Opinion
E079501
10-16-2023
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO REYES CHAVARRIA, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1704341. Timothy J. Hollenhorst, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPAHEL J.
Jane Doe accused her grandfather, appellant Armando Chavarria, of repeated sexual molestation over several months when she was five and six years old. Her statements to interviewers and investigators when she disclosed the abuse at 12 years old described the kinds of abuse in detail and specified the abuse happened once or twice a week over several months while her grandfather was babysitting her alone. At that time, she estimated he had abused her 40 to 50 times.
Four years later, at trial, Doe said she could not recall the frequency of the abuse, but she described seven specific incidents, testified as to the kinds of abuse in detail, and provided the same general time period. The jury heard Doe's testimony, recordings of her prior interviews, and a recording of a pretext call in which her grandfather initially acknowledged his guilt (though blamed the victim for being promiscuous) before denying that he had touched Doe inappropriately.
The jury also heard about Child Sexual Abuse Accommodation Syndrome from a clinical and forensic psychologist, who testified she knew nothing about the specific case but offered to explain the pattern of behaviors exhibited by child victims of sexual abuse to help the jury understand and evaluate Doe's testimony.
A jury convicted Chavarria of six counts of oral copulation on a child under 14 by force or fear and six counts of forcible lewd acts. The trial judge found the offenses involved great violence or harm or a high degree of cruelty, viciousness, or callousness against a victim who was particularly vulnerable and found Chavarria had violated a position of trust or confidence. The judge sentenced him to a total aggregate term of 90 years to life, plus 60 years.
Chavarria appeals his conviction and sentence on numerous grounds. He argues the trial judge was required to give a limiting instruction regarding the expert psychologist's testimony, though he did not request one. We conclude the instruction is required only if requested, and trial counsel did not provide ineffective assistance of counsel by failing to request the instruction. He argues the evidence was not sufficient to sustain five of his convictions because Doe could not identify more than seven specific incidents of abuse. We conclude Doe's statements in court and to interviewers provided sufficiently detailed evidence about the kinds of abuse as well as generic evidence about the period of the abuse and its frequency to sustain all 12 guilty verdicts.
We also reject Chavarria's arguments that his sentence is cruel and unusual and that the trial judge violated his Sixth Amendment rights by refusing to bifurcate trial of the aggravating sentencing factors.
I FACTS
Jane Doe was born in September 2005 and raised by her grandmother, who is her legal parent. Until Doe's birth, Chavarria lived with the grandmother, but he often left for months at a time, and he and grandmother divorced in 2007. He nevertheless continued to live with Doe and grandmother on-and-off for sustained periods. In 2011, he lived with them when Doe's grandmother had foot surgery and had to attend regular physical therapy sessions. Doe's grandmother said the girl and her grandfather interacted normally at home, and they appeared to care for each other.
When Doe was between four and six years old, her grandmother worked cleaning a school five or six days a week from 5:00 p.m. to 9:00 p.m. While she was at work, a sitter would watch Doe. When no one else was available, Chavarria would babysit the child, which grandmother said she thought happened around 15 to 20 times. Chavarria usually watched Doe at home, but a few times he watched her at his girlfriend Penelope's house.
When she was in kindergarten, Doe started showing signs of distress. She began crying while at school. This behavior lasted through third grade. Later, she became quiet and withdrawn.
When Doe was 11 or 12 years old, she told a school counselor her grandfather had abused her. During an interview with a school resource officer in October 2017, she reported that when she was around five or six years old, Chavarria had raped her. The school resource officer recorded the interview and testified, and the prosecutor played a recording of the interview for the jury. Doe explained that by saying Chavarria had raped her, she meant he "would, like, take our clothes off, set me on the bed and he would, like, do-he would do things to my private parts." Doe told the officer the abuse happened when Chavarria would babysit her while her grandmother was at work. She said on the first occasion he grabbed her hand and pulled her into a room, took off all her clothes, and told her not to tell anyone about what he was going to do. She said Chavarria started "sucking on my vagina and touching me all over. And, like, licking my back." He touched and licked her breast and "suck[ed] on my toes and . . . touch[ed] my vagina a lot." She estimated the abuse happened 40 to 50 times. She said the abuse had happened at her house, at the house of someone named Penelope, and at a third house. She said she did not tell anyone because she was afraid no one would believe her.
