Opinion
H043305
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. DARREL WAYNE EDGIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1482101)
A jury found defendant Darrel Wayne Edgin guilty on two counts of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)); three counts of lewd or lascivious act on a child under 14 (§ 288, subd. (a)); and one count of continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)). The trial court imposed a total term of 50 years to life consecutive to eight years.
Subsequent undesignated statutory references are to the Penal Code.
Defendant raises numerous claims on appeal. First, he contends his convictions for sexual intercourse with a child violate ex post facto principles because the prosecution did not prove he committed the offenses before the effective date of the applicable statute. Second, he contends statements he made in a pretext phone call should have been excluded because the statements were coerced. Third, he contends the trial court erred by limiting the testimony of several prospective character witnesses for the defense. Fourth, he contends the court erroneously admitted expert testimony on child sexual abuse accommodation syndrome and erroneously instructed the jury on the permissible uses of the testimony. For the reasons below, we conclude these claims are without merit.
Defendant further contends the trial court erroneously calculated the amount of penalty assessments on a sex offender fine, and he requests that we correct the abstract of judgment. The Attorney General concedes the merits of these claims. We accept the concessions and we will order the judgment and abstract modified accordingly. We will affirm the judgment as modified.
I. Factual and Procedural Background
A. Facts of the Offenses
In the summer of 2006, defendant met S. online. They moved in together that fall and lived together until February 2009. The prosecution alleged defendant engaged in sexual intercourse with S.'s daughter H. on three occasions during that period. H. testified she was seven to nine years old when defendant molested her.
1. Prosecution Evidence
a. Testimony of S.
S. testified as follows. H., born on September 24, 1999, was the youngest of S.'s three children. S. met defendant online around June or July 2006, and they began dating within a month. In the fall of 2006, defendant and S. moved into a residence in Los Gatos. H. lived with them. About two months later, they moved to a second residence on Meadow Lane in San Jose, where they lived for about a year. From there, they moved to a house on Garden Avenue until Christmas 2007 or the first part of 2008. They then moved to a fourth residence near Santa Teresa Boulevard, where they lived until February 2009. At that point, defendant and S. broke up.
In late 2013 or early 2014, H. began acting out at school. Around March or April 2014, S. received a text from H. alleging defendant had raped her. H. did not reveal additional details to S. at that time, but S. became upset and arranged for H. to receive counseling. In counseling, H. disclosed more information about the incidents, and the counselor contacted law enforcement.
b. Testimony of H.
H., who was 16 years old at the time of trial, testified as follows. When defendant began living with her and S., H. was around 6 and a half years old. She recalled living with defendant in four different houses.
When H. was in the seventh grade, she told her friend G. she had been raped by her mother's ex-boyfriend. When the prosecutor asked H. how old she was when defendant raped her, she testified, "I think I was, like, 7 or 8." They were living at the Meadow Lane residence the first time it happened. She had known defendant for a year and a half at that point. She testified that she thought it happened in the afternoon, and she thought it was in the summer because she was out of school. She was lying in her bed about to take a nap. Nobody else was home. Defendant came in and lay down behind her. H. pretended to be asleep and shut her eyes. Defendant pulled down her pants and put his penis into her vagina. H. didn't know what to do, but she kept her eyes closed and tried to move away an inch or two. She could feel defendant's penis inside her, and it caused her to "hurt[] all over."
The second incident occurred in the third residence on Garden Avenue. H. shared a bedroom with her brother. H. was lying in her bed in the early morning half asleep. Her brother had gotten up to go to their mother's bedroom. Defendant was getting up to use the bathroom when he walked into H.'s bedroom and lay down beside her. As he got closer, defendant pulled down her underwear. He then inserted his penis into her vagina and began moving back and forth, causing H. pain. H. tried to move away, but defendant kept getting closer. He stopped when H.'s mother and brother started to wake up. H. did not tell her mother about the incident because she feared her mother would be sent to jail.
The third incident happened at the house near Santa Teresa Boulevard. H. was in the third grade at the time. H. was lying on her bed falling asleep when defendant opened her bedroom door to check on her. He went to his own room for a bit, but then returned and entered H.'s room. He lay down behind H. and began unbuckling his pants. He pulled down her pants, inserted his penis into her vagina, and began moving back and forth. H. testified that she suffered pain at a level of "[m]ore than a ten," causing her to cry. She did not recall seeing any blood on this or any other occasion.
