Opinion
A148398
11-02-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE REYES LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC082855A)
Jose Reyes Lopez was convicted following a jury trial of one count of continuous sexual abuse of a child and three counts of oral copulation with a child. On appeal, he contends (1) the trial court improperly admitted his involuntary statement to police at trial or, if the issue is forfeited on appeal, his counsel was ineffective for failing to raise it below; (2) the court erred when it refused to instruct the jury that oral copulation requires skin-to-skin contact, which improperly permitted the jury to determine the correct application of the law on this point; (3) the court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted oral copulation; (4) the court erred in failing to instruct sua sponte with a modified version of CALCRIM No. 3516, which would include time parameters for the continuous sexual abuse and oral copulation charges; (5) the court erred when it allowed expert testimony regarding child sexual abuse accommodation syndrome (CSAAS); (6) the court improperly instructed the jury with CALCRIM No. 1193, which allowed the jury to consider expert testimony regarding CSAAS as evidence that the complaining witness was telling the truth; (7) this matter must be remanded for resentencing because the court misunderstood the scope of its discretion to choose any of the counts as the principal term; and (8) the court erred when it imposed an aggravated sentence without recognizing the presence of significant mitigation. Because we conclude the trial court misunderstood the scope of its discretion to choose any count as the principal term for purposes of sentencing, we shall remand the matter for resentencing. We shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with one count of continuous sexual abuse of a child under 14 years of age (Pen. Code, § 288.5, subd. (a)—count 1) and three counts of oral copulation with a child under 14 years of age and at least 10 years younger than appellant (§ 288a, subd. (c)(1)—counts 2 to 4).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant guilty as charged.
On May 11, 2016, the court sentenced appellant to 20 years in prison.
On May 13, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
S. Doe, who was born in 2000 and was 15 years old at the time of trial, testified that appellant is her uncle, her mother's brother. When Doe was around five years old, her parents, her younger brother, appellant, another uncle, and an aunt moved to an apartment in Redwood City. Doe remembered being home with appellant "[a]lmost everyday" while her parents were out.
Initially, Doe had a good relationship with appellant, but when she was about six years old, appellant "made [her] do stuff." The first time this happened, they were in appellant's bedroom, and appellant said he would buy her Barbie dolls, which she liked, if she did something for him. He was standing up and his pants and underwear were on the floor. He told her "to suck him up," by which he meant to put his penis in her mouth, and she complied. On this first occasion, he did not make her do it for "that long." Doe felt bad afterwards, and she jumped onto a bed that was in the room, covered herself up, and pretended to be asleep so that appellant would not talk to her. The only other person at home at the time was her brother, who was two years younger than she was.
After that, appellant asked to put his penis in Doe's mouth every time she was alone with him, which was almost every day. She did not remember any details about the other times this happened except that appellant would tell her to go into his bedroom, which was where the abuse always occurred. He would lock the bedroom door, and she would do what he told her to do even though she did not want to. It always happened near the door that he had locked. Doe remembered asking if she could stop, but he would say, "a little bit more." On two occasions, appellant told her that if she did not do it, she "would get in trouble." She believed him. Her younger brother would be in the living room playing with toys when the abuse occurred; appellant would tell him to stay there. There were never any adults present.
When asked to give an approximation of how many times the abuse occurred, Doe said she thought it was more than 10 times, but less than 20 times. It took place over a short period of time, at least three weeks, while she was six. She was not sure if the abuse took place before or after her family moved for a time to Oregon, but she thought it was before. Appellant stopped asking Doe to put his penis in her mouth after she told him she was not going to do it anymore. "He would try to convince me, but I said, no, because I didn't like it." Doe remembered appellant giving her three or four Barbie dolls after he had started making her orally copulate him.
After appellant stopped putting his penis in Doe's mouth, he started touching her on her chest and "butt." "[H]e would like hug me to say hi or something" or "like when I would be sitting down he would like sit next to me." This touching started when she was about eight years old, after appellant moved out and then came to visit almost daily. It happened almost every day, "[a]ll those years until [she] was 10." This would happen while family was present in the home, but only when no one was nearby or looking. The touching was always done on top of her clothes. Doe would always greet appellant by hugging him when he came to her house because that is how she was taught to greet family members. She never told appellant to stop touching her, but she would move away from him.
On cross-examination, Doe testified that she did not remember when her family went to Oregon, or how long they stayed there. She did not remember a babysitter named Sophia, but she did remember having babysitters. Her aunt L.S. also took care of her after her cousin was born.
The last time the touching happened was on a holiday, maybe Thanksgiving or Christmas, shortly after she turned 10. Doe was sitting down and appellant hugged her and tried to touch her butt. "And then he sat down [next to me] and I would just like cover myself with a pillow, but he would like find a way." He touched her butt and "boobs" with his hand during that incident.
In addition to the first and last times appellant molested her, Doe remembered a time when she was playing dolls with a friend, who at that time lived upstairs and used to come over to play, and appellant "told both of us to get on top of him and like to start like grinding on him. And we didn't want to do it." Doe believed this happened when she was six and her friend was seven, about a month after appellant stopped making her put his penis in her mouth. Appellant came in and lay down on the floor, and then told them to start grinding on him. Doe did not know what that meant, but appellant told them, "go like move like up and down, up and down." He wanted them to get on top of his penis, but they did not do that. They got on his stomach and did what appellant said, but only for a couple of seconds because they both felt uncomfortable. It only happened that one time.
Doe did not remember the details of any of the other times appellant sexually abused her, but she was certain they happened. As to the three times she specifically recalled, Doe said she sometimes had flashbacks about them. She no longer felt comfortable with people hugging her or getting close to her. She never told anyone about the abuse while it was going on, when she was between the ages of 6 and 10. She was embarrassed by it and did not want appellant to get in any trouble. She still cared about him. She did not know that what he was asking her to do was illegal or wrong.
The first person Doe told about what appellant had done to her was her boyfriend, A.S., who she told when she was about 13 years old. She told him because she "just wanted to let it out." Subsequently, Doe talked to a nurse who was giving her a physical examination. The nurse asked her to check some boxes on a form, and she checked the "yes" box on a question that asked if anything sexual had ever happened to her. When the nurse asked her about the response, Doe did not want to say anything but she "kind of like just said it." She said that appellant "would just like touch me and make me do stuff, but I didn't want to tell her more." Doe did not feel good after telling the nurse because the nurse said she was going to tell Doe's parents. Doe did not want her parents, the police, or anyone else to find out. Appellant was arrested that night at Doe's house while she was there. She felt bad about it because she did not want him to get arrested. Her family is very close.
Doe's father (father), testified that appellant is his brother-in-law, his wife's brother. Appellant lived with him and his family at various times during Doe's childhood. A woman named Sofia also lived with them for a time, and she would take care of Doe and her brother while father and his wife were at work. At some point, all of them moved to the apartment in Redwood City where father still lived. Eventually, appellant's wife came from Mexico and moved in with them. After Sofia and her husband moved out, appellant and his wife took the second bedroom in the apartment. In both the apartment in Redwood City and the previous apartment, father's bedroom had a lock on the door, which he left unlocked when the children were home. There was a period of time, although father could not recall whether it was 2006 or 2009, when he and his family, including Doe, moved to Oregon for six months before returning to the Redwood City apartment. Eventually, appellant and his wife moved out of that apartment, although father could not recall how old Doe was at the time.
Father testified on cross-examination that before they moved to the Redwood City apartment, Sofia was in charge of babysitting his children and that he never left the children alone with appellant to babysit.
Subsequent police testimony showed, based on paperwork father had given officers, that he was in Oregon from July 2006, to December 2006.
When Doe was little, she "was a tender girl" who was open and liked to be hugged by father. After appellant moved in, she no longer wanted to be hugged and was often sad, but she did not want to tell her father what was wrong. Doe used to like Barbie dolls, which both father and appellant bought for her. After appellant moved out, he came over two or three times a week. He would hug Doe when he came to the house, but "Doe didn't want to and there was one time that I told Doe that I didn't want her to hug him because . . . I noticed that he was hugging her and placing her on . . . his lap."
The current situation had been hard on father's family and had caused Doe to change. She "seemed to not . . . be concerned about anything" and there were times when she cut herself on her arms.
A.S., Doe's former boyfriend who was 15 years old at the time of trial, testified that he had dated Doe two or three years earlier when he was 13. After they had dated for about six to eight months, Doe told him about something traumatic that had happened to her when she was a little girl. She started tearing up as she told him, but he changed the subject and she then seemed fine again.
Norma Perez, a pediatric nurse practitioner at Fair Oaks Health Center, met Doe in November 2014, when she came to the clinic for a routine well child visit. During the examination, Perez asked a routine set of questions about Doe's sexual history and Doe disclosed something to her. Initially, Doe did not seem upset, but after Perez said that she was required to report the information to Child Protective Services, Doe's demeanor "visibly changed" and she seemed uncomfortable.
