Opinion
A145765
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MELVIN HERRERA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51413830)
A jury convicted Melvin Herrera of 57 counts of sexual assault against his stepdaughters—55 counts against Jane Doe 1 and two counts against her little sister, Jane Doe 2. The charges include 2 counts of lewd act on a child under 14 (Pen. Code, § 288, subd. (a) ), 32 counts of forcible lewd act on a child under 14 (§ 288, subd. (b)(1)), 22 counts of rape and forcible oral copulation of a child under 14 (§ 269, subd. (a)(1)), and a single count of lewd conduct with a child of 14 or 15 (§ 288, subd. (c)(1)). On appeal, Herrera challenges the admission at trial of expert testimony discussing child sexual assault accommodation syndrome ("accommodation syndrome"), and the jury instruction allowing the jury to consider this testimony in evaluating the girls' credibility. He also challenges evidentiary rulings the court made during cross-examination of Jane Doe 1 that, he argues, effectively prevented him from eliciting her motive falsely to accuse him of molestation. Finally, he challenges the sentence imposed in two respects, arguing that a prison term of 1,325 years to life is cruel and unusual punishment, and that a restitution order of $3.25 million is excessive and unwarranted. We affirm.
All statutory references are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe 1 and Jane Doe 2 came to California from El Salvador when they were nine and seven years old, respectively. They began living with their mother and her husband, defendant Herrera, in one bedroom of a house on Connecticut Street in San Pablo. Also living in the house were Herrera's mother, his sister with her husband and children, and a couple of other family members. The sister's oldest daughter, Jane Doe 3, was about two years older than her cousin Jane Doe 1, and the girls became friends. The adults in the family all worked, although schedules often allowed Herrera and his mother to be home with the girls after school. When she first arrived in California, Jane Doe 1 started school in the fourth grade.
By the time of trial, seven years later, Jane Doe 1 was in eleventh grade. As a result of a report she and Jane Doe 2 had made to the police the year before, Herrera had been arrested and held to answer on 43 felony counts. On the first day of trial, January 20, 2015, the prosecution filed an amended 57-count information, which also alleged enhancements for multiple victims and probation ineligibility. On February 23, 2015, a jury convicted Herrera on all counts and found the enhancement allegations true. On May 29, 2015, the trial court sentenced Herrera to prison for 1,325 years to life and imposed victim restitution in the amount of $3.25 million. Herrera timely appealed.
What follows is a summary of the testimony at trial.
Jane Doe 1's Testimony
Jane Doe 1 testified that one morning when she was in fifth grade she woke up in bed to discover that Herrera was kissing her on the mouth. She thought this was weird, so she went to another part of the house where her mother was, but did not say anything. Months later while she was at the computer, he came up to her, turned her face in his direction, and again kissed her on the mouth. She went outside where the other girls were playing, but again did not say anything. Some weeks later, he came into the room while she was resting in bed, locked the bedroom door, and lay down beside her, kissing her. Taking off her pants, he touched her on the "boobs" and the vagina. She went along with it, which she felt bad about, and eventually she decided to tell her mother and her aunt that Herrera had been kissing her. They did not believe her. Herrera was upset until he realized nobody believed Jane Doe 1. He told her not to tell anyone else.
The abuse soon resumed. Frequently when she was in the bedroom, Herrera would come in, lock the door, and kiss and fondle her. Soon, these interactions progressed to sexual intercourse. Jane Doe 1 estimated that Herrera kissed her hundreds of times and had sexual intercourse with her more than 20 times before her family moved out of the Connecticut Street house when she was in sixth grade. With their mother and Herrera, Jane Doe 1 and Jane Doe 2 moved to a two-bedroom "upstairs" apartment on Broadway in San Pablo, where the abuse continued.
One day, when Jane Doe was about 12 and living in the upstairs Broadway apartment, she told Herrera she did not want any further sexual contact with him. He got angry and slapped her in the face. She screamed at him to leave her alone, started crying, and tried to bar the door, but he forced his way in to apologize. Since that day, she was "scared for that to happen again," so decided not "to say anything else to him, even though I didn't want to be with him." Also, Herrera began to tell her that if she was not willing to continue their sexual contact, "then he would go with my sister." Herrera told Jane Doe 1 that he was kissing and touching Jane Doe 2, which Jane Doe 1 did not believe until she saw some of it herself—contact that Herrera treated as a great joke but that provoked tears from Jane Doe 2. So Jane Doe 1 did not protest the regular sexual encounters with her stepfather.
Also while living in the upstairs apartment on Broadway, Jane Doe 1 got a visit from the police. She learned that her cousin Jane Doe 3 had reported (a) Herrera raped Jane Doe 3, (b) Jane Doe 1 was a witness, and (c) Herrera did the same thing to Jane Doe 1. When the extended family lived together in the Connecticut Street house, Jane Doe 1 had seen Herrera kissing Jane Doe 3, and had then confided in Jane Doe 3 about her "sexual relationship" with Herrera. Now in the Broadway apartment, Herrera warned Jane Doe 1 before her police interview that, "if you ever say something, . . . even if I'm in jail, I'll find my way to get you back." So she was scared, and resolved not to say anything. At the interview, Jane Doe 1 "denied everything."