H. never confronted defendant about these incidents. She felt it would put her in an uncomfortable position, and he would just deny it. Defendant would do nice things for her, like buying her toys and CD's, or taking her places. Sometimes he would ask her for a kiss when he bought her something.
When H. was in the eighth grade, she sent a text to her mother revealing what had happened. H. was scared to tell her mother about it in person. H. thought her mother would ask a lot of questions and she wasn't ready to give her an explanation. At the time, H. was mad at her mother. H. had gotten suspended from school because her mother was threatening to send her to live with her father and H. did not want to live with him. She did not open up to her mother until they went to counseling.
After revealing the incidents in counseling, H. talked to the police. The police then arranged for H. to conduct a pretext phone call with defendant. When H. confronted defendant in the call, he denied having any recollection of the incidents. He repeatedly apologized, however, for "whatever it is" he had done, and he explained that he had been drinking a lot.
The pretext call is described in further detail below in section II.B.1.
On cross-examination, defense counsel questioned H. about her prior statements concerning the order and timing of the three incidents. In her interview with the police and her testimony at the preliminary hearing, H. had reversed the order of the first and second incidents. In her trial testimony, H. admitted she had confused the Meadow Lane and Garden Avenue residences. She explained that the layout of the two residences was similar, such that she had remembered them as being one house. But she reaffirmed that defendant had molested her on three occasions—in the afternoon for the first and third incidents, and in the morning for the second incident.
c. Testimony of Jennifer Majors
Officer Jennifer Majors was assigned to the case after H.'s counselor reported it to the police. Officer Majors conducted an interview with H. at the Children's Interview Center in May 2014. H. was 14 years old at the time. Officer Majors testified that "as far as specific dates and locations, [H.] had trouble remembering where things happened and specific timelines." An audio recording of the interview was played for the jury.
When Officer Majors asked H. if she knew why she was being interviewed, H. responded, " 'Cause of what happened to me when I was like 7 or -- 7 years old, I think." H. stated that "we lived in like three different houses, but I think it was the second house we moved into um, he like -- he raped me in the house when my mom and my brother were there, but like they were in the other room." She explained that her brother had been sleeping in the same bedroom with her, but he got up and went to sleep with their mother. Defendant then came to sleep with H. and raped her. She stated that this happened at the second house, which she said was on "Teresa Street," and she added that it happened at the third house as well.
Officer Majors then questioned H. about the second incident. H. said it happened at the same house where the first incident happened. She added that "basically the same thing happened at the third house . . . ." As to the second incident, H. said she was "probably like about to turn 8" at the time. As to the third incident, H. said she was "probably 8½." She stated that it happened in a bigger house with separate bedrooms for her and her brother, but she could not remember where the house was located.
d. Testimony of G.
G. was H.'s friend from school. She was 15 years old at the time of trial. She testified as follows.
G. met H. when they were in the seventh grade. H. confided to G. that when H. was about seven years old, her mom's ex-boyfriend would touch "her private parts and stuff." G. could not recall if H. used the word "rape." H. brought it up "a few times." G. did not ask about it in detail because it was very hard for H. to talk about it. The first time H. disclosed it, she started crying and shaking. A few months later, H. told her mother. H. told G. it happened "[a]bout three times . . . ."
e. Testimony of Michael Holden
In September 2014, Michael Holden was an inmate at the Santa Clara County jail, where he met defendant in custody. Holden testified as follows.
Defendant told Holden he was accused of sexually assaulting a 70-year-old woman. Defendant asked for legal advice from Holden, who had a reputation as a "jail-house lawyer." Defendant provided Holden with a police report and other documents, whereupon Holden learned defendant was accused of molesting a seven-year-old girl. Defendant subsequently admitted he had gotten in bed with his girlfriend's daughter and masturbated next to her, but he said he did not touch her and he had cleaned up afterward. Defendant also said that on another occasion he had rubbed his penis against the girl's back side while masturbating. Defendant said he was "careful not to pop her cherry."
Holden then contacted the police about defendant's statements. Holden told the prosecution he did not want anything in return for this information and he had never been an informant before. Holden had a lengthy criminal record including felony convictions for burglary, sexual battery, false imprisonment, and theft, among other things.
f. Testimony of Mary Ritter
Mary Ritter was a physician's assistant and an examiner at the Center for Child Protection at Santa Clara County Valley Medical Center. She conducted a sexual assault response team (SART) exam on H. in May 2014. Ritter observed no evidence of penetrating trauma.
g. Testimony of Miriam Wolf
Miriam Wolf, a licensed clinical social worker, testified as an expert on sexual assault and child sexual abuse accommodation syndrome (CSAAS). She did not know anything about the facts of this case or the persons involved. Wolf testified as follows.
