Opinion
E071297
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JUSTINIANO MAURICIO SANTOS, Defendant and Appellant.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Kathryn Kirschbaum and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR019606) OPINION APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed in part, reversed in part with directions. Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Kathryn Kirschbaum and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Justiniano Mauricio Santos, sexually abused his biological children for four years and a decade later, sexually abused a stepdaughter. A jury convicted defendant of 13 counts of committing a lewd or lascivious act on four minors under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1-13). The jury also found true as to each count the multiple-victim allegation (§ 667.61, subd. (b)). The trial court sentenced defendant to a prison term of 195 years to life, consisting of 13 consecutive terms of 15 years to life.
Unless otherwise noted, all statutory references are to the Penal Code
Defendant contends the trial court violated his state constitutional rights to due process and a fair trial by denying his motion to dismiss counts 2 through 13, based on the 14-year delay in prosecuting the charges. Defendant further argues the trial court erred in allowing expert testimony by an unqualified expert witness on the victims' behavior relating to being sexually abused. In addition, defendant asserts that his 195 years to life sentence was improper and constitutes cruel and unusual punishment, and defendant's attorney committed ineffective representation by failing to object to the lengthy sentence and the court's reliance on improper aggravating factors. Finally, defendant argues under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), that his fines, fees, and assessments were improperly imposed because the trial court failed to make findings on whether he has the ability to pay them.
We reject defendant's contentions and affirm the judgment, with the exception the trial court's sentencing order imposing statutory fines and fees is reversed and the matter is remanded for a determination as to defendant's ability to pay the fines and fees.
II.
FACTS
In 1989, defendant married Esther T. They had three daughters, M.M. (born in 1989), G.M. (born in 1990), and P.M. (born in 1991), and one son, E.M. (born in 1992). Esther lived with defendant until she moved out with their four children in 1993 or 1994. In 1998, the four children moved in with defendant and his mother (Grandmother). Esther visited the children at least twice a month.
In 2002, defendant's biological daughters reported that defendant had sexually abused them. At that time, defendant had sole custody of the children. In 2002, Police Officer Graff investigated the sexual abuse accusations. He interviewed defendant's four biological children and prepared an investigation report. Officer Graff reported that M.M. and G.M. provided inconsistent and conflicting details regarding defendant sexually abusing them. He further reported that the girls had difficulty providing many details.
After the interviews, Child Protective Services (CPS) removed the children from defendant's home. The district attorney, however, declined to file charges against defendant at that time, resulting in defendant's release from jail. The children were placed with their aunt for about a year and then placed in foster care.
In January 2008, defendant met Martha V., who had three children, Raul, Jane Doe (born in 2001), and Alison. In March 2008, Martha and Raul moved in with defendant and Grandmother. Alison and Jane Doe lived with their father and visited Martha and defendant on the weekends and during the summer.
After defendant and Martha had a daughter in January 2009, defendant began drinking and treating Jane Doe badly. In August 2009, Martha saw defendant lift up Jane Doe's shirt while Jane Doe was sleeping. Martha moved out of defendant's home in 2009. She later reconciled with defendant and they got married in 2011, but did not live together.
In 2016, when Jane Doe was in the 9th grade, she turned in a school assignment, which was a poem entitled, "'My step-dad who molested me.'" Up until this time, Jane Doe had not told anyone defendant had molested her. Jane Doe was contacted by Sheriff's Sergeant Laub, who was assigned to investigate Jane Doe's molestation allegations. Sergeant Laub interviewed Jane Doe, who was 15 years old. After learning of the 2002 sexual abuse allegations by defendant's biological daughters, Sergeant Laub interviewed M.M., G.M., P.M., and E.M.
On May 16, 2016, the district attorney filed a felony complaint against defendant for sexually abusing M.M., G.M., P.M., and Jane Doe. The information included 13 counts of committing a lewd or lascivious act on the four minors under the age of 14 years. (§ 288, subd. (a).) The People alleged in count 1 that defendant sexually molested Jane Doe from October 19, 2009 through October 18, 2010. Counts 2 through 5 alleged defendant sexually molested M.M. from February 24, 1996 through December 31, 2001. Counts 6 through 9 alleged defendant sexually molested G.M. from July 12, 1996 through December 31, 2001. Counts 10 through 13 alleged defendant sexually molested P.M. from July 29, 1999 through December 31, 2001. The information further alleged multiple-victim allegations as to each count. (§ 667.61, subd. (b).) The jury found defendant guilty of all charges and allegations.
A. Sexual Abuse Against M.M.
M.M. testified at trial that defendant started sexually molesting her when she was seven years old. Defendant sexually abused her every day, until she was removed from defendant's home, when she was 12 years old. Defendant also physically abused her. He threatened to kill her if she told anyone, and when her siblings saw her being sexually abused, he told them to be quiet or he would kill them, too. M.M. saw defendant sexually abuse G.M., P.M., and E.M. M.M. told Grandmother about the sexual abuse but she did not do anything about it.