A few weeks later, Doe sat for a forensic interview. The interviewer testified at trial, and the prosecutor played a recording of the interview for the jury. Doe again reported that when she was five years old, her grandmother left her at home so she could go to work, and Chavarria began abusing her at this time. She recalled a specific occasion when he grabbed her hand and pulled her into a room. He told her not to tell anyone what he was doing and then took off her clothes and "started sucking on my vagina and all that." He also sucked on her toes and licked her back. Before her grandmother returned, Chavarria put Doe's clothes back on and told her not to tell anyone what he had done. She said Chavarria would suck her vagina and toes every time he abused her, which she said would happen about once or twice a week. She said she couldn't remember the exact dates but said the first time he abused her was when she was around five years old, and the last time he did it she was around five and a half or six years old. She reported the abuse made her suicidal and caused her to feel worthless and helpless.
Several more years passed before the trial, which occurred when Doe was 16 years old. She testified that Chavarria lived with her when she was five or six. She said they would be alone together when he babysat her. She said he started sexually assaulting her when she was around five years old, and she could remember about four occasions specifically. The first time, Chavarria forcefully grabbed her by the hand and pulled her into a room, ordering her not to tell anyone what they did. He repeated that order on other occasions. She said Chavarria would take off her clothes and "he would grab my vagina and he would also like lick my vagina." She described his position and how he moved and said he would also lick her back and feet. She said she recalled "at least three" times he licked her vagina, two times he licked her toes, and one time when he licked her back. She said the incidents were "pretty far spread out" in time, and she remembered the abuse occurring in multiple houses.
Doe explained she waited until she was 11 or 12 years old to disclose the abuse because she was afraid no one would believe her, and she feared she would break up her family if she reported it. She said the abuse caused her to lose her sense of dignity, become depressed, and begin to inflict self-harm. Doe said the abuse was "more fresh in [my] mind" during her earlier interviews. She admitted she did not remember a lot of the details about what had happened because it had occurred so long ago. On cross-examination, Doe admitted she did not recall telling the officer that the abuse occurred 40 to 50 times.
A former classmate of Doe's testified that in middle school Doe confided in her about the abuse. After the classmate's mother learned Doe had said she wanted to harm herself, the classmate told their principal.
After the abuse was reported, the Riverside County sheriff's deputy assigned to investigate set up a pretext call between Chavarria and his daughter, Doe's aunt. Chavarria's daughter testified about the call, and the prosecutor played a recording for the jury. When his daughter asked Chavarria if he had a guilty conscience, he said, "No; not really sweetie, no not really but um . . . yes in a way you know but . . . but . . . it's not what it looks like . . . but well yes me as an adult, of course I'm guilty." When she asked why he was guilty, he said, "I don't know, sweetie. It's just that it was something -something, um that, has no explanation. But I don't - don't want to make an excuse I don't um . . . I'm the adult and I am guilty one indeed. Ah . . . It was something that for some reason happened. Ah no . . . um . . . what can I say sweetie . . . um I don't have an excuse; don't you understand? I don't have an excuse . . . nothing to say ah . . . but ...." He also told her Doe "was always the one that initiated it and she would look for me in a way." He said Doe would follow him into the bathroom and look for him in bed and explained, "It wasn't something . . . that I initiated. She was the one who initiated this. She was - she was, well, she was like very promiscuous and that's why it happened." She asked how long the abuse went on for, and he said it "wasn't a lot." She asked whether it had happened "One, two, three, five times," he responded, "No yes, a couple - two - two, three times, I don't know. Six, but well yes. What can I say?" He told her, "It was a mistake; it was a mistake." Later in the call, he began to deny he had touched Doe inappropriately.
The prosecution also offered the testimony of a clinical and forensic psychologist, Dr. Jody Ward, who testified about Child Sexual Abuse Accommodation Syndrome (CSAAS). Ward explained she knew nothing about the specifics of the case but offered her testimony about the general components of the syndrome. Dr. Ward explained CSAAS "is a pattern of behaviors that many children exhibit who have been sexually abused" and understanding the patterns "helps us as therapists and really just as adults to understand why children do what they do in response to sexual abuse within an ongoing relationship. Because many times it's counterintuitive or not what we would expect."
