Opinion
A148104
04-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE MELARA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco City & County Super. Ct. No. 13021266)
Defendant Jose Melara appeals from a judgment of conviction of 13 counts of lewd or lascivious acts upon three children under the age of 14 (Pen. Code, § 288, subd. (a)), five counts of intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)), and three counts of oral copulation or penetration with a child 10 years of age or younger (§ 288.7, subd. (b)). The trial court sentenced him to the maximum term of 202 years to life. On appeal, defendant contends the trial court erred by (a) allowing the prosecution's expert witness to testify regarding "statistical" evidence and preventing his own expert from testifying on the same subject and (b) relying on "nonexistent" facts when imposing his sentence. Alternatively, defendant contends his trial counsel was ineffective in failing to object to the prosecution's expert testimony and to the claimed lack of factual basis for the trial court's sentencing choices. The judgment is affirmed.
All further statutory references are to the Penal Code.
BACKGROUND
Conduct Involving H.M.
Defendant is H.M.'s first cousin and lived with H.M.'s family from November 1999 to mid 2000, when H.M. was "four and-a-half, going onto five."
H.M. recalled the first time she "was sexually abused" by defendant she was watching cartoons and coloring, when defendant showed her some pornography. She remembers "women with women, men with women having sex," and the people were all naked. Defendant told her she "should do some of the things that were shown on the television." He then touched her vagina over her clothing "from behind." Afterwards, she reenacted the videos with her dolls by "having two dolls kiss each other, [and] do the things that they were doing" in the video.
On another occasion, defendant tried to kiss H.M. and she had to "push him away." He "took out his penis" and asked her to touch it. Defendant's penis was "skin color" and "was hard." H.M. was "scared" and told him " 'No.' " Defendant touched her breasts and her vagina over her clothing. On at least one occasion, he grabbed her hand and made her "feel on [his penis], on top of his clothing."
H.M. did not tell anyone about what happened until she was in her teens. She "was scared . . . feeling that maybe [her mother would] get mad at [her] because [she] was so little." H.M. felt "horrible" and "bad" for how things turned out.
H.M.'s mother recalled that when she woke up one morning, H.M. was not in bed with her as she usually was. When she went to defendant's room and leaned in, her "daughter was sitting on the bed. She had her hand inside his underpants. Her little hand was inside of his underpants. His hand was on top of her hand." H.M.'s mother was "shocked," and she called to her daughter, who came out of the room. H.M.'s mother told her husband and insisted that defendant and his wife leave. Conduct Involving J.M.
In July 2008, defendant and his family moved in with other relatives, this time with J.M. and her family. Defendant is J.M.'s uncle, and J.M. testified to numerous instances in which he "did bad things" to her.
The first incident occurred when she was four years old. Defendant "picked [her] up and he took [her] to the bathroom." He stood her up on the toilet seat, pulled her pants down, "opened his zipper at first and he took his part out" and "put his private" on hers "on the outside," over her underwear. Defendant also tried to kiss her.
When J.M. was around seven years old, she "opened the door where you go downstairs" and defendant was there with his arms open "like he wanted to hug me." He took her downstairs, where her cousins were sleeping in defendant's bed. He put her on her cousin's bed, which was separated from defendant's by a curtain, and "put his private in the hole that you poop from." She was facing him, but sometimes would "look away from his face." He would "always tr[y] to push it more in. He tried to put it much more in. But that's where the pain started to get—it started to get much more painful." Defendant would also move his body "like he was doing some pushups."
In another incident, when J.M. was "seven or eight" and was asleep in the bedroom she shared with her parents and her siblings, she awoke to find defendant pacing back and forth. The door was open, and from the open doorway she could see her aunt cooking. Defendant picked her up and took her from her bunk bed to her parents' bed, where J.M. could still see her aunt through the open doorway. There, "he did the same thing as he usually does," but she did not remember "which hole he did." She was not sure if her aunt saw this happening.
The next series of incidents occurred when J.M. was eight years old. These occurred before school in a van defendant used to drop off J.M., her sister and her cousins at school on Tuesdays and Thursdays. Defendant asked J.M. to stay behind, saying he needed help translating a phone call he had to make. Defendant parked the van near J.M.'s school and covered the windows with his clothing. He put J.M. on the seats or floor of the van face up and pulled down her pants and underwear. He would "put his pants down" and "his underwear down, too." Then he would "take his private part out," and he would "always tell me to put it in my mouth, or he'd always told me to touch it." He put his private in her mouth and "put his hands on the back of my head and he always pushed it down." He also would always kiss her and "always put [his tongue] in my mouth." Afterwards, he would put his private "inside" and she "had a lot of pain." He would "always put it on my front hole or my back hole." Sometimes she was not sure exactly which "of the two parts he put it on." However, "when I went home and to use the bathroom, it started my—both holes started to hurt, so that's when I knew he put 'em both."