When M.M. was older, she briefly stayed with defendant in 2009, while she was seeking answers. During that time, M.M. told Esther that defendant had sexually abused her and urged Esther to leave defendant. Jane Doe did not disclose she had also been abused.
B. Sexual Abuse Against G.M.
G.M. testified that when she was about seven years old, defendant started sexually abusing her weekly, continuously until she was about 11 years old, when she and her mother, Esther, moved out of defendant's home. Defendant also physically abused her. G.M. told her mother, Esther, and her aunt about the sexual abuse. During an interview in 2016, she also told Sergeant Laub about the sexual abuse.
C. Sexual Abuse Against P.M.
P.M. testified that when she was eight years old, defendant sexually abused her. She only remembered one specific incident. She could not recall other incidents because she blocked them from her memory. When P.M. tried to get defendant to stop sexually abusing her, defendant would threaten to beat her and tell her that if she told anyone, she and her siblings would be placed in foster care and separated. Defendant was also physically abusive. P.M. saw defendant in bed with M.M. and G.M., under the blankets. During her interview with Sergeant Laub, P.M. stated that defendant had sexually molested her on a nightly basis for five years.
D. Sexual Abuse Against E.M.
E.M. testified that between the ages of about five and eight, defendant sexually abused him every two weeks or so, until CPS removed him and his siblings from defendant's home around 2001. E.M. stated during his 2017 interview with Sergeant Laub that he did not report this abuse in 2002 because he was ashamed as a man and, at the time, did not believe there was enough support for sexually abused boys. E.M. testified he saw defendant sexually abusing M.M. E.M. also testified that defendant physically abused him and his siblings by spanking them and hitting them with belts.
E. Sexual Abuse Against Jane Doe
During the trial, Jane Doe, who was 12 years old, and her mother, Martha, testified that in 2008, when Jane Doe visited her mother on weekends, defendant sexually abused Jane Doe. Jane Doe was seven years old at that time. After Martha saw defendant lift up Jane Doe's shirt to look at Jane Doe's chest while Jane Doe was sleeping, Martha confronted defendant, pushed him out of the room, sent Jane Doe and her sister to stay with their father, and planned to move out. While M.M. was staying with defendant and Martha for a few months in 2009, M.M. told Martha defendant had molested M.M. A month later, Martha moved to a shelter.
After Martha and defendant reconciled in 2011, Jane Doe visited defendant with Martha. While Jane Doe was alone with defendant on three occasions, defendant grabbed her waist to try to get Jane Doe to come to him. In 2016, after Jane Doe wrote her poem, "'My step-dad who molested me,'" Jane Doe told Sergeant Laub during an interview that defendant continuously molested her until the third grade.
F. Defendant's Testimony
Defendant testified he did not sexually assault his biological children or Jane Doe. He claimed the children were all lying at some unidentified person's behest. Defendant admitted sending Martha a letter a few months before the trial, stating that she should stop sending him so many letters requesting a divorce, and if she wanted a quick divorce, she should just kill herself. He also said in his letter that she was going to lose her children and go to jail if she kept creating problems for him. Defendant testified that he was simply explaining in his letter that she was causing him problems and was being impatient with her divorce request.
III.
PROSECUTION DELAY
Defendant was convicted in counts 2 through 13 of committing lewd or lascivious acts against M.M., G.M., and P.M., who were under the age of 14 years. (§ 288, subd. (a).) The offenses against defendant's biological daughters occurred between 1996 and December 31, 2001, and were reported in 2002. The felony complaint alleging these offenses was not filed until May 2016.
The charges were not barred by the statute of limitations because, "where a defendant is sentenced to a life term for a violation of section 288 under the 'alternate penalty scheme' of section 667.61, as was defendant in this case, 'the unlimited timeframe for prosecution set out in section 799 for an offense "punishable by death or by imprisonment in the state prison for life . . ." applies.'" (People v. Simmons (2012) 210 Cal.App.4th 778, 787.)
Defendant nevertheless asserts that the prosecution's 14-year delay, between the initial reporting of these crimes in 2002 and when the charges were filed in 2016 (commonly referred to as precharging delay), violated his rights to a fair trial and due process under the state Constitution. Defendant told the court during the trial that he was not challenging the delay under the federal Constitution because he was not arguing that the prosecution's delay was tactical or purposeful.
A. Procedural Background
In 2002, defendant was arrested for molesting his three biological daughters from 1996 until 2001. Officer Graff investigated the allegations. In June 2002, Graff interviewed two of the victims. Also, in June 2002, two social workers at the Children's Assessment Center (CAC), interviewed all three victims, with two of the interviews recorded. Medical Sexual Assault Response Team (SART) exams of the victims were also performed. At that time, defendant's daughters were 13, 11, and 10 years old. Graff also interviewed defendant, whose interview was videotaped, defendant's wife, Esther, and E.M. In 2002, after completion of the investigation, the district attorney declined to file charges against defendant.