Redwood City Police Officer Ramiro Perez, a detective on the street crimes suppression team, testified that he was present when appellant was arrested. He searched appellant and found Doe's California identification card in his wallet. After his arrest, appellant was transported to the Redwood City Police Department and placed in an interview room. Officer Jeffrey Clements, the lead investigator in the case, interviewed appellant and Perez served as the translator in English and Spanish. Perez also asked appellant questions during the interview. Before starting the interview, Perez read appellant his Miranda rights. Appellant indicated that he understood those rights and agreed to give the officers a statement.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
There were two separate parts to the interview of appellant because of the limited memory on the DVDs used to record the interviews. After the first DVD's memory was full, the second part of the interview on a new DVD began with the officers asking appellant if he wanted to write an apology letter to Doe. Perez explained to appellant "that it was better for the victim and for himself to bring some sort of closure." Appellant said he would write a letter to Doe. The interview took place on November 10, 2014, and lasted just under three hours, with an additional 17-minute break in between the two parts. The total time included the approximately 22 minutes appellant was writing the letter to Doe.
Perez read an English translation of the apology letter to the jury. The prosecutor then played the two parts of the videotaped police interview of appellant for the jury and provided jurors with a transcript with the English translation of the interview.
The specifics of the police interview with appellant and his apology letter will be set forth in the Discussion. (See pt. I.A., post.)
Miriam Wolf, a licensed clinical social worker and forensic interview specialist, testified as an expert in CSAAS. She had interviewed between 2,000 and 3,000 children suspected of having been sexually abused and had previously qualified as an expert witness in court 90 to 100 times. Wolf described the five components of CSAAS, which include secrecy; helplessness; entrapment and accommodation; delayed, conflicted and unconvincing disclosure; and retraction, and explained what each component involves. The five components are not a checklist and not all components are necessarily present in all cases. The purposes of the five categories are "to help explain from a child's perspective some of the expectations that an adult listener might have and why true reports of sexual abuse might have features that are counterintuitive to us as adults."
Wolf testified that it is not at all unusual for a child not to disclose sexual abuse at all or to report it to a medical professional, rather than a parent. Nor is it unusual for a child to have affection toward the perpetrator of the abuse since that person is often "somebody who is around the child and has a broader relationship with that child than just the sexual activity." This "speaks to a lot of the ambivalence that children have in reporting because they may want the rest of the relationship to continue," but not the abuse.
Wolf also testified that when sexual abuse took place over a period of time, it is "not an unusual phenomenon" for a child to have trouble remembering specific details of every instance of the abuse, including how many times it happened and how long ago it happened. Sexual abuse is mostly an "event memory," i.e., "something that happens at a particular time and it stands out in our mind. [¶] However, if sexual abuse occurs over a long period of time it can get remembered more like a script," meaning "that it is something that we remember the general features of, but when it happens more than one time the specific events kind of blend together into a more general memory." Often, the first and last times the abuse happened stand out in a child's memory.
Wolf stated that the purpose of her testimony was not to provide an opinion as to whether the victim in this case was actually sexually abused. She did not understand her "role as an expert witness . . . to be familiar with any of the facts, but to provide information" to the jury "about sexual abuse and then allow the jury . . . to apply [that information] to the facts as they learn them during the case."
Defense Case
M.R. testified that she is married to appellant's brother, who is also the brother of Doe's mother. When M.R. arrived in the United States in August 2006, she moved into the Redwood City apartment. Also living there at the time were her husband, appellant and his wife, and a man named Antonio. Antonio had one bedroom and appellant and his wife had the other. M.R. and her husband stayed in the living room. Doe and her family were not living there when M.R. moved in because they were in Oregon, but they returned in December 2006. M.R. continued to live in the home until early 2008.
While living at the apartment in Redwood City, M.R. worked in the afternoons and her husband worked in the mornings. They were both at home when they were not working. While she was living there, M.R. did not remember appellant ever being left home alone with the children, although she knew he sometimes picked them up from school and brought them home. There were also times appellant could have been alone with Doe that M.R. did not know about or remember. After she moved out, M.R. and her family returned to the Redwood City apartment for family events and parties.
L.S., appellant's wife, testified that since appellant was arrested, she had continued to get together with Doe and her family for family events. When asked how she felt about Doe, L.S. said, "She's my niece and I adore her, yes."
L.S. moved from Mexico to the United States in June 2006. She lived at the Redwood City apartment, where appellant was already living. Doe and her family were living in Oregon at that time, although they returned to the home on Christmas of 2006. L.S. gave birth to a child in March 2007, at which time she stopped working to take care of her son. She did not return to work until he was three years old and started preschool, in late August 2010. L.S. moved out of the Redwood City apartment in January 2011.
In August 2014, Doe accompanied L.S., appellant, and their son on a family vacation to Los Angeles and Disneyland. The initial plan was for only L.S., appellant, and their son to go on the trip, but two days before they left, Doe asked L.S. if she could come because she had never been to Disneyland.
On cross-examination, L.S. acknowledged that appellant took the children to school many times on his day off while she was at work and there were many times when appellant could have been alone with Doe and her younger brother; she just did not know. Doe still treated L.S. the same as she did before appellant was arrested, as if nothing had happened.
L.S. also testified that Doe's identification card (ID) was found in appellant's wallet because Doe's older sister took a bag belonging to Doe to L.S.'s house. L.S. and appellant kept forgetting to return the ID to Doe even though they went to Doe's house every week and her mother came to their house regularly. Finally, when she and appellant visited the Redwood City apartment, they were always together. Even if she was in the kitchen while he was in the living room, she could see everything that was happening in the living room. On the occasions appellant went without her to the apartment, he always took their son with him.
Rebuttal
Doe testified on rebuttal that she had fun on the trip to Disneyland with appellant and his family. Nothing bad happened between her and appellant on the trip.
Doe also clarified that all of the times appellant asked her to put his penis in her mouth happened right before she went to Oregon; there was no oral copulation after she came back from Oregon. The other touching started when she was around eight years old, and would take place in the living room of the apartment. There were parts of the kitchen from which a person could not see into the living room. When appellant touched Doe in the living room, it would be "kind of quick," and would happen when the women, including appellant's wife, L.S., were in the kitchen cooking. Doe could only see them from the living room if they were by the kitchen table. The touching that occurred when appellant came to her house would happen "like two or three times a day."
DISCUSSION
I. Admission of Appellant's Allegedly Involuntary Statement to Police
Appellant contends the trial court improperly admitted his involuntary statement to police at trial or, if the issue is forfeited on appeal, his counsel was ineffective for failing to raise it below. He also contends the apology letter he wrote was inadmissible as fruit of the involuntary statement.
A. Trial Court Background
After appellant was arrested and transported to jail, he waived his Miranda rights, and participated in an interview with Officers Clements and Perez. Appellant said he had no idea why he had been arrested, though he thought it could have to do with someone he had argued with or his brother, who had problems with the police. He said he had one young son and his wife was pregnant with another child. He also had an older daughter who lived in Mexico. Appellant's wife moved in with him in 2006.
Appellant had lived with Doe's family at the Redwood City apartment between 2004 or early 2005 and 2011. He would sometimes take Doe and her younger brother to school and pick them up. Appellant's sister (Doe's mother) paid a woman to take care of the children while she worked, but after the woman left, there was no specific adult taking care of them. Appellant said that on his day off, he would also take care of them until their mother got home, but "[t]here was always somebody there, always."
Appellant answered a question about whether Doe was a liar in the affirmative. He said that "she gets mad if she doesn't get money." The last time he saw her, about 15 days earlier, they went to Disneyland where she had a temper tantrum because she wanted to bring her boyfriend. She also wanted appellant to buy her things and tried to force him to take her to a far side of the park. Doe also wanted to force appellant to pay for her phone, which he said he could not do.
Perez then said the officers wanted to talk about something that had taken place when Doe was between the ages of 6 and 10, while appellant was staying at her house, because she had reported that appellant had her do something. Appellant chuckled and said, "And all this was for the phone, I think, see, because I didn't want to pay for it." When Perez asked what appellant thought Doe was accusing him of, appellant laughed, saying he did not know: "Maybe I hit her, spanked her or something like that. You have to tell me."
Perez asked whether appellant had touched Doe when she was a child, and appellant said he hugged or carried her and gave her kisses, "normal kid stuff." Appellant then said his brother had upset Doe's father two days earlier when he said he wanted to marry Doe. He continued, "Who knows what he may have done to the girl." Appellant denied ever touching Doe in a sexual manner. When Perez said that Doe was accusing him of something, appellant said she had told him "to watch out what would happen to me, if I didn't pay" for her phone. When Perez said she was accusing appellant of touching her sexually when she was younger and also making her put her mouth on his penis, appellant again said it was because of the phone because "if you don't give her something, or you don't buy her something, no, you have to see how she gets." He also said there were always people in the house "from dawn to sunset."