Sometimes she "saw him put a little bag" or "bolista" on his penis. She said the "bolista" was "circular" in shape and came out of "square" packaging. Once he put the "bolista" on his front private, he put "his part" on her "back" hole, "the one from which you poop." She remembered seeing "something come out of his front private." He would take the "bolista" off "when he felt that the thing was coming out of his private," and he would "put [her] shirt up, and he put it right under [her] belly." This would take about "10, 15" minutes from start to finish, and defendant would "clean [her] private," since she "still had the white stuff, he would always clean it off." Then he would clean and redress himself and have J.M. do the same. He would then drop her off around 8:30 a.m., as school started at 8:40 a.m.
Another time, J.M. was sick but went with defendant to drop off her cousin and siblings at the bus stop. When they returned home, J.M. tried to go upstairs, but defendant took her to his room and "put his private on my mouth." J.M. also recalled another incident when she was seven or eight that occurred in the "front of the entrance to his room." Her cousins were in her aunt's bed, and J.M. and defendant were on the other side of the room, which was separated by the curtain. He told J.M. to kneel, and then "he put his pants down and . . . he put his private on my mouth, and then he told me to touch it."
J.M. described a time on defendant's birthday when he came up to her and asked her if she "wanted to do it." She said, " 'No.' " He then said, " 'Please, let's do it.' " And J.M. once again replied, " 'No.' " She eventually said yes because she feared he would tell her mom that she "wanted to do it with him." He asked J.M., " 'You don't love me?,' " to which J.M. did not respond. He then dropped off J.M.'s siblings and her cousin and parked the van in the "same place" near school and "he did those things again."
On another occasion, after J.M. turned nine years old, defendant took her to a "little shed" or "casita" and pulled her pants and his own pants down and put his private part into her "front hole."
The last time defendant touched her was in May 2013, around the last day of school. On that day, defendant covered both the front and back windows of the van. He "put his front private" in her "mouth" and "both holes." But when he did so she "had a lot of pain." She thought "he put it a little bit more inside" this time. She tried to "back up, and—but then he kept doing it." Defendant then kissed her. She remembered seeing something "white" coming out of "his front private." She remembered it was "very painful every time he finished," and it was "hard for [her] to use the bathroom."
J.M. had told her mother (Mother) "it hurt . . . [¶] . . .[¶] [t]o pee," and Mother checked her and asked if anyone was touching her. She said "No," because she "didn't want to get in trouble." Defendant always told her not to tell anybody.
In July 2013, when she was nine years old, J.M. told her older half-sister, M.R., that defendant had molested her for several years. J.M. was "worried and scared" when she told M.R. M.R. then told Mother. Mother, in turn, spoke with her sister, defendant's wife.
When Mother asked J.M. why she had not said anything sooner, she replied she was worried she would "get in trouble."
Mother then made two appointments to see a doctor. However, on the first visit, she told J.M. "to say no if they asked you if somebody touched you." According to her half-sister, the doctor "said that there was nothing wrong with her; that she was just irritated. And they gave [J.M.] a cream" to "put it on [her] private." J.M. was "crying. She didn't know why they didn't believe her."
During the second examination, J.M. said her uncle put his private in her mouth and in her vagina "a little bit, and it hurt." J.M. also told the examiner defendant put his "penis inside her anus" and that had "hurt." The examiner reported J.M. had "pain upon urination" and "rectal discomfort," including "rectal bleeding and rectal itching." J.M. said defendant had not ejaculated in her mouth, but that "he [had] used a condom and that white stuff went on a body surface." She also told the examiner defendant had told her not to tell anyone. The exam, however, resulted in "no findings of any kind of trauma to either the anal or genital area," which according to the examiner meant the exam could "neither confirm nor deny the allegations."
J.M.'s father told defendant to leave the house the day after J.M. disclosed what happened to her. However, defendant and his family continued to live with J.M.'s family for a "little bit."
J.M. was twice interviewed by the Children's Advocacy Center, in July 2013 and in January 2014 after she made further disclosures about abuse during the second medical examination.
Several additional witnesses testified in connection with the sexual abuse suffered by J.M.
Defendant's 14-year-old son said that one day "around June or July 2013," the family was "coming back from the beach," and when his sister went to pick up her dog from the back seat of the van, she found a condom.
M.R. testified that she also remembered seeing the condom in the van. It "was white and dry, looked like it had been there for days." She also recalled another incident involving defendant when she was 14 years old. Defendant borrowed her cell phone to make a call. M.R. had a picture on her phone of herself from the neck down in her underwear. Sometime later, defendant's daughter showed M.R. that defendant had that same photo of her on his phone, apparently having copied it. M.R. recalled another occasion, when J.M. was five or six years old, when she was changing J.M.'s clothes and she noticed J.M's "private parts were red." M.R. also observed that J.M.'s "parts seemed like a little bit lubricated," and "there was a clear—like a transparent liquid." J.M. told her "it hurt to go pee and that she had blood." M.R. did not tell Mother because she "didn't want anyone to think . . . I had a dirty mind for thinking something like that." M.R. had also found notes from J.M. that "she had the worst family and that nobody loved her."