CSAAS is a term coined by psychiatrist Ronald Summit in 1983 to describe common patterns of behavior he observed in connection with sexually abused children. Summit observed five common patterns: secrecy; helplessness; entrapment and accommodation; delayed, conflicted and unconvincing disclosure; and retraction.
Secrecy refers to strategies an adult might use to ensure the crime occurs in secret. This includes messaging by the adult to discourage the child from telling anyone about the abuse. Secrecy is related to helplessness, which is based on the developmental gap between children and adults and the fact that the child is often dependent on the adult for welfare and safety. Entrapment refers to the fact that most children feel stuck in their situation, and accommodation refers to conduct in which they develop various strategies to cope with the situation. Abused children may figure out ways to cope throughout a lengthy period of delayed disclosure, e.g. by compartmentalizing their feelings. They may disconnect or disassociate from their emotions during periods of abuse, or they may internalize their emotions by not thinking about or recalling the abuse. This can affect a child's ability to recall events. Abused children may not recall the abuse in great detail because they have disconnected from these events. It is common for children to delay reporting the abuse. When they do report it, the disclosure does not always come out in a "nice, neat package with a beginning, middle, and end and all the details" an adult listener would want to hear. Adult listeners may perceive the reports as unconvincing due to their delayed and conflicted nature. When adults become upset at hearing reports of abuse, the child may retract them.
CSAAS is not a diagnostic tool. CSAAS can inform our understanding of children's behavior patterns, which we might otherwise misunderstand because they do not make sense to us. But CSAAS patterns cannot tell us if the child is telling the truth.
2. Defense Evidence
a. Testimony of Dr. Theodore Hariton
Dr. Theodore Hariton, a medical doctor, testified for the defense as an expert in obstetrics and sexual assault. He reviewed the results of H.'s SART exam and observed no evidence of injury or penetrating trauma. He saw no bruising, swelling, redness, or evidence of recent trauma. He characterized the exam as "a totally negative normal exam . . . ."
Dr. Hariton testified that penile or digital penetration can cause trauma to the hymen of a prepubertal girl—e.g., a laceration, or a deep notch. He observed notches in H.'s hymen in the photos from her SART exam, but he opined that these were normal.
b. Testimony of Melody Hayes
Melody Hayes was 19 years old at the time of trial. She testified that defendant was her father's longtime friend. Melody had known defendant all her life. She considered him "like an uncle." Defendant spent time at her father's house during the period when she was around 14 to 18 years old. Defendant had never acted in a sexually inappropriate manner toward her. He never tried to "come on" to her sexually and never touched her in a manner she thought was sexually inappropriate.
B. Procedural Background
The prosecution charged defendant with seven counts: counts 1, 2, and 3—sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)); counts 4, 5, and 6—lewd or lascivious act on a child under 14 (§ 288, subd. (a)); and count 7—continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)). The case proceeded to trial in January 2016. The jury found defendant not guilty on count 3, but guilty on counts 1, 2, 4, 5, 6, and 7. The trial court dismissed count 7 as an alternate charge to counts 4, 5, and 6.
The court imposed a total term of 50 years to life consecutive to eight years. The determinate term consisted of the eight-year aggravated term for count 6 and concurrent eight-year terms for counts 4 and 5, with the latter terms stayed under section 654. The indeterminate term consisted of 25 years to life on count 1 and a consecutive term of 25 years to life on count 2.
II. Discussion
A. Ex Post Facto Claims
Defendant contends his convictions on counts 1 and 2 must be reversed because the prosecution failed to show the acts occurred after the effective date of the applicable Penal Code section. The Attorney General contends the evidence showed the acts occurred after the effective date of the statute. We conclude the convictions did not violate ex post facto principles.
1. Legal Principles
The federal and California Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) "Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43.) "[I]t is the prosecution's responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant's punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court." (People v. Hiscox (2006) 136 Cal.App.4th 253, 256.) If the dates of the offenses as charged include a time period predating the effective date of the statute, and if the jury makes no finding that the offense occurred on or after the effective date, the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt that they occurred on or after the effective date. (Id. at p. 261, citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
2. The Evidence Leaves No Reasonable Doubt that the Offenses Occurred After
the Effective Date of the Statute
Counts 1 and 2 charged defendant with violating subdivision (a) of section 288.7 "[o]n or about and between January 1, 2006 and September 23, 2009 . . . with a child, [H.], who was 10 years of age or younger, namely, 6, 7, 8, or 9." Section 288.7 took effect on September 20, 2006. (Stats. 2006, ch. 337, § 9.) The jury convicted defendant on both counts "as charged" in the information but otherwise made no express findings on the dates or timing of the acts. The Attorney General does not dispute that defendant's convictions on counts 1 and 2 would violate ex post facto principles if defendant committed the offenses before September 20, 2006. Rather, the Attorney General contends the evidence shows the offenses occurred on or after that date. Defendant argues that uncertainty and ambiguity in H.'s testimony show reasonable doubt that the offenses took place on or after that date.