Appellant then said it was possible that Doe had seen him naked and gotten scared. She may have seen him once after he took a shower, shortly after he had moved into the apartment, around 2006. The officers then asked if Doe could "identify specific things of your penis," and appellant said she could not because she had not seen it. When asked if Doe could have seen his penis another time, appellant said that when Doe was about 12 years old, he was urinating in the bathroom and Doe was in the bathtub with the curtain drawn. She said, " 'It's busy,' " and he left quickly once he realized she was there. Also, appellant's brother and sister-in-law would sleep in the living room and "would do it there," and once appellant came upon them making love in his bedroom. So maybe Doe confused the brothers, who looked a lot alike, with each other.
When asked about why Doe's ID was in his wallet, appellant said that less than a year earlier, Doe and her older sister had a fight and her sister, who had recently come from Mexico, stole a bag that contained Doe's ID and school identification cards and brought it to appellant's house. He returned the bag but forgot to return the ID, which he then put in his wallet.
According to appellant, another reason Doe could have made accusations against him, in addition to his refusing to pay for her phone, was that someone had recently shown her his penis, which traumatized her. But he thought it was mostly because of the phone. Perez then said that it is not normal for kids to make up such accusations to get their cell phones paid for. Clements also said that he knew "that some sort of inappropriate conduct was, was taking place between the two of you. I need you to say it just like that. I know, I know, however you say it, I know that inappropriate touching took place between the two of you." He also said that none of appellant's excuses were "normal. That's not what a normal person does."
It does not appear that Perez translated verbatim what Clements said at various times in the interview, or whether appellant understood all of what Clements said in English.
Appellant continued to insist that Doe was spoiled and would do whatever it took to get what she wanted. He no longer even wanted to go to her house because she was always asking him for money. Perez then said it was "better to tell the truth" because what she was accusing him of was "something serious." The officers therefore wanted "an explanation with details" for appellant to protect himself. Perez then said, "if maybe, she got on top of, of you by accident" or "she did certain things not knowing what she was doing" such as jumping on him and putting her mouth on his penis "not knowing . . . doing silly stuff." Perez continued, "But you need, uh, an explanation" "because she's not lying." Appellant responded, "Oh, well, I'm not either, right?" He said maybe Doe now thought his hugging her and picking her up and carrying her was wrong. Perez then said that Doe recognized his penis and she had put her mouth on it. He suggested that maybe appellant was asleep "and you woke up and you thought that this girl was doing silly stuff. . . ." Appellant responded, "No."
Appellant then said that Doe "would play horsey on my back, like all children do." Perez said the officers needed details that appellant remembered and that it was not the time to be embarrassed. Appellant said that Doe was his niece and "if I ever grabbed her or hugged her, it was out of care for her." When Perez said it was more than that, appellant said he remembered "that she would get on my tummy a lot," as well as his back, when they played horsey. This happened in the living room. He also said he thought she might have kissed his tummy: "Maybe one day she kissed me by accident" and "I didn't notice it." This could have been when he first moved in with Doe's family, in 2004 or 2005.
Appellant said Doe might have accidentally touched him with her mouth because she used to bite him. This happened since he arrived at Doe's home until he moved into a bedroom with his wife. He said she got on top of him about 10 times in total, even though he told her not to. He would be wearing shorts, but no shirt when it happened, and sometimes she would bite him on the legs or stomach, but never on the penis. Doe was about four or five years old at the time.
The officers told appellant that whatever he told them would not get them in more trouble. Appellant said, "I am not going to go there anymore." The officers then said they knew the things Doe had told them were true. Appellant said he would not have been at Doe's house if he had done anything to her and Perez replied that appellant should not be embarrassed and that "you're not going to have more problems, there's no more. Things cannot get worse at this time. But, uh, um, by telling the truth[,] it can help you. For you, since you are cooperating." Appellant responded, "well, the truth is I didn't. I think that it could have been someone else or something like that would have even raped her [sic]. Because I have seen cases like that where, where they rape the girl then."
Clements then said there are "always consequences for your actions. Always. You, you have a time in your life right now where you can make [a] decision to do the right thing." He continued, "The right thing is owning up for your mistakes and, and moving on. So that for, for your family in the future, um . . . you know, in the eyes of God, that you're doing the right thing." Appellant then said "we practice the, um, the Jehovah Witnesses. My religion, I don't know." Perez said the officers already knew that appellant's penis touched Doe's mouth and they needed him to explain how it happened. Appellant responded, "But no . . . the truth, no. Unless I was drunk, but . . . ." Appellant then told about a time when he was drunk and fell asleep, and woke up with Doe jumping on top of him. Because he was very drunk, he did not remember if she had his penis in her mouth, but said, "It could have happened."
Appellant then said Doe also used to run up to him to hug him, and he did not "know if she, by accident, bumped into me" and his penis came out of his boxers. So maybe she saw it or felt it touch her. He thought it had touched her face because she was so small. Perez then said again that "you cannot have any more trouble than you already have now"; "[y]ou're handcuffed, Ok. We have a report from the girl. You already told us that she touched your penis. Ok?" Appellant replied, "Involuntarily." Perez said that it was appellant's time to tell the truth and asked who appellant thought a jury would believe. He also said it would be good for appellant to be honest. "So that we can put in the report that, 'Uh, he was honest about what happened. He didn't try to hide something.' Because it's, you're going to look really bad, really bad if you try to hide [this]. . . . [¶] Ok? So say now the way it happened. It's time now."
Perez then said to appellant, "Um, what we can do is help you. If you want help, we can give it to you. . . . [It] is like someone who is an alcoholic or someone that is using drugs. The only time when somebody can help himself, is to not deny it." Clements said, "It's time to be a man" and to be sorry for "what you did in the past. To start new in the future. Ok?" He then said appellant had to explain why, so "we make sure it doesn't happen anymore."
Appellant said he thought his penis touched Doe's mouth on the day he had been drinking and after he took a shower. He had his boxers on and was going to bed. "She hugged me at [sic], because she could put her mouth on my penis." She wanted to continue playing, but he told her he was going to sleep. She then insisted again on getting on top of him. He said that was the only time. When asked what Doe had done specifically, appellant said, "Hug me and put her, her face around, around my part," by which he meant she put "her mouth on my penis." The only thing that happened any other time was her getting on top of him to play horsey. Appellant said he did not have an erection the time Doe's mouth went on his penis.
The officers continued to tell appellant that if he wanted help, he had to be honest and that whatever he said, it would not get him in more trouble. Perez said if Doe was correct about one time, "[s]he should be correct about the other times too." Appellant said he never wanted to do anything like that or for Doe "to get traumatized." Perez said she was traumatized and to help her and to help him, they needed to know the truth; "[t]hat's how people heal." He added that Doe had done her duty by reporting what had happened, and that "[n]ow it's time for you to do, to do your duty. Ok? And your duty is to be honest to help her so she can heal. If you love her." When appellant said he loved his niece a lot, Perez said it was time for him to help her and the only way to help her was to not deny what had happened. Appellant said, "Even though it's not true. Well, I have to . . ." and Perez said, "No, no. No, you are not understanding me." He said, "I don't want you to lie"; "I want you to tell the truth." He said the only way for appellant and Doe to heal was for him to tell the truth and not make up stories.
At Clements's suggestion, Perez also said they were not saying appellant was a bad person, but that good, honest people sometimes make mistakes and do things they should not do. "But we have to resolve the problems so people can get better, right?" He also said, "We just need the truth to fix this. So everything can end. Ok?" Perez said they wanted to know about the times Doe put her mouth on appellant's penis and appellant responded, "Well, maybe three or four times but, hugging." Appellant then said that Doe had a friend and Doe wanted to copy what the friend did by getting on top of appellant "like a horse." He said "she knew what she was doing" because she said her friend was doing it; he told her, " 'No, that's wrong. Tell her not to.' " But Doe "would jump on me like all of a sudden." She would jump on his "part" or his stomach.
In addition to the time Doe touched his penis with her mouth while hugging him, she bit him on the penis, as well as on his stomach and legs, while playing horsey. Doe was five or six years old when this happened. Appellant never told Doe's parents because "I thought that they would do something . . . against me, do you know what I mean?" Appellant said there were also times when Doe would also throw herself at him to hug him, but he always had pants on then. He said he would touch her tummy and buttocks, "caressing her," when he carried her like a plane.