Dr. Ward described the five components of CSAAS as "secrecy, helplessness, entrapment and accommodation, delayed unconvincing disclosure, and retraction or recantation." Secrecy refers to the fact that most child sexual abuse occurs "in secret with only the perpetrator and the victim there at the time that the sexual abuse occurs" and that "children tend to keep the secret of sexual abuse for very long periods of time." "Helplessness refers to the power imbalance between adults and children" and "the fact that children are completely reliant and dependent on the adults around them for everything." Entrapment and accommodation refers to the fact that secrecy and helplessness can lead a child to "acquiesce or go along with the sexual abuse" or "act like nothing is going on." She said "two-thirds of children wait until adulthood to report abuse," and some never report the abuse at all. She explained when a child does report abuse, they do not "come out with every single detail all at once of everything that happened" but may "disclose a little bit and test the waters and see how that person responds." Children abused by family members tend to disclose outside the home and wait to disclose because they are helpless and fear they will be blamed or not believed. Children also recant or retract their allegations of abuse in a minority of cases and some cope by actively forgetting about their abuse.
Dr. Ward said she did not know anything about this case and had not received any police reports or interviewed any witnesses. She also said she did not "come in making any kind of statement about any alleged victims or any defendants, nothing about any case in particular."
Defense counsel called Penelope B. to testify for the defense. She said Chavarria used to live at her house, and Doe's grandmother would sometimes bring Doe over so Chavarria could babysit her. She said Doe came over about eight times, and she was present when Chavarria babysat the child. She said Doe and Chavarria got along well and she did not see him make any sort of sexual advances.
A jury found Chavarria guilty of six counts of oral copulation by force, fear, or menace on a child under 14 years old (Pen. Code, § 269, subd. (a)(4), unlabeled statutory citations refer to this code) and six counts of forcible lewd acts (§ 288, subd. (b)(1)). In a bifurcated proceeding, the trial judge found all the offenses involved (1) great violence, great bodily harm, the threat of great bodily harm, or other acts involving a high degree of cruelty, viciousness, or callousness, (2) a victim who was particularly vulnerable, and (3) violation of a position of trust or confidence. (Cal. Rules of Court, rule 4.421 (a)(1), (3) &(11).)
The judge sentenced Chavarria to a total term of 90 years to life plus 60 years, consisting of consecutive terms of 15 years to life for each oral copulation conviction and consecutive terms of 10 years for each forcible lewd act conviction.
Chavarria filed a timely notice of appeal.
II ANALYSIS
A. Limiting Instruction on CSAAS Expert Testimony
Chavarria argues the trial judge erred by failing to instruct the jury on the limited use of CSAAS expert testimony. Chavarria did not request the instruction, but he argues the judge had a sua sponte duty to instruct the jury with CALCRIM No. 1193. In the alternative, he argues his attorney rendered ineffective assistance by failing to request the instruction. We review independently whether a trial judge has a duty to give a particular jury instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
1. No sua sponte duty to instruct on CSAAS expert testimony
Expert testimony about CSAAS is admissible to dispel common misconceptions jurors may have about how children react to abuse. (People v. Bowker (1988) 203 Cal.App.3d 385, 393 (Bowker).) However, CSAAS expert testimony may not be admitted to prove a specific child has been abused. (Ibid.)
In Bowker, the court held "to provide the jury with relevant, accurate information regarding 'recent findings of professional research on the subject of a victim's reaction to [child abuse]' [citation] without the danger that such information will be misapplied as a predictive index by the jury . . . the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence." (Bowker, supra, 203 Cal.App.3d at pp. 393394.) This principle was not violated. Chavarria's defense counsel did not object to offering CSAAS evidence, and the prosecution's expert witness assiduously restricted her testimony to dispelling the kinds of common misconceptions for which such evidence is admissible. She also repeatedly denied having any information or stating any opinion about the facts of the case.
Bowker recognized the importance of instructing the jury on the limitation of CSAAS expert testimony. "Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of a jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Bowker, supra, 203 Cal.App.3d at p. 394.)
CALCRIM No. 1193 embodies the kind of instruction the Bowker court envisioned. "You have heard testimony from [an expert] regarding child sexual abuse accommodation syndrome. [¶] . . . [¶] [The expert's] testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).... [¶] You may consider this evidence only in deciding whether or not [the victim's] conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of the alleged victim." Chavarria's attorney did not request the instruction or object to its omission.