J.M.'s mother and father, as well as her half-sister, N.R., all recalled that J.M. "never wanted [defendant] to drop her off at school" and that she "would cry and always wanted [her] dad to drop her off" instead. J.M.'s father also confirmed that two months before the July 2013 forensic interview, J.M. complained that "her part hurt, or that her part burned." J.M.'s mother said that once, when she was changing J.M.'s clothes, she found "a little bit of blood" in her underwear and J.M. complained that it hurt to go to the bathroom. N.R. also said that "[o]nce when [J.M.] came to the house, she said her front, like her front part hurt and that she had blood." N.R. now "felt guilty" for not having told anyone. Conduct Involving N.R.
When N.R. was around 10 years old and in the fourth grade, defendant would take her to the bus stop in his van so she could catch the bus to school. On one occasion, when they were in the van, defendant showed her "photographs of a naked woman," "like a porno," on his cell phone. The woman's chest and private parts were clearly visible. Defendant told her if she did not say anything "he would give me whatever I wanted." She did not tell anyone because she had only been in the country for a few months, and she "was afraid" no one would believe her.
When N.R. was 12 years old, she went outside to the shed or "casita," and when she came back in to help her cousin, she saw defendant wearing only a towel around his waist. He ran towards her, grabbed N.R.'s feet while she was trying to go up the stairs, and pulled her downward so that he was on top of her. He touched her breasts outside her clothes and tried to kiss her. N.R. "got very mad" and tried to get defendant off of her. She told him if he put his hands on her again she would tell her mother and "if possible, we would get the police involved." At that point, defendant said he "was just joking around."
She never told anyone about these incidents until she was interviewed in July 2013 by the forensic interviewer.
Defendant's Testimony
Defendant testified on his own behalf and denied any wrongdoing. While he admitted taking the children, including J.M., to school on Tuesdays and Thursdays, he claimed he was "always" accompanied by either his wife or J.M.'s mother. However, he admitted that he dropped off his wife at work first, and J.M.'s mother testified she did not always accompany him. Defendant said that, in the five years he lived with J.M. and her family, he was "never" alone with any of his nieces and nephews. He similarly said that during the time he lived with H.M.'s family, he was "never alone with her in any room in the house, including the common areas, for one minute."
The Charges and Convictions
Defendant was charged by second amended information with crimes involving three minor victims: 16 counts of lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a)—counts 1-7, 9, 14-17, 19, 21-23), seven counts of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)—counts 8, 10-11, 13, 18, 25-26), and three counts of oral copulation or penetration with a child 10 years of age or younger (§ 288.7, subd. (b)—counts 12, 20, 24).
Counts 1 through 5 were alleged as to H.M., count 6 as to N.R., and counts 7 through 26 at to J.M.
The jury found him guilty of counts 2-5, 7, 9-15, 17-24, and 26, not guilty of counts 1, 8 and 16, and were unable to reach a verdict as to counts 6 and 25.
The trial court sentenced defendant to a determinate sentence of 32 years which consisted of the upper term of eight years for count 2 (the principal term) and one-third the midterm of six years, or two years, for counts 3-5, 7, 9, 14-15, 17, 19, and 21-23 (each to run consecutively). As for defendant's indeterminate sentence, the trial court sentenced him to 170 years to life, which consisted of five, 25-years-to-life sentences for counts 10-11, 13, 18 and 26 (each to run consecutively) and three, 15-years-to-life sentences for counts 12, 20 and 24 (each to run consecutively) for a total sentence of 202 years to life.
DISCUSSION
Child Abuse Expert Testimony
Prosecution's Expert
Defendant claims the trial court erred in allowing Dr. Anthony Urquiza, the prosecution's expert, to testify to what defendant describes as testimony that "statistically all but a handful of child-molest allegations are true."
The prosecution moved in limine to allow the testimony of Dr. Urquiza, a professor in the U.C. Davis Medical Center Pediatric Department, as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). The defense opposed allowing any of the testimony on the ground the prosecution had not timely disclosed Dr. Urquiza as an expert, and such testimony did not meet the Kelly standard and was not necessary to rebut " 'myths' " about child sexual abuse arising from delayed reporting. The trial court deferred ruling until trial. No further rulings by the court appear in the record until the prosecution rested, when the court ruled on the record the prosecution had timely disclosed Dr. Urquiza as an expert and he was qualified to testify about CSAAS. Defendant acknowledges it is implicit from the record that at some point prior to Dr. Urquiza's testimony, the court granted the prosecution's motion to allow his testimony.