H. was born on September 24, 1999. She turned seven years old on September 24, 2006—four days after the effective date of the statute. H. testified that she was seven or eight years old when defendant first molested her. On cross-examination, she testified, "I don't know my exact age, but I think I was around 7, 7 and a half years old" at the time of the first incident. Similarly, in her interview with Officer Majors and the ensuing pretext call with defendant, H. said she was seven years old. On cross-examination, she affirmed that the three incidents happened between the ages of seven and nine. G. testified that H. said she was "about 7 years old." If, as set forth in all this testimony, H. was at least seven years old when the first incident happened, then both incidents occurred after September 20, 2006.
She also testified at the preliminary hearing that she was seven years old at the time of the first incident, but that portion of her testimony was not introduced at trial.
H. also testified she had known defendant for "a year, maybe a year and a half" when he first molested her. S. testified that she first met defendant around June or July 2006. If H. knew defendant for a year or more at the time of the first incident, this implies it occurred long after September 2006.
In sum, all this testimony consistently put the first incident at some time after September 20, 2006. And if the first incident happened after September 2006, so did the second.
By contrast, defendant points to nothing in the record to put the date of the first incident before the effective date of the statute. Defendant contends H. "well might remember herself as being essentially seven years old during the months before her actual birthday." This assertion is speculative and unsupported by the record.
Defendant also points to H.'s confusion about the exact location of the first incident and the order in which the first two incidents happened. It is true that H. was somewhat confused in her pretrial statements about whether the first incident happened at the Meadow Lane residence or the Garden Avenue residence. But any confusion in her statements about where the incidents occurred or which occurred first did not contradict the evidence about when defendant molested her for the first time. To the contrary, the evidence about the timing of the changes in locations corroborated H.'s testimony about the timing of the first incident. S. testified that, after she met defendant, they moved into a residence in Los Gatos in the fall of 2006. She testified that they stayed there for "probably just a couple months" before they moved to the Meadow Lane residence in San Jose. This implies they moved into the Meadow Lane residence sometime after September 2006. They stayed at the Meadow Lane residence for about a year before moving to the Garden Avenue residence, also in San Jose. There was no evidence that the first incident happened at the Los Gatos residence. To the contrary, H. consistently testified that it was at a house in San Jose. Thus, regardless of whether the first incident happened at Meadow Lane or Garden Avenue, the timing of the housing changes implies the first incident happened after September 2006.
Applying the Chapman standard, we conclude the evidence leaves no reasonable doubt that both offenses charged in counts 1 and 2 occurred after September 20, 2006, postdating the effective date of section 288.7. Accordingly, this claim is without merit.
B. Admissibility of Defendant's Statements in the Pretext Phone Call
Defendant contends the trial court erred by admitting statements he made during the pretext phone call with H. He argues the statements were coerced in violation of his due process rights. To the extent the claim may be waived by his trial counsel's failure to object, defendant contends counsel provided ineffective assistance. The Attorney General contends the statement was voluntary and defense counsel's performance was not deficient.
1. Background
Officer Majors arranged for H. to conduct a pretext phone call with defendant after the interview at the Children's Interview Center in May 2014. Defendant received the call while he was at work. The call lasted about 20 minutes. At trial, the prosecution played the audio for the jury. A brief summary follows.
After exchanging greetings, H. told defendant, "I've been going to counseling because of what happened and I wanted to talk to you about it." She added, "[I]t's been really bothering me and I've been wanting to know, why did you do it?" Defendant asked, "Why'd I do what, sweetie?" H. explained she was referring to "what you did when I was 7." Defendant responded, "I'm not f[o]llowing you," and asked to talk later because he was at work.