When Jane Doe 1 began eighth grade, her family moved from the upstairs Broadway apartment to a house on Avon Street that they shared with other members of Herrera's family, and where Jane Doe's baby sister was born. Then, at the end of eighth grade, the family moved to a downstairs apartment on Broadway. Though less frequent, the abuse continued throughout, until one day in the downstairs apartment on Broadway, Jane Doe 1's mother walked in on her husband kissing her daughter. The mother was furious and lashed out, primarily at her own daughter. Jane Doe 1 then told her mother what had been happening, but thinks her mother believed Herrera that Jane Doe 1 was "provoking him." Jane Doe 1 was 14 years old. She told her mother she wanted to call the police and picked up the phone to do it. Her mother told her not to; the mother would solve the problem by kicking her husband out the home immediately. Herrera moved out, and the abuse stopped. Although Herrera did after a few months come back periodically to stay, he never again attempted sexual contact with Jane Doe 1.
Two years after Herrera first moved out, Jane Doe 1, now 15 years old, also moved out. Her mother was going to punish her for bad behavior at school, so Jane Doe 1 moved in with her boyfriend and his mother instead. Occasionally her sister would visit her at her boyfriend's house, and one day Jane Doe 2 came and told Jane Doe 1 that Herrera had "wanted to play around with her, and she had said no," but that he had not been willing to take "no" for an answer. Jane Doe 1 decided she did not want anything more to happen to her little sister so, with her boyfriend's mother, a boarder in her mother's home, and Jane Doe 2, she went to the police.
At trial, Jane Doe 1 testified that she did not like Herrera being a controlling stepfather, who used to get her in trouble with her mother. Some of this information was elicited on cross-examination because the defense theory was that Jane Doe 1 fabricated her allegations against Herrera for revenge and to get him permanently removed from her mother's home.
Jane Doe 2's Testimony
Jane Doe 2 testified to witnessing some of the sexual contact directed at her sister, and also to her own victimization. When the family lived in the upstairs apartment on Broadway, she said she saw her sister go into the bedroom with Herrera and once saw Herrera touch her sister's breasts. When she was 11 years old she saw Herrera kiss her sister on the mouth, and her sister push him away. And then when she was 13 and her sister had moved out, Herrera turned his attention to her. Jane Doe 2 testified that Herrera tried three times to touch her "boobs," and one day as she headed to the bathroom he tackled her, pinned her to the floor, pulled down her sweatpants, and touched her vagina. The next day, Jane Doe 2 told Maria, a boarder in their home, about the abuse, and together they went to her sister and then to the police.
Mother (of Jane Doe 1 and Jane Doe 2)'s Testimony and Statement
Herrera's wife, who is the mother of Jane Doe 1, Jane Doe 2, and a younger daughter with Herrera, initially failed to come to court in response to her subpoena. After she was arrested and granted immunity she testified, but inconsistently with her earlier statement to the police. When first interviewed about her daughters' allegations in 2014, the mother had said she saw Herrera and Jane Doe 1 kissing in the bedroom a couple of years earlier, that she thought this was "terrible" and had hit Herrera in anger, but that her daughter and Herrera had denied any sexual intercourse, telling her that Herrera "would touch her parts and all that. That was all." "[T]hey were boyfriend and girlfriend," her daughter had said at the time, the mother told the police. At trial, the mother denied having seen this kissing, denied having struck Herrera after seeing him with Jane Doe 1, and denied having told the police any of this, although she also explained that if she had reported this to the police she had been mistaken. She did not want her youngest daughter to grow up without a father, she said.
Dr. Anthony Urquiza's Testimony
Dr. Anthony Urquiza has a Ph.D. in clinical psychology and directs the child abuse treatment program within the Department of Pediatrics at UC Davis Medical Center. Much of his work for the past decade and a half has been teaching therapists to treat children who have been sexually or physically abused, and he testified as an expert on accommodation syndrome and related topics. Dr. Urquiza has never met any of the Jane Doe witnesses in this case and was not testifying specifically about them. Rather, his testimony was offered to provide the jury "foundation knowledge" about some common behaviors of children who are sexually abused.
Dr. Urquiza's testimony focused on the five aspects of accommodation syndrome that Dr. Roland Summit set forth in his seminal article on the subject in 1983. The first is secrecy. Children often will not disclose abuse by a family member because they are intimidated by a bigger, stronger authority figure, because they do not want a person they care about to get in trouble, or because they do not want to disrupt their own family life. This means that sometimes even when directly asked, a child will deny abuse that is occurring.
The second aspect is helplessness. Children usually do not yell, flee, or fight off an abuser because they feel helpless to stop the abuse.
The third aspect is entrapment and accommodation—the tendency of children, who are disgusted, ashamed, and feel trapped by their own abuse, to disassociate as a method for managing the trauma.
The fourth aspect is delayed and unconvincing disclosure. Once a child decides to break with the secrecy that is the first aspect she will sometimes partially disclose, and then vary her behavior based on the response she gets. If the listener is supportive the child will share more, but if not, then the child will shut down. Also, the initial disclosure may be unconvincing, in part because if the child has been disassociating she may disclose with a flat affect or with factual errors that undermine her credibility.