Bowker concerned the scope of admissibility of CSAAS expert testimony but did not directly address what to do if the trial court did not give an instruction like CALCRIM No. 1193. In Bowker, the trial judge gave an instruction limiting the use of CSAAS expert testimony." 'I want to make clear to you, ladies and gentlemen of the jury, that he will not, repeat, not be expressing any opinion as to the children in this case. He has not examined the children in this case....[¶] He will not be testifying as to whether the children in this case were molested or not. That will not be the area of his testimony. [¶] What he will be testifying about is whether-it's with regard to the conduct of alleged victims of child abuse as a class.'" (Bowker, supra, 203 Cal.App.3d at p. 389.) Bowker found fault not with the jury instructions but with the prosecution and the expert for exceeding the evidentiary limitations. (Id. at pp. 394-395.) So, while the court's admonition that the jury "must be instructed" about CSAAS expert testimony limitations suggests a limiting instruction is mandatory, the court did not decide whether a trial judge has a sua sponte duty to give the limiting instruction or instead is required to give the instruction only upon request.
In general, trial judges have a sua sponte duty to instruct only on the general principles of law at play in the case." '[I]n criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'" (People v. Najera (2008) 43 Cal.4th 1132, 1136.)
When it comes to expert testimony in criminal cases, the Legislature has directed only one instruction as mandatory. "When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable." (§ 1127b.) The statutory directive concludes, "No further instruction on the subject of opinion evidence need be given." (Ibid.) The trial judge complied with section 1127b here by reading CALCRIM No. 332 to the jury.
The CSAAS evidence instruction is a limiting instruction-designed to limit the potential prejudice of evidence that is admissible for one purpose but not for another. The Evidence Code provides parties must request limiting instructions. "When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (Evid. Code, § 355, italics added.) The Supreme Court has often enforced that provision, holding a trial court does not have a duty to instruct the jury on the limited purpose for which evidence is admitted unless a party requests the instruction. (E.g., People v. Murtishaw (2011) 51 Cal.4th 574, 590 [no sua sponte duty to give a limiting instruction on the consideration of victim impact evidence].)
People v. Mateo (2016) 243 Cal.App.4th 1063 (Mateo) is the leading appellate case on whether, having allowed CSAAS testimony, the trial judge has a sua sponte duty to provide a limiting instruction on its use. Mateo held there is no such duty. "Based upon statutory and decisional law, we respectfully disagree . . . that a limiting instruction is required sua sponte in all cases involving expert testimony on CSAAS. The instruction need only be given if requested." (Id. at p. 1074.) We agree. Evidence Code section 355 and Penal Code section 1127b make clear trial court judges have no independent duty to give a limiting instruction on the use of CSAAS expert testimony, and the cases interpreting those provisions provide no reason to doubt that conclusion.
It is true that the Supreme Court posited "a possible exception in 'an occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.'" (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052, quoting People v. Collie (1981) 30 Cal.3d 43, 64.) In Collie, the court considered whether the trial judge should have sua sponte instructed the jury on the limited use of evidence that a defendant had committed prior criminal offenses. The court refused to apply an exception to the general rule in that case because the evidence was not "so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence." (Collie, at p. 64.) We reach a similar conclusion. The critical evidence against Chavarria was his victim's testimony, her prior statements, and his own statements in the pretext call. The CSAAS expert's testimony helped the jury understand why child victims of sexual abuse may delay disclosure and even give inconsistent testimony, but it was not the dominant evidence against Chavarria. Moreover, as Chavarria does not contest, the expert carefully explained she had no information and no opinion about this case, and her testimony was plainly relevant.
Chavarria relies on People v. Housley (1992) 6 Cal.App.4th 947, 957, the one case holding a trial judge does have a sua sponte duty to provide a limiting instruction on the use of CSAAS evidence. (See Mateo, supra, 243 Cal.App.4th at pp. 1072-1073.) In Housley, Division Two of the First District concluded that the trial court was required to independently give the instruction because of the danger that a jury could use the evidence improperly as direct support for finding abuse had occurred. According to the court, "[s]uch testimony, especially from one recognized as an expert in the field of child abuse, easily could be misconstrued by the jury as corroboration for the victim's claims; where the case boils down to the victim's word against the word of the accused, such evidence could unfairly tip the balance in favor of the prosecution." (Id. at p. 958.)
We conclude that Mateo's analysis is more persuasive and a trial judge does not ordinarily have a sua sponte duty to provide a limiting instruction on the permissible use of CSAAS expert testimony. If Chavarria wanted the judge to instruct the jury as to the proper use of Dr. Ward's testimony, he was required to request a limiting instruction.
