Opinion
B299390
03-29-2021
THE PEOPLE, Plaintiff and Respondent, v. GILBERTO MENDEZ, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA451109 APPEAL from a judgment of the Superior Court of Los Angeles County, David V. Herriford, Judge. Affirmed. Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In the first trial, a jury convicted defendant Gilberto Mendez of committing a lewd act with a child under 14 years old. The jury hung as to the other two counts and the trial court declared a mistrial. In the second trial, a jury convicted Mendez of the remaining counts: sexual penetration of a child 10 years old or younger and committing a lewd act with a different child under 14 years old. The jury in the second trial also found Mendez committed a lewd act with more than one child under Penal Code section 667.61. The court sentenced Mendez to a total term of 36 years to life in prison.
All undesignated statutory references are to the Penal Code.
All of Mendez's claims on appeal arise out of the second trial. He contends: (1) the prosecutor committed prejudicial misconduct by asking him about prior acts of sexual misconduct that she never substantiated; (2) the court erred in admitting the testimony of a Child Sexual Abuse Accommodation Syndrome (CSAAS) expert; (3) the court's instruction concerning the CSAAS expert's testimony was prejudicially defective; (4) the court erred in admitting a photograph of one of the victims; (5) the court erred in failing to give a unanimity instruction as to one of the counts of lewd conduct; (6) cumulative error requires reversal; (7) his sentence for engaging in lewd conduct with more than one child constitutes cruel and unusual punishment under the state and federal Constitutions; and (8) the court erred in imposing various fines and fees without determining his ability to pay. We reject each of these claims and affirm the judgment.
FACTUAL BACKGROUND
1. The People's Evidence
M.R. testified in person at the first trial. She later ran away from home and could not be found before the second trial. She was declared unavailable to testify at the second trial and her testimony from the first trial was read into the record.
M.R. was born in 2003. When she was between the ages of five and eight years old, she lived in several different homes with her mother, her sister, Mendez, and other people. Mendez often watched M.R. while her mother was out of the house.
Mendez began molesting M.R. when she was about five years old. On multiple occasions, he pulled out the waistline of M.R.'s pants and underwear so that he could look at her vagina. He would tell M.R. he was only checking to make sure she was wearing underwear. Mendez also made M.R. watch pornography with him several times.
On one occasion when M.R. was about six years old, she was naked in the bathtub when Mendez entered the bathroom without knocking. He was holding a sausage, which he tried to put inside M.R.'s vagina. About a year later, Mendez walked in the bathroom again while M.R. was naked. When M.R. told him to leave the room, Mendez pushed her down between the toilet and the sink. While M.R. was down, Mendez put his finger inside her vagina.
On another occasion, when M.R. was about eight years old, she was sleeping on the floor of the living room. She woke up in the middle of the night with her pants and underwear pulled down past her knees. She then saw that Mendez was lying behind her with his penis exposed. Mendez told M.R. not to tell anyone about the incident, threatening he would accuse her of lying and claim that she inappropriately touched him.
1.2. L.S.
In May 2009, L.S. was seven years old and living in an apartment complex with her mother and brothers. Mendez lived in the same complex in a unit he shared with M.R., M.R.'s sister and mother, and some other adult men. At the time, L.S. attended the same elementary school with M.R. and M.R.'s sister.
In mid-May 2009, L.S. went over to M.R.'s apartment to play video games. While L.S. was sitting on the bed, Mendez sat next to her. L.S. scooted away, but Mendez slid closer to her. L.S. kept moving away from Mendez, but he slid closer to her until she reached the end of the bed. Mendez then told L.S. she looked "pretty" and pushed her onto her back. Mendez stroked her hair, put his hand under her shirt, and ran his finger along her chest. When L.S. sat up and closed her legs, Mendez put his hand between her thighs and touched the top of her vagina. Frightened, L.S. ran out of the room and back to her apartment, telling Mendez and M.R. that her mother had just made food.
When L.S. got home, she went straight to her bed and covered herself with a shirt or sheets. L.S.'s mother could tell something was wrong, so she explained that she had been molested as a child and that it was okay for L.S. to tell her if anything happened. L.S. refused to speak. After school the next day, L.S. told her mother what happened at M.R.'s apartment.
When they got home, L.S.'s mother confronted Mendez. She accused Mendez of touching her child and struck him several times. Mendez laughed at her and told her no one would believe her because she's "crazy." L.S.'s mother then called the police.
Several days later, M.R. and her sister confronted L.S. and called her a liar. Mendez also confronted L.S.'s mother, bragging to her that the police had released him because they didn't believe L.S.'s accusations.
M.R. testified about the incident involving L.S. M.R. confirmed that L.S. had been at their apartment playing video games. M.R. denied, however, that Mendez acted inappropriately toward L.S. According to M.R., L.S. had tripped and Mendez grabbed her to prevent her from falling. L.S. then yelled, "don't touch me," and ran home.
1.3. The Investigation
In 2011, M.R. was interviewed by a social worker. M.R. denied that Mendez molested or otherwise abused her. M.R. told the social worker that Mendez was nice to her and wanted to take care of her and her sister. M.R. later testified that she lied to the social worker because Mendez had threatened her and she didn't want to get her mother in trouble. M.R. didn't report Mendez's abuse until several years later, when she was 13 years old and living with her aunt.
In September 2016, M.R.'s aunt and the police arranged for the aunt to speak with Mendez over the phone about M.R.'s accusations. The phone call was recorded and played to the jury.
The call was conducted in Spanish and later translated to English.
When the aunt told Mendez that M.R. accused him of "touch[ing] her or whatever," Mendez replied, "I used to bathe her ... , but do you think that—? Look, the girl is 100% a virgin. Do you think I'd make love to a little girl?" Mendez continued, "Maybe my hand would graze her thing, but I never had the intention of doing something to her. [¶] ... You know what? She's really a clever little girl. ... [¶] She would constantly harass me and ask me to do things to her, but how could I do anything like that to ... my own granddaughter?" Mendez claimed that M.R. used to ask him to show her his private parts "all the time" and that she would "pull down her panties and show herself" to him. When the aunt asked Mendez where these incidents occurred, he responded, "I can't remember exactly, but in all honesty ... M.R. is 100% a virgin." Mendez then exclaimed, "I've never raped anybody."
The aunt then told Mendez that M.R. claimed he touched her vagina. Mendez replied that he didn't think he touched M.R.'s "parts," but that he "used to graze her with [his] hand when [he] bathed her." Mendez also denied that he ever exposed himself to M.R., claiming "it's dangerous. The law believes whatever kids say. That's dangerous." Mendez stated he never showed M.R. pornography. Instead, he had caught M.R. and her sister watching pornography that another man had left at the family's home. Mendez told the aunt that M.R. should call him so he could "apologize to her if [he] ever grazed [his] hand over that part of her."