In 2016, defendant's stepdaughter, Jane Doe, reported that defendant had molested her. The police investigated the allegations, which led to the district attorney filing a criminal complaint against defendant for not only molesting Jane Doe from 2009 to 2010, but also for molesting his three biological daughters from 1996 to 2001.
In June 2018, defendant filed a motion to dismiss counts 2 through 13 for denial of due process and a fair trial based on precharging delay and prejudice. During the hearing on defendant's motion to dismiss, defense counsel informed the court that the doctor who performed the SART exams in 2001 was in Texas, and defense counsel had been unable to serve subpoenas on the two investigating officers, who lived in Lake Elsinore. The social worker witnesses, however, had been served. The trial court deferred ruling on the motion until the end of the trial, when the degree of prejudice would become more clear.
During the continued hearing, at the end of the trial, on defendant's motion to dismiss, defense counsel acknowledged that there was no evidence of tactical delay in bringing the charges in counts 2 through 13 against father. After hearing oral argument, the court stated that, under People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), the court was not in a position to second-guess the district attorney's reasons for delaying defendant's prosecution. The court further found there was justification for delaying prosecuting defendant, and stated that it could "clearly" see why the district attorney concluded, once Jane Doe came forward, that there was enough evidence to prosecute defendant. The court acknowledged that the delay resulted in the witnesses' loss of memory, but the victims' interview recordings were available.
The court stated that the only missing evidence was the recording of defendant's interview, and he testified at trial. The court also concluded that, despite faded memories, defense counsel was able to effectively impeach one of the social workers by cross-examination and, as to the other, defense counsel read into evidence her statements under the past recollection reported exception. Upon weighing the prejudice of the delay against its justification, the trial court found that the prejudice was "slight." The court therefore denied defendant's motion to dismiss.
B. Applicable Law
Precharging delay does not implicate speedy trial rights. However, "a defendant is not without recourse if the delay is unjustified and prejudicial. '[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.'" (Nelson, supra, 43 Cal.4th at p. 1250; accord, People v. Martinez (2000) 22 Cal.4th 750, 767.)
Accordingly, precharging delay "may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." (People v. Catlin (2001) 26 Cal.4th 81, 107; accord, Nelson, supra, 43 Cal.4th at p. 1250.) A court may not "second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges." (Nelson, supra, at p. 1256; accord, People v. Cowan (2010) 50 Cal.4th 401, 435.) We review a defendant's motion to dismiss based on precharging delay for abuse of discretion. (People v. Cowan, supra, at p. 431.)
C. Analysis
Defendant contends his state constitutional rights to a fair trial and due process were violated because the 14-year delay was unjustified and prejudiced his defense.
1. Justification for Delay
The People argue the delay in filing charges against defendant for lewd acts against his three biological daughters was justified because there was insufficient evidence to bring charges until defendant's stepdaughter, Jane Doe, a new, independent witness, reported in 2016 that defendant had also molested her.
When the precharging delay is negligent, rather than purposeful, a greater showing of prejudice is required to establish a due process violation, when balancing justification for the delay against prejudice. (Nelson, supra, 43 Cal.4th at p. 1256.) In the instant case, the justification for the delay was strong. In 2002, the police and social workers investigated reports by M.M. and G.M. that defendant had molested them and P.M., but the district attorney concluded there was insufficient corroborating evidence to prosecute defendant. With additional evidence surfacing in 2016, that defendant had also molested his stepdaughter, who did not grow up in the same home as defendant's biological daughters, the prosecution believed there was sufficient corroborating evidence to charge defendant with molesting all four victims.
As the California Supreme Court in Nelson, supra, 43 Cal.4th at page 1256, explained, "A court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. 'The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. . . . Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. . . . Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused because investigative delay is not so one-sided. A prosecutor abides by elementary standards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.' [Citations.] Indeed, many legitimate reasons exist why the government might delay bringing charges even after it has sufficient evidence to convict."
Here, defendant agreed the delay was not for the purpose of gaining an advantage over defendant. Furthermore, defendant has not established prosecutorial negligence. Instead, there is strong evidence the delay was justified, based on the district attorney concluding in 2002 that there was insufficient corroborating evidence to prosecute defendant. But then in 2016, when Jane Doe reported that defendant had sexually abused her, the district attorney concluded there was sufficient corroborating evidence to prosecute defendant for molesting his biological daughters, as well as Jane Doe. The prosecution thereafter proceeded expeditiously in investigating the additional victim's accusations and filing charges against defendant in 2016, for molesting Jane Doe, M.M., G.M., and P.M.
2. Prejudice
Defendant contends the prejudice caused by the precharging delay outweighs the justification for the delay. Defendant argues he was prejudiced by (1) the victim's faded memories, which made it difficult to cross-examine them, (2) the social workers' faded memories, which made it difficult to obtain important information about the 2002 victim interviews, and (3) defendant's inability to locate and subpoena the police officers who interviewed the victims in 2002.