2. No ineffective assistance of counsel
Chavarria argues, in the alternative, that his trial counsel's failure to request a limiting instruction on the use of CSAAS expert testimony was ineffective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate trial counsel's performance was deficient and resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) We "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and measure an attorney's performance against an "objective standard of reasonableness." (Id. at p. 689.) To establish deficient performance, a defendant must demonstrate "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." (Id. at p. 687.)
"On direct appeal, a finding of deficient performance is warranted where '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.' [Citation.] '[W]here counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.'" (People v. Johnsen (2021) 10 Cal.5th 1116, 1165.) "If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
To show prejudice, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) A defendant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." (Id. at p. 693.) Rather, a defendant must show "a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
The record sheds no light on why trial counsel did not request CALCRIM No. 1193. As a result, Chavarria cannot prevail unless there could be no conceivable reason for failing to request a limiting instruction. In this case, there is a possible reason. "[C]ounsel could [have] rationally conclude[d] that it would be counterproductive to request an instruction highlighting expert testimony supporting the victim's credibility." (Mateo, supra, 243 Cal.App.4th at p. 1076.) The risk of highlighting Dr. Ward's evidence was heightened by the fact that she assiduously avoided taking any position on the facts of the case against Chavarria, disclaimed any knowledge of the case, and stated that her testimony concerned only general facts. In other words, Dr. Ward's testimony so embodied the principles in the limiting instruction as to diminish the importance of instructing the jury. A reasonable trial attorney could have decided in that context giving the instruction would do little but recall Dr. Ward's testimony to mind and thereby support the credibility of the victim's testimony.
Nor has Chavarria demonstrated there is a reasonable probability he would have obtained a different result if the trial judge had given the instruction. (Strickland, supra, 466 U.S. at p. 694.) The direct evidence against Chavarria was strong. Jane Doe provided consistent statements about the nature of the abuse from her initial interview through the investigation and at trial. Moreover, Chavarria's incriminating statements during the pretext call with Doe's aunt were played for the jury, including his general admission of guilt. Given this record, our confidence in the outcome is not undermined by the lack of a limiting instruction regarding the proper use of Dr. Ward's expert testimony.
We conclude Chavarria's argument that his trial counsel rendered ineffective assistance by failing to request a limiting instruction regarding the proper use of Dr. Ward's expert testimony is without merit.
B. Sufficiency of the Evidence on Five Convictions
Chavarria argues there is sufficient evidence to convict him of only three counts of oral copulation and four counts of lewd conduct, not six counts of each. We review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ghobrial (2018) 5 Cal.5th 250, 277.)
Chavarria focuses on Doe's trial testimony, where she said she remembered four to five times he sexually assaulted her, and identified three to four times in her grandmother's home and one time in another home. Doe also testified she remembered Chavarria licking her vagina three times, licking her toes two times, licking her back once, and rubbing the outside of her vagina once. Though Doe told investigators she had been molested 40 to 50 times over a period of several months and in three locations, when she testified at trial four years later, she said she could not remember telling investigators the abuse took place 40 to 50 times and struggled to remember many of the incidents in specific detail. She did testify the abuse happened on more occasions than she could remember at the time of trial.
Our Supreme Court years ago addressed this evidentiary dynamic, which arises routinely in child molestation cases involving victims who are young children abused by caretakers. Problems arise due to "the inability of [a] young accuser to give specific details regarding the time, place and circumstances of various alleged assaults. Frequently, . . . these cases involve the so-called 'resident child molester' [citation], who either lives with his victim or has continuous access to him or her. In such cases, the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (People v. Jones (1990) 51 Cal.3d 294, 299 (Jones).) Some courts had held prosecutions based on such nonspecific or "generic" testimony have an insufficient evidentiary basis and deprive the defendants of due process. (Id. at pp. 299-300.) However, the Supreme Court noted "testimony describing a series of essentially indistinguishable acts of molestation is frequently the only testimony forthcoming from the victim" and "[t]o hold that such testimony, however credible and substantial, is inadequate to support molestation charges would anomalously favor the offender who subjects his victim to repeated or continuous assaults." (Id. at p. 300.)