In October 2016, Mendez was interviewed by law enforcement. Mendez denied touching M.R. or L.S. in a sexual manner. Although he acknowledged he may have "brushed" M.R.'s vagina, he only did so because he was giving her baths. He also denied showing M.R. pornography, claiming he had caught her watching someone else's videos. Throughout the interview, Mendez repeatedly stated that M.R. is "100% a virgin." When asked why he was saying that, Mendez replied, "Because, if I never touched her, she should still be a virgin. Yes or no? [¶] ... [I]f it's up to me, she's 100% a virgin. Had I done something to her or raped her, I would say: 'You know what? I messed up. I did something to that little girl.' "
The interview was conducted in Spanish and later translated to English.
Mendez insisted that he never told M.R.'s aunt that M.R. used to take her clothes off and ask him to touch her. When the officer told Mendez that the police were aware of his call with M.R.'s aunt, Mendez acknowledged he made the statement but had simply forgotten about it.
After his interview with the police, Mendez wrote the following statement: " 'I just put my hand on my granddaughter['s] private part because she asked me to, but I feel bad. After that, it never happened again. That was all. By 'private part,' I'm referring to her vagina.' "
1.4. Expert Testimony
A clinical psychologist who specializes in child sexual abuse and trauma testified as the People's expert on the CSAAS model. According to the expert, the CSAAS model helps explain why children who have been sexually abused engage in specific types of behavior. Specifically, the model was developed to dispel the common misperception that a child who has been sexually abused will either try to resist or immediately report their abuser. Instead, children often delay disclosure of sexual abuse and, when they do report it, will do so in a non-linear, or piecemeal, way. Children also will often "test[ ] the waters" by telling other adults that they don't like their abusers. If the adults respond positively, children will often disclose some details about the abuse, but if the adults respond negatively, children will often shut down and not report the abuse.
There are five main types of reactions and behaviors the CSAAS model addresses: (1) helplessness, (2) secrecy, (3) accommodation, (4) delayed disclosure, and (5) recantation. A sexually abused child often feels helpless because the child is usually physically smaller than the adult abuser and taught to trust and obey adults. Because most crimes of child sexual abuse are committed in private, the abused child will often believe the abuse should be kept secret. An abused child may try to accommodate or cope with the abuse by pretending it didn't happen. It is also common for an abused child to wait a significant amount of time before reporting the abuse, and the child will often recant an accusation to make the negative reactions of other adults go away. These five reactions and behaviors occur in most cases, with recantation being the most likely type of behavior not to be present.
The CSAAS model applies when the child knows the abuser. A child may not experience the behaviors and reactions outlined above if the abuser is a stranger. The closer a child is to their abuser, the more difficult it is for the child to disclose the abuse. If a child is abused at a young age, the child is more likely to report sexual abuse as he or she gets older.
The CSAAS model is not designed to prove sexual abuse actually occurred. Nor is it useful in determining whether a child is telling the truth about abuse allegations. Rather, the model assumes a child has been sexually abused.
2. Defense Evidence
2.1. Mendez's Testimony
Mendez testified at the second trial. He denied touching L.S. in a sexual manner. According to Mendez, he met L.S. the day she came to the family's apartment to play with M.R. and M.R.'s sister. L.S. walked up to Mendez while he was painting in the living room. L.S. then asked for some of Mendez's paint. When Mendez refused to give her any paint, L.S. became upset and started jumping around and yelling, "Give me paint." L.S. started to trip, so Mendez grabbed her back and legs to keep her from falling. Mendez picked L.S. up and sat her down. L.S. then said, " 'If you don't give me the paint, I'm going to tell my mom you wanted to touch me,' " before running back to her apartment.
On cross-examination, the prosecutor questioned Mendez about his testimony from the first trial. Specifically, the prosecutor asked Mendez whether he previously testified that he had only grabbed L.S. by her calves and had not mentioned touching the child's back. After the prosecutor showed him the transcript from the first trial, Mendez denied that he had said what was in the transcript. Mendez also initially denied that L.S.'s mother confronted him the day after he touched L.S., and he denied ever laughing at L.S.'s mother. Mendez later testified, however, that he couldn't remember whether L.S.'s mother ever confronted him.
Mendez claimed he never touched M.R. inappropriately. Although he bathed M.R. when she was young because her mother was "on drugs", he denied ever inserting his finger into her vagina, trying to put a hot dog inside her vagina, or performing underwear "checks" on her. He also denied making her watch pornography, but claimed he caught her and her sister watching pornography on a couple of occasions. According to Mendez, M.R. often exposed herself to him and asked him to touch her private parts.
When asked about his written statement in which he admitted he touched M.R.'s vagina, Mendez claimed a police officer told him what to write. Mendez also denied stating in the pretext phone call with M.R.'s aunt that he "grazed" M.R.'s vagina, claiming he had only apologized for "bothering" M.R.
2.2. Character Testimony
Leticia Vazquez was Mendez's former employer. Her testimony from the first trial was read into the record at the second trial. Mendez worked for Vazquez for several years painting signs. Although she wasn't familiar with the details of his personal life, she believed he was an honest person. When asked if she knew Mendez had previously been convicted of fraud, she replied that the conviction wouldn't change her opinion about his character.
PROCEDURAL BACKGROUND
The People charged Mendez with sexual penetration of M.R. (§ 288.7, subd. (b); count 1), committing a lewd act on M.R. (§ 288, subd. (a); count 2), and committing a lewd act on L.S. (§ 288, subd. (a); count 3). As to all counts, the People alleged Mendez committed the crimes against more than one victim (§ 1203.066, subd. (a)(7)).
At the first trial, a jury convicted Mendez of committing a lewd act on M.R., but it couldn't reach a verdict as to the other counts. The court declared a mistrial and Mendez was retried on counts 1 and 3. At the second trial, the jury convicted Mendez of sexually penetrating M.R. and committing a lewd act on L.S. As to count 3, the jury found Mendez committed an offense against more than one victim.
At the second trial, count 3 was restyled as count 2. To avoid confusion, we refer throughout this opinion to the count numbers as they appear in the information, not how they were restyled for the second trial.
The court sentenced Mendez to a total term of 36 years to life, consisting of: 15 years to life for count 1, plus a consecutive six-year term for count 2, plus a consecutive term of 15 years to life for count 3 under the sentencing provisions in section 667.61, subdivisions (b) and (e). The court imposed various fines and fees, which we discuss in greater detail below.
Mendez appeals.
DISCUSSION
1. Prosecutorial Misconduct During Mendez's Cross-Examination
Mendez contends the prosecutor committed prejudicial misconduct when she questioned him about alleged prior instances of sexual misconduct that she never substantiated. As we explain, the prosecutor didn't commit misconduct in questioning Mendez and any alleged misconduct was not prejudicial.
1.1. Relevant Background
At both trials, the prosecutor sought to introduce evidence that Mendez had molested his daughter (M.R.'s mother) in 1989. The prosecutor told the court that Mendez's rap sheet, which had been provided to defense counsel, showed he had been arrested in September 1989 for violating section 288, subdivision (a). Charges stemming from that arrest were either dropped or never filed. The prosecutor also stated that Mendez had acknowledged during an interview that he had been arrested on suspicion of child molestation in 1989, but that he had "beat it."