After the break in the interview, Perez asked if appellant would write a letter to Doe to ask her to forgive him. Appellant said he would because all that had happened to her was his fault. He said, "I am going to apologize but . . . that was not my intention." Perez asked appellant if he felt better now "that everything came out," to which appellant responded, "Yes." When Perez said appellant's statement that this was all about his not paying for her cell phone was an excuse, appellant disagreed, saying, "No, I thought that was what it was" and that he did not remember anymore what had happened between him and Doe until the officers were talking to him. Appellant then said he was not sure if Doe's mouth or face had touched his penis on the occasion he had mentioned. He also said Doe had climbed on his "part" about three times, and acknowledged that he did "get hard" on those occasions, although "he didn't want to" and "wanted to hide it." He would turn his back so she would not feel it. She would bite him "all over," including on his penis, but with his clothes on, specifically, "very thin pajamas." He would take her off of him after 10 or 15 seconds even though she did not want to get off.
Appellant also said the outside of Doe's mouth touched his penis for two or three seconds the time his penis came through the hole in his boxer shorts, but it did not go into her mouth. He did not get an erection then. Appellant insisted his penis never went inside Doe's mouth. Appellant then said that on another occasion, he had just taken a bath and was in his bedroom when Doe hugged him and his penis touched her face, but not her mouth. This happened over his clothing. Perez then told appellant he was "backtracking again," that the officers knew that the acts were sexual in nature, not accidents.
Perez then said they wanted to know why this had happened. Appellant said he did not want to say anything because he "was embarrassed. Because my sister was either going to kick me out or . . . she was going to beat up the girl, I don't know. I didn't want to, I wanted to forget about that." When the officers challenged him again, appellant insisted, "None of it was sexual in nature." He knew it looked like that to the police, but "back then, it was normal, I was her uncle." He acknowledged that it was not normal to keep quiet about what happened. Perez then said that when Doe heard appellant's denials, she would call him a liar and hate him for the rest of her life. Appellant said he did not want that and that he loved her very much. Perez said, "No, and you want her to recover. You want to help and you need to recover too. Ok? The only way, we already explained it to you, um, is to stop denying all this, Ok? Stop now." Appellant said, "Ok," and Perez said they were going to start over, and warned appellant not to "start lying and chang[ing] stories." Appellant said, "But I have never lied."
Appellant then acknowledged he liked it at first when Doe climbed on him and he got an erection, but he thought it was wrong, and so he rejected her and told her not to do it. When Perez noted that it was three different times, appellant said, "I thought, well, I was alone," but "right away I with- . . . I distanced myself from that. . . . I stopped." Perez then said, "It's your . . . opportunity to be honest. Because . . . the way that is going to look, especially with so many changes in the story, um, you're going to look bad." He said that was not what the officers wanted; they wanted Doe and appellant to recover. But he had to stop denying it and tell the whole truth. Appellant said he felt bad, but again denied putting his penis in Doe's mouth, saying, "That would be like abuse or something like that."
When Perez again asked if his penis was inside Doe's mouth, appellant said no; it just touched her face and mouth. Perez said Doe was accusing him of putting his penis in her mouth, and appellant said he did not remember that. When Perez said, "you do remember," appellant said, "No, no. I swear to you, and put me on a detector or wherever you want. But I swear to you that, with all my love and all that, I did hug her and everything, but not, it was never intentionally, anything like that." He then said Doe might have thought his penis went inside her mouth, but it did not.
Clements said that nobody could help appellant when he lied and was not honest, and then asked, "are you a good man or not?" Perez then told appellant, "there's no difference about putting your penis on her lips or in her mouth. . . . It's the same thing. Nothing [is] going to change, it doesn't matter. Ok?" Perez then asked, "How did it happen?" and appellant responded, "Well, how you said it happened." He then said, the time he came out in his boxers when he was drunk, "I think that it did go to her mouth but . . . ." He said it was in her mouth for two or three seconds. When Perez asked if it got hard, appellant said, "No. It was the first time; I got scared" and "rejected her." He said he did not know how his penis got inside Doe's mouth. He said, "What happened was a mistake" and "I wanted to hide it." He did not want her to suffer or for anyone to find out. Perez said the only way appellant's penis could have gotten into Doe's mouth when it came out of his boxer shorts was if it got hard. Appellant said "A little bit, but not . . . I got scared."
Perez said that Doe had reported that appellant had touched her vagina and put his penis in her mouth. The officers would have to explain to a jury what appellant had told them and "[i]f these things don't match, who do you think will look bad?" to which appellant responded, "I will." Perez continued that if appellant was "sincere" and could explain that the reason he cooperated was to help Doe, "they're going to think differently about you." Appellant then said, "I want the best for her" and that it happened the way Doe said it did, but only one time. Perez said he needed appellant to corroborate what Doe had told police and appellant said, "Even though it's not all true." Perez responded, "No, no, no. I don't want lies."
Appellant said that his truth was the "the story that I gave you. That that happened. And I, at that moment when it happened, it didn't happen every day." Rather, "[i]t was like once a month that happened one thing, another incident. Because how can I be there with her every day, do you know what I mean? [¶] . . . [¶] It was two, three months later that another thing happened, like that. And, but I didn't want to say anything because I was afraid of my sister and for her [Doe] too, that they would do something to her." Appellant said "that it was like for a year, no, it wasn't for any longer than that. I . . . you can even ask her, you can ask her, if I've bothered her again, if I've ever forced her to do anything during that time when, when that happened. She is going to tell you no, because no . . . nothing happened." Appellant again explained that "she would climb on me. She knew what she was doing because, um, her friend, um . . . well, you know, they talked about her watching movies with her mother and all that. And, well, I would hear them." The friend had "perturbed" Doe by telling her these things.
Appellant also said, "I didn't touch her on her vagina, never. It was always with her clothes on." He touched her vagina through her clothes while "carrying or hugging her." This happened when he picked her up and carried her "like a plane." He would touch her buttocks and vagina on the outside as he held her and also put one hand on her chest. He did not remember ever touching her vagina under her clothes, although it may have happened innocently when he was helping her get dressed. Appellant insisted that he "didn't touch her part, the way she's saying. I don't know why she's mad at me."
Appellant then said the first time his penis went into Doe's mouth was an accident; "[t]he other times were not, because I knew what the girl wanted." When asked what she wanted, appellant said, "Uh, imitate the movies that her friend was watching," which might have been "adult movies." He also said he never told Doe not to tell her parents about what happened. He did not think she would say anything because "I thought she would get over it. I thought that . . . it was not important. Well, I thought, no well, it's a little girl." He acknowledged that "it happened again" two months later, but "not . . . about the penis, it was only one time."
The officers then paused the interview so that appellant could write an apology letter to Doe.
At trial, Perez read an English translation of appellant's letter to Doe, which read: " '[Doe], I, your uncle, love you very much. I hope you have less bad feelings towards me. I never wanted you to feel bad, believe me, that I had wanted to hide what happened for years. I never wanted to hurt you. I love you and I want you to know that it was before for both of us. You will probably never forgive me and I don't expect you to. Look at where I am for my own fault. For not having talked about it at the time. I didn't want to do it out of fear. I never told about it ever. I believed that all of that was not going to affect you. You are special. I am very sorry and you know that I love you[;] that's why I didn't do it again. But I didn't want your mom to punish us and for her to kick me out of the house. I just wanted you to know how sorry I am. I love you and hope that both of us get passed [sic] it since now I feel so bad and I don't know what to do. In these letters I am telling you the truth. I never am going to deny it those encounters [sic] that happened. I never wanted them to happen. I believe that everything was a mistake. But if you say that that's the way things happened, that's okay. I'm not going to deny it so that they help you and give you all that is necessary. I don't know what to do. I hope you help me, niece. I love you very much and I don't know what happened to me. I don't believe I will see you ever again, but I hope you forgive me. I can't know what happened with me. I already told the police that you are right so that they help you. I am very sorry if I didn't give you the money that you were asking me for, but I was doing it so that you would stay away from me. I love you and since those months that happened in 2005 I couldn't forgive myself for what I told you to do. I thought that what you were doing was a passing thing and that you were going to get over it. Tell your mom that I didn't say anything out of fear, but I didn't do anything to you in your private parts. I think that you made it up. It was only hugs that I gave you. The only bad thing was that I didn't want you to tell anyone about this so that nothing happened to you. I am very sorry. . . . I hope that you will help me and understand that it was a mistake on my part and that for that reason I stopped when it was the fourth time that you were getting on top of me. I am bad. I hope that you help me to get passed [sic] it, too. I am never going to forgive myself. I even sometimes started crying alone, but I didn't know what to do, niece. I love you very much.' "
At the end of the interview, appellant asked what would happened to him and said, "I want to get off in a week."