People v. Kelly (1976) 17 Cal.3d 24, abrogated by statute on another ground as stated in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848. Although, Frye v. United States (D.C. Cir. 1923) 293 F. 1013 was superseded by the adoption of the Federal Rules of Evidence (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579), the Kelly standard continues to be the law in California (People v. Leahy (1994) 8 Cal.4th 587, 604). Consequently, though Kelly/Frye remains a popular designation for the doctrine, the Kelly standard is more apt. (In re Jordan R. (2012) 205 Cal.App.4th 111, 115, fn. 3.)
Dr. Urquiza testified to the five components of CSAAS—secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation or retraction. In explaining his role as an expert, Dr. Urquiza emphasized he knew "nothing about any victim or victims related to this case," that he had not read "any reports or seen or read any transcripts or any interviews in this case," and that he was not there "to provide an opinion as to whether any of the alleged victims were, in fact, sexually abused." The purpose of his syndrome testimony was "not to make any type of determination as to whether a specific child was abused or not, or whether a particular person is guilty or innocent of a crime."
During direct examination, the prosecution asked Dr. Urquiza about "intentionally false allegations" and what "does the literature say in th[at] area." Dr. Urquiza first explained it is hard to do research in the area of sexual abuse, hard to do research with children, and harder still to do research on children who are allegedly sexually abused "in which there's an allegation made that is not true." With these caveats, Dr. Urquiza went on to state there are "probably about 12 or 15 research articles, empirical studies, on the false allegations of sexual abuse," and those articles suggest that while "false allegations of sexual abuse do occur," "they occur very infrequently or rarely." "Probably the best study," Dr. Urquiza said, "is a Canadian study that was done about eight years ago . . . in which they found that, looking at several hundred cases, about four percent of cases were cases in which it was determined that there was a false allegation," and that "of that four percent of cases, in none of those cases was the child the one who made the allegation that was determined to be false."
While defendant made several objections, as discussed above, to any testimony by Dr. Urquiza, he made no objection to the specific testimony about which he now complains. Defense counsel made no objection when the prosecutor commenced questioning Dr. Urquiza about "false allegations," no objection to Dr. Urquiza's answers, and no motion to strike his testimony.
The Attorney General accordingly maintains defendant has forfeited any complaint about Dr. Urquiza's testimony about "false allegations." We agree. Defendant's general objection to any testimony by Dr. Urquiza did not suffice to preserve the targeted attack defendant now makes on appeal. (See People v. Nelson (2012) 209 Cal.App.4th 698, 711 ["The failure to raise a specific objection to the admission of evidence results in forfeiture of appellate review."].)
Indeed, defendant has anticipated a forfeiture problem and alternatively claims he received ineffective assistance of counsel as a result of his attorney's failure to object to or make a motion to strike the testimony he now challenges on appeal.
" 'To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ' [Citations.] . . . Counsel is not ineffective for failing to make frivolous or futile motions." (People v. Thompson (2010) 49 Cal.4th 79, 122.) Thus, in reviewing a claim of ineffective assistance, we consider (a) whether there is no " 'satisfactory explanation' " for the counsel's challenged failure to act and (b) whether defendant has made the requisite showing of prejudice to support such a claim. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Dennis (1998) 17 Cal.4th 468, 540-541 [ineffective assistance of counsel requires a showing of deficient performance and resulting prejudice, i.e., "a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result"]; People v. Lucas (1995) 12 Cal.4th 415, 436.) "In considering a claim of ineffective assistance of counsel, it is not necessary to determine, ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ' (In re Fields (1990) 51 Cal.3d 1063, 1079 [], quoting Strickland, [] at p. 697.) It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Defendant characterizes Dr. Urquiza's testimony as "inform[ing] the jury that even before they considered any evidence specific to this case, and based only on the fact that an accusation had been made, there was a 92 to 99 percent chance that appellant was guilty." Defendant contends this "statistical" evidence was improper under People v. Collins (1968) 68 Cal.2d 319 (Collins).
In Collins, the Supreme Court held the trial court erred "in admitting, over defendant's objection," "evidence pertaining to the mathematical theory of probability." (Collins, supra, 68 Cal.2d at p. 332.) Collins was a "close" case involving the identification of defendant and his wife as perpetrators of a robbery. (Ibid.) The defendant was a Black male, his wife a White female with blonde hair. (Id. at p. 325.) The victim in the case had never seen defendant and could not identify defendant's wife. A witness's identification "was incomplete" as to defendant's wife and "may have been weakened" as to defendant. (Ibid.) "In an apparent attempt to bolster the identifications, the prosecutor called an instructor of mathematics." (Ibid.) The prosecutor sought to establish that, assuming the crime was committed by a White woman with a ponytail who left the scene in the company of a Black male, "there was an overwhelming probability that the crime was committed by any couple answering such distinctive characteristics." (Ibid.)