H. continued to refer vaguely to what had happened when she was seven years old, without stating it explicitly. Defendant responded, "Well, you know what I mean, um back then I was drinking a lot, honey. And um, you know what I mean; I wasn't the nicest person back then. Um, but I don't know exactly what you're talking about or what I did, but I'm sorry for it; I'll tell you that much right now, whatever it is." H. then asked, "[D]on't you remember when you came into my room and you came into my bed with me?" Defendant replied, "No, no." H. stated, "Well, you did," whereupon defendant responded, "Okay. Well, I'm sorry. I'm sorry." H. said it happened "a couple of times." Defendant explained that his life had changed and he no longer drank.
The conversation continued along these lines, with H. repeatedly accusing defendant of molesting her, and defendant apologizing without expressly admitting to it. He repeatedly insisted he did not remember molesting her, and he blamed his drinking problem for anything wrong he might have done to her.
2. Legal Principles
"Any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. [Citations.] To determine the voluntariness of a confession, courts examine ' "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession.' [Citation.] In making this determination, courts apply a 'totality of the circumstances' test, looking at the nature of the interrogation and the circumstances relating to the particular defendant. [Citations.] With respect to the interrogation, among the factors to be considered are ' " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' . . . ." ' [Citation.] With respect to the defendant, the relevant factors are ' " 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " ' (Ibid.) 'A statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . , [or] obtained by any direct or implied promises . . . ." ' " ' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 752.)
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] that, ' " 'but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
3. Defendant Voluntarily Made the Statements in the Pretext Call
Defendant contends the statements he made in the pretext call should have been excluded because they were coerced by H., who acted as an agent of law enforcement. To support his claim, defendant asserts that: He was not free to talk candidly because he was at work; H. implied she would not report his admissions to the police; and she pressured him to make admissions by stating she needed to alleviate her emotional distress. The Attorney General does not dispute that H. may have been acting as an agent of law enforcement, but he contends defendant's statements were voluntary.
Even assuming H. was an agent of law enforcement, nothing she said or did during the call constituted coercion, and nothing in the external circumstances of the call constituted coercion. Defendant was neither in custody nor in a custodial setting. He was not questioned by law enforcement officers sitting in front of him, as usually happens in a typical interrogation. Rather, defendant was a 50-year-old man talking on the telephone with a 14-year-old girl located far away. The fact that he was at work and may have been reluctant to talk weighs against a finding that his statements were involuntary. As to defendant's claim that H. exerted psychological pressure on him to alleviate her emotional suffering, this argument overstates the ability of a teenage girl to coerce a grown man into making harmful admissions.
A factor supporting a finding of coercion would make it more likely—not less likely—that a person would talk against their will.
Defendant contends his statements were "elicited in part through promises of leniency . . . ." (See People v. Dowdell (2014) 227 Cal.App.4th 1388, 1401 [where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary].) Defendant cites three statements H. made to defendant: "I don't want you to get in trouble for it"; "the only reason I called was to talk about it"; and "I'm trying to move [on] from the past." No reasonable person would interpret these statements as promises of leniency, and no reasonable person would think H. had the authority or power to confer leniency. Nor was there any evidence in the record that defendant interpreted H.'s statements as promises of leniency of the sort that might cause him to confess involuntarily. (See id. at p. 1404 [promises of leniency are only coercive if they actually cause the defendant to confess].)
Defendant cites cases pertaining to psychological coercion by law enforcement officers or their agents. (See Maine v. Moulton (1985) 474 U.S. 159; Brewer v. Williams (1977) 430 U.S. 387.) These cases concerned interrogations conducted in violation of the Sixth Amendment because they occurred after the right to counsel had attached. (See Massiah v. United States (1964) 377 U.S. 201, 206 [Sixth Amendment violated where federal agents elicited statements from defendant in the absence of his counsel after he had been indicted].) Those cases are inapposite. Here, police did not arrest defendant until several months later, and the right to counsel had not yet attached at the time of the pretext call.
Based on the totality of the circumstances, we conclude the record shows defendant was not coerced into making any statements in the pretext call; he made all statements during the call voluntarily. The trial court did not err by admitting the audio of the call. Thus, even if defense counsel had objected to the admission of the evidence or moved for its exclusion, the trial court properly would have ruled it admissible. Defense counsel's performance was therefore not deficient, and defendant suffered no ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].) We conclude these claims are without merit.
C. Limitations on the Testimony of Defendant's Character Witnesses
Defendant contends the trial court erred by excluding testimony by several potential character witnesses, including one witness who eventually testified at trial. Defendant argues the error violated his constitutional right to present a defense under the federal and California Constitutions, and contravened the rules of evidence governing the admission of character evidence. The Attorney General contends the trial court properly limited any prospective testimony. For the reasons below, we conclude the trial court did not abuse its discretion.
