Opinion
A157116
03-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JASON LOKERSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No.16NF011712)
Jason Lokerson is serving a sentence of 75 years to life in state prison for continuously molesting his two preteen and teenage stepdaughters and molesting two of their friends. The molestations led to his conviction by jury of eight sexual offenses and one count of dissuading a witness. He raises seven evidentiary, instructional, and sentencing issues on appeal, challenging particularly the admission of uncharged sex offense evidence under Evidence Code section 1108 for use as propensity evidence, the admission of expert testimony concerning child sexual abuse accommodation syndrome (CSAAS), and the accuracy of certain jury instructions. He also alleges his sentence was improperly calculated. We reject all his claims, some of which he acknowledges have been rejected before by the California Supreme Court, but which he is raising to preserve for review. We conclude the evidence was properly admitted, the jury was accurately instructed, and the sentence was authorized by law. We affirm his convictions and sentence.
I. BACKGROUND
A. Lokerson's Family
Autumn L. is the mother of Ashlie and Jessica Doe. Ashlie was born in February 2001, and Jessica was born in October 2002. In 2008, Autumn, who then lived with her children in a trailer park in South Carolina, met Lokerson online in a chat room. Lokerson lived in upstate New York. He was working on his Ph.D. in computational neuroanatomy, and Autumn worked as a cake decorator. She moved to New York to be with him, and they married in 2011.
We will refer to all participants in the trial, except Lokerson and the expert witness, by their first names to protect their privacy. (Cal. Rules of Court, rule 8.90.)
From approximately early in 2010, when Ashlie and Jessica were nine and seven, they lived with Autumn and Lokerson in New York and later briefly in Texas before the family moved to Palo Alto in 2012 for Lokerson to take on a higher paying job. Ashlie and Jessica were roughly 11 and 9 years old when they moved to Palo Alto. In May 2015 the family moved to Daly City. The girls were then 14 and 12 years old. B. Natalie Doe (Count 1): lewd act with a minor under age 14 (Penal Code , § 288 , subd. (a))
Further statutory references will be to the Penal Code unless otherwise indicated.
When Jessica was in the seventh grade and lived in Daly City, she made friends with Natalie Doe (unrelated to Jessica and Ashlie). Natalie, who was born in January 2003, often visited Jessica at her house, including for sleepovers.
On June 26, 2016, when Natalie and Jessica were both 13, Natalie spent a Sunday night at Jessica's house. On this occasion, Natalie and Jessica planned to sleep in the garage, which was located downstairs from the main house. According to Natalie, before going to bed, she and Jessica were watching a movie in the garage and wanted to try drinking some alcohol. Jessica brought some "brownish" alcohol down from the house for them to drink. At some point, Jessica wanted to stop drinking but Natalie wanted to continue, so they obtained more alcohol from Lokerson. Jessica did not "appear to be drunk," but Natalie became intoxicated to the point that she "passed out and . . . was in and out of conscious[ness]," without any memory of what happened for some time afterward.
Natalie testified that Lokerson gave the girls the alcohol. According to Jessica, she had initially obtained the alcohol from the kitchen and mixed it with milk in a mug. Jessica did testify that Lokerson later offered her some alcohol; she did not want any, but she got some for Natalie and brought it downstairs.
When Natalie woke up, she found Lokerson taking off her pants and underwear. Lokerson then took out his penis and put it on Natalie's buttocks and on her vagina. He also used his fingers to penetrate her vagina. He attempted to penetrate her vagina with his penis, but he said it was too tight.
Jessica was in the garage while this was happening, and Natalie testified that Jessica became very upset. Jessica screamed at Lokerson to stop and eventually ran upstairs into the house. Jessica later returned to the garage after Lokerson had finished molesting Natalie, and Jessica told him to go upstairs to the house.
Jessica testified that, during the time in which Natalie lost her memory, Natalie asked Jessica in a text message if Lokerson could "come down" to the garage to do "something sexual" with her. Jessica told Natalie it was not a good idea, but "at some point," Lokerson came downstairs and asked Natalie, "What do you want to happen?" Jessica tried to dissuade both Lokerson and Natalie from any sexual interaction, but Natalie responded, "No, no, it's fine," and Lokerson "also said it was fine because [Natalie] was agreeing to it."
Not "want[ing] to believe that it was actually happening," Jessica went upstairs. Just before she did, she saw both Lokerson and Natalie undressed below the waist, with Lokerson "leaning Natalie over the couch and attempting to . . . [¶] . . . [¶] . . . put his penis inside her vagina."
Jessica went to her room and paced for about five minutes, then went back downstairs and again saw Lokerson penetrating Jessica from behind as she was leaning over the armrest of the couch. Jessica again screamed at Lokerson to get off Natalie, but Natalie yelled back at her. When Jessica tried to physically pull Lokerson off Natalie, he pushed her away and told her to go upstairs. Jessica went upstairs a second time and sat on a sofa, waiting for Lokerson to finish.
When Jessica went back downstairs again, Lokerson was putting his pants back on, and Natalie was also getting dressed. Lokerson then left the garage. Natalie and Jessica then started to get ready for bed. As Natalie began to regain her sobriety, she texted Jessica while they were both lying on the sofa, "Did this really happen?" and, "Why did you let this happen?" They then went to bed. When the two girls woke up on Monday morning, Natalie told Jessica she did not want to be anywhere near Lokerson, and Jessica told her he had already gone to work.
After Natalie went back to her house on Monday, she told a friend about what had happened at Jessica's. The friend told Natalie to tell her grandmother, with whom she lived, or else he would tell. But before she told her grandmother, Natalie texted Jessica with the message: "Ur dad. . . . [¶] . . .[¶] . . . He could get in trouble for what he did. I'm getting forced to tell[]."
Jessica was "terrified" when she received this message because she "felt like if somebody found out about it, then [her] whole family [would] be torn apart, like [she] wouldn't see [her] mom and [her] sister." She felt this way because she, too, had been molested by Lokerson, who had told her that "if anybody found out about this, that [Autumn] would go [to] jail, everybody would go to jail, and [the sisters] would become foster kids."
Jessica and Natalie exchanged many text messages concerning what Lokerson had done. They argued about who was at fault: "[Natalie:] 'Am I lying about what your dad did?' [Jessica:] 'Yes.' . . . [¶] . . . [¶] [Natalie:] 'I'm lying about what your dad did?' [Jessica:] 'He didn't rape.' [Natalie:] 'I never said he raped me. He molested me, though.' . . . [¶] . . . [¶] 'You watched the whole thing. How can you say that I'm lying?' [Jessica:] 'You were drunk.' " Jessica tried to convince Natalie not to report the abuse. She even threatened Natalie, "I will fucking hurt you if you do, Natalie," but Natalie ultimately felt "that it was the best thing[] to tell . . . [¶] [b]ecause [Jessica] was in danger and what was happening was not okay."
Later that evening, Natalie did tell her grandmother what happened. Her grandmother took her that same day to the Daly City Police Department, where a detective interviewed Natalie.
Lokerson messaged Natalie on Google Hangouts on the night after the sleepover, saying, "Good having you over as always." Natalie did not respond until June 30, when police officers directed her what to say. In her initial reply, Natalie said, "Yeah, I like coming over, but I just don't like how much alcohol you gave me." She also texted, "Remember the rum you gave me? It made me feel sick." Lokerson replied, "I didn't give you any alcohol, Natalie. In fact, as I recall, I told you specifically 'No' when you and Jessica asked me. Do you remember that?" Natalie texted back, "I don't remember what you said, but I still had the rum and still felt sick." Natalie told Lokerson, "Everything felt weird about that night," and Lokerson responded, "Yeah I bet, but I still care about you. And you're still a good friend to [Jessica]."
Later on June 30, Natalie again texted Lokerson, with police detectives directing what she should say: "Before we pick Jess up, I wanted to let you know about how I felt Sunday night/morning. I love Jessica. She's like a sister to me. I'm scared that what we did might have made me pregnant. I don't know how this works. I am really scared." Lokerson responded, "That's an easy concern to lay to rest. First, you have to actually have sex in order to get pregnant, and a man has to actually ejaculate into you in order to do that. While you were at my house, you definitely did not have sex with any man, so you absolutely do not need to worry. . . . [¶] . . . [¶] . . . If you are really, really worried, though, we do have pregnancy tests here at the house. I can show you how to use it or you can wait until your next period." Natalie answered, "But didn't we have sex?" to which Lokerson replied, "You and I absolutely did not have sex. Holy hell." In a later message, Natalie said, "Yes, you had your di[ck] on my pussy." Lokerson responded, "I'm not sure what's going on right now. I think I'd prefer to talk to you about this in person if you're worried. Do you really not know how pregnancy works?"