At the first trial, Mendez objected to the People presenting evidence related to his alleged prior sexual misconduct. The court ruled the evidence would be admissible only if the People could present a witness to substantiate the allegations. Because M.R.'s mother could not be located during the first trial, the People didn't present any evidence concerning the prior allegations.
During a break in Mendez's testimony at the second trial, the prosecutor sought permission to question Mendez about the prior allegations. The prosecutor wanted to impeach Mendez's statements that he never intended to touch M.R. and L.S. in a sexual manner and that he didn't have any proclivity to engage in sexual misconduct with children. Specifically, the prosecutor wanted to ask Mendez whether he had ever been arrested for molesting M.R.'s mother. Mendez objected, arguing the prosecutor should be precluded from asking any questions related to the prior allegations unless she could present evidence substantiating them.
The court allowed the prosecutor to question Mendez about whether he molested M.R.'s mother, but not about whether he had been arrested in connection with that conduct. The court explained that line of questioning would be proper for two reasons: "One, being, it contradicts his testimony regarding his relationship with his family; but, moreover, it would constitute an act of moral turpitude if it in fact occurred and [the prosecutor] had [a] good faith belief in this. I will give the instruction that indicates the question is not evidence. If [Mendez] denies it, he denies it. She is prohibited from arguing that it occurred. But I think it's fair game, given his testimony."
During Mendez's cross-examination, the prosecutor questioned Mendez about the allegations of prior sexual misconduct involving M.R.'s mother. The prosecutor asked Mendez whether, in 1989, he lived in Los Angeles with M.R.'s mother, who was five years old at the time. When Mendez responded in the affirmative, the prosecutor asked him: "And back then [M.R.'s mother] said that you laid down next to her on the bed and you fondled her vagina and that you kissed her on the lips and breast." Mendez objected to the question under Evidence Code section 352. The court overruled the objection and instructed the prosecutor not to ask Mendez what M.R.'s mother had said, but whether he in fact touched M.R.'s mother in an inappropriate manner.
The prosecutor rephrased her question: "Did you lay down next to [M.R.'s mother], your daughter, on the bed, fondle her vagina, kiss her on the lips and breast, and rub your penis up against her vagina?" Mendez responded, "No. No." The prosecutor then asked Mendez about whether he had also sexually abused his niece in 1989: "Did you while babysitting ... you [sic] niece ... [¶] came and laid down next to her and fondled her vagina and told her not to tell anybody?" Mendez objected under Evidence Code section 352, which the court overruled. Mendez replied, "Never that. Never that. I've got the story about that." The court then cut Mendez off and the prosecutor didn't ask any more questions related to the allegations of prior sexual misconduct.
During the People's rebuttal, the prosecutor didn't call M.R.'s mother or any other witness to testify about the allegations of Mendez's prior sexual misconduct.
After the evidence phase of trial, the court instructed the jury that the attorneys' questions and statements were not evidence. Specifically, the court informed the jury that "[t]he attorneys' questions are significant only if they help you to understand the witness' answers. [¶] Do not assume that something is true just because one of the attorneys asked a question that suggest[ed] it was true."
In closing arguments, neither attorney referenced the prosecutor's questions about the allegations of Mendez's prior sexual misconduct with his daughter and niece.
During deliberations, the jury asked for readback of the "written testimony" concerning the incident involving L.S. and submitted a question asking, "Can we use the references to [the 1989] claims of abuse regarding determination of Mr. Mendez's character?" Before the court responded, one of the jurors was replaced because of a family emergency. The jury then submitted another question, again asking for readback of the written testimony concerning L.S. and whether it could "use the references to [the 1989] claims of abuse."
After denying Mendez's motion for a mistrial, the court instructed the jury as follows: "[L]et me reiterate that I gave you the instruction 222 that states that the attorneys' questions are not evidence. Only the witness' answers are evidence. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] Now, with respect to this particular item of evidence, there was a question asked by the prosecutor regarding these two people. The defendant denied it. There was no evidence presented that any of this happened so there is no evidence of it, so you're not to consider it for any purpose." The court then asked the jury foreperson if its explanation "clear[ed] it up," to which the foreperson replied, "yes."
1.2. Governing Legal Principles
A prosecutor commits prejudicial misconduct under the federal constitution when she engages in conduct that is so " ' " ' "egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.]' " (People v. Navarette (2003) 30 Cal.4th 458, 506.) Under California law, a prosecutor commits reversible misconduct if she makes use of " 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted." (People v. Riggs (2008) 44 Cal.4th 248, 298.)
"The rule is well established that the prosecuting attorney may not interrogate witnesses solely 'for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.' [Citations.]" (People v. Wagner (1975) 13 Cal.3d 612, 619, superseded by constitutional amendment on another ground as stated in People v. Dalton (2019) 7 Cal.5th 166, 213.) Thus, "[a] prosecutor may not ask questions of a witness suggesting facts harmful to a defendant without a good faith belief that such facts exist. [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 434 (Pearson).) Likewise, "[t]he proponent of ... impeachment evidence must have a good faith basis for asking the question." (Ibid.)
1.3. Analysis
Mendez asserts the prosecutor committed misconduct by asking him questions about his alleged sexual abuse of his daughter and his niece. According to Mendez, the prosecutor knew he would deny the allegations and that she could not independently substantiate them. In other words, Mendez contends the questions were improperly designed to suggest the existence of facts prejudicial to Mendez that the prosecutor never intended to prove. We disagree.
As we noted, the prosecutor and defense counsel were in possession of Mendez's rap sheet, which showed Mendez had been arrested for violating section 288, subdivision (a) in 1989, the same time period that the prosecutor claimed he allegedly molested his daughter and his niece. The prosecutor also informed the court that Mendez had acknowledged his arrest during an interview conducted before trial. Mendez's rap sheet and statements during the interview provided a good faith basis for the prosecutor's questions about the allegation of prior sexual misconduct. (See People v. Mooc (2001) 26 Cal.4th 1216, 1234 (Mooc) [defense counsel's acknowledgement of a police report describing the conduct that formed the basis for the prosecutor's challenged questions showed "the prosecutor had a good faith belief that he could have produced a witness to provide a factual basis for the questioning"].) And the prosecutor had a legitimate purpose for asking questions about the prior allegations—i.e., to impeach Mendez's repeated statements that he never intended to touch M.R. and L.S. in a sexual manner and that he lacked a proclivity to engage in sexual misconduct with children.
That the prosecutor ultimately did not call M.R.'s mother, Mendez's niece, or another witness to testify about the prior allegations does not mean she lacked good faith in asking the challenged questions. As the Supreme Court in Mooc observed, " 'one can readily imagine that by the time he could offer rebuttal evidence the prosecutor might have concluded that such additional evidence was unnecessary.' " (Mooc, supra, 26 Cal.4th at p. 1234.) Or the prosecutor may have believed she could locate the necessary witnesses before the end of the evidence phase of trial.