The fifth aspect of accommodation syndrome is recantation, when a child who has disclosed abuse retracts her allegations. Dr. Urquiza testified to research showing that 20 to 25 percent of children who have been abused recant their allegations, often because of family pressure. But false accusations of child abuse are rare, according to Dr. Urquiza, although they do exist. He cited a Canadian study that calculated the rate of false accusations at one to six percent, and all of the false reports involved adults (e.g., mothers in custody disputes) reporting abuse of children. None of the accusations made by children were determined in this study to be false, according to Dr. Urquiza, although he cautioned that because of difficulties in getting good information these numbers should be taken with "a little grain of salt."
One point that Dr. Urquiza addressed several times is that accommodation syndrome is a methodological tool for understanding and treating abused children. It is not a diagnostic tool to be used for forensic purposes. "[A]ccommodation syndrome assumes we're talking about kids who have been abused." It was designed to educate therapists and is also useful to educate jurors, but it is not appropriate to "use it to determine if somebody has been abused or not." Dr. Urquiza testified about a second article that Dr. Summit published in 1992 making this point—that one should not try to determine whether or not a child has been sexually abused by counting up how many of the five aspects of accommodation syndrome match the child's behavior. "[I]t's not my place," Dr. Urquiza testified, "to have an opinion in this case whether a child was abused or not, or whether a person is guilty of a crime or not. I think it's inappropriate to use accommodation syndrome for that purpose."
Jane Doe 3's Testimony and Statements
In 2010, when she was 13 or 14 years old, Jane Doe 3 reported to the police that Herrera had molested her. In 2014, after Jane Doe 1 and Jane Doe 2 went to the police and an officer came to interview her, Jane Doe 3 said that hers had been a false report, made up because she was angry with Herrera for getting her in trouble with her mother and because she wanted to divert attention from her 27-year-old boyfriend, with whom she had been caught trying to leave her middle school. At trial, Jane Doe 3 testified in accordance with her 2014 recanting statement. She also testified that after her original report to the police her family had been angry with her for telling them that Herrera raped her, and that some family members had stopped talking to her until much later, when she had apologized to Herrera.
Jane Doe 3 also provided equivocal corroboration for Jane Doe 1's testimony that Jane Doe 1 had earlier disclosed to her cousin. In 2014, Jane Doe 3 told a police detective that Jane Doe 1 had confided in her, when Jane Doe 1 was about 11 years old, that Herrera was "touching her." At trial, she testified that she had once been friends and shared secrets with Jane Doe 1, but she denied that Jane Doe 1 ever told her about what her stepfather did to her.
Other Trial Testimony
The prosecutor called several other witnesses at trial. These include the San Pablo Police Department detective who took Jane Doe 1's and her mother's statements in 2014, and the person who interviewed Jane Doe 1 at the Children's Interview Center a couple of days after her initial report. This testimony established many commonalities but also some discrepancies in Jane Doe 1's various accounts of the abuse, and some serious alteration in her mother's account. The prosecutor also called the police officer who had interviewed Jane Doe 1 back in 2010, when Jane Doe 1, denying everything, provided a diametrically opposite account. The prosecutor called Jane Doe 3's mother, who testified that Jane Doe 3 once confided in her that Herrera touched her and then much later recanted that allegation. The prosecutor called the middle school resource officer to whom Jane Doe 3 first disclosed Herrera's abuse, and the police officer and the Children's Interview Center interviewer who took detailed statements from Jane Doe 3 back in 2010. The prosecutor also called the boarder in the mother's home to whom Jane Doe 2 first disclosed her molestation, and who accompanied Jane Doe 1 and Jane Doe 2 to the police station.
The defense presented three character witnesses, each of whom had worked with Herrera for years. These witnesses testified that they trusted him, that he did not have a reputation for behaving inappropriately with children, and that they had seen him with his stepdaughters and other children and observed nothing improper.
DISCUSSION
A. The Trial Court Did Not Err in Admitting Testimony or Instructing the Jury on Accommodation Syndrome.
Herrera argues that Dr. Urquiza's testimony about accommodation syndrome and the court's instruction to the jury about that testimony violated his federal constitutional right to due process. Specifically, he argues that using evidence about accommodation syndrome to determine guilt or innocence is "junk science," in that accommodation syndrome was developed as a tool for therapy and not for forensic use, and it assumes a child's claims of molestation are true. Herrera's legal support for the inadmissibility of this testimony comes entirely from out-of-state cases. Herrera also argues in the alternative that the jury should not have been instructed in accordance with CALCRIM No. 1193, the final portion of which instructs the jury that it may use Dr. Urquiza's testimony "in evaluating the believability of [a child sexual assault survivor's] testimony." This instruction, Herrera argues, is inconsistent with California cases that allow the jury to consider accommodation syndrome testimony only to rebut specific attacks on the credibility of a witness, not in an affirmative manner that makes the accommodation syndrome testimony evidence of the defendant's guilt.
The standard of review differs for Herrera's two claims of error. A trial court generally " 'has wide discretion to admit or exclude expert testimony,' " so we review the decision to admit Dr. Urquiza's testimony for abuse of discretion. (See People v. Valdez (1997) 58 Cal.App.4th 494, 506; see also People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) But we review de novo the question whether the jury instruction on accommodation syndrome correctly states the law. (See People v. Posey (2004) 32 Cal.4th 193, 218; People v. Cole (2004) 33 Cal.4th 1158, 1208.)