Although the victims' and social workers' memories may have faded, any related prejudice was minimal because the victims' statements were recorded in 2002 and available to the defense for use at trial. Furthermore, the victims' inability to remember was advantageous to the defense, in supporting the defense's primary closing argument that the victims' accusations were false. As to impeachment being impeded by the loss of the victims' memory, the recordings of the victim interviews provided an effective source of impeachment material. (Evid. Code, § 780, subd. (c) [when determining a witness's credibility, the jury may consider any matter that has any tendency to prove or disprove the truthfulness of the testimony, including the extent of the witness's capacity to recollect any matter about which he testifies.].)
As to defendant's contention the officers were unavailable to testify, this was not entirely true. There was evidence the defense located the retired officers, but the process server did not succeed in personally serving them with subpoenas at their homes because the officers did not come to the door. It is thus questionable whether defendant's failure to subpoena the officers to testify was attributable to the precharging delay. Furthermore, Officer Graff's report was introduced into evidence through another witness, and his 2002 interviews of the victims were recorded and available for use at trial. As to any other missing evidence, such as testimony by the physician who examined M.M., G.M., and P.M. in 2002, defendant has not established that the absence of her testimony at trial was prejudicial.
The record shows that the delay in prosecution only minimally, if at all, impeded defendant in presenting his defense. The trial court thus did not abuse its discretion in denying defendant's motion to dismiss, upon reasonably finding that "'the justification for the delay outweighed defendant's showing of prejudice.'" (Nelson, supra, 43 Cal.4th at p. 1257.) Therefore there was no due process violation.
IV.
EXPERT TESTIMONY BY SERGEANT LAUB
Defendant contends the trial court committed prejudicial error by allowing Sergeant Laub to testify as an expert about why child sexual abuse victims behave in a certain manner. Defendant argues such testimony was inadmissible because Sergeant Laub had no specialized education, training, or experience qualifying her as an expert on this topic.
A. Procedural Background
Sergeant Laub testified she had been a police officer for 17 and a half years, and worked as a detective for three years as of 2016, during which she primarily investigated child sex crimes. She investigated 50 or more cases in which children were victims of sexual molestation, and interviewed 75 or more child victims of sexual molestation. When Sergeant Laub was asked why children did not immediately report being molested, defense counsel objected on the ground Sergeant Laub lacked expertise and the testimony was irrelevant. The court sustained the objection. Sergeant Laub then provided additional testimony regarding her training and experience. Sergeant Laub stated she had taken courses in investigating child molestation crimes. This included hundreds of hours of training regarding interviewing child molestation victims.
Sergeant Laub described her training and experience as consisting of classes in which multiple sexual abuse cases were reviewed by people experienced in reviewing such cases. Strategies for interviewing were discussed. Psychologists discussed how one should talk to child sexually abused victims without asking leading questions, and forensic interviewers explained how to interview children.
When Sergeant Laub was again asked if she had an opinion on why sexually abused children do not immediately report the abuse, defense counsel objected on relevance and vagueness grounds. The court overruled the objection. Sergeant Laub responded that the reason was that "[i]t's traumatic for them, so their memory can get confused and they forget." Sergeant Laub further testified over a continuing objection that she had spoken with children who continued having contact with their abusers, which was common. She explained this was common because, "if they're a young age, they don't know that it's wrong behavior. And it's just their life, as normal as they know it."
Sergeant Laub also testified it was common for children to be interviewed by several people, and for children not to disclose every instance of abuse to every interviewer. When asked why this was, Sergeant Laub explained that it depended on who the interviewer was, how a child felt about the interviewer, and whether the child trusted the interviewer. In addition, Sergeant Laub testified it was common for a sexually abused child to block out or repress memories because of the trauma of such an event. She explained: "[A]s far as a child is concerned, if it's out of their mind, it didn't happen." Defense counsel objected to this testimony, and the court overruled the objection. Sergeant Laub further testified she investigated allegations defendant sexually abused Jane Doe, and testified regarding interviewing Jane Doe, M.M., P.M., G.M., and E.M.
After Sergeant Laub testified, the court noted that defense counsel had objected to Sergeant Laub testifying as an expert and overruled the objection, finding that Sergeant Laub qualified as an expert. The court stated that Sergeant Laub's testimony about a child victim's difficulty distinguishing one event from another, difficulty remembering the number of molestations, and blocking out abuse, was permissible under People v. Tompkins (2010) 185 Cal.App.4th 1253 (Tompkins).
During deliberations, the jury requested the court to read back to them Sergeant Laub's testimony about "why the testimony of children can be inconsistent."
B. Applicable Law
Evidence Code section 720 provides that "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates," and that "[a] witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony." (Evid. Code, § 720, subd. (a), (b).) The trial court's determination that a witness qualifies as an expert "will not be disturbed absent a showing of manifest abuse." (People v. Jones (2012) 54 Cal.4th 1, 57.) This court will find error only if the evidence shows that the witness clearly lacks qualification as an expert. (Ibid.)