During direct examination, Doe had testified that she did not have any bad feelings about appellant that would cause her to make up the molestation. She never asked him to pay her cell phone bill or told him that she would get back at him if he did not pay the bill. Her parents paid her cell phone bill. Doe went with appellant, her aunt, and their child to Disneyland the previous year. She did not make a fuss or have a fight with appellant because he would not take one of her friends along; she did not want to take anyone.
Doe further testified on direct examination that she did not watch pornography between the ages of 6 and 10, but she remembered appellant watching a movie that was almost all sex scenes. She walked into the room and saw what he was watching and walked back out. This happened about four years before trial. Doe did not have friends who watched pornography or who talked to her about it.
Finally, Doe had an ID with her picture on it from when she was little. Her mom kept it in a drawer; Doe never had possession of the card herself and never gave it to anyone.
At trial Perez testified that he employed a common tactic during the interview with appellant known as a ruse, which involves telling a suspect something the police either know is not true or are not sure is true. In this case, telling appellant that Doe said he had touched her vagina and had described details about his penis were ruses that were employed to see how he would respond. The purpose of the interview was to obtain enough information to either corroborate or negate what Doe reported.
Perez's statement to appellant that he would not get into any more trouble than he was already in was not a ruse because the officers knew what the charges were going to be in the case based on the probable cause police had when appellant was arrested. This was different from situations in which a suspect is interviewed before being arrested, and the interview can lead to an arrest.
B. Legal Analysis
Appellant contends his statement to police should have been excluded on the ground that it "was involuntary because it was obtained through various coercive devices." He also argues that, to the extent he forfeited this issue by not raising it in the trial court, his attorney's failure to object on this ground constituted ineffective assistance of counsel.
We find that appellant did forfeit this claim due to the failure to object on this ground in the trial court. (See People v. Linton (2013) 56 Cal.4th 1146, 1170 (Linton) [defendant's failure to assert claim of invalidity of Miranda waiver in suppression motion in trial court forfeited issue on appeal].) We further find, as we shall discuss, post, that counsel's failure to object to admission of the statement on the ground raised on appeal does not demonstrate deficient performance. (See Strickland v. Washington (1984) 466 U.S. 668, 688; accord, Harrington v. Richter (2011) 562 U.S. 86, 104.) "To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.' [Citation.] A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. [Citation.] The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' [Citation.]" (Harrington, at p. 104, quoting Strickland, at pp. 688-689.)
Appellant had moved to exclude the statement under Miranda, on the grounds that (1) he was questioned after being arrested and placed in custody for a period of time before he was read his Miranda rights and (2) after a 17-minute break in the interview, the officers began questioning him again without renewing the Miranda warnings. The court denied the motion to exclude the statement.
"The federal and state Constitutions both bar the use of involuntary confessions against a criminal defendant. [Citations.] A confession is involuntary if it is 'not " 'the product of a rational intellect and a free will' " ' [citation], such that the defendant's 'will was overborne at the time he confessed.' [Citation.] In assessing allegedly coercive police tactics, '[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.] Whether a statement is voluntary depends upon the totality of the circumstances surrounding the interrogation. [Citation.]
"In Miranda v. Arizona, the high court held that police must advise a criminal suspect who is in custody of specified Fifth Amendment rights prior to questioning. [Citation.] As we have held: 'Under the familiar requirements of Miranda, . . . a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent.' [Citation.]
Miranda holds that "[t]he defendant may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made voluntarily, knowingly and intelligently." [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]' [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 501.)
" ' "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" [Citation].' [Citation.] A confession is not rendered involuntary by coercive police activity that is not the 'motivating cause' of the defendant's confession. [Citation.]" (Linton, supra, 56 Cal.4th at p. 1176.)
In the present case, appellant claims that his statement to police was involuntary because it was obtained through "various coercive devices," including "an express promise to help appellant, a suggestion that he would not get in any more trouble than he was already in—as a person arrested for investigation, and that he needed to corroborate the complaining witness's claims to help her recover. It was also suggested that he confess to satisfy God and to be a man." We shall discuss each of these allegedly coercive devices in turn.
With respect to appellant's claim that his statement to police was involuntary because officers made "an express promise to help" him, the officers said during the interview, "what we can do is help you. If you want help, we can give it to you. . . . [It] is like someone who is an alcoholic or someone that is using drugs. The only time when somebody can help himself, is to not deny it."
In context and from the example given of an alcoholic or addict, it is obvious that this offer of "help" was referring to the psychological benefit that would come to appellant from telling the officers the truth about what happened with Doe. (Cf. People v. Carrington (2009) 47 Cal.4th 145, 176 (Carrington) ["when law enforcement officers describe the moral or psychological advantages to the accused of telling the truth, no implication of leniency or favorable treatment at the hands of the authorities arises"].)
With respect to appellant's claim that the police improperly made "a suggestion that he would not get in any more trouble than he was already in—as a person arrested for investigation," the officers told appellant that "whatever you tells [sic] us is not gonna get you in more trouble" and that "you're not going to have more problems, there's no more. Things cannot get worse at this time. But, uh, um, by telling the truth[,] it can help you. For you, since you are cooperating." The officers also said it would be good for appellant to be honest, "[s]o that we can put in the report that, 'Uh, he was honest about what happened. He didn't try to hide something.' Because it's, you're going to look really bad, really bad if you try to hide [this]. [¶] Ok? So say now the way it happened. It's time now." Perez said that the officers would have to explain to a jury what appellant had told them and "[i]f these things don't match [with what Doe said], who do you think will look bad?" to which appellant responded, "I will." Perez continued that if appellant was "sincere" and could explain that the reason he cooperated was to help Doe, "they're going to think differently about you."
These police comments did not amount to improper promises of leniency. In Carrington, our Supreme Court rejected a contention that the interrogating officer's suggestion, inter alia, that the defendant's denial of responsibility for one of the homicides would worsen her position, constituted an implied promise of leniency. (Carrington, supra, 47 Cal.4th at p. 174.) The court explained: "No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence. ' "[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." ' [Citations.]" (Ibid.) Here, the officers' comments did not offer any specific benefit to appellant if he told the truth, but only such benefits as " ' "flow[] naturally from a truthful and honest course of conduct," ' " which is permissible. (People v. Holloway (2004) 33 Cal.4th 96, 115.) Moreover, the statement that things could not get worse for appellant if he told the truth reflected the fact that he had already been arrested for molesting Doe and was sitting in jail in handcuffs.
Likewise, the officers' repeated assertions that they knew appellant was lying and that he needed to tell the truth were not inappropriate interrogation techniques. (See People v. Holloway, supra, 33 Cal.4th at p. 115 [interrogation may include " ' "exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect" ' "]; accord, People v. Spencer (2018) 5 Cal.5th 642, 674.)
Nor was it improper for the officers to suggest that appellant could have touched Doe accidentally. As the Carrington court stated, the officer's "suggestions that [one of the homicides] might have been an accident, a self-defensive reaction, or the product of fear, were not coercive; they merely suggested possible explanations of the events and offered defendant an opportunity to provide details of the crime. This tactic is permissible. [Citation.]" (Carrington, supra, 47 Cal.4th at p. 171.)
With respect to appellant's claim that the officers' admonitions that appellant needed to corroborate Doe's claims "to help her recover" rendered his statement involuntary, Perez said Doe was traumatized and to help both Doe and himself, appellant needed to tell the truth because "[t]hat's how people heal." He added that it was time for appellant "to do your duty," which was "to be honest to help her so she can heal. If you love her." When appellant said he loved his niece a lot, Perez said the only way to help her was to not deny what had happened. When appellant said, "Even though it's not true," Perez said, "No, no. No, you are not understanding me," "I don't want you to lie," and "I want you to tell the truth." He said the only way for appellant and Doe to heal was for him to tell the truth and not make up stories. Again, it is not improper for police to "discuss the moral or psychological advantages to the accused of telling the truth." (Carrington, supra, 47 Cal.4th at p. 176.) Furthermore, Perez corrected appellant when appellant suggested the officers wanted him to stop denying what had happened even though it was not true; Perez was adamant that he did not want appellant to lie about his actions.
As to appellant's claim that the statement was rendered involuntary by the officers' suggestion "that he confess to satisfy God and to be a man" the officers told appellant, "It's time to be a man" and to be sorry for "what you did in the past. To start new in the future. Ok?" They also said, "The right thing is owning up for your mistakes and, and moving on. So that for, for your family in the future, um . . . you know, in the eyes of God, that you're doing the right thing." Appellant responded, "we practice the, um, the Jehovah Witnesses. My religion, I don't know."