1. California Supreme Court Precedent
The California Supreme Court has decided three cases that together establish the applicable substantive law. We briefly summarize these decisions before directly addressing Herrera's claims. Of the three cases, one involves child sexual assault and the other two involve survivors of rape and domestic violence, but all three are instructive because our Supreme Court recognizes a "close analogy" between expert testimony on the behavior of victims for each of these crimes. (People v. Brown (2004) 33 Cal.4th 892, 905 (Brown).)
McAlpin, supra, 53 Cal.3d 1289 is a child molestation case in which the challenged testimony was admitted to explain the behavior, not of the victim, but of her mother. The Supreme Court found no fault with the admission of expert testimony to the effect that it was not unusual for a parent to refrain from reporting her own child's molestation, and giving reasons for such behavior. (Id. at p. 1299.) Citing with approval several Court of Appeal decisions allowing testimony of accommodation syndrome, McAlpin explains that expert testimony on the common reactions of a child molestation victim is "admissible to rehabilitate [the child's] credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (Id. at p. 1300.) Such " 'testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (Id. at p. 1301.) But this same testimony "is not admissible to prove that the complaining witness has in fact been sexually abused." (Id. at p. 1300.)
McAlpin discusses and follows the earliest of the three cases in this trio of Supreme Court decisions, People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe). (See McAlpin, supra, 53 Cal.3d at p. 1300.) In Bledsoe, the prosecution called a counselor who had treated a rape victim to testify that the woman suffered from rape trauma syndrome, which is an " 'acute stress reaction to trauma.' " (36 Cal.3d. at p. 242.) Observing that "expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths," the court nonetheless held that it was error to admit such evidence in Bledsoe's case, where it served no such purpose. (Id. at pp. 247-248.) The victim in Bledsoe "promptly reported the attack, immediately exhibited the type of severe emotional reaction that the normal lay juror would associate with rape and suffered bruises and other physical injuries that corroborated her claim that she had been violently assaulted." (Id. at p. 248.) Thus, the expert witness testimony served, "not to rebut misconceptions about the presumed behavior of rape victims, but rather as a means of proving—from the alleged victim's post-incident trauma—that a rape" had occurred. (Ibid.) This was a purpose for which the evidence was not admissible, the court held, as rape trauma syndrome was a "therapeutic tool" to help counselors assist victims, rather than a method developed and validated for forensic purposes. (Id. at p. 249.)
The most recent case in the trio, Brown, supra, 33 Cal.4th 892, applies the logic of Bledsoe and McAlpin to a domestic violence case, holding that an expert witness may be called to explain why domestic violence victims "often later deny or minimize the assailant's conduct." (Id. at p. 895.) This expert testimony "cannot be admitted to prove the occurrence of the charged crimes," but is relevant to rebut "common notions about domestic violence victims akin to those" at issue in Bledsoe and McAlpin. (Id. at pp. 906-908.) The prosecutor need not hold this testimony until a rebuttal case, but may offer it as part of the case-in-chief as soon as independent evidence of the crime provides a sufficient foundation. (Id. at p. 908.) "Once there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible." (Ibid.; see also People v. Patino (1994) 26 Cal.App.4th 1737, 1745.)
2. The Admission of Dr. Urquiza's Testimony
In light of McAlpin, Bledsoe, and Brown, we find no abuse of discretion in the trial court's decision to admit Dr. Urquiza's testimony. The testimony was relevant to help the jury understand the psychological context for the behavior of Herrera's victims. Jane Doe 1's testimony provided substantial evidence that Herrera committed the abuse with which he was charged, but that she kept this secret for many years, even going so far as to deny everything when asked about the abuse by a police officer at the time of Jane Doe 3's initial report. Jane Doe 1's testimony further established that she felt helpless to prevent the abuse; that she felt trapped but found ways to accommodate the abuse; and that she made delayed but unconvincing disclosures to her mother and aunt. The testimony and prior statements of Jane Doe 3 made relevant Dr. Urquiza's testimony about recanting child abuse victims, as there was evidence that Herrera committed acts of molestation against Jane Doe 3, who disclosed details at school and to the police but then retracted her allegations after learning that her family would not support her in making them. Because the prosecution presented "evidence from which the trier of fact could find the charges true," Dr. Urquiza's "evidence relating to the credibility of the witnesses [was] relevant and admissible." (Brown, supra, 33 Cal.4th at p. 908.) We are not at liberty to accept Herrera's argument—relying on out-of-state authority—that California courts should categorically reject accommodation syndrome testimony. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
There is one portion of Dr. Urquiza's testimony that Herrera highlights as especially problematic, namely his testimony about how rare false accusations of child abuse are. However, this is testimony to which Herrera did not specifically object in the trial court. His in limine motion attacked the totality of the testimony that Dr. Urquiza was expected to give on the grounds that accommodation syndrome was "junk science," irrelevant, not beyond the scope of jurors' common knowledge, and that testimony about it was inconsistent with due process. But these broad attacks were not fleshed out, and the motion did not mention testimony about the infrequency of false reports of child abuse. In deciding the defense motion to exclude Dr. Urquiza's testimony and the prosecution's motion to have it admitted, the trial court ruled that the prosecution was "entitled to call" Dr. Urquiza but "that there has to be a careful way in which" the testimony is presented. In ruling on the in limine motions, he explained that because "making broad rulings at this point is dangerous," he remained "open to . . . specific additional motions that need to be made" once the defense attorney had studied transcripts of Dr. Urquiza's prior testimony that the prosecution provided. No more specific motions were made, however, and Dr. Urquiza testified without objection about the Canadian study and about his view that false reports of child abuse were rare.