C. Analysis
Defendant does not dispute that Sergeant Laub was qualified to testify as an expert regarding child sexual abuse investigations, and therefore properly testified that child victims commonly delay reporting sexual abuse, continue to see the perpetrator, and make inconsistent disclosures. Defendant, however, argues that Sergeant Laub was unqualified to testify as to the nature, cause or psychology behind why child victims behave in this manner. Defendant asserts that, although Sergeant Laub did not mention Child Sexual Abuse Accommodation Syndrome (CSAAS), her testimony was founded on it. CSAAS is a condition that results in certain behaviors by sexually abused children. Defendant argues that because Sergeant Laub did not have training in child psychology, she was unqualified to provide opinion testimony regarding CSAAS or the reasons for a sexual abuse victim's behavior.
We conclude the trial court did not abuse its discretion in allowing such testimony. Although Sergeant Laub did not profess to have training or expertise on CSAAS, she did not mention CSAAS during her testimony, and her opinion testimony was limited to her conclusions based on her observations of child abuse victims. The fact that Sergeant Laub was not a psychologist or psychiatrist did not preclude her from providing opinion testimony on why the victims behaved in a certain way. "Once an expert witness establishes knowledge of a subject sufficient to permit his or her opinion to be considered by a jury, the question of the degree of the witness's knowledge goes to the weight of the evidence and not its admissibility." (People v. Jones, supra, 54 Cal.4th at p. 59; accord, People v. Brown (2014) 59 Cal.4th 86, 100.)
This case is similar to Tompkins, supra, 185 Cal.App.4th 1253, in which an investigator testified as an expert, over the defendant's objection, regarding victims of child sex abuse forgetting what had happened and having difficulty distinguishing multiple incidents. The Tompkins investigator testified that, "'[i]n most cases they block out the majority of what happened and remember only the most disturbing of the incidents, and it's very hard for them to recall them.'" (Id. at p. 1264.) The investigator further stated that it was "'almost impossible'" for victims to remember every incident because "'they have a very difficult time distinguishing between one event and another.'" (Id. at p. 1265.) Although the court in Tompkins did not discuss whether the investigator could testify as to the reasons for the victims' behavior, the court permitted such generalized testimony similar to that given in the instant case by Sergeant Laub.
As in the instant case, the Tompkins investigator had extensive training and experience in investigating child sexual abuse, including having taken a 40-hour course on investigating sex crimes and investigating numerous child sexual abuse crimes while working in law enforcement for 10 years. The Tompkins court held that, even though the investigator did not have significant academic qualifications, such as a degree in psychology, the trial court did not abuse its discretion in allowing the investigator's testimony, because the investigator had substantial experience as a child sexual abuse investigator. (Tompkins, supra, 185 Cal.App.4th at p. 1265.)
Defendant's reliance on People v. Williams (1989) 48 Cal.3d 1112, is misplaced. In Williams, the court held that an experienced investigator, who specialized in sexual assaults, was not qualified to provide expert testimony that the "'emotional make-up'" of a rape victim may affect whether the rapist has marks on his body from committing the rape. (Id. at p. 1136.) The court held such expert opinion was inadmissible because there was no evidence the investigator had any psychiatric training or experience. (Ibid.)
People v. Williams, supra, 48 Cal.3d 1112 is not on point. The instant case does not involve an investigator testifying regarding a rapist not having marks on his body after raping the victim, or the reason why this is so. Here, the issue is whether the investigator could testify as to why child sexual abuse victims have certain common behaviors. We conclude the trial court reasonably found that such testimony was proper, even though Sergeant Laub did not have any psychiatric or psychological training, because Sergeant Laub had extensive training, knowledge, and experience in investigating child sexual abuse, which sufficiently qualified Sergeant Laub to briefly testify in general terms, based on her observations, as to why child sexual abuse victims commonly behave a certain way.
V.
EXCESSIVE SENTENCE
Defendant contends the trial court abused its discretion in sentencing him to 195 years to life in prison, and his lengthy sentence constitutes cruel and unusual punishment. The trial court sentenced defendant consecutively on each of his 13 convictions for committing a lewd or lascivious act on a minor under the age of 14 years. (§ 288, subd. (a).) Defendant was sentenced to 15 years to life on each count because of the multiple victim findings. (§ 667.61, subd. (b).)
A. Discretion to Impose Consecutive Terms
During sentencing, the prosecutor urged the court to impose the maximum 195 years to life sentence because, from 1996 to 2009, defendant sexually abused his three biological daughters and a stepdaughter. Defense counsel requested concurrent terms, for a 15 years to life sentence.
The trial court acknowledged it had discretion to impose concurrent terms but, nevertheless, imposed consecutive life sentences on each count based on the following grounds: (1) the "crimes are far too serious for concurrent sentencing," (2) defendant committed the offenses "repeatedly, over time, and with multiple victims," (3) there was a 10-year gap between the offenses committed against defendant's biological children and his stepdaughter, Jane Doe, (4) defendant's crimes "inflicted severe physical and emotional injury on the victims in this case," (5) as a father, defendant took advantage of a position of trust to commit offenses against extremely vulnerable victims, and (6) defendant did not show remorse or take responsibility for his actions.