In Carrington, the high court found that the defendant's confession was not obtained through improper appeals to religious belief, where an interrogating officer said, " 'there's someone up above, bigger than both of us looking down saying [defendant], you know that you shot that person in San Carlos and it's time to purge it all.' " (Carrington, supra, 47 Cal.4th at p. 176.) As the court explained: the officer's "remarks were not calculated to exploit anxieties or vulnerabilities that might have arisen had defendant held strong religious beliefs. Religion was not discussed in prior questioning, and defendant stated no particular religious affiliation. . . . The substance of [the officer's] comments sought to evoke defendant's better nature by persuading her that 'purg[ing] it all' was morally the right thing to do and would provide her with psychological relief." (Ibid.)
This single mention of God by the officers and the exhortation to "be a man" is distinguishable from the circumstances in People v. Esqueda (1993) 17 Cal.App.4th 1450, 1484, relied on by appellant, in which the appellate court found that the totality of the circumstances showed that the defendant's statements were involuntary, "the product of outrageous police behavior." The problematic circumstances included eight hours of questioning and a defendant who had been drinking and was "hysterical" when the interviewing began; who was lied to in a multitude of ways about the condition of the victim and the evidence against him; and whose manhood, religion, and Hispanic heritage was appealed to and questioned. (Id. at p. 1485.) Although the officers initially said they wanted the truth, they later told the defendant that "his only way out was to say it was an accident. They implied by so saying he would not have to go to prison and would be out with his children." (Id. at pp. 1485-1486.) In addition, the defendant had indicated several times that "he did not want to talk further. At one point he turned away from his tormentors, who told him to turn around and said they were going to keep at the interrogation" and that " '[i]f we have to be here two straight days, we'll be here.' " (Id. at p. 1486.)
Here, the officers' very brief appeal to God—without knowledge of any religious vulnerabilities on appellant's part—and to appellant's manhood plainly are not comparable to the many extreme and despicable police tactics at play in Esqueda. (See Carrington, supra, 47 Cal.4th at p. 176 [where " 'no acute religious anxiety or sense of guilt was apparent from prior questioning,' appeals to religion are unlikely to be a motivating cause of a defendant's subsequent confession"].) The totality of the circumstance demonstrates that appellant's will was not overborne by the officers' coercive conduct, and his reliance on Esqueda to prove the involuntariness of his statement cannot succeed.
Appellant also argues that the officers used a suggestive technique known as "contamination," citing, inter alia In re Elias V. (2015) 237 Cal.App.4th 568, 592, in which a panel of this Division stated that such a technique had been found "to be coercive and to have overcome the will of subjects, particularly those who are young or otherwise vulnerable." Elias V. is inapposite in that it involved a 13-year-old suspect who had never had any contact with police, as well as a police officer who suggested all possible improper touching scenarios even though she had no information about the alleged offense and, therefore, no basis for evaluating the veracity of the suspect's statements. (Id. at p. 593.) In this case, appellant was a 30-year-old man who had previously been convicted of two misdemeanor offenses, and was questioned in Spanish by officers who already knew the basics of Doe's allegations.
Indeed, there was affirmative evidence that appellant's will was not overborne by the officers' interrogation techniques. For example, Perez explained at trial that the officers' claim that Doe had said appellant touched her vagina directly with his hand was a ruse, and appellant repeated throughout the interview that this was not true, despite the officers' insistence that Doe had reported such touching. Appellant also repeatedly minimized his conduct, even after he stopped completely denying the allegations later in the interview and in his apology letter to Doe, which further indicated that his will was not overborne. (See People v. Spencer, supra, 5 Cal.5th at p. 673 [in finding that defendant's will was not overborne, court noted that defendant "had the wherewithal to articulate—time and again—a version of events that minimized his involvement"].)
In sum, considering the totality of the circumstances, we conclude appellant's statement to police was voluntary. (See Linton, supra, 56 Cal.4th at p. 1176.) Defense counsel could have reasonably determined that the trial court would have rejected a motion to exclude the statement on that ground. Accordingly, appellant has not established that his attorney's performance was deficient. (See Harrington v. Richter, supra, 562 U.S. at p. 104; Strickland v. Washington, supra, 466 U.S. at pp. 688-689.)
II. Court's Refusal to Instruct that Oral Copulation
Requires Skin-to-Skin Contact
Appellant contends the court erred when it failed to instruct the jury that oral copulation requires skin-to-skin contact, which improperly permitted the jury to determine the correct application of the law on this point.
A. Trial Court Background
During the jury instruction conference, the court observed that the prosecution had requested an instruction on attempted oral copulation (CALCRIM No. 460), and stated that it was "refusing to give that instruction. The defense is not asking for it. The court's position is that on oral copulation I'm allowing both sides to argue that they believe the defendant's version of two incidents of oral copulation over pajama pants that that either constitutes oral copulation [sic]. There's no requirement in the law for skin-to-skin contact, or it isn't copulation and I'm going to allow the defense to argue that because . . . there isn't anything to say that it isn't oral copulation or that it is. [¶] So the fair thing to do is to allow the defense and the prosecution to argue that if there is a case [sic] . . . ."
During closing arguments, the prosecutor argued that the jury did not need to find that there was skin-to-skin contact between appellant and Doe to convict appellant of the oral copulation charges: "You can have contact between the victim's mouth and the defendant's penis, through, as he described, thin pajamas. Again, inside the mouth, outside the mouth, it doesn't matter. And this law makes sense because, think about it, you wouldn't want to say, oh. Well, he can't be guilty because he put a condom on, so obviously there was no contact between her mouth and his penis because there was a condom acting as a barrier in between. That doesn't make sense."
Defense counsel argued that the jury should find appellant guilty of the one count of oral copulation appellant admitted to, but that the other conduct appellant admitted to in his statement, was "not oral copulation. Playing horsey, nibbling through clothes, that's not oral copulation. You cannot find him guilty of that. He must be found not guilty of those two charges."
B. Legal Analysis
This precise issue was recently addressed by Division Four of this District in People v. Zepeda (2018) 26 Cal.App.5th 211 (Zepeda). In Zepeda, the jury asked the trial court during deliberations whether the definition of oral copulation included "over the top of clothing." (Id. at p. 216.) The court told the jury that that question was for the jury, not the court, to decide. (Ibid.) The defendant argued on appeal that the court "should have instructed the jury that oral copulation requires skin-to-skin contact as a matter of law." (Ibid.) The appellate court disagreed.
Because we find the Zepeda court's analysis both apt and applicable to the present case, we shall discuss it at length here. The court first noted that the parties had not drawn its attention to any published California cases that considered whether the presence of clothing defeats a charge of oral copulation, and the court's own research had disclosed none. (Zepeda, supra, 26 Cal.App.5th at p. 216.) The court explained, however, that it was guided by People v. Ribera (2005) 133 Cal.App.4th 81, 83, 84 (Ribera), which considered whether anal penetration through clothing constituted sodomy, pursuant to section 286. (Zepeda, at p. 216.)
Although Zepeda was filed after briefing was complete in the present case, the parties thoroughly discussed they ways in which Ribera was or was not relevant to appellant's claim.
The Ribera court had found that because section 286, the sodomy statute, did not contain any express or implied requirement of skin-to-skin contact, it was "immaterial whether there was any clothing barrier between the anus and the penis at the time of the penetration." (Ribera, supra, 133 Cal.App.4th at pp. 85, 86.) The court reasoned that "common sense dictates that it makes no difference whether a victim is clothed as long as penetration occurs. We believe that 'the legislature did not intend "that a piece of clothing as flimsy as a pair of shorts or even a girl's panties" would insulate a defendant from punishment for performing' sodomy on a child. [Citation.]" (Ibid.)
The court in Zepeda noted that, for this final point, the Ribera court relied on State v. Pearson (Iowa 1994) 514 N.W.2d 452, 455, which had held that skin-to-skin contact was not necessary to establish a "sex act" under Iowa Code section 702.17, and that " 'prohibited contact may occur even though the specified body parts . . . are covered.' " (See Zepeda, supra, 26 Cal.App.5th at p. 217.) The Pearson court had further stated: "Whether intervening material prevents contact must be determined on a case-by-case basis, considering the nature and amount of the intervening material. If the intervening material would, from an objective viewpoint, prevent a perception by the participants that the body parts . . . have touched, contact has not occurred." (Pearson, at p. 455; see Zepeda, at p. 217.)
The court then observed that the holding in State v. Pearson was consistent with California cases concluding that contact through clothing constitutes sexual contact for purposes of another statutory scheme, the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.). (Zepeda, supra, 26 Cal.App.5th at p. 217.) Specifically, in People v. Whitlock (2003) 113 Cal.App.4th 456, 462-463, the appellate court considered whether a defendant's touching of a child's genitals over her clothing satisfied the Act's definition of substantial sexual contact, which included masturbation of either the victim or the offender. (See Zepeda, at p. 217.) The Whitlock court concluded that the focus was "not on the amount of the contact but rather whether genital contact was made. [Citation.] Whether the genital touching occurs over clothing is not determinative. Masturbation as it is . . . commonly understood can occur under clothing and over clothing." (Whitlock, at p. 463; see Zepeda, at p. 217.)