To the extent that Herrera is arguing on appeal that testimony about the rarity of false reports of child abuse is objectionable for reasons apart from his broad-brush attack on Dr. Urquiza's testimony, he has waived this challenge because he made no such objection at trial. On appeal, Herrera argues that this particular testimony "usurped the jury's fact-finding role," analogizing this portion of Dr. Urquiza's testimony to that of an expert witness who testified in another molestation case that " '99.5 percent of the kids tell the truth,' " and that " 'there was no evidence' " that a particular child whom he had interviewed " 'made up the entire story.' " (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 738.) Snowden is distinguishable because that expert was more categorical about the low incidence of false reports and because he testified about the credibility of a particular child. But more importantly, Herrera never argued to the trial court that to allow testimony about false reports of child sexual abuse being rare (or to discuss the Canadian study quantifying this view) would usurp the fact-finding role of the jury. Indeed, Herrera never argued that this particular evidence was inadmissible for any reason, other than the initial motion that Dr. Urquiza should not be allowed to testify at all. "A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct," and we cannot ignore "the requirement of a specific objection." (People v. Partida (2005) 37 Cal.4th 428, 434-435.) Thus, we cannot reach this argument on its merits.
Herrera seeks to remedy his procedural default by arguing that trial counsel's failure to object gives rise to a claim for ineffective assistance of counsel, but this argument comes up short. A defendant is denied adequate assistance of counsel where counsel "fail[s] to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates," if such failure "result[s] in the withdrawal of a potentially meritorious defense." (People v. Nation (1980) 26 Cal.3d 169, 178.) Herrera argues that, as in Nation, there was no strategic reason in this case for counsel not to object, but he does not argue that a reasonably competent attorney should have known to object to the evidence that false reports are rare. In Nation, the court had a published handbook for criminal defense attorneys as evidence of the applicable standard of care and United States Supreme Court precedent establishing the law upon which trial counsel could have relied. (Id. at pp. 179-181.) Here, Herrera cites only a single case that is not binding on California courts and that is distinguishable. Herrera has failed to establish that any competent and diligent defense attorney would have objected to the evidence that false reports are rare.
In sum, we find no abuse of discretion in the trial court's decision to admit Dr. Urquiza's testimony generally, and have no occasion separately to consider the admissibility of his testimony about false reports of child sexual abuse being rare.
3. The Jury Instruction Regarding Dr. Urquiza's Testimony
In light of McAlpin, Bledsoe, and Brown, we also find no error in the trial court's decision to instruct the jury in accordance with CALCRIM No. 1193. The trial court instructed:
"You have heard testimony from Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome.
"Dr. Anthony Urquiza'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 Jane Does 1 and 2['s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of each of their testimony."
Herrera objects to the final portion of this instruction, where the jury was told it may use Dr. Urquiza's testimony "in evaluating the believability of" the girls' testimony. Herrera argues that an expert witness generally may not give an opinion as to another witness's credibility, and that Dr. Urquiza's testimony "effectively told" the jury to believe Jane Doe 1's incriminating trial testimony and Jane Doe 3's incriminating statements of 2010, even though both girls had at other times denied that Herrera was molesting them. The question whether a complaining witness is credible is "effectively identical to the question of whether the abuse actually occurred," Herrera argues, and the Bledsoe line of cases precludes a jury from considering expert testimony about accommodation syndrome as evidence that the crime actually occurred.
This is not an argument that Herrera made in the trial court, where he requested that the jury be instructed with CALCRIM No. 1193. Citing the doctrine of invited error and People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse), the Attorney General argues this issue is therefore not cognizable on appeal, but the Attorney General reads Hillhouse too expansively. The case teaches that, "[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." (Id. at p. 503, emphasis added.) Herrera's argument is that the instruction, as given, is not correct in law, so the Attorney General's reliance on Hillhouse is unavailing. Hillhouse also points to an important exception to the general rule requiring objections to preserve issues of instructional error. "The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259; see also Hillhouse, supra, at p. 503.) Because the Attorney General fails to address this important exception, she fails to persuade that the instructional issue is not cognizable here.