1. Applicable Law on Sentencing
Under section 669, the trial court has broad discretion to sentence defendant concurrently or consecutively. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) California Rule of Court rule 4.425(a) states the following factors relating to the committed crimes may be considered when determining whether to impose consecutive rather than concurrent sentences: "(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior."
Undesignated rule references are to the California Rules of Court.
Rule 4.425(b) states that, in addition, "Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." As stated in People v. Scott (1994) 9 Cal.4th 331, 350, "[a]lthough a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence. (§ 1170, subd. (b); rule 420(c) & (d).)"
We review the trial court's decision to impose sentences consecutively for an abuse of discretion. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1059.)
2. Evidence Supporting Consecutive Sentencing
We conclude the trial court did not abuse its discretion in imposing consecutive, rather than concurrent sentencing. There was substantial evidence supporting the court's finding that defendant's crimes were "far too serious for concurrent sentencing," because the crimes were committed "repeatedly, over time, and with multiple victims." The 13 counts of lewd or lascivious acts against four minors under the age of 14 years were committed over a 14-year period, from 1996 to 2010. While these circumstances, in part, support the multiple-victim special allegation, the trial court's finding is not based solely on there being multiple victims. It is also premised on the lengthy period of time defendant committed the serious crimes and the prolific criminal acts of sexually abusing his own children.
Even if the trial court could not rely on the fact defendant committed the crimes against numerous victims as a basis for imposing consecutive sentencing, the court could rely on the fact that the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a)(3).) The trial court noted that it was troubled by the "approximate ten-year gap between the victims." Furthermore, the trial court also properly relied on findings that defendant inflicted severe emotional and physical injury on the children, took advantage of a position of trust against extremely vulnerable victims, and failed to take responsibility for his actions.
Defendant argues the court could not rely on these factors because most all section 288, subdivision (a) crimes involve children abused by someone the child knows and trusts. Defendant cites various statistics, which are not part of the record on appeal, to argue that defendant's victims were not any more vulnerable than the typical child sexual abuse victim. But, here, the court could reasonably find that the circumstances were distinctively worse than the ordinary case because defendant repeatedly abused his own biological children, as well as a stepdaughter, over an extended period of time. Defendant does not provide any statistics showing that sexual child abuse is commonly committed against a perpetrator's own biological children and stepchildren. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 ["Abuse of the parental relationship" represents "one aggravating factor" in a child sexual abuse case]; People v. Garcia (1985) 166 Cal.App.3d 1056, 1069-1070 [a minor under the age of 14 may be determined to be particularly vulnerable because of factors such as "supervision or control of a defendant over a victim"].)
We further reject defendant's contention the trial court erred in imposing consecutive sentencing based on the finding the crimes resulted in the victims suffering physical and emotional injury. He argues that the crime of child sexual abuse inherently results in the victims suffering physical and emotional injury, and therefore it is not a proper factor supporting consecutive sentencing. We note this factor is not an element of the crime of child sexual abuse, and therefore can be considered by the trial court. Furthermore, the fact that the victims included defendant's biological children and a stepdaughter support a reasonable finding that the victims suffered emotional harm beyond that of victims abused by non-parental perpetrators.
We further reject defendant's contention that under People v. Key (1984) 153 Cal.App.3d 888 (Key), the trial court improperly relied on defendant's lack of remorse in imposing consecutive sentencing. In Key, which is an adult rape case, not a child sexual abuse case, the court stated that "lack of remorse is not a valid reason to aggravate a sentence because [the defendant] denies committing the crimes. Lack of remorse is not specifically designated as a relevant aggravating factor in California Rules of Court, rule 421 [renumbered in 2001, as rule 4.421]." (Id. at p. 900.) The Key court concluded the trial court impermissibly relied on lack of remorse as an aggravating factor because the defendant continued to deny guilt and there was not overwhelming evidence of his guilt. (Id. at pp. 900-901.)
Although rule 4.421, which lists aggravating sentencing factors, does not list lack of remorse as an aggravating factor, rule 4.421 states that the trial court may consider "[a]ny other factors . . . that reasonably relate to the defendant or the circumstances under which the crime was committed." (Rule 4.421(c).) This could include a defendant's lack of remorse. Furthermore, the trial court could consider defendant's lack of remorse because, unlike in Key, there was overwhelming evidence of defendant's guilt. (See People v. Senouda (2015) 240 Cal.App.4th 358, 372.)
In addition, even if consideration of lack of remorse was improper, it was harmless error because the trial court relied on other proper reasons for imposing consecutive sentencing. (People v. Senouda, supra, 240 Cal.App.4th at p. 372 ["In any event, even if the court did consider defendant's lack of remorse as a reason for choosing the middle term sentence, other reasons for imposing that sentence discussed ante provided adequate, independent support for the sentence. Any error was therefore harmless."].)