Even if we were to assume the prosecutor's questions were improper, the error was harmless under either the state (People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard of review (Chapman v. California (1967) 386 U.S. 18, 24). The evidence of Mendez's guilt was strong. M.R. and L.S. independently described Mendez engaging in inappropriate sexual conduct. Both children described conduct that was similar in nature. Mendez's testimony, on the other hand, was scattered, self-contradicting, and inconsistent with numerous statements he had made before trial. Indeed, Mendez denied making prior sworn statements about his interaction with L.S. even after he was confronted with them at trial, thereby undercutting his credibility.
Importantly, the trial court provided multiple admonitions instructing the jury not to consider the attorneys' questions as evidence. And, after the jury asked the court whether it could consider the prosecutor's questions about the prior allegations, the court specifically instructed the jury not to consider them "for any purpose" because Mendez denied the allegations and the parties presented no other evidence addressing them. We presume the jury followed the court's admonitions not to consider the prosecutor's questions in its deliberations. (Pearson, supra, 56 Cal.4th at p. 435 ["we presume [the jury] followed the court's instructions" not to consider the prosecution's unsubstantiated questions].)
2. CSAAS Evidence
Mendez argues the People's use of CSAAS evidence violated his due process rights because the evidence was irrelevant to the facts of the case, the public no longer holds the misconceptions about children's responses to sexual abuse the evidence was admitted to address, and the evidence does not comport with the rule for admitting new scientific evidence set forth in People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014 (Frye) (collectively, Kelly/Frye). These arguments lack merit.
2.1. Relevant Background
Before the first trial, Mendez moved to exclude CSAAS evidence. Mendez argued the evidence was inadmissible because the model it was based on: (1) assumes a child has been sexually abused and, as a consequence, presumes the guilt of the person accused of committing the abuse; and (2) was designed to help treat a child who had been sexually abused, not to determine whether the child had in fact been abused. Mendez also argued the evidence would improperly bolster the credibility of the People's witnesses.
The prosecutor contemplated presenting, but ultimately did not introduce, any CSAAS expert testimony at the first trial. During closing arguments in that trial, defense counsel argued M.R. fabricated her accusations against Mendez. Defense counsel pointed out that in 2011, M.R. told a social worker that Mendez never touched her in an inappropriate manner. According to defense counsel, M.R. had misremembered Mendez's affectionate and caring behavior as sexual abuse. Defense counsel attributed M.R.'s distorted memory of Mendez's conduct to the child's conversations with a therapist, her mother's failings as a parent, and the influence of "scum bags" in the child's life.
During the second trial, the prosecutor moved to admit CSAAS evidence, arguing it was relevant to explain why M.R. initially denied Mendez sexually abused her and delayed in reporting the abuse. Mendez objected on the same grounds raised in his motion to exclude filed before the first trial. He also argued that because M.R. would not be testifying in person at the second trial, any CSAAS expert testimony would unduly bolster the child's testimony from the first trial that would be read into the record at the second trial.
The court allowed the People to introduce CSAAS evidence. The court found the evidence would be relevant to the issues of why M.R. denied Mendez abused her and delayed reporting the abuse. The court stated it would limit the scope of the CSAAS expert's testimony and not permit the expert to testify about any of the facts of this case.
In her initial closing argument, the prosecutor didn't discuss CSAAS evidence. Defense counsel made a similar argument to the one she presented in the first trial: M.R.'s accusations against Mendez were not true because she initially denied he abused her and her memories had become distorted by her "horrible household." Defense counsel also urged the jury to disregard the CSAAS expert's testimony because the expert was not aware of any of the facts of this case and it was not the expert's job to vouch for M.R.'s credibility. During her rebuttal argument, the prosecutor explained that the CSAAS expert's testimony was only relevant to educate the jury about the "myths that the people may have about the common responses to sexual abuse. It doesn't mean necessarily that you should take it that [the expert] is saying somebody is lying or somebody is not lying. And there's a whole jury instruction on it."
2.2. The CSAAS evidence was relevant and admissible.
Mendez acknowledges the California Supreme Court has held CSAAS evidence is admissible to "disabuse jurors of commonly held misconceptions about how a child who has been sexually abused might behave." (People v. McAlpin (1991) 53 Cal.3d 1289, 1301 (McAlpin).) Nevertheless, he contends the court should have excluded CSAAS evidence in this case because it was not relevant to any issues at trial and is no longer needed to address a victim's delayed disclosure because the public's perception of the behavior of sexual abuse victims has changed since the CSAAS model was introduced in the 1980s. We reject these claims.
Here, the CSAAS expert's testimony was relevant to address M.R.'s behavior after Mendez abused her. M.R. waited nearly eight years after the first instance of molestation, and nearly five years after the last instance, to report Mendez's abuse. And, in 2011, before she reported the abuse, M.R. denied it ever occurred when a social worker specifically asked her whether Mendez had molested her. In addition, while the People didn't introduce CSAAS evidence at the first trial, defense counsel relied on M.R.'s delayed disclosure and initial denial of any abuse during her closing argument in that trial to claim the child either lied about, or misremembered who actually inflicted, the abuse. Defense counsel took the same approach during closing argument in the second trial. The reason for M.R.'s delayed disclosure was, therefore, at issue in both trials, and the People were entitled to introduce the CSAAS expert's testimony at the second trial to explain M.R.'s behavior. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
Mendez contends the CSAAS evidence was unnecessary since M.R. testified that she had delayed reporting the abuse because Mendez had threatened to accuse her of lying and acting inappropriately toward him. According to Mendez, CSAAS evidence becomes irrelevant once a child offers a "straightforward" explanation for why she delayed reporting sexual abuse. In support of this contention, Mendez relies on a case recently decided by the New Jersey Supreme Court—State v. J.L.G. (N.J. 2018) 190 A.3d 442 (J.L.G.). (See Id. at p. 446 [holding CSAAS evidence was not necessary to explain the child's delayed disclosure where the child "gave straightforward reasons about why she delayed reporting abuse"].)
We reject this argument for a couple of reasons. First, we are not bound by out-of-state cases. (People v. Troyer (2011) 51 Cal.4th 599, 610.) Second, even if the fact that M.R. offered a "straightforward" explanation for why she delayed reporting Mendez's abuse diminished the need for the CSAAS expert's testimony, it did not totally eliminate it in this case. As we noted, M.R. waited nearly eight years from the first instance of molestation, and nearly five years from the last instance, before reporting Mendez. Although M.R. testified that she didn't immediately report him because he had threatened her, the jury may still have questioned her decision to wait as long as she did to report the abuse despite the alleged threat. Further, M.R. also testified that, aside from Mendez's threats, she didn't want to get her mother in trouble. Due to the private nature of the abuse in this case, and M.R.'s close familial relationship to her abuser, the CSAAS expert's testimony was still relevant to help disabuse any misconceptions the jury may have formed based on M.R.'s prolonged delay in waiting to report Mendez's abuse. (See McAlpin, supra, 53 Cal.3d at p. 1301.)