On the merits, however, we are unpersuaded by Herrera's argument. While an expert witness generally may not opine on another witness's credibility (see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82), Dr. Urquiza was careful not to offer any such opinion. He told the jury he had never met the Jane Doe witnesses and was not testifying specifically about them. While his testimony may have had the effect of making the girls' allegations of abuse more credible, that is significantly different from offering an opinion as to their credibility. So, too, if Dr. Urquiza's testimony caused the jury more readily to believe the girls' allegations of abuse because it helped them understand what might otherwise appear to be self-impeaching behavior, that is analytically different from the jury considering the expert testimony for forensic purposes, as evidence that the crimes themselves occurred. The Supreme Court describes this kind of expert testimony about victim behavior in terms that make clear it is "evidence relating to the credibility of the witnesses." (Brown, supra, 33 Cal.4th at p. 908, emphasis added.) It gives "jurors information they need[] to objectively evaluate [the witness's] credibility." (McAlpin, supra, 53 Cal.3d at p. 1302, emphasis added.) "[P]sychological testimony [i]s properly admitted to rehabilitate [a child victim's] credibility and to explain the pressures that sometimes cause molestation victims to falsely recant their claims of abuse." (People v. Housley (1992) 6 Cal.App.4th 947, 956, emphasis added.) CALCRIM No. 1193 in its entirety accords with this case law, and we find no error in its having been read to the jury in this case.
4. Related Arguments
Because we find no error in the trial court's decision to admit Dr. Urquiza's testimony, or in the instructions as to how jurors should consider that testimony, we need not address Herrera's other arguments relating to Dr. Urquiza's testimony. In particular, we find no error in the trial court's declining to hold a hearing pursuant to Evidence Code section 402 before Dr. Urquiza testified because Herrera had an opportunity pretrial to brief any issues raised by the proffered testimony, and at trial Dr. Urquiza refuted the idea that Dr. Summit has come to believe testimony about accommodation syndrome is inappropriate in court to explain victim behavior. B. The Trial Court Did Not Abuse Its Discretion in Limiting Herrera's Cross-Examination of Jane Doe 1
Herrera argues that the trial court violated his right to confront and cross-examine Jane Doe 1 by improperly sustaining objections to some of defense counsel's questions designed to expose Jane Doe 1's motive for falsely accusing Herrera. Herrera alleges that when Jane Doe 1 was in ninth grade, he reported some of her misdeeds to her mother, causing Jane Doe 1 to be punished and to be angry with him as a result.
At trial, Herrera's counsel was able to elicit some information on this subject, but other questions were successfully objected to, and the answers that he did receive did not support the defense theory. For example, Jane Doe 1's answer to this question was struck as objectionable: "Q. The end of . . . the ninth grade school year, you were getting in trouble at school a lot?" But this question and answer were allowed to stand: "Q. . . . "[I]n 2013 when your mom kicked you out, what did she tell you was the reason for you being kicked out? [¶] A. I was behaving bad in school." Similarly, the answer to "Did you get in trouble for smoking marijuana?" was stricken. But moments later when defense counsel asked, "[D]id you get mad at Mr. Herrera because he got you in trouble with your mom for smoking marijuana?" Jane Doe 1's response was allowed to stand: "No." Finally, the trial court sustained an objection to a question about whether, in ninth grade, Jane Doe 1 had gotten "in trouble with your mom based on Mr. Herrera telling her things you had done," but there was no objection to the next question, "During that time, did you get in trouble with your mom and her tell you that Mr. Herrera had told on you for things you had done?" Again, Jane Doe 1's monosyllabic response did not further the defense theory. She answered simply, "No."
We review the trial court's decision to exclude testimony for an abuse of discretion (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10), and are mindful that the court must exercise this discretion in a manner consistent with Herrera's " ' "right to present all relevant evidence of significant probative value to his defense." ' " (People v. Northrop (1982) 132 Cal.App.3d 1027, 1042; see also Crane v. Kentucky (1986) 476 U.S. 683, 689-691.) " '[E]xposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination,' " but " 'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.' " (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.)
Applying these principles, we see no abuse of discretion and no violation of the Confrontation Clause in the trial court's decisions with regard to Jane Doe 1's cross-examination. Those questions that asked Jane Doe 1 to confirm misbehavior unrelated to lying—and falling far short of a crime of moral turpitude—were objectionable. (See People v. Collins (1986) 42 Cal.3d 378, 389.) The testimony about whether she was getting in trouble at school or for smoking marijuana was properly excluded on this basis. The question that assumed facts about what Herrera had told her mother was objectionable because it called for speculation. But similar questions that asked whether her mom had told Jane Doe 1 that Herrera reported her misconduct, or whether she was angry at Herrera because she got in trouble with her mother, were allowed. Herrera's opening brief quotes six pages of cross-examination, but it all fits the same pattern—objections to some questions were appropriately sustained, but similar questions that were not objectionable were asked and answered. Herrera had an opportunity to elicit testimony about Jane Doe 1's motivation in testifying against him, and indeed she readily admitted in other contexts that she resented him getting her in trouble with her mother.
Herrera's additional arguments against the exclusion of this evidence based on Evidence Code section 1103 are also unavailing. He argues that section 1103, subdivision (c) "allows evidence of prior bad acts to be admitted for impeachment of any witness." In fact, section 1103 subdivision (c) is much narrower, and allows no such thing. The statute prevents the complaining witness in certain sexual assault cases from being asked about her manner of dress or her sexual conduct with persons other than the defendant as evidence of consent, issues that are completely irrelevant to this case and unrelated to the testimony Herrera argues he should have been allowed to elicit. (Evid. Code, § 1103, subd. (c).) Herrera also argues that section 1103, subdivision (a)(1), allows proof of Jane Doe 1's bad character, but that section permits such evidence only "to prove conduct of the victim in conformity with the character or trait of character." (Evid. Code, § 1103, subd. (a)(1).) Herrera does not argue for the relevance of any particular character trait, and we see no relevance to any propensity Jane Doe 1 may have for smoking marijuana or behaving badly at school.