Natalie then texted Lokerson, "Okay. I'm a little uncomfortable with everything and I don't want to lose my friendship with Jessica. Can we keep everything that happened between us on Sunday a secret and make sure that only you, Jessica and I know about it?" Lokerson replied, "As far as I'm concerned, there's nothing to talk about, but if you really don't want people to know what you were doing, perhaps it would be a good idea to delete all records that might be used to find that out, including this conversation." Natalie texted back, "Okay. I'm going to do that. We are picking Jessica up in a little bit. Is that okay with you?" Lokerson's answer was: "Totality [sic] fine. Don't talk about anything with her that you wouldn't want someone else to overhear. And I personally will never speak a word of any of this again."
Lokerson was eventually charged in counts 1, 2 and 3 with lewd conduct with a child under age 14 (§ 288, subd. (a)) for his conduct with Natalie (count 1), in addition to a forcible lewd act with a child under 14 (§ 288, subd. (b)(1)) (count 2), and assault with intent to rape a person under 18 (§ 220, subd. (a)(2)) (count 3). Counts 2 and 3 were ultimately dismissed at the People's request, and Lokerson was convicted on count 1. C. Jessica Doe (Counts 4 & 12): continuous sexual abuse of a minor under age 14 (§ 288.5 , subd. (a)) and dissuading a witness (§ 136.1 , subd. (b)(1))
Lokerson was not immediately arrested for his crimes against Natalie. The police investigation seems not to have got off the ground until mid-September 2016. By the end of the summer, Jessica was still angry with Natalie for reporting Lokerson's conduct at the sleepover. Jessica believed Natalie had "told the school that [Lokerson had] raped her" and "felt like [she] couldn't trust" Natalie. Jessica had stopped speaking to Natalie. Both Natalie and Jessica suffered bullying as rumors of Lokerson's rape of Natalie spread throughout the school.
In September 2016, CPS contacted Jessica. Jessica "started to actually tell them what was going on because [she] wanted this whole thing to end." Around the same time, a social worker came to Autumn's house and told her about "rumors . . . that if anybody came to Jessica's birthday party in October, that they would be raped." After hearing those rumors, Autumn asked Jessica whether Lokerson had been hurting her, and Jessica confirmed that he had, without elaborating.
At trial, Jessica testified that Lokerson began touching her sexually while they were living in New York state when she was approximately seven years old. The first incident occurred when Lokerson called Jessica and Ashlie to an area downstairs in the apartment building where they lived and touched their breasts and vaginal areas. Jessica could not recall any other incidents when they lived in New York or Texas. She also recalled a few times when her stepfather would "pull [her] into" a room and "try to mess with [her] or touch [her]" while they were living in their Palo Alto house.
Autumn testified that Ashlie and Jessica moved in with her and Lokerson in New York in approximately June or July of 2010, making them seven and nine years of age when they began living in New York, where they were first molested by Lokerson.
When they lived in Daly City, however, Lokerson touched Jessica in sexually inappropriate ways almost every night. This touching included caressing Jessica's breasts and legs over her clothing and "grab[bing]" her breasts, touching her vaginal area, digitally penetrating her, and having intercourse with her when she was in the shower. Lokerson also orally copulated Jessica every night or every other night. Lokerson also penetrated Jessica's vagina with his fingers and with his penis. Jessica testified that Lokerson had vaginal intercourse with her almost every night. He attempted to penetrate her anus once, but she "pushed him off" because she anticipated it would hurt too much. Jessica also testified that Lokerson told her, if anyone found out about what he had done to her, the family would be separated, she would end up in foster care, and she would never see Autumn and Ashlie again.
The district attorney charged Lokerson with one count of continuous sexual abuse of a minor under age 14 (§ 288.5, subd. (a)) during the period May 1, 2015 to July 31, 2016 (i.e., in the Daly City home) (count 4), forcibly dissuading a witness (§ 136.1, subd. (c)(1)) (count 11), and dissuading a witness (§ 136.1, subd. (b)(1)) (count 12). Count 11 was dismissed on the People's motion at the close of evidence. Lokerson was convicted of counts 4 and 12. D. Ashlie Doe (Counts 5 & 6): attempted sexual penetration of an unconscious person (§§ 289 , subd. (d) , 664) and continuous sexual abuse of a minor under age 14 (§ 288.5 , subd. (a))
After Jessica's disclosure of Lokerson's abuse, Autumn decided to leave Lokerson and take the girls. On September 15, 2016, she picked up the girls from school early, and they left California for North Carolina. Neither of the girls wanted to leave California, and Ashlie was especially upset about leaving her friends. After Ashlie continued to complain about leaving, Autumn told her Lokerson had been "raping Jessica." In response, Ashlie told Autumn that Lokerson had been hurting her, too.
After Autumn and the girls arrived in North Carolina, a Daly City police sergeant came there to interview Jessica and Ashlie on September 23, 2016. On September 26, 2016, a felony complaint was filed against Lokerson in San Mateo County. The operative second amended information was filed November 27, 2018. The case was tried to a jury, with the first witness called December 3, 2018.
At trial, Ashlie recalled Lokerson first engaging in inappropriate activity with her when they were living in New York and he took her to a "sauna room" in the basement of the building. According to Ashlie, while just the two of them were there, he told her to undress and then orally copulated her. After he finished, Lokerson told Ashlie not to tell anyone what he had done because "it was supposed to be a special game that just he and [she] played." Ashlie kept her silence. Lokerson orally copulated Ashlie on many other occasions in her bedroom late at night, in the "sauna room," and sometimes in the master bedroom when Autumn was not home. It happened once or twice a day.
According to Autumn, there was no sauna in the apartment building where the family lived in New York. There was a basement with an area next to the laundry room that was empty when they lived there.
On one occasion in New York, Lokerson tried to penetrate Ashlie vaginally with his penis, but she was too small. Lokerson decided to "break" her "cherry" with his fingers, which "was very painful" and caused her to "bleed[] very heavily." Ashlie also remembered an incident around the same time, when Lokerson tried to "pop [Jessica's] cherry" as he had done to Ashlie's, which put Jessica "in a lot of pain" even though she "didn't bleed." Lokerson also "touched [Jessica's] breasts and vagina area" while they were in New York.
On another occasion in New York, Lokerson, Ashlie and Jessica were in the master bedroom, and he orally copulated Ashlie in front of Jessica. Lokerson then forced Ashlie to orally copulate Jessica. Ashlie felt awful about doing this. She stopped halfway through and left the room.
After the family moved to Texas, Lokerson continued to orally copulate Ashlie frequently, but not as often as in New York. In Texas, a CPS worker came to her school and "asked [Ashlie] if [she] was being touched in any certain area," but she "told them [she] was not" because she "felt ashamed and [she] had been told to say no." She "felt as if it were [her] fault that this w[as] happening to" her. Ashlie did not tell her mother of the abuse, in part because Ashlie "felt like [the abuse] was [her] fault," and it was also her "fault for bringing [Jessica] into this."
When Ashlie was in sixth grade and the family was living in Palo Alto, Lokerson continued to sexually abuse her by orally copulating her and sometimes inserting his fingers into her vagina. These molestations were less frequent than before but took place about once or twice a week. Lokerson continued to warn Ashlie not to tell anyone what he was doing, including "an outright straight threat in Palo Alto saying that if [she] told anyone [she] would lose everything, [her] sister and [her] mother would have nothing, it would be [Ashlie's] fault."
Ashlie and her family moved to Daly City after Ashlie's eighth grade year, and Lokerson continued to orally copulate her, but much less frequently. On one occasion in Daly City, while Ashlie was asleep, she awoke to feel Lokerson touching her leg under her clothes and his fingers slowly creeping upward toward her vaginal area. He "got very close" before she woke up. Neither Ashlie nor Jessica reported Lokerson's abuse to Autumn until after Natalie went to the police.
Lokerson was accused of attempted sexual penetration of an unconscious person (§§ 289, subd. (d), 664) (count 5) and continuous sexual abuse of Ashlie (§ 288.5, subd. (a)) during the period March 1, 2013 to February 17, 2015 (count 6). He was convicted of both counts. E. Zuko Doe (Counts 7-10): sexual penetration of a minor under age 16 by someone over age 21 (§ 289 , subd. (i)) and three counts of lewd conduct with a minor aged 14 or 15 (§ 288 , subd. (c)(1))
While living in Palo Alto, Ashlie became good friends with a classmate named Zuko Doe, whom she met in the sixth grade. Zuko was born in May 2000 and was 18 years old at the time of trial. Zuko occasionally visited Ashlie at her house in Palo Alto. When he did, Zuko observed Lokerson come into the room and tickle Ashlie for no apparent reason and grab her and pick her up without permission.
We will refer to Zuko using masculine pronouns because he is transgender and identifies as male.
During eighth grade, Zuko and Ashlie did not have much contact because Zuko had changed schools; however, over the following summer, they reconnected. At the time they met, Zuko identified as female, but by high school, Zuko started to identify as male. In high school, Ashlie and Zuko began to date as a couple. Zuko also began to visit Ashlie's house much more frequently after Ashlie and her family moved to Daly City.