Defendant further argues that the trial court erred in imposing consecutive sentencing without considering his mitigating factors, which include his age of 57 years at the time of sentencing, his minimal criminal history of a single misdemeanor conviction for driving under the influence (DUI), and his low Static-99 score of "-1," indicating a low risk of reoffending. Even though the trial court did not specifically mention during sentencing that it considered these mitigating factors, we presume the court considered and balanced them against the aggravating factors weighing in favor of consecutive sentencing. (In re Julian R. (2009) 47 Cal.4th 487, 499 ["'we apply the general rule "that a trial court is presumed to have been aware of and followed the applicable law"'"]; People v. Nance (1991) 1 Cal.App.4th 1453, 1456 ["'It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.'"]; People v. Castaneda (1975) 52 Cal.App.3d 334, 342 ["The trial court is presumed to know and follow the law."].)
Furthermore, the record indicates the trial court considered defendant's mitigating factors and concluded they were outweighed by aggravating factors. During sentencing, defense counsel requested concurrent sentencing based on defendant's "lack of record[,] [o]ther than a 2012 DUI," defendant's low-risk Static-99 score, and defendant's age of 57 years. Defense counsel noted concurrent 15 years to life sentences would result in defendant being released when he was 72 years old, posing a low risk of danger. The court responded that it had reviewed the probation report, which listed the criteria affecting imposing consecutive sentencing, including aggravating and mitigating factors. We thus conclude the trial court did not abuse its discretion in imposing consecutive sentencing, because there was sufficient evidence that the trial court relied on proper aggravating factors which outweighed any mitigating factors.
B. Cruel and Unusual Punishment
Defendant's contention his 195 years to life sentence violates the Eighth Amendment against cruel and unusual punishment also lacks merit. Defendant argues that a lesser possible sentence of only one or two 15 years to life sentences would be more appropriate and humane. With a single 15 years to life sentence, defendant would be 72 years old when released and, with two consecutive 15 years to life sentences, he would be 87 upon release. Defendant argues that at those ages, he is not likely to reoffend.
The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "The Eighth Amendment was adopted to prevent inhuman, barbarous, or torturous punishment. It is possible for the length of a sentence to be so disproportionate to the offense as to fall within the inhibition. [Citation.] Ordinarily, however, where the sentence imposed is within the limits prescribed by the statute for the offense committed, it will not be regarded as cruel and unusual." (Black v. U.S. (9th Cir. 1959) 269 F.2d 38, 43; see Graham v. Florida (2010) 560 U.S. 48, 58-59.)
Although it can be said defendant's lengthy aggregate sentence is, in effect, a life sentence without the possibility of parole, the sentence is reasonably proportionate to the gravity of defendant's numerous serious crimes, and does not qualify as one of the situations in which a life sentence without the possibility of parole has been deemed cruel and unusual punishment. (Miller v. Alabama (2012) 567 U.S. 460, 465 [mandatory life imprisonment without parole for those under the age of 18 violates the Eighth Amendment's prohibition on cruel and unusual punishment]; Graham v. Florida, supra, 560 U.S. at p. 74 [Eighth Amendment prohibits life imprisonment without parole for juvenile offender who did not commit homicide]; In re Rodriguez (1975) 14 Cal.3d 639, 643 ["the penalty provision of section 288 is not unconstitutional," but the defendant's one-year-to-life term for child sexual abuse constitutes cruel and unusual punishment, where the defendant's single offense was nonviolent, weaponless, caused no physical harm, lasted only a few minutes, and defendant had served 22 years of his life sentence].)
Even though defendant's lengthy sentence exceeds his life expectancy, this does not render his sentence cruel and unusual punishment and an abuse of discretion, because each 15 years to life term is proportional to each of defendant's 13 serious and egregious crimes of repeatedly sexually abusing his three biological daughters and a stepdaughter.
C. Ineffective Assistance of Counsel
We further reject defendant's contention his trial attorney provided ineffective assistance of counsel (IAC) by failing to argue that (1) his consecutive sentencing was unwarranted, (2) the trial court relied on improper aggravating factors, (3) the court failed to consider defendant's mitigating factors, and (4) defense counsel failed to argue defendant's sentence constitutes cruel and unusual punishment. Because, as discussed above, we reject these objections and conclude consecutive sentencing was proper, there was no IAC. "To prevail on a claim of ineffective assistance of counsel, a defendant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.'" (People v. Bradley (2012) 208 Cal.App.4th 64, 86.) Here, there was no deficient performance, raising the objections would likely have been futile as lacking merit, and there therefore was no prejudice.
VI.
FINES, FEES, AND ASSESSMENTS
Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant contends his fines and fees must be stayed because the trial court failed to make a finding that he had the ability to pay the fines and fees, in violation of his constitutional rights to due process.
A. Procedural Background
During the sentencing hearing on August 6, 2018, the court noted it had reviewed the probation report. The probation department recommended the court impose a 195 years to life sentence and find defendant had the ability to pay the following fines and fees: (1) $750 for appointed counsel fees; (2) $727 for the cost of conducting pre-sentence investigation and preparing the investigation report (§ 1203.1b); (3) $390 court construction fee (Gov. Code, § 70373, subd. (a)(1)); (4) $520 court operations fee (§ 1465.8, subd. (a)(1)); (5) $10,000 restitution fine (§ 1202.4); and (6) $10,000 suspended parole revocation restitution fine (§ 1202.45).