The mathematics witness then testified to the " 'product rule,' which states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur." (Collins, supra, 68 Cal.2d at p. 325.) Next, "[w]ithout presenting any statistical evidence whatsoever in support of the probabilities for the factors selected, the prosecutor then proceeded to have the witness assume probability factors for various characteristics which he deemed to be shared by the guilty couple and all other couples answering to such distinctive characteristics." (Ibid.) Then, "[a]plying the product rule to his own factors the prosecutor arrived at a probability that there was but one chance in 12 million that any couple possessed the distinctive characteristics of the defendants. Accordingly . . . it was to be inferred that there could be but one chance in 12 million that defendants were innocent," and furthermore, opined the prosecutor, "in reality, 'the chances of anyone else besides these defendants being there, . . . having every similarity, . . . is something like one in a billion.' " (Id. at pp. 325-326.)
The high court ruled the prosecutor's use and introduction of these statistics constituted prejudicial error in that the testimony "lacked adequate foundation both in evidence and in statistical theory," and that the testimony and manner it was used "distracted the jury from its proper and requisite function of weighing the evidence on the issue of guilt, encouraged the jurors to rely upon an engaging but logically irrelevant expert demonstration, foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory." (Collins, supra, 68 Cal.2d at p. 327.)
The instant case bears no similarity to Collins. Here, there was no attempt to use mathematical probabilities to establish the identity of the perpetrator, let alone to do so on the basis of conjured probability factors having no evidentiary basis. (Compare Collins, supra, 68 Cal.2d at p. 327 ["the prosecution produced no evidence whatsoever showing, or from which it could be in any way inferred, that only one out of every ten cars which might have been at the scene of the robbery was partly yellow, that only one out of every four men who might have been there wore a mustache, the only one out of every ten girls who might have been there wore a ponytail, or any of the other individual probability factors listed were even roughly accurate"].)
However, defendant also relies on a number of out-of-state cases that squarely address the kind of expert testimony he now claims was impermissible. In United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, for example, an expert witness testified in a military court martial involving charges of indecent liberties with a female under the age of 16, that the level of false child molestation allegations "ranges anywhere from five to twenty percent, depending on the sample that you look at, but it's generally considered to be, what's called a low base-rate phenomenon," and further that "[b]ased on divorce cases where false accusations were the most frequent," the rate was "two to five percent." (Id. at pp. 327, 329.) The federal military court of appeals, in concluding the tribunal had erred in allowing the testimony, observed that even though the case did not involve divorce, the expert's testimony suggested "there was better than a ninety-eight percent probability that the victim was telling the truth." (Id. at p. 329.) It "provided a mathematical statement approaching certainty about the reliability of the victim's testimony" and went "directly to the core issue of the victim's credibility and truthfulness." (Ibid.) The appellate court further concluded the error was prejudicial because the case "hinged on credibility." (Id. at pp. 329-330.) There "were no other direct witnesses, no confession, and no physical evidence to corroborate the victim's sometimes inconsistent testimony." (Ibid.) Thus, "[a]ny impermissible evidence reflecting that the victim was truthful may have had particular impact upon the pivotal credibility issue and ultimately the question of guilt." (Id. at p. 330.)
In Wilson v. State (Ct.App.Tex. 2002) 90 S.W.3d 391, an expert testified in an aggravated sexual assault of a child case that the percentage of false allegations is "2 to 8 percent" and that the majority of cases where that had occurred were child custody cases. The Texas Court of Appeals concluded such testimony "did not aid, but supplanted, the jury in its decision on whether the child complainant's testimony was credible" and the trial court had erred in allowing it. (Id. at p. 393.) However, the court also concluded the error was harmless given the weight of the evidence and a limiting instruction to the jury. (Id. at p. 394.) The victim had testified "with specific detail" that defendant "sexually assaulted her on numerous occasions while she was between the ages of six and eleven"; the assaults resulted in her pregnancy at age 11, which medical records confirmed; the victim, "[o]ver the years and at trial . . . never wavered in her allegations"; defendant fled shortly after the victim became pregnant; and numerous witnesses testified that the victim told them that the defendant had assaulted and impregnated her. (Id. at pp. 393-394.)
In Powell v. State (Del. 1987) 527 A.2d 276, an expert testified in a first degree rape of a minor case that she "had been involved in the treatment of approximately one hundred victims, but only one case where such allegations were later established as false, and that in that case the child had been previously abused," and that "ninety-nine percent of the alleged victims involved in sexual abuse treatment programs in which she was also involved 'have told the truth.' " (Id. at p. 278.) The Delaware Supreme Court concluded the testimony "deprived [the defendant] of his right to have his fate determined by a jury making the credibility determinations" and the trial court erred in allowing it. (Id. at p. 279.) The court further concluded the error was prejudicial. The verdict "almost necessarily turned on [] credibility," and the "percentage testimony was undoubtedly a 'substantial evidentiary factor' in the prosecution's case," given the expert was the sole expert on behavioral matters called by the prosecution, the prosecutor emphasized the testimony in his closing arguments, and there was no direct evidence that a rape had occurred or that if one did that the defendant committed it. (Ibid.) It was clear the jury had also focused on this testimony, as it had requested the expert's "exact wording" on the percentages about which she had testified. (Ibid.) Moreover, the trial court had not instructed "the jury concerning the limited purposes for which [the expert's] testimony was admitted . . . or give[n] any instruction concerning expert testimony." (Id. at p. 280.)