On one occasion in February 2016, when Zuko was 15 years old, he was in the bathroom at Ashlie's house, standing by the sink, when Lokerson came into the bathroom. Lokerson grabbed Zuko by his chest over his clothes so vigorously that Lokerson left bruises all over Zuko's chest. This type of touching of Zuko's chest occurred on more than one occasion. In fact, it happened once in Autumn's presence. Autumn told Lokerson to give Zuko his space and said Lokerson should not be touching people like that.
Lokerson also picked up Zuko by the crotch and by the buttocks several times. On one such occasion, Zuko was in the kitchen by himself when Lokerson grabbed Zuko between the legs and picked him up in the air.
Lokerson also tickled Zuko. Once this occurred when Zuko was in Ashlie's room in the loft bed with Ashlie. Lokerson entered the room and reached over the railing of the bed and began tickling Ashlie and Zuko. Lokerson proceeded to move his hands beneath Zuko's boxer shorts, and he penetrated Zuko's vagina with two of his fingers. Lokerson then pulled his hand out, patted Zuko's crotch and left.
With respect to Zuko, Lokerson was charged with one count of sexual penetration of a minor under age 16 by someone over 21 (count 7) (§ 289, subd. (i)), and three counts of lewd act on a minor 14 or 15 years old by one 10 or more years older (§ 288, subd. (c)(1)) (count 8: touching chest; count 9: touching buttocks; count 10: touching genital area). He was convicted of all four counts. F. CSAAS Evidence
After securing a favorable ruling on an in limine motion, the People presented testimony by Miriam Wolf as an expert witness on the subject of CSAAS. That testimony will be summarized in part II.D.2., post. G. Defense Evidence
Lokerson presented the testimony of six character witnesses, mostly friends from work (and two extramarital lovers), some of whom had lived sporadically in the Lokerson family home or spent extended time there. All said they saw affectionate and familial interaction between Lokerson and Jessica and Ashlie. They observed no inappropriate touching by Lokerson. One described Lokerson as the "smartest person [he] knew" and called him a "workaholic." Some of these witnesses also testified that, in their opinion, Lokerson did not have any unnatural sexual attraction to children. H. Verdicts and Sentence
Lokerson was charged with 12 offenses, described above, alleged to have occurred when the victims were 12 to 16 years old. At the conclusion of trial, and prior to the case going to the jury, the prosecution's motion to dismiss counts 2, 3, and 11 was granted.
In addition to the substantive offenses, the prosecution also alleged substantial sexual contact within the meaning of section 1203.066, subdivision (a)(8) and multiple victims within the meaning of sections 667.61, subdivisions (e)(4), (j)(2) and 1203.066, subdivision (a)(7) for each count involving a lewd act, forcible lewd act, or continuous sexual abuse against Natalie, Jessica and Ashlie (counts 1, 2, 4 & 6).
The jury convicted Lokerson of all nine counts that remained after the People's motion to dismiss was granted (counts 1, 4-10 & 12), and it found true the multiple victim and substantial sexual contact allegations.
On April 12, 2019, the trial court sentenced Lokerson to three indeterminate terms of 25 years to life on the three lewd act and continuous sexual abuse offenses involving Natalie, Jessica and Ashlie, to run consecutively (counts 1, 4, 6). The court imposed a concurrent sentence of three years on the attempted sexual penetration count (count 5) and concurrent terms of two years each on the charges involving Zuko (sexual penetration, three lewd acts with a 14- or 15-year-old) (counts 7-10), and the dissuading count involving Jessica (count 12). Thus, Lokerson received an aggregate sentence of 75 years to life.
II. DISCUSSION
A. Admission of Historical Evidence of Lokerson's Molestation of Jessica and Ashlie Was Not an Abuse of Discretion
1. Lokerson's Contentions
One of the prosecutor's motions in limine sought to admit evidence of Lokerson's uncharged sex offenses against his stepdaughters in New York and Texas under Evidence Code section 1108 (section 1108). The trial court ultimately allowed the evidence over Lokerson's Evidence Code section 352 objection, a ruling that Lokerson challenges as reversible error.
Lokerson claims the evidence from his abuse of his stepdaughters in New York and Texas, because it involved a different niche of deviant behavior (pedophilia rather than ephebophilia), is wholly irrelevant to the charged offenses. And, he argues, if not wholly irrelevant, then at least the probative value of this evidence was substantially outweighed by its tendency to cause undue confusion and prejudice to him, and it should have been excluded under Evidence Code section 352.
Lokerson argues the uncharged acts were indicative of pedophilic behavior, i.e., involving young prepubescent girls aged seven to nine years old, while the charged offenses in this case were perpetrated against preteen and teenage girls, who were pubescent and postpubescent. That Lokerson had engaged in sexual contact with prepubescent girls, he argues, had "little tendency in reason to suggest a predisposition to engage in later sexual activity with postpubescent teenage females."
Lokerson argues the evidence was unreliable because there was no independent source for the uncharged act allegations. He claims it was unduly prejudicial because it brought before the jury an extensive history of regular molestation and sexual abuse of little girls over a period of several years that had gone uncharged and unpunished, thereby tempting the jury to convict Lokerson for his past misdeeds rather than for the crimes charged in this case. He contends the error was prejudicial and resulted in a miscarriage of justice.
Evidence Code sections 1108 and 352 work in tandem to govern the admission of evidence regarding prior sexual offenses. "The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285; compare Evid. Code, § 1101, subd. (a) with § 1108, subd. (a).) The Legislature, however, created an exception for sex offense cases through section 1108, which provides in relevant part: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." (§ 1108, subd. (a).) Under section 1108, evidence of uncharged sex offenses is admissible to show the defendant has a disposition or propensity to commit sex offenses. (People v. Falsetta (1999) 21 Cal.4th 903, 910-911 (Falsetta).)
Indeed, section 1108 establishes a strong "presumption favoring the admissibility of sexual offense evidence . . . to show propensity to commit the charged offense." (People v. Merriman (2014) 60 Cal.4th 1, 42; see People v. Fitch (1997) 55 Cal.App.4th 172, 175-176 (Fitch); People v. Soto (1998) 64 Cal.App.4th 966, 984 (Soto).) It nonetheless "preserves the trial court's discretion to exclude evidence under [Evidence Code] section 352 if its prejudicial effect substantially outweighs its probative value." (People v. Story (2009) 45 Cal.4th 1282, 1294-1295.)
Falsetta identified several factors (Falsetta factors) that a trial judge must take into account in ruling on a question of admissibility under section 1108: the nature of the uncharged misconduct, its relevance and possible remoteness, the degree of certainty of its commission, the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the uncharged misconduct. (Falsetta, supra, 21 Cal.4th at p. 917; see People v. Story, supra, 45 Cal.4th at p. 1295.)
A ruling admitting propensity evidence under section 1108 is reviewed for abuse of discretion (People v. Branch (2001) 91 Cal.App.4th 274, 282), as are rulings under Evidence Code section 352 generally (People v. Waidla (2000) 22 Cal.4th 690, 724).
3. Relevance
Lokerson first questions the probative value of the New York and Texas evidence because he claims it was fundamentally different from, and therefore irrelevant to, the charged offenses. He contends the evidence of past molestation of his stepdaughters had little or no "tendency in reason" to make it more likely he committed the charged crimes.
It is important to bear in mind why we disallow this particular class of character or propensity evidence in cases where that is called for. "[T]he rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. 'It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.' " (Fitch, supra, 55 Cal.App.4th at p. 179.) Thus, we exclude it as a matter of policy, not as a matter of probative deficiency.
To deny the relevance of past acts of pedophilia to a current charge of ephebophilia is to ignore common sense, as well as the legislative determination, made evident by the enactment of section 1108, that sexual crimes are probative of propensity, and hence are " 'uniquely probative' " in a trial for another sexual crime. (People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) " 'The propensity to commit sexual offenses is not a common attribute among the general public. Therefore, evidence that a particular defendant has such a propensity is especially probative and should be considered by the trier of fact when determining the credibility of a victim's testimony.' (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended July 18, 1995, p. 8.) Another legislative analysis noted, ' "In child molestation actions a history of similar acts tends to be exceptionally probative because it shows an unusual disposition of the defendant—a sexual or sado-sexual interest in children—that simply does not exist in ordinary people." ' (Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 882 (1995-1996 Reg. Sess.) as amended May 15, 1995, p. 6.)" (People v. Johnson (2010) 185 Cal.App.4th 520, 532, fn. 9.)
Lokerson cites People v. Earle (2009) 172 Cal.App.4th 372 (Earle) to suggest that, because the prior uncharged acts were committed against Jessica and Ashlie when they were much younger than they were at the time of the charged offenses, the earlier uncharged acts were essentially irrelevant, or at least more prejudicial than probative. Earle involved an alleged error in denying a severance motion where the People had joined an indecent exposure charge with a charge of assault with intent to commit rape. (Id. at pp. 385-386.) It was not an admission of evidence case, and it does not assist Lokerson.