In Jones, the court concluded "generic testimony is sufficiently substantial from an evidentiary standpoint" to undergird a conviction for child molestation. (Jones, supra, 51 Cal.3d at p. 313.) "[T]he victim's failure to specify precise date, time, place or circumstance [does not] render generic testimony insufficient[.] . . . [T]he particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction." (Id. at p. 315.)
To sustain a conviction based on generic evidence, the victim "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. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Jones, supra, 51 Cal.3d at p. 316.)
Applying Jones's analysis, we conclude the jury had sufficient evidence to find Chavarria guilty of all 12 counts of abuse. Doe's testimony and her prior statements to interviewers and investigators, which were played for the jury, provided a substantial basis for finding frequent molestations at three separate locations, consisting of oral copulation and other acts of sexualized touching for several months when Doe was between five and six years old. Doe's inability to specify the exact time, place, or circumstance of each assault individually did not make her testimony too insubstantial to support the convictions. She told interviewers when she was 12 years old that the first incident occurred when she was five years old and the last occurred when she was five and a half or six years old. She said the abuse happened once or twice a week from the time she was five until she was around six years old. She told a police investigator the abuse occurred about 40 times at her home and between 40 and 50 times overall. It is true, as Chavarria notes, that Doe did not remember the frequency of the abuse when she testified at trial four years later. However, that gap in the evidence goes to its weight. Chavarria could attack the credibility of Doe's testimony, and the jury was charged with evaluating it. The jury apparently determined that the limitations of Doe's testimony at trial did not undermine the credibility of her earlier statements to the investigators that provided the basis for some charges.
We conclude the jury's findings of guilt were reasonable based on the whole record. Doe's statements when she was 12 years old about events when she was much younger, though in some ways generic, provided specific details about the kind of act or acts Chavarria committed, the number of acts of abuse, and the time period during which the abuse occurred. Additional testimony that Chavarria babysat Doe 15 to 20 times at her home and three times at the home of his friend Penelope provides additional reason to conclude the abuse occurred on 12 separate occasions.
C. Full Consecutive Terms Under Section 667.6, Subdivision (d)
The trial judge sentenced Chavarria to full consecutive terms for counts 8 through 12 as required by section 667.6, subdivision (d), because he found the offenses occurred on separate occasions. Chavarria originally argued the judge erred by applying that provision to increase his sentence because doing so violated his Sixth Amendment right to have the elements of his crime found by a jury and not a judge. As Chavarria noted, that question was under review when he filed his opening brief.
The California Supreme Court has since concluded that applying section 667.6, subdivision (d) does not violate the Sixth Amendment. (People v. Catarino (2023) 14 Cal.5th 748.) Chavarria rightly concedes Catarino is the new controlling authority and withdraws the argument. We therefore have no occasion to address the issue.
D. Bifurcation and the Voluntariness of the Jury Trial Waiver
Chavarria objects to how the trial judge handled his motion to bifurcate the guilt and aggravating circumstances phases of his trial. He effectively claims he had to waive a jury trial on the aggravating circumstances so the jury would not hear allegations and evidence of aggravation in determining his guilt on the substantive offenses. After that waiver, the trial judge decided the aggravating circumstances were true and imposed an upper term of 10 years on each of his six convictions for forcible lewd conduct. (§ 288, subd. (b) [sentencing triad]; § 1170, subd. (b) [presumption against upper term].)
Here, the prosecution alleged the forcible lewd conduct offenses involved (1) great violence, great bodily harm, the threat of great bodily harm, or other acts involving a high degree of cruelty, viciousness, or callousness, (2) a victim who was particularly vulnerable, and (3) violation of a position of trust or confidence. (Cal. Rules of Court, rule 4.421 (a)(1), (3) &(11).) Chavarria moved before trial to bifurcate trial of those circumstances from trial of the substantive offenses. The trial judge denied the motion to bifurcate because all the aggravation evidence was admissible to prove guilt, Chavarria waived a jury trial on the aggravating circumstances, and the trial judge sat as the fact finder for it. After the guilt phase, the trial judge gave counsel the opportunity to present argument on the aggravating circumstances, and they declined. He then found the aggravating circumstances true based on the evidence presented to the jury and imposed upper term 10-year sentences on each of the six convictions for forcible lewd conduct. Chavarria asks us to modify his sentence and impose the middle term for each conviction.