Similarly, in Snowden v. Singletary (11 Cir. 1998) 135 F.3d 732, a habeas case arising from a child sexual abuse case, an expert had testified that of the 1,000 children he had interviewed regarding sexual abuse, "995 of them told the truth," and that "99.5 percent of the children . . . of those cases . . . have been telling the truth." (Id. at p. 738.) The Eleventh Circuit Court of Appeals concluded "allowing expert testimony to boost the credibility of the main witness against [the defendant]—considering the lack of other evidence of guilt—violated his right to due process by making his criminal trial fundamentally unfair." (Id. at p. 739.)
In State v. Myers (Iowa 1986) 382 N.W.2d 91, a school principal and a child abuse investigator both testified in an indecent contact case as to whether children "in general tell the truth about these particular kinds of crimes." (Id. at p. 92.) The principal testified children do not lie in "these particular types of incidents," relying on her own experience and statistics she learned at special training sessions on child sexual abuse. These statistics, said the principal, show that out of "75 cases, there was only one out of [the] prosecuted cases where the child was not telling the truth," and in three years at her own elementary school "there ha[d] not been a child who ha[d] lied about something like this." (Ibid.) The abuse investigator similarly testified that in the 16 years she had worked with children, she "only had one child that lied to [her] about sexual abuse." She had additionally read a statistic that "perhaps one in 2,500 children who were interviewed did not tell that the truth, which would make it exceedingly rare." (Ibid.) While the Iowa Supreme Court recognized that an expert opinion can " 'assist the trier of fact to understand the evidence or to determine a fact in issue,' " an opinion "as to the truthfulness of a witness is not admissible." (Id. at p. 97.) The testimony by the principal and the investigator "was the same as directly opining on the truthfulness of the complaining witness." (Ibid.) The court also concluded the error was prejudicial in that the "effect of the opinion testimony was to improperly suggest the complainant was telling the truth and, consequently, the defendant was guilty." (Id. at p. 98.)
While the majority of the Iowa court in Myers concluded the trial court had prejudicially erred in allowing the testimony, three justices of the seven member court dissented and one abstained. Justice Harris, joined by Justice Larson, wrote in the dissent that the "challenged testimony did not relate to anything personal to the child who was the victim in this case," and that "[e]vidence of defendant's guilt was clear." (State v. Myers, supra, 382 N.W.2d at pp. 99-100 (dis. opn. of Harris, J.).) Justice Wolle, also dissenting, similarly observed neither expert expressed an "opinion on the ultimate fact of defendant's guilt or innocence" nor did they "express an opinion on the credibility of the female victim." (Id. at p. 100 (dis. opn. of Wolle, J.).)
These cases raise a very serious question as to the propriety of Dr. Urquiza's "false allegation" testimony. However, we need not, and do not, decide whether his testimony was improper. Even if his testimony about the studies was subject to objection, defendant has not carried his burden on appeal to demonstrate ineffective assistance of counsel.
To begin with, defense counsel could well have had a tactical reason for not objecting to this one discrete aspect of Dr. Urquiza's testimony, namely not to highlight or to draw attention to it. (See People v. Williams (1997) 16 Cal.4th 153, 215 [concluding counsel may have made a tactical decision not to object to certain testimony "because an objection would have highlighted the testimony and made it seem more significant"].) This is particularly so, given that the defense planned on presenting its own expert testimony that sought to undermine CSAAS.
Further, even assuming there was no reasonable explanation for defendant's counsel's failure to object, defendant has not met his burden to show prejudice. Dr. Urquiza repeatedly stated he was not rendering any opinion as to defendant's guilt. He prefaced his testimony about the "false allegation" studies with numerous caveats about the inherent difficulties with such studies. The jury was specifically instructed "Dr. Anthony Urquiza and Dr. Paul S.D. Berg's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him." The jury also heard directly from the victims and, thus, had the very best evidence before it to assess their credibility. And there was significant other evidence corroborating the victims' testimony. Additionally, the jury did not convict defendant on every charge, reflecting that it carefully evaluated the evidence as to each crime. Accordingly, given the record here, there is no reasonable probability that but for Dr. Urquiza's testimony about "false allegation" studies, the outcome would have been more favorable to him. (See People v. Mesa, supra, 144 Cal.App.4th at p. 1008.)