The majority on the Sixth District panel viewed the indecent exposure charge as being a wholly different crime, with weak propensity inferences attached. (Earle, supra, 172 Cal.App.4th at p. 396.) The majority concluded evidence of defendant's indecent exposure did not have "any tendency in reason" to establish a predisposition to commit assault with intent to rape. (Ibid.; Evid. Code, § 210; see Earle, at pp. 397-400.) But to say a compulsion to engage in indecent exposure is not probative of a later assaultive sex crime is far different from saying that molestation of a young child is a wholly different crime from molestation of a preteen or teenager, particularly when some of the younger and older victims were the same.
We reject Lokerson's premise that pedophilia is a wholly different crime or wholly different disorder from the ephebophilia evidenced in this case, making the commission of one irrelevant to the likelihood he would commit the other.
To substantiate that there is a legally cognizable difference between pedophilia and ephebophilia, making them irrelevant to one another, he cites People v. Jandres (2014) 226 Cal.App.4th 340. But that case does not support his premise. Jandres reversed a conviction based on evidence that the defendant once put his finger into the mouth of an 11-year-old girl admitted to show he was predisposed to rape when he assaulted another person who was an 18-year-old adult. (Jandres, supra, 226 Cal.App.4th at p. 356.) That is a far cry from Lokerson's case.
Thus, Lokerson has cited no legal authority holding that pedophilia and ephebophilia are irrelevant to one another. Even putting to one side the fact that some of the same victims were involved, on this record a jury might well conclude that propensity for sexual activity with little children might suggest a propensity for sexual activity with preteens and teenagers. As long as such an inference is not irrational, the jury was free to draw it. It seems to us a rational conclusion can be drawn that evidence the defendant has one of these two disorders is probative of a predilection to commit acts typical of the other. " ' "Many sex offenders are not 'specialists', and commit a variety of offenses which differ in specific character." ' " (Soto, supra, 64 Cal.App.4th at p. 984.) Indeed, in sex crimes, similar prior offenses are " 'uniquely probative' " of guilt in a later accusation. (People v. Britt, supra, 104 Cal.App.4th at pp. 505-506.) The strength of the inference to be drawn was for the jury to determine.
Unlike the defendant in Earle, Lokerson presented no expert evidence that the two forms of deviance are unrelated. (Cf. Earle, supra, 172 Cal.App.4th at p. 400 [defendant offered expert declaration to court to show indecent exposure charge was irrelevant to charge of assault with intent to commit rape].) He cites no scientific studies, empirical evidence, or expert opinion to show that pedophilia and ephebophilia are mutually exclusive or unlikely to occur in the same person. Without some factual basis for finding the two phenomena disconnected, we see no reason to make an across-the-board judgment that the evidence of molestations in New York and Texas did not have "any tendency in reason" (Evid. Code, § 210) to make his commission of the crimes in California more probable.
4. Evidence Code Section 352 and Falsetta Factors
The trial court's admission of the evidence of earlier molestations in New York and Texas, Lokerson claims, violated Evidence Code section 352 because it allowed the jury to consider uncharged acts of pedophilia as evidence that he had a propensity to commit ephebophilia, resulting in prejudice to him and a miscarriage of justice. Evidence Code section 352 allows the court to exclude evidence that would (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. By its incorporation of Evidence Code section 352, section 1108 makes evidence of uncharged sex offenses inadmissible only if the court determines that its probative value is "substantially outweighed" by its prejudicial impact. (Evid. Code, § 352.)
The trial judge found the evidence admissible after balancing the probative value against prejudicial effect. We discuss below the most pertinent of the Falsetta factors and those relevant under Evidence Code section 352. We will not overturn or disturb a trial court's exercise of its discretion under Evidence Code section 352 in the absence of manifest abuse, or upon a finding that its decision was palpably arbitrary, capricious or patently absurd. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
a. Nature of the Acts: Pedophilia versus Ephebophilia
As even Lokerson admits, his charged and uncharged conduct was essentially the same, generally involving digital penetration, oral copulation and sexual intercourse. We reject Lokerson's argument that dissimilarities in the ages of his victims as the molestation continued year after year rendered section 1108 evidence more prejudicial than probative. To the contrary, People v. Daveggio and Michaud (2018) 4 Cal.5th 790 (Daveggio) held that uncharged offense evidence was probative of the charged offenses even though the 12- and 13-year-old victims of the prior offenses were "meaningfully younger than the victims of the charged offenses." (Id. at pp. 825-826.) The Supreme Court noted that it had already "held, for example, that a court permissibly admitted evidence that a defendant had raped a six year old in a trial concerning the rape and murder of a 14-year-old victim"—a bigger age difference than the one in this case—was relevant and admissible. (Id. at p. 826, citing People v. Williams (2016) 1 Cal.5th 1166, 1197.)
Likewise, People v. Cordova (2015) 62 Cal.4th 104 (Cordova) described the 8-year-old victim of the charged offense and the 10- and 12-year-old victims of the uncharged offenses as being "young children of similar age." (Id. at pp. 109, 114, 134; see Soto, supra, 64 Cal.App.4th at pp. 970, 977-978, 991 [describing victims of uncharged offenses with ages between 4 and 8 years old as being "within the same age range" as 12-year-old victim of charged offense].) The difference in ages between the victims of the charged offenses and the ages when Jessica and Ashlie were molested in New York and Texas was not so great as to render the evidence of the past molestations inadmissible, or even to move the needle substantially in that direction.
b. Certainty of Commission (Reliability)
Lokerson admits the uncharged acts were not too remote to be used as evidence in his trial. Moreover, "significant similarities between the prior and the charged offenses may 'balance[] out the remoteness.' " (People v. Branch, supra, 91 Cal.App.4th at p. 285.) And the similarities here showed a pattern of conduct that continued into the time of the currently charged offenses.
Lokerson argues, however, that the evidence of the uncharged acts was relatively weak, in part because it came from Jessica and Ashlie, the same sisters who testified against him on the charged crimes. And, he points out, there was no corroborating evidence for the tales told by his stepdaughters about early childhood sexual abuse they experienced. Of course, there rarely will be corroborating evidence for the kind of crimes committed here, especially because Lokerson told both girls if they disclosed the abuse it would tear apart the family and they would be put into foster care.
In addition, "nothing about the [section 1108] evidence made the [charged offense] evidence look substantially more credible than it would have otherwise." (People v. Ennis (2010) 190 Cal.App.4th 721, 734.) "If the jury was not inclined to believe what [Ashlie and Jessica] had [testified] about what happened to [them] in California . . . , it's difficult to imagine how hearing additional evidence from the same sources, about similar crimes committed against [them] in [New York and Texas], would change anything." (Ibid.; see People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
The jurors saw the witnesses' demeanor and could judge for themselves the credibility of the testimony. The evidence of past similar misconduct was reliable enough for admission, balanced with the other Falsetta factors and with the considerations under Evidence Code section 352.
c. Jury Confusion
Lokerson argues that jury confusion was a risk from admitting the New York and Texas incidents, implying the jurors might be confused as to which acts were charged as crimes and which acts were admitted as section 1108 evidence. (Falsetta, supra, 21 Cal.4th at pp. 916-918.) That risk is minimized here because the section 1108 evidence occurred in different states, and the jury could readily grasp that such evidence was not offered as direct evidence of a California crime. It is unlikely the jury was confused or misled by the evidence of Lokerson's historical molestation of Jessica and Ashlie.
d. Difficulty Defending Against Uncharged Conduct Allegations
Lokerson argues the relative remoteness of the uncharged accusations and the lack of notice they would be admitted into evidence considerably increased his difficulty in defending against the charged offenses. He points to the difficulty in obtaining witnesses or other evidence to contradict the testimony of Jessica and Ashlie about the molestations in New York and Texas. The fact is, however, that one of Lokerson's defense witnesses did testify that he saw no inappropriate behavior with the girls when he lived in Lokerson's home in New York or visited his home in Texas, or when he lived with Lokerson's family in Palo Alto. This severely undercuts Lokerson's claim that his ability to defend was compromised.
e. Lack of Prosecution on Prior Misconduct
If a defendant was convicted of the earlier offense, evidence of that fact enters into the admissibility calculus in two ways. First, it increases reliability of the testimony about past occurrences, thus tending to weigh in favor of admissibility. And it also decreases the likelihood that the jury will be overpersuaded to convict, making it less prejudicial and more likely to be allowed into evidence. Falsetta notes that lack of prosecution for the prior misconduct may make the jury more inclined to convict on the charged offenses because they may believe the perpetrator escaped punishment on the earlier offenses. (Falsetta, supra, 21 Cal.4th at p. 917.)