The Whitlock court noted that the common definition of masturbation " 'encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent.' [Citation.]" (People v. Whitlock, supra, 26 Cal.App.4th at p. 462.)
The Zepeda court concluded, in light of these authorities, that "the trial court properly treated the question of whether contact through clothing constituted oral copulation as one of fact for the jury. As the court noted, clothing may consist of something as flimsy as nylon pantyhose or underwear, or as substantial as bomb disposal clothing. Whether the clothing prevented 'contact' may properly be considered on a case-by-case basis." (Zepeda, supra, 26 Cal.App.5th at pp. 217-218, fn. omitted.)
We agree with Division Four's sound analysis in Zepeda and likewise conclude the trial court in this case did not err when it failed to instruct that oral copulation included a requirement of skin-to-skin contact, and left it to the jury to determine whether the evidence proved that appellant had in fact committed oral copulation. (See Zepeda, supra, 26 Cal.App.5th at pp. 216-217.)
III. Court's Failure to Instruct Sua Sponte on the Lesser
Included Offense of Attempted Oral Copulation
Appellant contends the court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted oral copulation.
A. Trial Court Background
During the jury instruction conference, the court refused the prosecutor's request to give an attempted oral copulation instruction, explaining: "[T]he defense is not asking for an attempt instruction, prosecution is, and I don't think attempt is consistent with their argument that . . . skin over the pants constitutes oral copulation. It either is or it isn't. It does not constitute an attempt and it doesn't fit the language of, in my view, a person attempts to commit oral copulation, even if after taking a direct step towards committing the crime he or she abandons further efforts to complete the crime or his or her attempts failed and [were] interrupted. There [is] no factual support for that in my view. And as a matter of law, the [prosecutor] shouldn't get to argue that it's an attempt when they're arguing that it is oral copulation."
B. Legal Analysis
According to appellant, "there was a question as to whether there was mouth to genital contact as required by the statute, which appears to be the motivating reason for the prosecutor to request this instruction. Arguably, if the jury believed appellant's version of events, they may have found attempted oral copulation as a viable lesser-included offense."
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 953 (Martinez).)
Having already concluded the court properly found that oral copulation could occur without skin-to-skin contact and that it was for the jury to determine whether it had occurred in the circumstances of this case, we reject appellant's abbreviated argument, which incorrectly relies on the presumption that skin-to-skin contact was required. (See pt. II.B., ante; see also Zepeda, supra, 26 Cal.App.5th at pp. 216-218.)
IV. Court's Failure to Instruct Sua Sponte with a
Modified Version of CALCRIM No. 3516
Appellant contends the court erred in failing to instruct sua sponte with a modified version of CALCRIM No. 3516, which would include time parameters for the continuous sexual abuse and oral copulation charges.
Section 288.5 describes the offense of continuous sexual abuse of a child under 14 years of age as follows:
"(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
"(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
"(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. . . ."
In this case, according to appellant, because Doe's "testimony was equivocal on the issue of time and apparently incorrect as to when the oral copulation began," the jury "should have been instructed with the relevant time frames that these crimes occurred, within a modified version of CALCRIM [No.] 3516 so as to prevent any overlap of acts being applied from the oral copulation charges to the continuous sexual abuse charge." Appellant also argues that the harm caused by this instructional error was exacerbated by the court's instruction with CALCRIM No. 207, which told the jury that "[t]he People are not required to prove that the crime took place exactly on the day, but only that it happened reasonably close to that day."
The record reflects that the prosecutor initially made a request, which it later withdrew, for the court to instruct the jury with CALCRIM No. 3516, which is given to avoid dual conviction when there are multiple counts involving alternative charges for one event.
Unmodified CALCRIM No. 3516 provides: "The defendant is charged in Count ___with ___ <insert name of alleged offense> and in Count ___ with ___ <insert name of alleged offense>. These are alternative charges. If you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both."
We agree with respondent that the court was not required to give a modified version of CALCRIM No. 3516, sua sponte, because the information, which the court read before closing arguments; the evidence; and the prosecutor's argument made clear that that the acts alleged in count 1 and the acts alleged in counts 2 to 4 took place during distinct time periods. Hence, the instruction was not necessary to the jury's understanding of the case. (See Martinez, supra, 47 Cal.4th at p. 953.)
The amended information charged appellant with one count of continuous sexual abuse "[o]n or between September 19, 2008 and January 1, 2011." The amended information also charged appellant with three counts of oral copulation "[o]n or between September 19, 2005 and July 1, 2006." Just before closing arguments began, the court informed the jury of the information's amended date ranges, which had "changed with respect to conforming to proof." The court concluded: "So hopefully that gives you a little more clarity as to the allegations in the case."
Despite some minor uncertainty or confusion in Doe's testimony about exactly when the various acts of abuse occurred, her testimony did not allow for the possibility of dual conviction based on evidence that the acts alleged in count 1 overlapped with those alleged in counts 2 to 4. Doe testified on direct examination that she was about six years old when appellant began making her put his penis in her mouth. This abuse occurred over a short period of approximately three weeks. She was not sure if it happened before or after her family moved to Oregon, but she thought it was before. Other evidence admitted at trial indicated that Doe and her family were in Oregon from July 2006, to December 2006. Doe turned six in the fall of 2006.
Doe then testified that after appellant stopped putting his penis in her mouth, he started touching her on her chest and buttocks, starting when she was about seven or eight years old, after appellant moved out of the Redwood City apartment. This touching took place regularly, from the time she was eight, until shortly after she turned 10. The final touching took place at a family gathering, either on Thanksgiving or Christmas, when she was 10 years old. Doe further testified on rebuttal that all of the times appellant made her put his penis in her mouth occurred right before she went to Oregon, and that no oral copulation occurred after she returned to California. She also testified that the other touching began when she was around eight years old and would occur two or three times each day appellant came to visit at the Redwood City apartment. In his statement, appellant also described the possible contact between his penis and Doe's mouth as taking place in 2004 or 2005, when Doe was four or five years old.
The evidence as a whole thus showed that the oral copulation charged in counts 2 to 4 took place over a period of several weeks when Doe was five years old, between the dates alleged in the amended information—September 19, 2005 and July 1, 2006—before Doe's family moved to Oregon for six months. The evidence also supported the jury's finding that the continuous sexual abuse charged in count 1 took place sometime later—between September 19, 2008 and January 1, 2011—when Doe was 8 to 10 years old.
Finally, during closing argument, the prosecutor discussed the timeframes for the various counts and the evidence showing when the alleged acts occurred. After discussing the elements of the offense charged in count 1—continuous sexual abuse—and the related evidence, the prosecutor stated, "So that's Count 1. Count 1 is from September 19, 2008, because [Doe] testified she was 8 years old when the touching started . . . to January 1st, 2011. And that date range makes sense because [Doe] testified the last time was around the holidays when she turned 10. She would have turned 10 [in the fall of] 2010. The holidays for that year would have been around 2010 to 2011. So if we say the holidays end on I guess New Year's Eve or New Year's Day, that's the date range that we're working with. That's the date range in between which the groping occurred. You have to find there were more than three instances. You don't have to agree on which three. If you believe her that it happened and that the elements of this count were met you can find him guilty of Count 1."
The prosecutor then discussed counts 2, 3, and 4, which "are exactly the same. They're the same date range and then they're the exact same count. It's oral copulation between when she was five to June or July of 2006 when she went to Oregon. [¶] [Doe] had initially said when she testified that she thought this happened when she was six. But, again, how does our memory work? We remember things better when there's a concrete event to tie them to. And so when she was asked, hey, did this happen before or after Oregon she was clear it was all before Oregon. And what did she tell you happened [during] those three weeks? The three weeks of hell that she went through because she wanted a [B]arbie doll and the defendant told her he would get her one if she orally copulated him. [¶] . . . [¶] Again, the date range we've charged I explained to you is from when she was five to right before she left for Oregon because she's sure that this happened when she was five or six, but definitely before she went to Oregon."
Although, as appellant points out, CALCRIM No. 207 told the jury that the exact dates of the various acts did not have to be proven, the amended information read by the court and the prosecutor's argument made plain that the jury had to find that the acts charged in count 1 and those charged in counts 2 to 3 took place during the separate time periods alleged in the amended information.
Accordingly, the court was not obligated to instruct the jury sua sponte with a modified version of CALCRIM No. 3516 about the required time parameters for the continuous sexual abuse and oral copulation charges. (See Martinez, supra, 47 Cal.4th at p. 953.)