The court also didn't abuse its discretion in finding the CSAAS evidence was admissible under Evidence Code section 352. (See McAlpin, supra, 53 Cal.3d at p. 1299 [we review a trial court's decision to admit expert testimony for an abuse of discretion].) That is, the court properly found the probative value of the evidence was not "substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The CSAAS expert's testimony was not inflammatory. It was brief and academic in nature. It only addressed the purpose for which the CSAAS model was designed, how the model is applied in the field, and the five parts of the model that help explain a child's behavior in response to sexual abuse. The expert didn't use any graphic examples or explain the typical behaviors of sexual assault victims in a gratuitous manner. Nor was the testimony likely to confuse the jury. The expert explained she had not reviewed any of the evidence in this case and, as a result, was not familiar with the facts of the underlying abuse. Thus, it's not likely the jury interpreted the expert's testimony as expressing an opinion on M.R.'s specific behavior in this case. The expert also explained that the CSAAS model isn't designed to determine whether a perpetrator committed sexual abuse. In short, the court did not abuse its discretion in admitting the evidence.
Because the CSAAS evidence was both relevant and admissible, we also reject Mendez's claim that admission of the expert's testimony rendered his trial fundamentally unfair, thereby violating his due process rights. (Estelle v. McGuire (1991) 502 U.S. 62, 70 [because the evidence was relevant, it did not violate the defendant's federal due process rights]; McAlpin, supra, 53 Cal.3d at pp. 1300-1301 [CSAAS evidence is relevant when there is other evidence to support an inference the victim's conduct after the abuse—e.g., delay in reporting—is inconsistent with the victim's testimony claiming abuse].)
We also can't assume, as Mendez urges us to, that in light of "the advent of cable television, the internet, social media, and ... the #MeToo movement," California citizens "are educated en masse with what it means to be a sexual assault victim and the fact that many sexual assault victims, including adults and children, delay reporting, downplay the abuse, recant the abuse and have recurring contact with their perpetrator." Mendez cites no evidence or studies to support this claim, nor did he offer any evidence below to substantiate it. (People v. Hartsch (2010) 49 Cal.4th 472, 491 [review is limited to the evidence before the court when it heard the motion].) In any event, even if Mendez is correct that the public at large no longer holds the misconceptions about victim behavior that the CSAAS model addresses, we are bound by the California Supreme Court's contrary view on that issue. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity) ["all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].)
2.3. The CSAAS evidence does not implicate Kelly/Frye.
Mendez contends the CSAAS expert's testimony should have been excluded because it does not meet the Kelly/Frye standard for admitting new scientific evidence. According to Mendez, "in over 35 years since the CSAAS model has been established, the model has not gained wide acceptance in the scientific community," which renders it "functionally equivalent to a 'novel' approach" subject to Kelly/Frye. We disagree.
Although Mendez didn't object to the CSAAS evidence on Kelly/Frye grounds, he insists his objection to the evidence on relevance grounds preserved this specific challenge for appeal. (See People v. Bledsoe (1984) 36 Cal.3d 236, 246-247 [defendant's objection to rape trauma evidence on relevance grounds preserved for appeal his challenge to the evidence under Kelly/Frye].) In the alternative, Mendez argues his trial counsel was ineffective for failing to object under Kelly/Frye. We address the merits of Mendez's argument to explain why his trial counsel was not ineffective for not challenging the CSAAS expert's testimony under Kelly/Frye.
In Kelly, the California Supreme Court adopted the test established in Frye, supra, 293 F. at p. 1014, which requires the proponent of expert testimony that relies on a new scientific technique to establish the technique's reliability and acceptance within the relevant scientific community before that testimony will be admitted. (Kelly, supra, 17 Cal.3d at p. 30.) As Mendez acknowledges, the Kelly/Frye rule only applies to new scientific techniques. The question of whether an expert's testimony satisfies the Kelly/Frye rule is reviewed de novo. (Kelly, at p. 39.)
Whether CSAAS expert testimony must satisfy the Kelly/Frye rule turns on the purpose for which the testimony is introduced. For example, if the testimony is offered as direct evidence to prove the defendant's guilt—i.e., that the defendant sexually abused a child—courts have applied the Kelly/Frye rule and generally precluded the prosecution from using the expert's testimony for that purpose. (See e.g., People v. Bowker (1988) 203 Cal.App.3d 385, 389-395; In re Sara M. (1987) 194 Cal.App.3d 585, 590-595; In re Christine C. (1987) 191 Cal.App.3d 676, 679.) CSAAS expert testimony is not subject to the Kelly/Frye rule, however, when an expert's testimony is offered to " 'disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' [Citation.]" (McAlpin, supra, 53 Cal.3d at p. 1301; see also People v. Wells (2004) 118 Cal.App.4th 179, 188 (Wells) [recognizing that CSAAS evidence is admissible for the purpose of dispelling common misconceptions about how a child may react to molestation].)
The CSASS expert's testimony in this case was not used to prove Mendez committed the sexual abuse underlying the charged crimes. Rather, it was introduced to disabuse any misconceptions the jury may have had about M.R.'s ostensibly self-impeaching behavior. The expert's testimony, therefore, was not subject to the Kelly/Frye rule. Consequently, defense counsel was not ineffective for failing to object on Kelly/Frye grounds.
Mendez asks us to adopt the approach recently implemented in J.L.G., the case decided by the New Jersey Supreme Court. There, the court held CSAAS expert testimony is inadmissible under Frye for all purposes except as it relates to why victims of child sexual abuse tend to delay disclosure of the abuse or have difficulty explaining the delay. (J.L.G., supra, 190 A.3d at pp. 459-460, 464.) We decline Mendez's invitation to follow J.L.G. As we explained, the law is well-settled in California that CSAAS evidence is admissible to explain why a witness's behavior is consistent with the studied responses of children who were the victims of sexual assault. (McAlpin, supra, 53 Cal.3d at p. 1301; Wells, supra, 118 Cal.App.4th at p. 188; People v. Gray (1986) 187 Cal.App.3d 213, 218-220.) We are bound to follow that approach. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.)
3. CSAAS Instruction
Mendez also challenges the court's instruction addressing the CSAAS expert's testimony. We independently review whether a challenged jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) We conclude the court properly instructed the jury on how to consider the CSAAS expert's testimony.
Because the instruction affected Mendez's substantial rights, we reject the People's forfeiture argument. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
The court instructed the jury with CALCRIM No. 1193. As read to the jury, the instruction provides: "You have heard testimony from [the expert] regarding child sexual abuse accommodation syndrome. [¶] [The expert'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 [L.S.'s] and [M.R.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
As we just explained, CSAAS expert testimony is admissible to "disabuse jurors of commonly held misconceptions of child sexual abuse and the abused child's seemingly self-impeaching behavior," though it is inadmissible to prove the child was in fact molested. (People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales).) Specifically, CSAAS evidence is admissible "to rehabilitate [a] 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." (McAlpin, supra, 53 Cal.3d at p. 1300.)
Mendez claims the final sentence of CALCRIM No. 1193 misstated the law because it impermissibly allowed the jury to use CSAAS expert testimony to determine whether the children were telling the truth about Mendez's abuse. Mendez also claims the fact that CALCRIM No. 1193 instructs a jury it can use CSAAS evidence to determine whether a victim's conduct is "not inconsistent with the conduct of someone who has been molested" is tantamount to instructing the jury it can use the CSAAS evidence, by itself, as proof that the molestation occurred.