Here, we have no evidence that Lokerson had been charged or prosecuted for any sexual misconduct in either New York or Texas, and thus a jury might be inclined to treat Lokerson more harshly because he escaped punishment for the earlier molestation. (Falsetta, supra, 21 Cal.4th at p. 917.) Lokerson argues this factor increased the prejudicial effect of the section 1108 evidence, and it should have been excluded.
The Department of Social Services in New York investigated when a neighbor reported seeing Lokerson kiss Ashlie or Jessica inappropriately and, according to Jessica, was accused of building a bomb in his basement. However, there was no indication that this investigation had resulted in any type of criminal prosecution. Jessica had been questioned at school by CPS both in Palo Alto and Daly City, but she denied that anything inappropriate was going on.
On this point, Lokerson cites People v. Harris (1998) 60 Cal.App.4th 727 (Harris), where the Court of Appeal found an abuse of discretion in the admission of prior offense evidence, in part because the jury may have been influenced by the fact that the defendant was never punished for more serious offenses arising out of the earlier incident. In finding an abuse of discretion, the court in Harris relied on, not only the highly inflammatory nature of the prior violent conduct, but also the fact that, having learned the defendant only had been convicted of burglary in the earlier incident, the jurors likely concluded he had escaped the appropriate rape charge and may have opted to punish him in the present matter for the crimes he seemingly got away with in the earlier prosecution. (Id. at pp. 738-739.) As in Harris, Lokerson argues, the nature of the prior uncharged sexual misconduct in this case was so emotionally charged as to evoke a particularly visceral reaction on the jurors' part.
But Harris was a far different case. Significantly, the uncharged conduct in Harris had occurred 23 years earlier, and the defendant had led an "unblemished life" since then. (Harris, supra, 60 Cal.App.4th at pp. 730-732, 738-739.) The Supreme Court has distinguished Harris on the following grounds: "In Harris, the victims of the charged offenses were mental health patients at a treatment center where the defendant was employed as a mental health nurse, and the offenses involved breaches of trust rather than violence." (Cordova, supra, 62 Cal.4th at p. 134.) "The uncharged offense, by contrast, was a violent sexual assault on a resident of an apartment complex," and "the evidence of the uncharged crime [w]as 'inflammatory in the extreme.' " (Cordova, at p. 134, quoting Harris, at p. 738.) "Thus, the charged offenses were 'of a significantly different nature and quality than the violent and perverse attack on a stranger that was described to the jury.' " (Ibid.) In fact, Harris's 23-year-old prior had been a brutal rape of Harris's neighbor, in which he had stabbed the victim repeatedly with an ice pick and mutilated her vagina. (Harris, supra, at pp. 733-735.) The jurors heard testimony describing the "viciously beaten and bloody victim," they were told that Harris was arrested nearby with blood on his clothes and penis, and they were informed that he was convicted only of burglary, with serious bodily injury, in connection with that crime. (Id. at pp. 734-735, 738.)
Nothing in Harris supports Lokerson's theory that section 1108 evidence must be excluded merely because of a small difference between the uncharged and charged victims' ages. The similarities between Lokerson's conduct in New York and Texas and his conduct in California are far more significant than the similarities between past and current offenses in Harris. And remoteness, which was central to Harris's reasoning, is absent here, for Lokerson admits his prior conduct was not so remote as to warrant exclusion. B. The California Supreme Court Has Approved the Admissibility of Prior Sexual Offense Evidence To Prove Propensity over Federal Constitutional Challenge
1. Testimony Regarding Prior Misconduct by Victims of Charged Offenses
Testimony coming from the complaining witness about other uncharged misconduct by the defendant is "not as probative as similar testimony from a third party"; however, "it is still probative." (People v. Gonzales (2017) 16 Cal.App.5th 494, 502 (Gonzales).) The risk of admitting such evidence is that the complaining witnesses could fabricate or exaggerate testimony about past events in order to secure a conviction on the charged offenses. Lokerson's trial attorney suggested to the jury from his opening statement onward that the four teenagers Lokerson had molested had done just that. That boils down to a question of credibility, which the jury is entrusted to resolve.
In Gonzales, supra, 16 Cal.App.5th 494, a defendant was charged with several sex offenses against the child of the woman with whom he lived, beginning when the little girl was five years old when they lived in Santa Barbara, and again later when they moved to Ventura, California. (Id. at p. 497.) Between the time they lived in Santa Barbara and the time they moved to Ventura, the family moved to Arizona for a time, where the molestation continued. (Id. at p. 498.) The trial court admitted evidence of the Arizona molestations, testified to by the child victim. (Id. at pp. 501-502.)
The Court of Appeal was "concerned . . . with the relationship between CALCRIM No. 1191, instructing on evidence of uncharged sex offenses against the victim, and Evidence Code section 1108." (Gonzales, supra, 16 Cal.App.5th at p. 496 & fn. 1; id. at pp. 505-507 (conc. opn. of Perren, J.).) Despite these concerns, Gonzales upheld the convictions, concluding that testimony by the victim of the charged offense about other incidents of similar uncharged misconduct, "though not common, is in accord with established precedent." (Gonzales, at p. 496.) We reach the same conclusion here. (See pt. II.C., post, discussing CALCRIM No. 1191.)
We also find on point People v. Ennis, supra, 190 Cal.App.4th 721 where the charged offenses were that the defendant sexually abused his daughter and stepdaughter while the family was living in San Clemente, California. (Id. at p. 726.) The defendant, his daughter and her mother went to live in Arizona for a time, while the stepdaughter went to live with her father. (Ibid.) The trial court admitted evidence that Ennis continued to sexually abuse his daughter while they were living in Arizona. (Id. at p. 732.) The Court of Appeal upheld the convictions, finding no abuse of discretion in admitting the Arizona evidence, despite observing that the evidence had some increased potential for prejudice and a somewhat reduced probative value because it came from one of the complaining witnesses. The prejudicial effect did not substantially outweigh the probative value. (Id. at pp. 733-735.)
The trial court here also did not abuse its discretion in admitting the evidence of Lokerson's earlier molestation of his stepdaughters in New York and Texas. The disputed evidence required no undue consumption of time in the trial. (Evid. Code, § 352.) It consumed less than 30 pages of a reporter's transcript of more than 1,100 pages. (Cf. People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [35 pages].) There was no overwhelming risk of "undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We have already discussed confusion of issues. We find no significant risk the jury was misled and no intolerable risk of undue prejudice, and no error in admitting the earlier, out-of-state uncharged offenses evidence.
2. Due Process
Lokerson argues the uncharged crimes evidence rendered the trial fundamentally unfair, thereby violating the due process clause of the Fourteenth Amendment to the United States Constitution, regardless of whether the ruling complied with state evidentiary law. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.)
Lokerson briefs the issue at length, even though the California Supreme Court long ago rejected the identical arguments in Falsetta, supra, 21 Cal.4th at page 917. It is beyond our authority to disagree with Falsetta, even if we were so inclined. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Over the two decades following Falsetta, the California Supreme Court has "repeatedly declined" defendants' invitations to "reconsider that holding." (People v. Molano (2019) 7 Cal.5th 620, 664, citing Daveggio, supra, 4 Cal.5th at p. 827; accord, People v. Rhoades (2019) 8 Cal.5th 393, 415.)
Lokerson raises the issue here to preserve it for future review in another court. Accordingly, we reject the due process argument without further discussion. (See People v. Phea (2018) 29 Cal.App.5th 583, 606.)
3. Equal Protection
Lokerson also raises an equal protection argument that section 1108 discriminates against him, as a sex-offense defendant, vis-à-vis defendants charged with other crimes. Lokerson points out that propensity evidence is only allowed in sex offense cases, domestic violence cases, and elder abuse cases. (Evid. Code, §§ 1108, 1109.) In other criminal cases, the use of prior misconduct evidence is more restricted and is not admissible to prove propensity. (Evid. Code, § 1101, subds. (a) & (b).)
The argument does not warrant a lengthy response. The Court of Appeal in Fitch, supra, 55 Cal.App.4th 172 rejected the equal protection challenge Lokerson raises here. (See Fitch, at pp. 184-185 [applying rational basis scrutiny to § 1108 and holding it "withstands this relaxed scrutiny"]; accord, People v. Holford (2012) 203 Cal.App.4th 155, 186; People v. Jennings, supra, 81 Cal.App.4th at pp. 1310-1313 [rejecting equal protection challenge to Evid. Code, § 1109].)