Defendant's Expert
After the prosecution rested, defendant sought to present testimony by his own expert, Dr. Paul S.D. Berg, on both CSAAS and "false allegations." During voir dire on his qualifications, Dr. Berg acknowledged he had not authored any articles in any publications related to false allegations of sexual abuse, nor had he given any presentations related to false allegations. Dr. Berg stated he had made himself "current" on research literature related to child sexual abuse "for this case," but admitted he did not subscribe to any journals directly related to child sexual assault. At the end of voir dire, an unreported side bar took place. The court then stated on the record it would accept Dr. Berg as an expert, but only on the subject of CSAAS.
Nevertheless, during Dr. Berg's direct-examination, defense counsel inquired about the "Canadian study," at which point the prosecutor objected stating, "given our conference that we had outside and Your Honor's ruling . . . [¶] [t]his is beyond the scope of his expertise." The trial court and counsel then had another unreported side bar, and the trial court sustained the objection.
While defendant claims his expert was erroneously precluded from testifying about the "false allegation" studies, he has failed to provide a complete record that allows for appellate review of the trial court's ruling as to scope of Dr. Berg's testimony, as there is no record of what was said during the unreported side bar conferences. (See People v. Barton (1978) 21 Cal.3d 513, 519-520 [appellant's duty to provide adequate record for review]; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 ["absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion"].) For example, there is no offer of proof as to what Dr. Berg would have testified to, had the prosecution's objection not been sustained. (See People v. Brady (2005) 129 Cal.App.4th 1314, 1332 [" 'It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise,' and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal."].) The offer " 'must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.' " (Ibid.) This gives the trial court an opportunity to change its ruling and provide the appellate court the content of the proposed testimony so that it can assess any potential prejudice. (Ibid.; People v. Whitt (1990) 51 Cal.3d 620, 648.) Accordingly, defendant has not carried his burden of showing a prejudicial abuse of discretion in disallowing Dr. Berg's testimony.
Furthermore, the record we do have reflects no abuse of discretion by the trial court. During voir dire, Dr. Berg revealed that he had only testified about CSAAS one or two times, and as stated above, he acknowledged he did not author any articles related to false molestation allegations and had given no presentations related to false allegations. And, while Dr. Berg stated he had made himself "current" on research literature related to child sexual abuse "for this case," he admitted he did not subscribe to any journals directly related to child sexual assault. (See People v. DeHoyos (2013) 57 Cal.4th 79, 128-129 [no abuse of discretion in excluding expert witness where witness had limited experience in the area of testimony].)
Finally, even assuming there was any abuse of discretion in limiting Dr. Berg's testimony as to this particular area of inquiry, defendant cannot demonstrate prejudicial error for all the reasons we have identified in connection with his claim that the trial court erred in allowing Dr. Urquiza's testimony as to the studies on "false allegations." Given the record, it is not reasonably probable that defendant would have received a more favorable result had Dr. Berg been allowed to address this single point. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Sentencing
Defendant claims his sentence must be reversed because the trial court "relied on nonexistent facts when choosing the maximum possible sentence" and, thus, violated his due process rights.
Prior to pronouncing sentence, the trial court commended the three victims for their bravery in having come forward and made the following remarks (with the "facts" defendant disputes in bold):
"Mr. Melara, you've manipulated and abused the love and trust of these little girls over a period of 14 years, beginning when they were as young as four years old. [¶] You forced them to endure every painful and degrading sexual violation that you could come up with, even though they begged you not to, even though they told you that it hurt. And you did so over and over and over. [¶] And what's worse—I can't say 'worse,' there's no comparisons here—but you brazenly committed these horrible acts while living with your own wife and children under the same roof as the nieces you brutalized and their unsuspecting parents—your own sister-in-law and your own cousin. [¶] You counted on the terror and emotional wounds you were inflicting to secure the ongoing silence of your victims, who were forced to hide their suffering as they waited in dread of the next time you managed to get them alone—whether it was in a car or somewhere else. [¶] Day in and out, you lied, betrayed everyone who cared for and trusted you. [¶] You didn't care that you were hurting these children, and you didn't care that your behavior threatened to destroy your own family—which is exactly what's happened. All you thought about was yourself. [¶] Mr. Melara, the truth is now out. Thanks to these brave girls, there will be no more hiding. [¶] After everything you put them through, [J.M.] and [H.M.] overcame what they'd been subjected to and showed their determination to take control of their own lives. [¶] By coming forward and testifying in this case, as I've just said, these girls showed incredible strength and resilience that will serve them well as they and their families work to rebuild all that you have shattered. [¶] Because of their
courage, no child will ever have to suffer at your hands ever again.