A similar argument was recently rejected in Gonzales. There, the defendant argued that "the misleading language of CALCRIM No. 1193 allowed" the jury to use the CSAAS expert's testimony "as proof that [the victim] was molested." (Gonzales, supra, 16 Cal.App.5th at p. 503.) According to the defendant, it was "impossible to use the CSAAS testimony to evaluate the believability of [the victim's] testimony without using it as proof that [the defendant] committed the charged crimes." (Ibid.)
The reviewing court rejected the defendant's argument, explaining that "the instruction must be understood in the context of [the expert's] testimony." (Gonzales, supra, 16 Cal.App.5th at p. 503.) That is, the jury would understand "CSAAS is not a tool to help diagnose whether a child has actually been abused," but rather that it is evidence that "simply neutralizes the victim's apparently self-impeaching behavior" by helping to explain children's "reactions when they have been abused." (Id. at pp. 503-504.) Thus, a reasonable juror could rely on CSAAS testimony to find the victim's "self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested." (Id. at p. 504.)
We agree with the court's analysis in Gonzales. Nothing in the instruction used in this case told the jury it may, based solely on the CSAAS expert's testimony, find Mendez sexually abused M.R. or L.S. Nor did the instruction tell the jury, as Mendez suggests, that because M.R. engaged in conduct addressed by the CSAAS model, such as delayed reporting, that it was more likely M.R. had in fact been abused. Rather, the instruction simply informed the jury that if it believed the CSAAS expert's testimony, it could find the child's ostensibly self-impeaching behavior did not in fact affect the believability of her testimony. This is exactly the purpose for which CSAAS evidence is admissible. (McAlpin, supra, 53 Cal.3d at p. 1300.) We therefore conclude the court didn't err in using CALCRIM No. 1193.
4. Photograph of L.S.
Mendez challenges the court's decision to admit a photograph of L.S. Over Mendez's objection, the court allowed the People to introduce a photograph of L.S. taken at her brother's birthday party about a year after Mendez molested her. He contends the court should have excluded the photograph because it was irrelevant and more prejudicial than probative. We disagree.
The admissibility of victim photographs is governed by the same rules used to determine the admissibility of evidence generally. (People v. Harrison (2005) 35 Cal.4th 208, 233.) "A trial court has 'considerable discretion' in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 74.)
The court acted within its discretion in admitting the photograph of L.S. At the time she testified, L.S. was 17 years old and presumably looked much different than she did when Mendez molested her. As such, the photograph was relevant to show Mendez had a proclivity to touch young girls in an inappropriate manner. The photograph also corroborated L.S.'s testimony—i.e., that despite her efforts to resist Mendez's advances, she was unable to do so due to her age and size.
The probative value of the photograph outweighed any prejudice that may have resulted from its admission. Mendez identifies nothing inflammatory about the photograph, nor does he contend admitting the photograph was likely to confuse the jury or necessitate an undue consumption of time. Mendez only contends that the photograph was intended to engender sympathy from the jury. This argument lacks merit. Seeing a photograph of L.S. when she was close to the same age as when she was molested was not likely to inflame the jury any more than being informed of the nature of the offense.
Because the photograph of L.S. was relevant to prove the lewd conduct charged in count 3, we also reject Mendez's argument that its admission deprived him of a fair trial and violated his due process rights. (People v. Foster (2010) 50 Cal.4th 1301, 1335 ["because the evidence was relevant to prove a fact of consequence, its admission did not violate defendant's due process rights"].)
5. Refusal to Instruct on Unanimity for Count 3
Mendez argues the court erred when it refused to instruct the jury at the second trial that it had to unanimously agree on which act formed the basis for the lewd conduct against L.S. charged in count 3. The court did not err.
Although the People requested a unanimity instruction as to count 3, the court declined to give one. The court didn't believe a unanimity instruction was necessary because the acts that could form the basis for count 3—i.e., Mendez touching L.S.'s legs, hair, chest, and vagina—are "really part and parcel of one transaction or one incident." The court later explained, "I think it's really one brief episode involving several acts. And I don't see how in the world—the jury is either going to believe it occurred or not going to believe it occurred. I don't see how they believe that the touching of the chest occurred but the touching under the leggings didn't or vice versa, so I think that's just going to confuse everything."
The court asked defense counsel if she wanted the unanimity instruction as to count 3, stating it would provide the instruction if both the prosecutor and defense counsel requested it. Defense counsel didn't request the instruction, responding to the court's question with "I will submit." Because the court has a sua sponte duty to provide a unanimity instruction if the circumstances require it (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado)), and because Mendez contends his counsel's performance was prejudicially deficient if the failure to request the instruction forfeited his challenge on appeal, we address the merits of his claim.
"When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act." (People v. Brown (1996) 42 Cal.App.4th 1493, 1499 (Brown).) But "unanimity as to exactly how the crime was committed is not required." (People v. Russo (2001) 25 Cal.4th 1124, 1135 (Russo).) Thus, there are several exceptions to the unanimity requirement. (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)
For example, a unanimity instruction is not required if the charged crime involves a continuous course of conduct, where " 'the acts are so closely connected in time as to form part of one transaction' [citation], or 'when ... the statute contemplates a continuous course of conduct or a series of acts over a period of time.' [Citation.]" (Jennings, supra, 50 Cal.4th at p. 679.) In addition, "[t]here is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Ibid.)
In other words, "the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.' [Citation.]" (Russo, supra, 25 Cal.4th at p. 1135.) Thus, the court has a sua sponte duty to give the unanimity instruction where "there is a risk the jury may divide on two discrete crimes and not agree on any particular crime." (Ibid.; see also Melhado, supra, 60 Cal.App.4th at p. 1534 [sua sponte duty to instruct on unanimity].) Put another way, " 'the possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant. ...' [Citation.]" (Brown, supra, 42 Cal.App.4th at p. 1500.) The instruction is not required, however, if "the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime." (Russo, at p. 1135.)
Here, the court properly refused to give a unanimity instruction for count 3. All of the acts that could form the basis for Mendez committing a lewd act with L.S. occurred during a single, continuous transaction. That is, they all occurred over a very short period of time while L.S. was inside M.R.'s apartment. As L.S. described it, when Mendez sat next to her and put his leg against hers, she immediately scooted away from him. Mendez continued to inch closer to L.S. until she couldn't move any further away from him. He then pushed her back and touched her hair and chest. As L.S. sat up to leave, she closed her legs together tightly, but Mendez forced his hands between them until he touched the top of her vagina. L.S. then left the room and ran home. Nothing in the record suggests any of the individual acts that could form the basis for a charge of lewd conduct, such as Mendez touching L.S.'s legs, chest, hair, or vagina, were separated by any considerable period of time or break in action. In other words, the lewd conduct charged in count 3 was based on multiple acts that form " 'one discrete criminal event.' " (Russo, supra, 25 Cal.4th at p. 1135.)