Although Falsetta, supra, 21 Cal.4th 903 did not directly resolve an equal protection challenge to section 1108, it did cite with approval the equal protection analysis in Fitch, supra, 55 Cal.App.4th at pages 184-185. (Falsetta, at p. 918.) It noted Fitch had "rejected the defendant's equal protection challenge, concluding that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests. [Citation.] As Fitch stated, 'The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others.' " (Falsetta, at p. 918; see People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395 ["For the reasons best expressed in Fitch, which were endorsed in Falsetta, we reject Waples's equal protection attack on Evidence Code section 1108."].) We are on solid ground in denying Lokerson's equal protection challenge. C. CALCRIM Nos . 1191A and 1191B Correctly Summarize the Law Relating to Evidence of Prior Uncharged Sexual Misconduct and Do Not Violate Due Process
1. Background and Lokerson's Contentions
CALCRIM Nos. 1191A and 1191B were given to the jury in this case without objection by the defense. Lokerson contends the instructions were erroneous in that they interfered with the presumption of innocence and Lokerson's right to have the jury make a determination of guilt upon proof beyond a reasonable doubt. He thus claims the instructions violated the due process clause of the federal Constitution. (U.S. Const., 14th Amend.)
CALCRIM No. 1191A, as given to the jury, read:
"The People presented evidence that the defendant committed lewd acts that were not charged in this case. These crimes are defined for you in these instructions.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the sexual offenses, as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the sexual offenses. The People must still prove each charge and allegation beyond a reasonable doubt.
"Do not consider this evidence for any other purpose."
The jurors were then instructed with a modified version of CALCRIM No. 1191B, which informed them that they could also use evidence of one charged sexual offense, if they found that offense true beyond a reasonable doubt, to "conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit [and did commit] the other sex offenses charged in this case."
2. Forfeiture of Instructional Error
Lokerson argues he has not forfeited the instructional issue because his federal constitutional rights were violated by the instructions given. "Preliminarily, because [Lokerson] failed to object below, his state law claims asserting error on the instructions have been forfeited. [Citation.] But failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected. [Citations.] Here, [Lokerson] claims that the flawed instructions deprived him of due process, and because this would affect his substantial rights if true, his claim is not forfeited." (People v. Mitchell (2019) 7 Cal.5th 561, 579-580.)
3. The Merits
On the merits, Lokerson's claims fail. In People v. Reliford (2003) 29 Cal.4th 1007, the Supreme Court held that CALJIC No. 2.50.01, the former propensity evidence instruction given in sex offense cases, correctly stated the law and did not violate due process. (Reliford, at pp. 1009, 1012-1016.) In People v. Cromp (2007) 153 Cal.App.4th 476, the Third District held that CALCRIM No. 1191 is not materially different from CALJIC No. 2.50.01, and so it rejected similar constitutional challenges to CALCRIM No. 1191. (Cromp, at p. 480.) Other Courts of Appeal have reached the same conclusion (People v. Phea, supra, 29 Cal.App.5th 583, 609; People v. Schnabel (2007) 150 Cal.App.4th 83, 87), as has the Supreme Court itself (People v. Villatoro (2012) 54 Cal.4th 1152, 1160 (Villatoro)). For the purpose of evaluating Lokerson's claims, there is "no material difference" between CALCRIM No. 1191A and its predecessor CALJIC No. 2.50.01. (People v. Phea, at p. 609.)
Lokerson attempts to draw distinctions between the CALJIC instruction and the CALCRIM instructions here at issue based on drafting history. True, what is contained in current CALCRIM No. 1191B did not appear in the earlier CALJIC instruction approved in Reliford. CALCRIM was amended in March 2017 to add CALCRIM No. 1191B, which covers the prosecution's use of evidence of one currently charged sexual offense, admitted under Evidence Code section 1108 as to other charged sexual offenses, to support an inference of propensity and guilt on any other charged sexual offense. The CALCRIM Bench Notes cite as authority for the change both Villatoro, supra, 54 Cal.4th at page 1161, and People v. Cruz (2016) 2 Cal.App.5th 1178, 1186. (Judicial Council of Cal., Crim. Jury Instns. (2020) Bench Notes to CALCRIM No. 1191B, p. 972.) Thus, CALCRIM No. 1191B appears to have been intended to implement the holding of Villatoro: "nothing in the language of . . . [section] 1108 restricts its application to uncharged offenses" (Villatoro, at p. 1164), while confirming the beyond-a-reasonable-doubt standard of proof, as required by Cruz (Cruz, at pp. 1185-1187).
Because of its relatively recent addition to CALCRIM, we find that an objection to the use of CALCRIM No. 1191B would not have been futile. We consider a colloquy during in limine motions in which defense counsel objected to section 1108 evidence coming in from Ashlie and Jessica to have preserved the issue for both evidentiary and instructional purposes.
In Villatoro, "the modified CALCRIM No. 1191 explained to the jury that if it decided that defendant had committed a charged sex offense, 'from that evidence' it could conclude that defendant had a disposition to commit the other charged sex offenses, and that based on that decision, the jury could also conclude that defendant was likely to and did commit the other charged sex offenses." (Villatoro, supra, 54 Cal.4th at p. 1165.) Though it was apparently specially drafted for use in the Villatoro trial, the instruction there described appears very close to what eventually became CALCRIM No. 1191B. Villatoro held the instruction properly implemented section 1108 and did not violate due process. (Villatoro, at pp. 1160, 1169.)
Adhering to Villatoro, the trial court properly instructed the jury with CALCRIM No. 1191B. (Villatoro, supra, 54 Cal.4th at pp. 1259, 1164; People v. Meneses (2019) 41 Cal.App.5th 63, 66.) Indeed, as suggested in Meneses, we may be compelled by Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, to find no instructional error based on Falsetta, Reliford and Villatoro. (Meneses, at p. 68.) Because Lokerson raises this issue to preserve it for future review by another court, we need not say more. D. Lokerson Has Forfeited His Challenge to Admission of CSAAS Evidence
1. The Motion in Limine
The People moved in limine to admit Wolf's testimony about CSAAS as an expert witness, which motion was granted. Defense counsel did not file papers in opposition to the motion in limine. He told the judge he did not want CSAAS mentioned to the jury before the admissibility was ruled on, and he suggested waiting to see how the evidence developed to make a ruling. The judge granted the motion if supported by the evidence. When the issue arose in trial, defense counsel did not object to the evidence and stipulated to the witness's expertise. Consequently, in addition to the testimony of complaining witnesses summarized in part I., ante, the prosecution presented the testimony of an expert witness on CSAAS.
2. Wolf's Testimony About CSAAS
Miriam Wolf, a licensed clinical social worker, is the director of the forensic interviewing program and works as a contract interviewer at the Keller Center, a facility in San Mateo County that evaluates victims of alleged child or adult sexual abuse and other interpersonal crimes. She has master's degrees in social work and in special education. In her professional capacity, Wolf is familiar with the subject of CSAAS. Wolf had worked at Keller Center for the last 15 years and before that she had worked in the same field for five years in Los Angeles. In her career, she had treated roughly 1,500 to 2,000 children who had alleged sexual abuse, and had consulted on another 1,000 or so cases. She had testified previously in approximately 100 trials. Defense counsel stipulated to her expertise in forensic examination of children and in CSAAS.
Wolf explained there are five components of CSAAS, which is a cluster of behaviors frequently exhibited by children who have suffered sexual molestation, which helps to explain the unique characteristics of reporting by such children. The CSAAS components are: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) recantation. Her expert testimony was based on (1) Dr. Roland Summit's article, which in turn was based on Summit's clinical experience and that of his colleagues; (2) a "tremendous amount" of additional research on CSAAS over the past 30 years, including Summit's 1993 article in which he regretted calling CSAAS a "syndrome"; and (3) "25 to 30 years" of Wolf's own clinical experience, including her treatment of and consultation regarding roughly 3,000 children reporting sexual abuse.
Wolf elaborated that sexual abuse occurs in secret, and children often keep sexual abuse a secret for extended periods of time because they are either told to by their abuser or because they intuit that they should not tell others. The sense of helplessness derives from the power differential inherent in any relationship between children and adults. Entrapment and accommodation explain the adult's ability to repeatedly abuse the child, and the child's psychological accommodation of the abuse, which may include compartmentalization and disassociation.
As for delayed, conflicted, and unconvincing disclosure, as noted, child sex abuse victims often do not report the abuse for weeks, months or even years. In addition, when a child does disclose the abuse, the disclosure is often tentative, hesitant and conflicted due to an existing relationship with the abuser. Also, it is common for minors to disclose the molestation in pieces over time to gauge the response of the recipient of the information. Finally, recantation can occur because the victim is so overwhelmed by the consequences of the disclosure that he or she disavows or minimizes the earlier allegations.
Wolf's recitation of CSAAS attributes assisted the jury by supplying them with nonobvious facts learned through her study and long experience. Her testimony did not include any of the facts of the current case or an opinion about whether Ashlie and Jessica were telling the truth.
3. Lokerson's Contentions
Lokerson first argues that the CSAAS evidence inevitably was used by the jury as direct evidence of defendant's guilt by the very fact of having been instructed they could use it to assess the "believability" of the complaining witnesses. He next argues the CSAAS evidence was inadmissible because it did not pass a threshold reliability test under Kelly/Frye. But his real point seems to be that, regardless of what may have been true under the Kelly/Frye test, the court's duty in screening expert testimony has since been clarified and superseded by Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 (Sargon), and with it Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. Wolf's testimony, he suggests, was not admissible under Sargon and Daubert.