Defense counsel requested the court to impose the minimum fines and fees, and waive the victim fee on the grounds defendant was going to spend the rest of his life in prison and would be unable to afford to pay any attorney fees, victim fees, or court fees.
The trial court found defendant did not have the ability to pay appointed counsel fees and costs ($750) or investigation costs ($727). The court also stated it would not order defendant to pay a fine paid to the Department of Justice Sexual Habitual Offender Fund, because of defendant's inability to pay the fine.
The court ordered defendant to pay the minimum statutorily mandated fines and fees, including (1) a $390 court construction fee ($30 x 13 counts); (2) a $520 court operations fee ($40 x 13 counts); (3) a $300 restitution fine (§ 1202.4); and (4) a $300 suspended parole revocation restitution fine (§ 1202.45).
B. The Dueñas Decision
After sentencing and while this appeal was pending, the Second District, Division 7, decided Dueñas, supra, 30 Cal.App.5th 1157. Dueñas involved an unemployed, homeless mother with cerebral palsy. Her family included two young children. Dueñas was unable to afford even basic necessities due to poverty and the inability to work. (Id. at pp. 1160-1161.) Her inability to pay several juvenile citations had resulted in suspension of her driver's license, which led to a series of misdemeanor convictions over the years, for driving with a suspended license, and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed and was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine, the minimum amount required under section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the fines and fees without considering her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
On appeal in Dueñas, the defendant again argued that laws imposing fines and fees on people too poor to pay punish the poor for their poverty, in violation of their right to due process. Dueñas argued that such fine and fee statutes are fundamentally unfair because they use the criminal law to punish the blameless failure to pay by a person who cannot pay because of poverty. Dueñas further argued the fine and fee statutes are irrational, since they raise no money, because people who cannot pay do not pay.
Reversing the trial court, the court in Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373. We also hold that although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, supra, 30 Cal.App.5th 1157, 1164.)
We recognize there is disagreement among the California appellate courts on whether under Dueñas the trial court must consider during sentencing a defendant's ability to pay before imposing fines, fees, and assessments. This issue is under review in the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, 96-97 (Kopp), rev. granted Nov. 13, 2019, S257844.
C. Forfeiture
The People argue defendant forfeited his objections to the fines and fees by not objecting in the trial court. We disagree. Defendant's sentencing, during which the trial court imposed the statutory minimum fines and fees, occurred before Dueñas was decided.
"Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) "Forfeiture in this context has also been conceptualized as asking whether '"the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change."' [Citation.] In determining whether the objection would have been futile, 'we consider the "state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial."' [Citations.]" (People v. Jones (2019) 36 Cal.App.5th 1028, 1031.) We make this determination guided "by practical considerations as to what competent and knowledgeable members of the legal profession should reasonably have concluded the law to be." (People v. De Santiago (1969) 71 Cal.2d 18, 23; accord People v. Jones, supra, 36 Cal.App.5th at p. 1031.)
Based on these principles, we conclude, as we did in People v Jones, supra, 36 Cal.App.5th 1028, that, at the time defendant was sentenced, the case law (People v. Long (1985) 164 Cal.App.3d 820, 826) and relevant statutes would have meaningfully foreclosed defendant's objections to the court imposing his statutory minimum fines and fees. Defendant could not have been expected to anticipate the holding in Dueñas, even though Dueñas applied principles first articulated in other contexts long ago. (People v. Jones, supra, 36 Cal.App.5th at p. 1031; People v. Taylor (2019) 43 Cal.App.5th 390, 398, fn. 3.) We thus conclude defendant has not forfeited his objections under Dueñas to his statutory minimum fines and fees.
D. Application of Dueñas to the Instant Case
The People concede that under Dueñas, imposition of nonpunitive assessments (fees) violates due process where a defendant demonstrates an inability to pay them, and there has not been a determination that defendant is able to pay the fees. We therefore do not address the issue on the merits and remand for a hearing on defendant's ability to pay the court ordered statutorily mandated court fees ($910).
As to defendant's $300 minimum restitution fine and suspended $300 parole revocation restitution fine (referred to collectively as "restitution fine"), defendant argues federal and state constitution due process guaranties and constitutional prohibitions against excessive fines require the trial court to determine whether a defendant has the ability to pay court-ordered restitution fines. Defendant asserts that, because the trial court did not make a finding as to whether he could pay the $300 restitution fine, this court should remand this case for a hearing on defendant's ability to pay the restitution fine. Because this matter is being remanded for an ability-to-pay hearing on the statutorily mandated court fees, the trial court will also have the opportunity to consider whether to re-impose the $300 restitution fine, after determining whether under Dueñas plaintiff has the ability to pay the fine.
VII.
DISPOSITION
The trial court's sentencing order imposing fines and fees is reversed. On remand, the trial court is directed to hold a hearing on defendant's ability to pay the fines and fees, and determine whether to reimpose them. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.