[¶] Mr. Melara, the sentence I am imposing today, as a practical matter, means that you will spend the rest of your life in prison. [¶] I'm going to agree with one more thing that [J.M's mother] said: I take no happiness from that, I take no pleasure from that. [¶] Any time I require a defendant to spend time in custody, I will tell you, I lose sleep over it. But under the circumstances of this case, I see no other just result. [¶] And I heard the request that I be fair, that I be compassionate, that I be just. That is the result that, in my view, is dictated by this case. [¶] You've shown no remorse; you've continually denied your guilt. The jury didn't believe you, they didn't believe a word you said. And I didn't believe you, either. That's ultimately a decision for the jury to make. [¶] I don't know—we all know, as a matter of human psychology, that sometimes we convince ourselves, we delude ourselves into believing that which is not true. [¶] Maybe that's what's going on in your own mind. I don't know. [¶] I do hope that as you reflect on your behavior—and you will have plenty of time to do that—that you will begin to understand not only what you did, but the preciousness of the trust, love, and innocence that you readily violated for nothing more than your own personal gratification." (Boldface added.)
With respect to H.M., defendant contends her "contact with [him] was limited to a short period of time when she was four years old" and that she "had little in the way of abuse to 'overcome' and did not claim any difficulty in taking control of her life." He further claims H.M. "was not the victim of 'terror' or threats of any kind," that he took "no steps to 'secure [her] ongoing silence," he did not "force her to 'endure every painful and degrading sexual violation' he could come up with," and he did "not 'manipulate and abuse' her 'love and trust' for 14 years."
With respect to J.M., he contends she was not abused for "14 years as the judge implied," that there was no evidence that he " 'counted on the terror and emotional wounds [he was] inflicting to secure the ongoing silence of [his] victims,' " that J.M. "never said appellant threatened her with harm if she told," and that there was "no evidence that [J.M.] ever told appellant she was in pain."
The Attorney General maintains defendant has forfeited his complaint about sentencing, as he failed to make any objection to what he has characterized on appeal as the trial court's factually inaccurate "diatribe." Defendant complains he did not have "time" to make any objection because the court commenced pronouncing sentence immediately following the above quoted remarks. This assertion is meritless. Nothing prevented defense counsel from interposing an objection. Thus, defendant has forfeited any challenge to the court's remarks. (See People v. Scott (1994) 9 Cal.4th 331, 352-356 [failing to object to a sentencing determination, when given a meaningful opportunity to do so, forfeits the issue on appeal].)
Again anticipating this conclusion, defendant again relies on a claim of ineffective assistance of counsel.
It is clear, however, that the trial court neither erred nor abused its discretion. Indeed, defendant's "nonexistent facts" argument is based on a gross distortion of the comments made by the trial court. It is readily apparent the trial court was talking in general terms and condemning the totality of defendant's conduct in the strongest possible terms. The 14-year time span the judge spoke of plainly referred to the period between 1999, when defendant first molested H.M., and 2013, when J.M. finally was able to report the abuse she endured. Defendant did "manipulate and abuse" the love and trust of his three victims over the course of 14 years. Collectively, he did subject them to many "painful and degrading" sexual violations. He did subject J.M., repeatedly, to painful penetration. Even if J.M. did not tell defendant explicitly that this abuse was painful, she clearly showed her aversion to being alone with him and tried to resist him. In fact, it is manifestly incredible that a grown man would be unaware that sexually penetrating a child would be excruciatingly painful both during the act and afterwards.
Furthermore, the supposedly "nonexistent facts" about which defendant now complains were only prefatory comments to the trial court's sentencing decision. In pronouncing sentence, the court provided the requisite statement of reasons. The court stated it selected the upper term for count 2 (the principal term) because the victims were particularly vulnerable given their young age at the time of the offenses, defendant took advantage of a position of trust, and the manner in which the offenses were carried out required planning in order to get the victims into private areas and to conceal defendant's conduct—all circumstances in aggravation set forth in California Rules of Court, rule 4.421(a) and fully supported by the record. The trial court went on to state its reasons for making the determinate counts consecutive—because defendant committed multiple crimes over a lengthy period, this was not a "single period of aberrant behavior," he intimidated his young victims by warning them to keep quiet, all, or nearly all of the crimes involved contact with the genital areas of children, one as young as four years old, the jury found true the allegations of substantial sexual contact with J.M., and defendant testified none of the crimes had occurred, testimony the jury obviously did not believe. And even though not required to state its reasons for the mandatory life terms, which the court also ordered imposed consecutively, it did so: "There was evidence presented in this case and believed by the jury of multiple distinct and separate and independent acts of sodomy, sexual intercourse, and oral copulation that occurred on many different occasions over a period of years on a very young and vulnerable child who was manipulated in the most heinous manner by the defendant to perform those acts upon her. They involved separate and distinct acts of oral copulation and penetration of a highly vulnerable child between the ages of four and nine by someone who, as her uncle, was in the utmost position of trust."
In short, there was no ineffective assistance of counsel because there was no error or abuse of discretion about which to object. (See Strickland, supra, 466 U.S. at p. 687.) His assertion that it seemed "like the trial judge attended a different trial from the one heard by the jury" is utterly without merit. The trial court appropriately acknowledged the victims' fortitude and accurately summarized this case.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.