Chavarria does not directly challenge the refusal to bifurcate. Rather, he says he "was pressured not to request a jury trial on the aggravating factors so that the jury would not hear that evidence at trial" and complains that the court gave Chavarria only two options to keep the aggravating circumstances determination away from the jury during the trial on guilt-to stipulate to their truth before trial or hold a separate bench trial after the guilt phase. Chavarria's position appears to be that the trial judge vitiated the voluntariness of his decision to waive a jury trial on the aggravating circumstances- violating his Sixth Amendment rights-by denying bifurcation and leaving him with only one choice that would allow him to contest the allegations and evidence of aggravating circumstances while still keeping the issue from the jury at the guilt phase.
Under section 1170, subdivision (b), as recently amended, "the middle term [is] the presumptive sentence for a term of imprisonment." (People v. Lopez (2022) 78 Cal.App.5th 459, 464.) Trial judges are now required to "impose the middle term for any offense that provides for a sentencing triad unless '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.'" (Ibid.) Where it is possible to separate issues related to aggravation, the statute gives the defendant the right to do so, "[e]xcept where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law." (§ 1170, subd. (b).) If the trial judge bifurcates the proceedings, "[t]he jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense." (Ibid.)
Chavarria objects to how the trial judge proceeded under section 1170, subdivision (b), but he does not argue the judge's findings were unsupported or that the judge abused his discretion in imposing upper term sentences in view of those findings. To the extent he suggests he was entitled to bifurcation-and he does not do so expressly-that argument is misguided because the statute states bifurcation is not required if evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial. Here, the same evidence showing Chavarria acted with great violence or a high degree of cruelty, viciousness, or callousness was admissible and relevant to show he had committed forcible lewd acts against a young child, and the same evidence showing he violated a position of trust and harmed a particularly vulnerable victim was admissible and relevant to show he committed the offenses while acting as a caregiver for his five- or six-year old granddaughter. Importantly, Chavarria does not identify evidence that bifurcation of the aggravating factors would keep out of the guilt phase. Since the evidence supporting the alleged aggravating factors was admissible and arguably necessary for proving Chavarria's guilt, the trial judge did not err by allowing all the evidence at the trial on guilt.
For similar reasons, there is no merit to Chavarria's argument that, given the evidentiary ruling, waiving his right to a jury trial on the aggravating circumstances was his only means of keeping the evidence supporting aggravation from the jury at the trial of guilt. The evidentiary ruling meant precisely that the jury would hear the evidence relating to the aggravating circumstances whether or not Chavarria chose to waive a jury trial on aggravation. By choosing to waive a jury trial on aggravation, Chavarria did not stop the jury from hearing that Doe was five years old or that he was her grandfather and caretaker or evidence relevant to the violence, cruelty, and callousness of the offenses. He simply avoided telling the jury about the aggravation allegations and took those issues away from the jury as fact finders.
Chavarria also argues the court erred by failing to give him the option of keeping the jury from hearing the aggravation allegations during the guilt phase of trial but allowing the jury still to decide the issue after his conviction. He says after the court decided evidence of aggravation would be allowed, the trial judge "gave appellant the option of three ways to determine the aggravating factors: 1) jury determination before trial with a stipulation; 2) jury determination during trial; or 3) after trial, a jury or the court would determine the aggravating factors." The third of these options, however, encompasses exactly what Chavarria says the trial judge denied him.
First, we note the trial judge was not required to give Chavarria all these options. Chavarria's third option actually includes two alternatives-either a jury determination after a conviction or a judicial determination after a conviction. The statute says bifurcation is not required if the evidence supporting aggravation is admissible to establish or defend against guilt. Since that was the case here, the trial judge could have denied bifurcation for all purposes and allowed the jury to decide whether Chavarria was guilty and whether the allegations of aggravation were true without bifurcating trial. (See § 1170, subd. (b)(2).) As we read section 1170, subdivision (b), the trial judge could have denied bifurcation and allowed Chavarria to choose among (1) stipulating to the aggravating circumstances, (2) allowing the jury to hear both allegations and evidence of aggravation and decide on their truth as part of a single trial, or (3) waiving a jury trial on the allegations of aggravation, withholding the allegations from the jury, and allowing the judge to decide those issues based on the evidence presented at the jury trial.