V. Admission of Expert Testimony Regarding CSAAS
Appellant contends the court erred when it admitted expert testimony regarding CSAAS. He acknowledges "that the California courts have concluded that the limiting instructions in CALCRIM No. 1193 and CALJIC No. 10.64 [predecessor to CALCRIM No. 1193] obviate the dangers of misuse of the evidence." He nevertheless argues that CSAAS evidence "should be excluded in California as has been done in several other states . . . ."
"Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [¶] Identifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).)
The decision of a trial court to admit expert testimony " 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
Here, the court reasonably found that the CSAAS testimony was necessary to assist the jury in understanding issues related to, inter alia, Doe's delay in disclosing the sexual abuse. (See Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Moreover, Wolf made clear that the purpose of her testimony was not to provide an opinion about whether Doe was molested but, instead, "to provide information about sexual abuse and then allow the jury to apply [that information] to the facts as they learn them during the case."
The court thus did not abuse its discretion when it permitted Wolf to testify regarding CSAAS generally "for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (Patino, supra, 26 Cal.App.4th at p. 1744; see McAlpin, supra, 53 Cal.3d at p. 1299.)
VI. Court's Instruction with CALCRIM No. 1193
Appellant contends the court improperly instructed the jury with CALCRIM No. 1193, which he asserts permitted the jury to consider the expert testimony regarding CSAAS as evidence that Doe was telling the truth. According to appellant, the part of the instruction providing that the CSAAS evidence could be considered in evaluating Doe's believability "effectively instructs the jury that they may take such testimony as evidence of the defendant's guilt." Appellant further argues that the instruction "lightened the prosecution's burden of proof," thereby violating his due process rights.
The court instructed the jury with CALCRIM No. 1193, 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 [Doe's] conduct was not inconsistent with the conduct of someone who has been molested and evaluating the believability of her testimony."
We review the legal adequacy of an instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
Even assuming appellant did not forfeit this issue for failing to object in the trial court (see People v. Young (2005) 34 Cal.4th 1149, 1211 [no forfeiture for failing to object to erroneous instruction if error affected defendant's substantial rights]), we find his claim to be without merit because, as discussed below, CALCRIM No. 1193 correctly states the law.
CALCRIM No. 1193 did not permit the jury to use Wolf's testimony to find appellant guilty. The instruction told the jury that "Wolf's testimony about . . . Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him." Because, as already discussed, the challenged CSAAS evidence in this case was admissible to rehabilitate Doe's credibility, and the instruction made clear that it could not be used as evidence that appellant had committed any of the charged crimes, the court did not err in instructing the jury that it could use the CSAAS evidence "in evaluating the believability of [Doe's] testimony." (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301 [CSAAS expert testimony "is admissible to rehabilitate [a child] witness'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"]; CALCRIM No. 1193.)
For these reasons, we also reject appellant's claim that the instruction lessened the prosecution's burden of proof in violation of his due process rights. --------
VII. Court's Alleged Misunderstanding of the Scope of Its
Discretion to Choose Any Count as the Principal Term
Appellant contends this matter must be remanded for resentencing because the court misunderstood the scope of its discretion to choose any of the counts as the principal term.
A. Trial Court Background
At the sentencing hearing, the court observed that the sentencing triad for oral copulation (counts 2, 3, and 4) was three, six, or eight years and the triad for continuous sexual abuse (count 1) was six, twelve, or sixteen years. It agreed with defense counsel that the more serious charges in the case—oral copulation—had a lower sentencing triad than the continuous sexual abuse charge, which involved touching Doe over her clothing. The court described this difference as "kind of a quirk in California law." After the prosecutor argued that a maximum sentence of 22 years would be appropriate, defense counsel asked the court to instead impose a 14-year sentence, making count 2 the principal term. The court responded that it did not think it could do that because its understanding was "that the base term is the longer of the sentences and then you can adjust the other ones appropriately if you need to or want to."
After discussing the various ways the total sentence could be configured, the court stated: "So here's how we're going to do this, I think 20 years is appropriate for the behavior in its entirety. And so we can get to 20 by me imposing the aggravated term on [count 1] and consecutive third of the midterms on Counts 2 and 3 and a concurrent term on Count 4."
The court continued: "It's a sad case all the way around for everybody, and as I said before, I'm very concerned about the fact that the defendant was the victim's uncle. Took advantage of a position of trust. She was only five years old when this started, so she was very young and very vulnerable and those factors justify the imposition of the aggravated term on Count 1.
"So probation is denied on all four counts for which the defendant was convicted. On Count 1 he is sentenced to the 16-year aggravated term in the Department of Corrections. That sentence will be enhanced with Count 2, a third of the midterm which is two years full and consecutive, and Count 3 the [section] 288a(c)(1) as like Count 2, both the same counts at different times. Both are extremely serious counts and they involved significant serious sexual conduct involving oral copulation, so the Court will impose each of those two counts [as] consecutive sentences a third of the midterm of six which are two years and two years consecutive for a total of four that then results in a 20-year Department of Corrections sentence.
"On the [fourth] count the court will impose a two-year concurrent sentence. That's a third of the midterm concurrent. Actually, no, I can't do it that way. I have to do it a six-year midterm concurrent sentence. . . . [¶] . . . [¶] . . . . Because I think 20 years is an appropriate length of sentence for the conduct in question."
B. Legal Analysis
Section 1170.1, subdivision (a) provides that when any person is convicted of two or more felonies and the trial court imposes a consecutive term of imprisonment, "[t]he principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes . . . . The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
Appellant cites People v. Miller (2006) 145 Cal.App.4th 206, 215-216, in which the appellate court found that the plain meaning of the language in section 1170.1, subdivision (a) providing that the principal term will be "the greatest term of imprisonment imposed by the court for any of the crimes," was that the trial court "must designate as the principal term the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads." In light of the reasoning in Miller, respondent agrees with appellant that "the record of the sentencing hearing plainly shows that the trial court erroneously believed the principal term necessarily had to be the longest term available under the applicable sentencing triads, which in this case was the triad set forth for a conviction of Penal Code section 288.5, continuous sexual abuse of a minor under 14 years old." Respondent also argues, however, that the court's sentencing error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 because there is no reasonable probability that appellant would receive a more favorable sentence on remand. (See People v. Crandell (1988) 46 Cal.3d 833, 864-865 [assessing trial court's error in failing to exercise its discretion under Watson harmless error standard], disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Rodriguez (1986) 177 Cal.App.3d 174, 178 [same].)
In People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, our Supreme Court explained: " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]"
At the sentencing hearing in this case, as the record shows and respondent concedes, the court misunderstood its sentencing discretion and believed it was required to use the continuous sexual abuse conviction as the principal term because it was the longest term available under the applicable sentencing triads. Although the court ultimately did state that it believed a 20-year aggregate term was appropriate, which could be achieved by imposing the 16-year aggravated term for count 1, the continuous sexual conduct conviction, it also believed that it was a "quirk" of California sentencing law that it was required to use the less serious count—continuous sexual abuse—as the principal term, rather than one of the oral copulation counts. Thus, because the record clearly indicates that the court was unaware of its discretion to use one of the oral copulation counts as the principal term and the record does not " 'clearly indicate' " that the court would have made the same sentencing choices had it understood its discretion, the matter must be remanded to give the court an opportunity to reconsider its sentencing decisions. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
VIII. Court's Alleged Imposition of an Aggravated Sentence Without
Recognizing the Presence of Significant Mitigation
Appellant contends the court erred when it imposed an aggravated sentence on count 1 without recognizing the presence of significant mitigation.
As already noted, the court expressed great concern "about the fact that the defendant was the victim's uncle. Took advantage of a position of trust. She was only five years old when this started, so she was very young and very vulnerable and those factors justify the imposition of the aggravated term on Count 1." The court also found appellant's comments to the probation department were "disturbing" and "didn't show a great deal of insight, which [was] troubling." The court found that the only factor in mitigation was appellant's score of 1 on the Static 99 report, which showed that he had a low potential future risk of sexual abuse.
At the sentencing hearing, defense counsel did not object to imposition of an aggravated sentence on count 1 on any of the grounds raised on appeal, i.e., that the factors in aggravation on which the court relied were "either not supported by the record" or were "prohibited by dual use principles." Nor did counsel argue at the hearing that the court had improperly failed to consider the presence of mitigating factors other than appellant's score on the Static 99, and even as to that factor, the court "failed to insert that into the equation" when it imposed the sentence.
We agree with respondent that appellant has forfeited his challenge to the imposition of an aggravated sentence on count 1 by failing to raise any of the asserted grounds of error in the trial court. (See People v. Wall (2017) 3 Cal.5th 1048, 1075 ["under People v. Scott (1994) 9 Cal.4th 331, . . . a defendant forfeits on appeal any 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' in the absence of objection below"].)
DISPOSITION
The matter is remanded for resentencing. The judgment is otherwise affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.