1. Background
Several members of the Hayes family were longtime friends of defendant. Defense counsel provided the names of four Hayes family members in his pretrial witness list: Chris Hayes, Amanda Hayes, Melody Hayes, and Justin Hayes. The prosecution moved pretrial to limit their prospective testimony on various grounds including hearsay, irrelevance, lack of personal knowledge, speculation, vagueness, and prejudice. The prosecution's motion challenged specific statements made by the witnesses as memorialized in written reports from defendant's investigator. The trial court ruled on these statements as follows.
We refer to the Hayes family members by their first names to avoid confusion. --------
According to the defense investigator's report of her interview with Chris, Chris asked his children whether defendant had ever done anything inappropriate to them. The children told Chris defendant had never done anything to them. The court excluded this statement as hearsay. Chris also said he "honestly believes that [defendant] did not do what he is being accused of." The court excluded this as invading the province of the jury. Chris said he believed defendant's ex-girlfriend was behind the allegations. The court excluded this as speculative. Chris stated the victim's brother tried to kiss Chris's wife. The court excluded this as irrelevant. Chris also thought S.'s children "might have had issues before their mother got together with [defendant]." The court excluded this as speculative. Finally, Chris said he had allowed defendant to take his children to school, and Chris felt his children were never in danger when they were around defendant. The court ruled that Chris would be allowed to opine on this matter. However, defendant never called Chris to testify at trial.
According to the defense investigator's report on Amanda, she had known defendant since she was five years old. She opined that defendant was "very honest." The trial court ruled this statement would be irrelevant and inadmissible unless defendant testified and his credibility was impeached. Second, Amanda stated that defendant never "came on to her or her siblings." As to the siblings, the court excluded that portion of the statement as hearsay, but the court ruled that Amanda could testify that defendant never "came on" to her. Amanda recalled that she sometimes performed acrobatic exercises around defendant, and he would never "look at her weird" or give out "creepy vibes." The court excluded these statements as speculative and vague, but the court ruled that Amanda could testify she never felt uncomfortable around defendant. The court also ruled that Amanda could testify defendant was "a pretty nice guy," and that she was left alone with him at times. Finally, the court ruled that Amanda could testify that she had never seen defendant act inappropriately in a sexual way toward anyone. However, defendant never called Amanda to testify at trial.
Melody made statements similar to Amanda's statements. The court excluded as irrelevant Melody's opinion that defendant was "very honest." The court ruled Melody could testify that defendant "never gave any signals like he was coming on to [her]" but the court excluded as hearsay any such statement by Melody about defendant coming on to her siblings. The court excluded as vague Melody's statement that defendant "has never been 'weird' like that." As to Melody's statement that she had never seen defendant talk badly about women, the court excluded it as irrelevant. The court ruled Melody could testify defendant had never done anything to her and she had never personally observed him acting inappropriately. At trial, Melody testified as set forth above in section I.A.2.b.
As to Justin, the investigator's report stated Justin opined that defendant was "a very honest guy," and Justin "never thought of [defendant] as being a liar." The court excluded these statements as irrelevant. Justin also stated "he does not believe [defendant] did the alleged conduct" or "anything like that." He added that he "couldn't imagine" defendant was capable of such conduct. The court excluded these statements as invading the province of the jury. Defendant never called Justin to testify at trial.
2. Legal Principles
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690, quoting California v. Trombetta (1984) 467 U.S. 479, 485.) With certain exceptions, however, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1102 delineates an exception to this rule for criminal defendants: "[E]vidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character." (Evid. Code, § 1102, subd. (a).) "This exception allows a criminal defendant to introduce evidence, either by opinion or reputation, of his character or a trait of his character that is 'relevant to the charge made against him.' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1305 (McAlpin).)
In cases charging sexual molestation, a character witness may opine that the defendant is a person of " 'high moral character' " insofar as that phrase refers to sexual morality. (McAlpin, supra, 53 Cal.3d at p. 1311.) So construed, moral character is relevant to a sex offense charge. Similarly, a witness may testify that the defendant has a good reputation for a relevant character trait, or that the defendant does not have a bad reputation for that trait. (Id. at p. 1310.) We review a trial court's ruling on the admissibility of such evidence for abuse of discretion. (Id. at p. 1309.)