People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014.
4. Forfeiture and the Futility Exception
As noted, the CSAAS testimony was the subject of the prosecution's motion in limine. Defense counsel not only made no written opposition to the motion, he actually stipulated to Wolf's expertise in CSAAS. Lokerson's counsel did not raise Kelly/Frye or Sargon in the trial court. The issues he now seeks to raise are forfeited. (Evid. Code, § 353; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 [contentions or theories raised for the first time on appeal are not entitled to consideration]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 ["It must appear from the record that the issue argued on appeal was raised in the trial court. If not, the issue is waived."].)
Lokerson claims his failure to object must not be construed as a forfeiture because an objection would have been futile. The Attorney General agrees there was no forfeiture on the ground of futility. We decline to accept the Attorney General's concession. And while we may have discretion to overlook the forfeiture and address Lokerson's claim on the merits, we choose not to exercise that discretion in his favor.
Futility is recognized as an exception to the requirement of an objection where a change in law has occurred that allows for a ruling favorable to the party who failed to object, but that was not available at the time of trial. (See, e.g., O'Connor v. Ohio (1966) 385 U.S. 92, 93 ["failure to object in the state courts . . . to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court" (italics added)]; People v. De Santiago (1969) 71 Cal.2d 18, 22-28; People v. Kitchens (1956) 46 Cal.2d 260, 263 [forfeiture "not applicable to appeals based on the admission of illegally obtained evidence in cases that were tried before" People v. Cahan (1955) 44 Cal.2d 434 was decided]; People v. Castellano (2019) 33 Cal.App.5th 485, 489 [reliance on a "newly announced constitutional principle that could not reasonably have been anticipated at the time of trial" will exempt a party from forfeiture].) As the court said in De Santiago, "The crucial question confronting us in the case at bench is whether or not the rule announced in [People v.] Gastelo [(1967) 67 Cal.2d 586], . . . represented such a substantial change in the former rule as to excuse an objection anticipating that decision." (De Santiago, at p. 23, italics added.)
Futility may be shown in other ways, such as when a judge has shown hostility toward the objection (see People v. Lucas (2014) 60 Cal.4th 153, 287) or when an opposing counsel has behaved in so "extreme," "outrageous," or "unethical" a manner as to make an objection tactically unsound. (See People v. Hill (1998) 17 Cal.4th 800, 838, 845.) As the parties have referred to "futility" in their briefing, however, we believe it requires a change in law before it will excuse a failure to object at trial.
The Attorney General cites People v. Perez (2020) 9 Cal.5th 1, in agreeing with Lokerson's forfeiture and futility analyses. (Id. at p. 14.) But Perez, too, discussed forfeiture in the context of the changes in admissibility of expert evidence occasioned by People v. Sanchez (2016) 63 Cal.4th 665. (Perez, at pp. 7-14.) The Supreme Court decided an attorney's failure to object at trial based on confrontation grounds did not forfeit the issue on appeal because Sanchez changed the law in ways that a competent and knowledgeable attorney may not have foreseen. (Id. at p. 8.) Just because "some attorneys may have had the foresight to raise th[e] issue does not mean that competent and knowledgeable counsel reasonably could have been expected to have anticipated the high court's decision . . . ." (People v. Black (2007) 41 Cal.4th 799, 812 [not applying forfeiture to cases raising constitutional sentencing error that were tried before Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270 were decided].) Thus, the failure to object in Perez, as in the other cases cited, was excused under the futility exception because there had been a change in the law. In our view, the futility exception is limited to cases in which the law has changed between the time of trial and the time of appeal. (See Perez, at pp. 7-14.) No such change in the law is involved in this case.
We conclude the usual rule of forfeiture should apply here. "[I]t is still generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court." (People v. Flinner (2020) 10 Cal.5th 686, 726; People v. Krebs (2019) 8 Cal.5th 265, 323; see, e.g., People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1208 [contention that "bad character evidence . . . was admitted in violation of Evidence Code section 1101" was forfeited by failing to object in trial court]; People v. Maciel (2013) 57 Cal.4th 482, 531 ["Because defendant did not object to the admission of the testimony on any ground," his claim of error in its admission was forfeited.].)
There is no reason to excuse the defense attorney's failure to object in this instance. Nor can he be accused of ineffective assistance of counsel, given the state of the law. This was not a situation in which the caselaw was unclear and there was some purpose to preserving the issue. Nor has Lokerson pinpointed on appeal a change in the law after trial that should cause us to overlook his forfeiture.
The closest he comes is his citation of Sargon, suggesting it changed the calculus of admissibility of CSAAS expert testimony. Sargon was decided in 2012, long before this case was tried. If there was a viable objection to be made based on Sargon, it needed to be made at trial. It was not. Hence, the claimed error was forfeited by failure to object. (Evid. Code, § 353.) Mere development of a new legal theory devised by counsel on appeal does not excuse a failure to object in the trial court.
We proceed to a merits discussion only to explain our conclusion that the law has not changed since trial in a way that would affect admissibility of the CSAAS evidence in this case. Hence, there was no futility to excuse counsel's failure to object.
5. The Law Relating to Expert Testimony on CSAAS Has Not Changed Since Trial
In general, expert testimony is admissible if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) " '[E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would 'assist' the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) The trial court has broad discretion to decide whether to admit expert testimony, and we review the trial court's decision for abuse of discretion. (People v. Duong (2020) 10 Cal.5th 36, 60; People v. McDowell (2012) 54 Cal.4th 395, 426.) The ruling will not warrant reversal " 'unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
CSAAS is a therapeutic tool that describes behaviors often found in sexually abused children. (People v. Bowker (1988) 203 Cal.App.3d 385, 389 & fn. 3.) CSAAS theory was developed from the clinical research of Dr. Summit and his colleagues, which identified a cluster of behaviors commonly displayed by children who reported they had been sexually abused. The CSAAS theory was identified for use in the therapy and treatment of such minors. (Id. at p. 392, fn. 8; In re Sara M. (1987) 194 Cal.App.3d 585, 593.)
As Wolf also told the jury, CSAAS is not a diagnostic tool, and it is not admissible to prove that a child was molested. (McAlpin, supra, 53 Cal.3d at p. 1300 [CSAAS evidence properly admitted to explain delayed reporting by victim's parent]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 [CSAAS evidence properly admitted]; see People v. Bledsoe (1984) 36 Cal.3d 236, 247-251 [rape trauma syndrome evidence not admissible to prove a rape occurred].)
Our Supreme Court has recognized that expert testimony on CSAAS is admissible to rehabilitate a complaining witness's credibility when the defendant suggests that the child's conduct after an alleged molestation is inconsistent with his or her claim of molestation. (McAlpin, supra, 53 Cal.3d 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.) The Supreme Court has recognized that these misconceptions and stereotypes are deeply ingrained and are false. (Id. at pp. 1302-1303.) CSAAS evidence helps to debunk the "widespread public image of the child molester as an old man in shabby clothes who loiters in playgrounds or schoolyards and lures unsuspecting children into sexual contact by offering them candy or money" and other false public imaginings about the " 'typical' " child molester. (Ibid.)
If admissible to rebut a suggestion of fabrication by the defense or a challenge to the complaining witness's credibility, CSAAS evidence may be admitted either in rebuttal or in the prosecution's case-in-chief. (People v. Sanchez (1989) 208 Cal.App.3d 721, 735-736 [rehabilitative testimony properly admitted during prosecution's case-in-chief where victim's credibility was attacked on cross-examination]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 159-160, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [prosecutor not limited to using such testimony on rebuttal]; People v. Housley (1992) 6 Cal.App.4th 947, 955-956 [same].) The prosecutor need not specifically identify a particular " 'myth' " or " 'misconception' " from which the jury suffers, nor is he or she required to produce evidence to show the jury had misconceptions about child sexual abuse. (People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
In the nearly 30 years since McAlpin was decided, the California courts have consistently and routinely followed McAlpin in holding CSAAS testimony admissible to rehabilitate witness credibility and to explain the self-impeaching behavior of children who have been sexually abused. (E.g., People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Julian (2019) 34 Cal.App.5th 878, 885-886 [CSAAS testimony was admissible, but testimony on statistical probability of guilt was not]; People v. Perez (2010) 182 Cal.App.4th 231, 245; cf. People v. Brown (2004) 33 Cal.4th 892, 906-907 [same rule in domestic violence cases]; People v. Wells (2004) 118 Cal.App.4th 179, 187-190 [CSAAS rule does not allow expert testimony that victim's demeanor showed she had not been abused].) Indeed, our state "courts have long recognized the well-established relevance, necessity, reliability, and importance of this evidence." (Munch, supra, 52 Cal.App.5th at p. 472.)
