief. We may correct this error on appeal because the error in the fine results in an unauthorized sentence. (People v. Preston (2015) 239 Cal.App.4th 415, 425 [court's error in imposing a parole revocation restitution fine, the amount of which does not match the amount of restitution fine, as required by § 1202.45, “constitutes an unauthorized sentence, which may be corrected at any time”].) The section 1202.45 fine must match the restitution fine of $10,000.
E. Cumulative Effect of Any Errors.
Last, defendant seeks reversal based on cumulative error. Because we have only found (actually assumed) one error in the proceeding-regarding the trial court's admission of CSAAS evidence-and because we have determined that the error was harmless, we find there is no cumulative error requiring reversal of defendant's convictions. (People v. Mitchell (2019) 7 Cal.5th 561, 590.)
III. DISPOSITION
The judgment is modified to impose a $240 criminal conviction assessment (Gov. Code, § 70373) and a suspended $10,000 parole revocation restitution fine (Pen. Code, § 1202.45). The clerk of the superior court is directed to prepare an amended sentencing minute order and an amended abstract of judgment reflecting the proper fines, fees, and assessments imposed and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: RAMIREZ P. J.MENETREZ J.