In any case, however, Chavarria's argument is that to keep the aggravation issue from the jury at the guilt phase, he had to agree to waive his right to a jury trial. As Chavarria acknowledges, however, the judge gave him the option of withholding the aggravation allegations from the jury until after they returned a conviction and allowing the jury to make the determination then. In other words, while the trial judge's decision was couched as a denial of bifurcation, it gave Chavarria the central benefits of bifurcation save only the exclusion of evidence that was admissible to prove guilt as well. Importantly, the decision gave Chavarria an option through which he could ensure the jury would "not be informed of the bifurcated allegations until there [was] a conviction of a felony offense," while still allowing the jury to decide whether the allegations of aggravation were true after they returned a felony conviction. (§ 1170, subd. (b)(2).)
We are not persuaded that the trial judge's decision on bifurcation, which was more favorable to Chavarria than required and effectively granted his motion, interfered with the voluntariness of his decision to waive a jury trial on the aggravating circumstances and allow the judge to serve as fact finder. Admitting the evidence supporting aggravation was inevitable, and the trial judge in fact gave Chavarria the choice to avoid presenting the aggravation allegations to the jury until after they had returned a guilty verdict. There is no basis for concluding Chavarria's waiver of a jury trial was involuntary.
E. Cruel and Unusual Punishment
The trial judge sentenced Chavarria to consecutive 15-years-to-life terms for each of the six oral copulation convictions and consecutive 10-year terms for each of the six lewd and lascivious acts by force or fear convictions. He received a total indeterminate sentence of 90 years to life and a determinate sentence of 60 years.
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. It does not require strict proportionality between crime and sentence but bars sentences that are grossly disproportionate to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 23-24.) We consider three factors-the gravity of the offense compared to the harshness of the penalty, the length of sentences imposed on other offenders in the same jurisdiction, and the length of sentences imposed for the same crime in other jurisdictions. (Id. at p. 22.)
Under the California Constitution, article I, section 17, a sentence may be cruel or unusual if it is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. (People v. Virgil (2011) 51 Cal.4th 1210, 12871288.) Here again, we consider three factors to determine whether a sentence is cruel or unusual under the California Constitution-"the nature of the offense and the offender (with particular attention to the degree of danger both present to society); a comparison of the sentence with those for other more serious offenses under California law; and a comparison of the sentence with those in other states for the same offense." (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
Chavarria argues his sentence violates the Eighth Amendment guarantee against cruel and unusual punishment because it easily exceeds his life expectancy. He says requiring "him to serve a term longer than his remaining life span before being considered for parole . . . [is an] excessive punishment" because it does not serve the legitimate penological purposes of retribution, deterrence, or protecting society from the defendant. He relies on a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585 (Deloza), where Justice Mosk decried a sentence of 111 years to life in prison, for the proposition that "a sentence that a human being cannot conceivably complete serves no rational legislative purpose, under either a retributive or a utilitarian theory of punishment."
Justice Mosk's position in his Deloza concurrence, however, has "no precedential value." (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) Nor has it gained traction with our Supreme Court in the years since he articulated it. Meanwhile, numerous divisions of the Court of Appeal have rejected his analysis and upheld prison sentences no one could complete. (E.g., Byrd, at pp. 1383-1384 [upholding determinate term of 115 years plus indeterminate term of 444 years to life for 12 counts of robbery with a firearm]; People v. Haller (2009) 174 Cal.App.4th 1080, 1089-1090 [upholding sentence of 78 years to life for multiple counts of criminal threats, stalking, and assault with a deadly weapon]; People v. Retanan, supra, 154 Cal.App.4th at pp. 1230-1231 [upholding sentence of 135 years to life for several sex crimes against four young victims].) These are effectively life sentences. We will follow the authorities allowing such sentences until such time as the Supreme Court directs otherwise.
Chavarria has not attempted to establish his sentence is cruel and unusual under the standard method of showing his sentence is out of sync with the punishments for other offenses or for the same offense in other states. We therefore conclude he has failed to carry his burden of establishing disproportionality. (People v. Crooks (1997) 55 Cal.App.4th 797, 808; see also People v. Retanan, supra, 154 Cal.App.4th at p. 1231 ["We note defendant makes no effort to compare his sentence with more serious offenses in California or with punishments in other states for the same offense, which we take as a concession that his sentence withstands a constitutional challenge on either basis"].)
Chavarria's claim of cruel and unusual punishment is without merit.
III DISPOSITION
We affirm the judgment.
We concur: McKINSTER Acting P. J. FIELDS J.