In this case, the stepdaughters' credibility was a central issue at trial, and CSAAS testimony was admissible to help the jury understand their actions in response to the abuse. As the Patino court explained, "[i]t is sufficient if the victim's credibility is placed in issue due to . . . paradoxical behavior, including a delay in reporting a molestation," and CSAAS evidence is "pertinent and admissible if an issue has been raised as to the victim's credibility." (People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Thus, we conclude the law relating to CSAAS has not changed since the trial two years ago. Counsel's failure to object forfeited the claim that CSAAS evidence was improperly admitted. E. CALCRIM No. 1193 Correctly Instructed the Jury on Its Use of CSAAS Evidence
Lokerson claims CALCRIM No. 1193 incorrectly instructed the jury because it allowed them to consider CSAAS evidence, in part, to determine the "believability" of the complaining witnesses. Defense counsel did not object to CALCRIM No. 1193, but we address the merits of Lokerson's argument because he contends the instruction reduced the prosecutor's burden of proof and denied him due process. At least where a federal constitutional violation has been alleged on appeal, and hence the defendant's substantial rights are at stake, the instructional issue is not forfeited. (People v. Mitchell, supra, 7 Cal.5th at pp. 579-580; see § 1259.) We address the issue on the merits.
We reject Lokerson's argument that the court prejudicially misinstructed the jury by using CALCRIM No. 1193 in a manner that violated due process. CALCRIM No. 1193 is essentially a limiting instruction telling jurors how they are allowed to use CSAAS evidence, and precluding them from using it to prove the defendant's guilt. The jury was instructed as follows:
"You have heard testimony from Miriam Wolf regarding child sexual abuse accommodation syndrome. [¶] Miriam 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 the alleged victims' conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
The jury was also instructed with CALCRIM No. 332 including that "witnesses were allowed to testify as experts and to give opinions. You must consider the opinions but you are not required to accept them as true or correct. . . . In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally." Thus, the jurors knew they could reject Wolf's CSAAS evidence entirely.
But Lokerson contends, by including assessing "believability" of the complaining witnesses as one of the uses to be made of the CSAAS evidence, CALCRIM No. 1193 effectively permitted the jurors to use it as evidence of his guilt. We reject Lokerson's challenge to CALCRIM No. 1193 because we find the instruction scrupulously maintained the distinction set forth in McAlpin, supra, 53 Cal.3d at pages 1300-1301, which included rehabilitation of victim "credibility" as one of the issues on which CSAAS was admissible and probative. (Id. at pp. 1301-1302.)
Lokerson's argument is precisely the same as that rejected by the Second District, Division Six in Gonzales, supra, 16 Cal.App.5th 494. Like Lokerson, the defendant in Gonzales "argue[d] it is impossible to use the CSAAS testimony to evaluate the believability of [a victim's] testimony without using it as proof that [the defendant] committed the charged crimes." (Gonzales, at p. 503.) Gonzales rejected that argument.
"A reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [an expert's] testimony to conclude that [a victim's] behavior does not mean she lied when she said she was abused." (Gonzales, supra, 16 Cal.App.5th at p. 504.) The jury may use the uncharged acts evidence to rehabilitate the victims' credibility against what may appear to be evidence of untruthfulness, such as a delay in disclosing the abuse. "The jury also would understand it cannot use [the expert's] testimony to conclude [the victim] was, in fact, molested." (Ibid.) The court expressly instructed the jurors that "Wolf's testimony about child sexual abuse accommodation syndrome [was] not evidence that [Lokerson] committed any of the crimes charged against him." We agree with Gonzales that CALCRIM No. 1193 "simply neutralizes the victim's apparently self-impeaching behavior." (Gonzales, supra, 16 Cal.App.5th at p. 504; accord, People v. Munch, supra, 52 Cal.App.5th at p. 474.) CALCRIM No. 1193 does not misstate the law, and giving it did not violate due process. F. CALCRIM No. 1101 Correctly Told the Jury the Specific Intent Required for Section 289 , Subdivision (i) (sexual penetration of a minor under age 16 by a person over age 21)
Lokerson raises another issue of improper jury instruction regarding the charge of sexual penetration of a minor under age 16 by a person over age 21. He argues the instruction failed to inform the jurors of the mens rea element of the offense. The alleged error is one of constitutional dimension, involving claims of due process and jury trial violations. (See Neder v. United States (1999) 527 U.S. 1, 12; People v. Mil (2012) 53 Cal.4th 400, 411; § 1259.) Because Lokerson's substantial rights are at issue, the failure to object did not forfeit the claims. (People v. Mitchell, supra, 7 Cal.5th at pp. 579-580; see § 1259.) We shall therefore address the merits.
Section 289, subdivision (i) makes it a crime for any person over the age of 21 to engage in sexual penetration of any person under the age of 16. Sexual penetration is defined in section 289 as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k).) The courts interpreting that language have uniformly held that crimes involving sexual penetration of a minor are specific intent crimes because the words "for the purpose of" convey such a requirement. (See People v. Saavedra (2018) 24 Cal.App.5th 605, 613 [§ 288.7, subd. (b)]; People v. Ngo (2014) 225 Cal.App.4th 126, 157 [same]; People v. McCoy (2013) 215 Cal.App.4th 1510, 1535-1538 [§ 289, subd. (a)(1)(A].)
Lokerson argues that CALCRIM No. 1101, given in this case, does not adequately convey the concept that there must be specific intent for the jury to convict on this offense. The CALCRIM instruction does not use the words "specific intent," but the words "for the purpose of sexual abuse, arousal, or gratification" carry the same meaning.
CALCRIM No. 1101 closely tracks the wording of section 289, subdivision (k). The use of the statutory language is "an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification." (People v. Poggi (1988) 45 Cal.3d 306, 327; see People v. Bush (2017) 7 Cal.App.5th 457, 485.) If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in the statutory language. (People v. Krebs, supra, 8 Cal.5th at p. 331; People v. Page (1980) 104 Cal.App.3d 569, 577.) Here, the words were common and nontechnical. (See People v. Estrada (1995) 11 Cal.4th 568, 574.) The jury could easily understand the words "for the purpose of" and could grasp without further instruction what was meant by "sexual abuse, arousal, or gratification." (CALCRIM No. 1101.) We conclude Lokerson's claim of error relating to CALCRIM No. 1101 must be rejected. We find no error, much less a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818; People v. McCoy, supra, 215 Cal.App.4th at p. 1535.) G. The Court Lawfully Imposed Three Consecutive 25-years-to-life Terms
The final issue raised is a challenge to the trial court's statutory authority to impose the multiple life sentences that it did. The jury found Lokerson committed a lewd act against Natalie (§ 288, subd. (a)), continuously sexually abused Ashlie (§ 288.5, subd. (a)), and continuously sexually abused Jessica (§ 288.5, subd. (a)). For those three counts the trial court imposed three separate 25-years-to-life sentences under section 667.61 and ran them all consecutively, for an aggregate sentence of 75 years to life.
Section 667.61, also known as the One Strike law, allows a court to impose a life sentence when a defendant has been convicted of enumerated sex crimes under specified conditions. (§ 667.61, subd. (b).) The subdivisions of section 667.61 that concern us here are subdivisions (b), (c), (e)(4) and (j)(2). Together, these four subdivisions provide that if a defendant has been convicted of committing certain offenses (including lewd or lascivious acts on a minor under age 14 and continuous child sexual abuse) (id., (c)(8) & (9)) against multiple victims (id., subd. (e)(4)), the punishment shall be a sentence of 25 years to life (id., subd. (j)(2)).
Lokerson suggests the court can impose only one life sentence per case for the multiple offenses, but the courts, including our own, have consistently held otherwise. In People v. Andrade (2015) 238 Cal.App.4th 1274, a panel of this Division affirmed a sentence of 195 years to life for a defendant who had committed 13 eligible offenses against five victims, rejecting a claim that the number of life sentences was limited by the number of victims. (Id. at pp. 1281, 1304-1305.) In the course of its discussion, the panel acknowledged as settled the argument that only one life sentence may be imposed per case. We still regard it as a settled point that multiple life terms may be imposed in a single case under section 667.61, subdivision (e)(4). (Andrade, at pp. 1304-1305; People v. Murphy (1998) 65 Cal.App.4th 35, 40-41; People v. DeSimone (1998) 62 Cal.App.4th 693, 697-698.)
The Sixth District has observed, "Every court that has ever considered this issue has rejected defendant's contention that section 667.61 does not permit multiple life terms to be imposed based on the multiple-victims circumstance." (People v. Morales (2018) 29 Cal.App.5th 471, 483 [1998 version of § 667.61]; e.g., People v. Valdez (2011) 193 Cal.App.4th 1515, 1521-1524 [same].) It is far too late for Lokerson to ask us to reexamine our reading of the statute.
The trial court did not err by imposing three consecutive 25-years-to-life sentences under section 667.61.
III. DISPOSITION
The judgment is affirmed.
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.