In sum, Herrera has identified no error in the trial court's evidentiary decisions limiting his cross-examination of Jane Doe 1. C. Herrera's Sentence Does Not Violate the Federal or State Prohibitions on Cruel and Unusual Punishment
Herrera argues that his sentence to prison for a term of 1,325 years to life—which he accurately describes as "the practical equivalent of life without parole"—violates constitutional prohibitions on cruel and/or unusual punishment. The Eighth Amendment prohibits state courts from imposing cruel and unusual punishment (Robinson v. California (1962) 370 U.S. 660), and the California Constitution analogously forbids "[c]ruel or unusual punishment" (Cal. Const., art. I, § 17). Given the limited role for a reviewing court in a case where the challenge is to the length of a prison term, we find no violation of these prohibitions.
The United States Supreme Court is fractured in its modern decisions applying the Eighth Amendment to noncapital sentencing, but useful guidance can nonetheless be discerned. In a concurring decision in Harmelin v. Michigan (1991) 501 U.S. 957 (Harmelin), Justice Kennedy distilled from the cases "a narrow proportionality principle" prohibiting noncapital sentences only if they are " 'grossly disproportionate' to the crime." (Id., at p. 1000 (conc. opn. of Kennedy, J.).) Giving content to this principle, Justice Kennedy explained that reviewing courts must " 'grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.' " (Id., at p. 999, quoting Solem v. Helm (1983) 463 U.S. 277, 290.) And this is especially so in assessing the proportionality of a sentence of imprisonment, where "the relative lack of objective standards concerning terms of imprisonment" means that successful challenges are " ' "exceedingly rare." ' " (Id. at p. 100, quoting Solem v. Helm, supra, at pp. 289-290.) Even "extended analysis" of a sentence's proportionality is rarely required. (Id. at p. 1004.) "[C]omparative analysis within and between jurisdictions is . . . [¶] . . . appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." (Id. at pp. 1004-1005.) In Harmelin, the defendant received a mandatory sentence of life in prison without the possibility of parole for possessing more than 650 grams of cocaine (32,500 to 65,000 doses), and the court found no need to engage in intrajurisdictional or interjurisdictional analysis, and no constitutional violation. (Id. at pp. 1002, 1005.)
Justice Kennedy's concurring opinion in Harmelin did not command a majority, but it nonetheless sets our course. In Harmelin, seven Justices agreed that the law requires proportionality review at least as vigorous as that required in Justice Kennedy's concurrence (501 U.S. at p. 997 (conc. opn. of Kennedy, J.); id. at p. 1009 (dis. opn. of White, J.)); and five Justices agreed that the law allows for no more rigorous review (id. at pp. 994-995 (lead opn. of Scalia, J.); id. at p. 997 (conc. opn. of Kennedy, J.)). Also, when the court next had occasion to address whether a long prison term violates the Eighth Amendment, and again no single opinion spoke for the court, seven of the nine Justices agreed to deciding the case based on the analysis in Kennedy's Harmelin concurrence. (Ewing v. California (2002) 538 U.S. 11, 20 (lead opn. of O'Connor, J.); id. at p. 36 (dis. opn. of Breyer, J.).) In Ewing v. California, the Supreme Court rejected an Eighth Amendment challenge to a sentence of 25 years to life for the theft of three golf clubs, where the defendant was a parolee with a long string of mostly theft-related prior convictions. (Id. at pp. 17-20 (lead opn. of O'Connor, J.).)
" 'Article I, section 17, of the California Constitution separately and independently lays down the same prohibition' " as the Eighth Amendment. (People v. Marshall (1990) 50 Cal.3d 907, 938, quoting People v. Poggi (1988) 45 Cal.3d 306, 349 (conc. & dis. opn. of Mosk, J.).) It requires that we "examine the circumstances of the offense" and the defendant in determining whether the "the penalty imposed is 'grossly disproportionate to the defendant's culpability.' " (People v. Cox (2003) 30 Cal.4th 916, 969-970, quoting People v. Dillon (1983) 34 Cal.3d 441, 479, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The California Supreme Court has on rare occasion found a term of imprisonment to be cruel or unusual punishment, as when it granted a writ of habeas corpus for a man who, with a prior conviction for indecent exposure, was sentenced to an indeterminate term of up to life in prison for a single incident of masturbating in his car. (See In re Lynch (1972) 8 Cal.3d 410, 426-427.) The severity of Herrera's crimes is vastly different.