3. The Trial Court Did Not Abuse Its Discretion in Limiting Defendant's
Character Witness Testimony
Defendant characterizes the various statements offered by the Hayes family members as "opinions that [defendant] was a person of good moral character in sexual values." Defendant also contends these witnesses stated that he "did not have a reputation for inappropriate behavior with girls." Defendant's arguments mischaracterize the witnesses' statements as memorialized by the defense investigator and excluded by the court. None of the witnesses opined that defendant was a person of good moral character with respect to sexual morality, and none of the witnesses testified to his reputation. Defendant contends "the court barred all of the witnesses from stating any broader opinion that Edgin was not the sort of person who would molest children." The court made no such ruling.
Amanda, Melody, and Justin opined that defendant was honest. But a character trait for honesty is not directly relevant to the charges of sexual molestation. The Supreme Court held in McAlpin that character evidence is relevant "if it is inconsistent with the offense charged—e.g., honesty, when the charge is theft—and hence may support an inference that the defendant is unlikely to have committed the offense." (McAlpin, supra, 53 Cal.3d at p. 1305, italics added.) Here, a character trait for honesty would not be inconsistent with the offenses charged, making such evidence irrelevant. Defendant contends honesty was relevant because the prosecution admitted statements he made in the pretext call. But defendant never denied molesting H. in the pretext call. Instead, he apologized, said he did not recall, and blamed his bad behavior on his drinking. The prosecution never challenged the veracity of these statements. To the contrary, in closing argument the prosecution pointed out defendant's failure to deny the allegations and argued that his statements constituted adoptive admissions because he essentially admitted H.'s claims were true. The trial court therefore did not abuse its discretion by excluding opinions about defendant's honesty.
Defendant contends the trial court erred by excluding hearsay statements made by the witnesses relaying statements their children or siblings had made to the effect that defendant had never behaved inappropriately toward them. To the extent the witnesses' statements constituted opinions about his moral character, the trial court correctly ruled that the hearsay portions were inadmissible because they were not based on the witnesses' personal observations. A lay witness may testify in the form of an opinion only if the opinion is based on his or her own perception. (McAlpin, supra, 53 Cal.3d at p. 1306.) "[W]hen a lay witness offers an opinion that goes beyond the facts he personally observed, it is held inadmissible." (Id. at p. 1308.)
Defendant alternately characterizes the hearsay statements as reputation evidence, and he correctly points out that reputation evidence may be based on hearsay. (See McAlpin, supra, 53 Cal.3d at p. 1312.) But these witnesses' statements did not describe defendant's reputation. " 'Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others.' " (Id. at p. 1311, quoting People v. McDaniel (1943) 59 Cal.App.2d 672, 676.) The witnesses' statements did not set forth "the estimation in which [defendant was held]" but rather his conduct in the presence of others. We conclude the trial court did not abuse its discretion in excluding the hearsay statements.
As to the witnesses' statements to the effect that defendant did not commit the charged offenses, the court excluded these as invading the province of the jury to decide the ultimate issue of guilt. This issue typically arises in the context of expert testimony, wherein such testimony may be inadmissible if it does not assist the trier of fact. " 'There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.' " (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183, quoting 1 McCormick on Evidence (4th ed.1992) § 12, p. 47, fn. omitted.) In this instance, the witnesses' statements were not only lacking value to the trier of fact, they were also speculative and devoid of personal knowledge. As to Amanda's statements that defendant did not "look at her weird" or give her "creepy vibes," the court ruled that these statements would be speculative and vague. But the court ruled that Amanda could testify that she never felt uncomfortable around defendant. The court's ruling thereby would have allowed Amanda to testify to relevant facts based on her personal knowledge, if she had been introduced at trial. This ruling was not an abuse of discretion.
For the reasons above, the trial court did not abuse its discretion in limiting the testimony of defendant's character witnesses. Nor were the rulings so fundamentally unfair that they violated defendant's constitutional right to present a defense. "As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' " (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, quoting People v. Mincey (1992) 2 Cal.4th 408, 440.) We conclude this claim is without merit.