Mendez contends a unanimity instruction was required because the jury could have found true part of his or M.R.'s version of events—i.e., that he grabbed L.S. by the back and legs or the waist to keep her from falling—but also found that he touched the child with the intent necessary to commit a lewd act under section 288. But Mendez offered the same defense to all of the alleged acts of improper touching against L.S. (Jennings, supra, 50 Cal.4th at p. 679 [no unanimity instruction required where the defendant provides the same defense to all alleged criminal acts].) That is, Mendez claimed he never intended to touch L.S. in a lewd or lascivious manner, but he didn't claim he never touched the child. Nor did Mendez or the People present any evidence that Mendez touched L.S. on any occasion other the day when L.S. was inside M.R.'s apartment in May 2009. Thus, based on the evidence presented at the second trial, there was no risk that the jury could have divided "on two discrete crimes and not agree on any particular crime." (Russo, supra, 25 Cal.4th at p. 1135.)
6. Cumulative Error
Mendez argues that even if none of the claimed errors we addressed above were prejudicial on their own, their cumulative impact was. (See People v. Williams (2009) 170 Cal.App.4th 587, 646 [reversal is required when the cumulative effect of multiple errors deprives the defendant of a fair trial and due process].) The doctrine of cumulative error doesn't apply in this case, however, because there is no error to cumulate.
7. Cruel and Unusual Punishment
Mendez argues his life term for committing lewd acts on multiple children (§667.61, subds. (b), (c)(8), (e)(4)) is cruel and unusual punishment under article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution. He contends the governing sentencing scheme is unconstitutional as applied to him, not on its face. (See People v. Baker (2018) 20 Cal.App.5th 711, 722 (Baker).)
Mendez's trial counsel didn't object to the sentence as cruel and/or unusual punishment. To the extent the claim was forfeited, Mendez argues he received constitutionally ineffective assistance of counsel. We conclude his counsel's performance was not deficient because the challenged sentence is lawful under the state and federal Constitutions and, as a consequence, any objection would have been futile. (See People v. Reyes (2016) 246 Cal.App.4th 62, 86 [reaching merits of cruel or unusual punishment challenge despite lack of objection in the trial court].)
Whether a punishment is cruel or unusual is an issue we review independently. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) We view any underlying disputed facts in a light most favorable to the judgment. (Ibid.)
7.1. Mendez's sentence does not violate the California Constitution.
A sentence violates the California Constitution's prohibition against cruel or unusual punishment when it is " ' "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity ... ." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1235 (Cole).) "A claim of excessive punishment must overcome a 'considerable burden' [citation], and courts should give ' "the broadest discretion possible" ' [citation] to the legislative judgment respecting appropriate punishment." (In re Palmer (2021) 10 Cal.5th 959, 972 (Palmer).)
We use a three-part test to determine whether a sentence is grossly disproportionate under the California Constitution. (People v. Johnson (2010) 183 Cal.App.4th 253, 296.) First, we look to the nature of the offense and the offender. (Cole, supra, 33 Cal.4th at p. 1235.) Under this prong, we consider the " 'circumstances of the offense, including the defendant's motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts,' " plus the defendant's age, criminal history, and mental capabilities. (Ibid.) Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. (Johnson, at p. 297.) And third, "we compare the challenged punishment to punishments for the same offense in other jurisdictions." (Ibid.) The weight to be given to each of the prongs depends on the facts of the case, and we may base our decision on the first prong alone. (Ibid.)
As to the first prong, Mendez emphasizes that the conduct supporting the predicate offense—i.e., his touching L.S. in an inappropriate manner—was not sufficiently egregious to support a life term. He also focuses on the fact that he was in his late 60s at the time he was convicted, that he does not have a significant criminal history, that he was never convicted of a violent crime before being tried in this case, and that the probation department assessed him as a "very low" risk of reoffending in the future.
Mendez ignores, however, the aggravating circumstances of the crimes in this case. While the predicate offense for Mendez's life term—violation of section 288—"may not be the most grave of all offenses, ... its seriousness is considerable." (See People v. Christensen (2014) 229 Cal.App.4th 781, 806 (Christensen).) To make matters worse, Mendez was convicted of three sexual offenses against two very young children. (See ibid. [that defendant committed multiple sex offenses against multiple children increased the gravity of his conduct, justifying the imposition of a greater sentence than may be warranted for just one of the crimes committed in isolation].) There also was evidence that Mendez engaged in other uncharged sexual misconduct with M.R. when she was as young as five years old.
Due to their young age, Mendez's victims were especially vulnerable when he preyed on them. And Mendez did all of this while he was in a position of trust with the children. (Christensen, supra, 229 Cal.App.4th at p. 807.) Mendez is M.R.'s grandfather and someone her family entrusted to care for the child. Mendez often abused M.R. while her mother was either out of the house, asleep, or using drugs. Thus, Mendez preyed on M.R. when she was the most vulnerable. He did the same with L.S., as there is no evidence that any other adults were nearby when he targeted, isolated, and molested her. In sum, when weighing the nature of the offense and offender, we conclude Mendez's life term for committing multiple lewd acts on young children is not disproportionate to his culpability.
As for the second prong, Mendez contends his life term for committing lewd acts with multiple children is out of step with punishments for other similar or more serious crimes. For instance, Mendez points out that he received the same sentence as someone who commits second degree murder. (See § 190, subd. (a) [prescribing a 15-years-to-life term for second degree murder in most circumstances].) But comparing the punishment imposed under section 667.61 in this case to the punishments for a completely different class of crimes—such as second-degree murder—adds little value to the analysis of whether Mendez's sentence is cruel or unusual.
First, Mendez ignores that he was eligible for a life term because he committed lewd acts against multiple children. But a defendant who commits second-degree murder is eligible for the same term even though he committed only one crime. Thus, other considerations besides the violent nature of the offense were taken into account when Mendez received a life term under section 667.61. For that reason, and as other courts have recognized, " '[t]he penalties for single offenses ... cannot properly be compared to those for multiple offenses ... .' " (Christensen, supra, 229 Cal.App.4th at p. 808, quoting People v. Crooks (1997) 55 Cal.App.4th 797, 807.)
Second, Mendez fails to point out that 15 years to life is the minimum punishment for second degree murder. As section 190 states, a defendant convicted of second-degree murder can be sentenced to a term of 25 years to life or life without the possibility of parole under certain circumstances. (See § 190, subds. (b)-(c).) Thus, the crime of second-degree murder involves a harsher punishment scheme than the one Mendez challenges.
And finally, the Legislature has decided that sex offenses against young children are particularly egregious and, as a class, are deserving of stricter punishment. (People v. Scott (1994) 9 Cal.4th 331, 341-342 (Scott); see also Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244 ["sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people"].) As the California Supreme Court in Scott observed, "the Legislature has determined that children are uniquely susceptible to 'outrage' and exploitation. Hence, special laws on the subject of sex with children have been enacted. They expand the kinds of acts which may be deemed criminal sexual misconduct, and they generally operate without regard to force, fear, or consent." (Scott, at pp. 341-342.) As we noted above, the Legislature is afforded considerable deference in determining what type of crimes deserve the most severe punishments. (Palmer, supra, 10 Cal.5th at p. 973.) For all these reasons, sections 190 and 667.61 are not apt for comparison. (See Christensen, supra, 229 Cal.App.4th at p. 808.)