Herrera is a grown man who abused his position of trust within the family to force sex on a child, many times over a period of years. His threat to Jane Doe 1 that if she refused to have sexual relations with him he would simply move on to her little sister is as revolting as the fact that, after Jane Doe 1 moved out of the family home at the age of 15, he attempted to make good on this threat. Ten-year-old Jane Doe 1—even 14-year-old Jane Doe 1—was far too young to consent to sexual relations, so the fact that, as Herrera argues, "relatively little force was used" is hardly mitigation. And it is far too soon to conclude, as Herrera's brief argues, that Jane Doe 1's "life appears not to have been damaged much" by Herrera's conduct. The courage that these two girls showed in taking their case to the police and then seeing it through to a trial before a jury with no support from their family is impressive. But if they are coping in difficult circumstances, that is no thanks to Herrera, and we are not so naïve as to assume that the damage his crimes inflicted on these girls ended with his arrest and conviction.
We acknowledge that Herrera had no significant criminal history before he was convicted for these offenses, and we have no reason to doubt the evidence from the forensic psychological evaluation that he is of below-average intelligence and that he faced threats of violence as a youth in El Salvador. But these personal characteristics do not explain or excuse his conduct in this case. Because he subjected at least two girls repeatedly to felonious sexual assaults over a period of years, we find no principled basis for concluding that his sentence, amounting to life in prison without parole, falls outside the range where a reviewing court must defer to legislative judgments on criminal sentencing. (See Harmelin, supra, 501 U.S. at p. 999 (conc. opn. of Kennedy, J.).) A comparison to other sentences in this state confirms this conclusion, as other child molesters have been given the functional equivalent of life without possibility of parole (see, e.g., People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [129-year prison term for 25 offenses molesting stepdaughter]; People v. Lehman (2016) 247 Cal.App.4th 795, 799 (Lehman) [40 years to life plus 12 years for molesting two granddaughters]), as have defendants convicted of crimes less heinous than Herrera's (see, e.g., Lockyer v. Andrade (2003) 538 U.S. 63 [50 years to life for stealing videotapes worth about $150, where defendant had multiple nonviolent strike priors]; In re Coley (2012) 55 Cal.4th 524 [25 years to life for failing timely to register as sex offender].) Herrera's passing reference to statutory penalties in other states for similar conduct does not persuade otherwise, as the prosecution has listed a number of states where penalties up to life in prison are available for a single count of child sexual assault.
In short, Herrera's sentence is no more shocking to the conscience than are his crimes, and we cannot find that it violates federal or state constitutional proscriptions on cruel and/or unusual punishment. D. A Victim Restitution Order Totaling $3.25 Million Is Not an Abuse of Discretion
Pursuant to its obligation to award restitution to crime victims (see § 1202.4, subd. (f)), the trial court ordered Herrera to pay $2.75 million to Jane Doe 1 and $500,000 to Jane Doe 2. These amounts reflect noneconomic damages including pain and suffering, which the court calculated at $50,000 per count for Jane Doe 1 and $250,000 per count for Jane Doe 2. The court acknowledged that this award "is a token. It's not any amount that Mr. Herrera is going [to] pay," but he attempted to "recognize in monetary terms the trauma that these children have sustained at the hands of Mr. Herrera." Herrera challenges the restitution awards as excessive and unwarranted, arguing that the prosecution presented no evidence to support them.
The principal problem with Herrera's challenge is that it ignores the nature of noneconomic damages. Herrera relies on cases discussing restitution orders where a crime victim suffered economic loss. (See, e.g., People v. Giordano (2007) 42 Cal.4th 644, 660-661; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) But section 1202.4, subdivision (f) states that "[t]he court shall order full restitution," to include "for felony violations of section 288" not just economic losses, but also "[n]oneconomic losses, including, but not limited to, psychological harm." (§§ 1202.4, subd. (f), 1202.4, subd. (f)(3)(F).) Noneconomic losses are inherently subjective, and " '[n]o fixed standard exists for deciding the amount of these damages.' " (People v. Smith (2011) 198 Cal.App.4th 415, 436, quoting CACI No. 3905A (2009 ed.).)
This court will set aside a restitution order for noneconomic damages only if it "shocks the conscience and suggests passion, prejudice or corruption." (People v. Smith, supra, 198 Cal.App.4th at p. 436; Lehman, supra, 247 Cal.App.4th at pp. 801-802.) We find no such abuse of discretion here. Before setting the restitution amount, the trial court reviewed the district attorney's brief citing literature and case law as to the inherently harmful nature of child molestation. (See, e.g., J.C. Penney Casualty Insurance Co. v. M.K. (1991) 52 Cal.3d 1009, 1025-1026.) He received information about verdicts, settlements, and restitution orders in civil and criminal cases involving child molestation, at least some of which involved larger awards. And after hearing from both parties he provided a reasoned explanation for his decision, including the observation that "how traumatic it was for the children to testify in court" was "visible. They were shaken." As in Lehman, "more evidence could have been provided concerning the victims' noneconomic losses," but we "cannot conclude the trial court abused its discretion" by making an award of this magnitude, nor that it was error to do so without receiving "victim testimony or affidavits or expert declarations in connection with the restitution hearing." (247 Cal.App.4th at p. 803.)
The large restitution awards in favor of Jane Doe 1 and Jane Doe 2, like the long prison sentence Herrera received, reflect a judgment as to the severity of Herrera's crimes that we decline to disturb.
DISPOSITION
The judgment is affirmed.
/s/_________
Tucher, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------