D. Admission of Expert Testimony on Child Abuse Accommodation Syndrome
(CSAAS)
The prosecution introduced expert testimony on CSAAS through Miriam Wolf as set forth above in section I.A.1.g. Defendant contends the trial court erred by admitting Wolf's testimony. Defendant acknowledges established California law makes CSAAS testimony admissible for certain purposes. (See McAlpin, supra, 53 Cal.3d at p. 1302; cf. People v. Bowker (1988) 203 Cal.App.3d 385, 387 [CSAAS testimony admissible for the purpose of showing the victim's reactions were not inconsistent with having been molested].) Defendant nonetheless contends the law should be changed. We decline to do so, and to the extent defendant's request would contravene Supreme Court precedent, we have no power to do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant further contends the trial court improperly instructed the jury it could use the expert's CSAAS testimony in evaluating H.'s believability. The court instructed the jury based on CALCRIM No. 1193 as follows: "You have heard testimony from Miriam Wolf regarding Child Sexual Abuse Accommodation Syndrome. Ms. Wolf'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 [H.]'s conduct was not consistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We ask whether the instructions as a whole fully and fairly set forth the applicable law. (Ibid.) "Jurors are routinely instructed to make similarly fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions. [Citation.]" (People v. Yeoman (2003) 31 Cal.4th 93, 139.) The presumption that jurors understand and follow instructions is a " 'crucial assumption underlying our constitutional system of trial by jury.' " (Ibid., quoting People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) If jury instructions are ambiguous or internally inconsistent, we consider whether there is a reasonable likelihood the jury applied the challenged instruction in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
The evidence here included conduct by H.—e.g., delayed reporting—that could appear inconsistent with molestation. Wolf testified that CSAAS is intended to dispel myths and misperceptions about child sexual abuse—e.g., that a victim will immediately disclose the abuse. As the Supreme Court held in McAlpin, a jury may properly consider this evidence in considering whether the victim's conduct is consistent with his or her testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) The instruction given to the jury properly allowed it to use the evidence in this fashion.
Wolf gave no testimony concerning the facts of this case or any of the witnesses involved, and defendant points to nothing in the record to show the jury misapplied the instruction. Examining the instructions as a whole, and based on the evidence in the record, we conclude there is no reasonable likelihood the jury misunderstood CALCRIM No. 1193 as allowing it to use the CSAAS evidence to find defendant committed the offenses.
Defendant further contends the instruction violated his right to have every element proven beyond a reasonable doubt because the instruction "tells the jury to make a credibility determination based on expert testimony which assumes the defendant is guilty." But the instruction contains no such language. Accordingly, we find these claims without merit.
E. Cumulative Prejudice
Defendant contends the cumulative prejudice from multiple errors requires reversal. We find no errors and hence no cumulative prejudice to evaluate.
F. Penalty Assessments on the Sex Offender Conviction Fine
The trial court imposed a sex offender fine of $300 with penalty assessments of $930. Defendant contends the trial court erred by imposing penalty assessments of 310 percent on the sex offender conviction fine. He contends the proper amount of the penalty assessments should be $885 under Government Code section 76000. The Attorney General concedes this claim.
Section 290.3 mandates a sex offender fine of $300 for the offenses committed here, among others. (§ 290.3, subd. (a).) Under subdivision (e) of Government Code section 76000, an additional penalty assessment of $5.50 for every $10 is imposed in Santa Clara County. The parties agree that under this formula the total penalty assessments should have been $885 rather than $930. (See People v. Soto (2016) 245 Cal.App.4th 1219, 1228-1230.) We accept the Attorney General's concession, and we will reduce the penalty assessments accordingly.
G. Modification of the Abstract of Judgment
The abstract of judgment states, among other things, "No contact with victim or family. PC1202.05 ordered." Defendant contends the sentence "No contact with victim or family" must be struck because the trial court imposed no such order. The Attorney General concedes the abstract of judgment must be modified, and he contends the abstract of judgment should be amended further to show that the trial court imposed a "no visitation" order.
The probation report recommended a "protective order of up to ten years" under section 136.2. Separately, the report recommended "an order prohibiting visitation between the defendant and the child victim(s)" under section 1202.05. On the copy of the report in the record, the former recommendation is crossed out. At the sentencing hearing, the court orally imposed the no visitation order under section 1202.05. But the court did not impose a no contact order. When the prosecution inquired about it, the court stated, "I'm not imposing [the recommended no contact order] because there's no way he'll be out in ten years."
Defendant is therefore correct that the abstract erroneously reflects the imposition of a no contact order. "[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court's oral pronouncement of judgment to the extent the two conflict." (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) "Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will order the abstract corrected accordingly. As to the Attorney General's request that we modify it to reflect a no visitation order, the abstract already reflects the imposition of this order under section 1202.05. No such modification is necessary.
III. Disposition
The judgment is modified to reflect a total penalty assessment of $885 as applied to the $300 sex offender fine. As modified, the judgment is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting the modified penalty assessment, and the clerk shall omit the sentence "No contact with victim or family" from the amended abstract. The clerk shall send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.