Mendez also contends there are more serious sex crimes that are not subject to life sentences, including: restraining a minor and touching her sexual organs where the defendant has previously been convicted of the same crime (§ 243.4, subd. (j)); raping a child under 14 years old when the child cannot resist because she is asleep or intoxicated (§§ 261, subd. (a)(3) & (4), 264, subd. (a)); sodomy with a child under 14 years old and more than 10 years younger than the defendant (§§ 286, subd. (c)(1), 289, subd. (j)); assaulting a minor with intent to commit a sex offense (§ 220, subd. (a)(2)); pimping or pandering a child under 16 years old (§§ 266h, subd. (b)(2), 266i, subd, (b)(2)), and abducting a minor for prostitution (§§ 266a, 18). We address these statutes in groups to show why they aren't a good comparison to section 667.61, subdivision (e)(4).
With respect to the rape and sodomy statutes, Mendez's characterization of them is misleading. Specifically, he fails to point out that section 264, subdivision (a) prohibits the crime of rape in general. It therefore applies to crimes against adults and does not provide an apt comparison to section 667.61, subdivision (e)(4), which applies to multiple crimes against children. Mendez also ignores the fact that a single violation of section 264, subdivision (c)(1), which prescribes the punishment for rape upon a child under 14 years old, mandates a sentence of 9, 11, or 13 years. (See § 264, subd. (c)(1).) A single violation of section 288, subdivision (a) (the predicate offense for Mendez's life term), on the other hand, is punishable by a term of 3, 6, or 8 years. Thus, section 264 in fact imposes a harsher punishment for a single sex crime involving a child than does section 288, subdivision (a).
Most importantly, Mendez fails to acknowledge that section 264, subdivision (c), and section 286, subdivision (c)(2), the latter of which punishes adults who commit sodomy against children under 14 years old, expressly permit the People to try a defendant accused of raping or sodomizing a child under 14 years old under section 288.7. (See §§ 264, subd. (c)(3), 286, subd. (c)(2)(D).) Section 288.7, subdivision (a) mandates imposition of a term of 25 years to life for any adult who engages in sexual intercourse or sodomy with a child 10 years old or younger. Thus, a single act under section 264, subdivision (c) or section 286, subdivision (c)(2) is eligible for a harsher punishment than Mendez received under section 667.61.
Mendez's comparison to section 243.4, which codifies the crime of sexual battery is also inapt. Relevant here, that statute makes it punishable by a term of 2, 3, or 4 years for a defendant to touch a minor, who is unlawfully restrained, in a sexual manner and against the minor's will, if the defendant has previously been convicted of the same offense. (§ 243.4, subd. (j).) But section 243.4 broadly defines the term "minor" as anyone under the age of 18 years. (See § 243.4, subd. (g)(6).) Accordingly, that statute could apply where the victim is 17 years old. Section 288, subdivision (a), on the other hand, applies to lewd acts committed against children under 14 years old. We will not second guess the Legislature's decision to implement more severe punishment for younger and more vulnerable child victims. (See Scott, supra, 9 Cal.4th at pp. 341-342; Palmer, supra, 10 Cal.5th at p. 972.)
As for the other statutes cited by Mendez, they do not provide a good comparison to section 667.61's imposition of a life term for committing lewd acts with multiple children. They involve crimes that can be committed through a single act, and they do not require the defendant to touch the victims in a sexual manner. (See §§ 220, 266a, 266h, 266i.) They therefore involve conduct of a very different nature than what qualifies for a violation of section 288, subdivision (a). In short, comparing section 667.61's application in this case to the statutes Mendez relies on does not compel a finding that his punishment for committing multiple lewd acts with children is disproportionate to his culpability.
As for the third prong, Mendez states he is not contending that California's sentencing scheme is an outlier when compared to other states. Nevertheless, he lists several cases from other jurisdictions in which he claims the defendants received lesser sentences for analogous or more significant criminal conduct. The import of this contention is unclear and not sufficiently developed. Accordingly, we don't address it.
For the reasons discussed above, Mendez's life term imposed under section 667.61 does not constitute cruel or unusual punishment under the California Constitution.
7.2. Mendez's sentence does not violate the United States Constitution.
The Eighth Amendment prohibits the imposition of cruel and unusual punishment. (U.S. Const., 8th Amend.) To constitute cruel and unusual punishment under the federal Constitution, a sentence must be grossly disproportionate to the severity of the crime. (Graham v. Florida (2010) 560 U.S. 48, 60.) Because the Eighth Amendment does not require strict proportionality between crime and sentence, successful challenges to the proportionality of a sentence, outside the context of capital punishment, are " 'exceedingly rare' and 'extreme' case[s]." (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
In arguing that his life term violates the Eighth Amendment, Mendez advances no new arguments. Rather, he claims the same arguments he advanced in support of his challenge under the California Constitution establish his sentence is also cruel and unusual under the United States Constitution. Indeed, there is "considerable overlap" among the analyses for determining whether punishment is cruel or unusual under the state and federal Constitutions. (Baker, supra, 20 Cal.App.5th at p. 733.) For the same reasons we concluded Mendez's life term for committing multiple lewd acts with children is valid under the California Constitution, we also conclude his sentence does not violate the Eighth Amendment. 8. Fine, Assessments, and Fees
The court held the sentencing hearing in June 2019, at which it imposed a $300 restitution fine (§ 1202.4, subd. (b)), $90 in court facilities assessments (Gov. Code, § 70373), and $120 in court operations fees (§ 1465.8). Relying on Dueñas, which held that the restitution fine and court fees may not be imposed on a defendant who lacks the ability to pay them, Mendez asks us to strike the restitution fine, the facilities assessments, and court operations fees. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.) Because Dueñas was decided and became final before he was sentenced in this case, Mendez forfeited this claim by failing to raise it below. (See People v. Aguilar (2015) 60 Cal.4th 862, 864.)
We also reject Mendez's contention that his counsel's performance was constitutionally defective by failing to object to the court's imposition of the fine, assessments, and fees. The record before us does not contain any evidence on the specifics of Mendez's financial circumstances and trial counsel may have had information indicating it would not have been tenable to raise an ability-to-pay objection. (See People v. Scott (1997) 15 Cal.4th 1188, 1212.)
That defendant was represented by the public defender does not change our conclusion. While it is true that "public defender clients, all of whom have already been financially evaluated and found indigent by the court, are legally entitled to a presumption of indigence for most purposes," "the Legislature has also recognized that a defendant's financial circumstances may change." (People v. Rodriguez (2019) 34 Cal.App.5th 641, 645.) Simply because Mendez lacks the ability to pay for a lawyer to represent him doesn't mean he also lacks the ability to pay the fine, assessments, and fees. The financial commitment for hiring a lawyer may be significantly greater than the $510 that Mendez was ordered to pay.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
EGERTON, J.