Opinion
H043502
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. GALEN BRANT UNDERWOOD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1348358)
A jury convicted defendant Galen Brent Underwood of molesting his daughter over the course of several years, finding him guilty of three counts of forcible lewd acts on a child under 14, aggravated sexual assault of a child by oral copulation, aggravated sexual assault of a child by sexual penetration, forcible sexual penetration, assault with intent to commit rape, attempted sodomy by force, and sexual battery. The trial court sentenced defendant, a former sheriff's deputy, to 68 years to life in state prison.
On appeal, defendant challenges the sufficiency of the evidence supporting certain of his convictions and raises claims of instructional error, evidentiary error, prosecutorial misconduct, ineffective assistance of counsel, juror bias, and cumulative error. We reject these claims. Defendant also contends the trial court erred by modifying the verdict as to one of the counts. The Attorney General concedes this final claim of error. We agree that one of the verdict forms was improperly amended. For that reason, we reverse and remand with directions.
I. BACKGROUND
A. Factual Summary
1. The Molestations
Defendant and his wife have five children, including daughter J. At the time of the 2015 trial, J. was 19 years old. She testified that defendant (her father) sexually abused her over the course of more than six years while she was in middle and high school.
J. testified that the first incident occurred around the first day of her sixth grade year. J. entered sixth grade in August 2007, at which time she was 11 years old and the family lived in Mountain View. When she returned home from school, only defendant—then a deputy sheriff—was there. He was sitting in his recliner in the living room. She sat on the couch and told him about her day. He gestured for her to come sit on his lap, which she did. When J. had finished telling defendant about her day, he asked her to give him a hug. As she turned her body to hug her father, he "grabbed" her legs and positioned them so that she was straddling him. As she hugged him, he moved her "hips and legs in a thrusting motion on top of him." His breathing sped up. After less than a minute, he stopped and J. got off him. Defendant told J. "Don't tell mom." She responded, "I know, because you could go to jail." Defendant replied, "No, it will just hurt her. Don't tell mom." J. "knew that someone in this [circumstance] went to jail," and concluded that "it must have been [her] who was supposed to go to jail." Based on the foregoing incident, defendant was charged in count 1 with forcible lewd acts on a child under 14 in violation of Penal Code section 288, subdivision (b)(1).
All further statutory citations are to the Penal Code unless otherwise indicated.
The next incident J. could recall occurred when her mother was in the hospital. J. believed it may have taken place shortly after her mother gave birth to her youngest siblings—twins born in July 2007. (The birth of the twins occurred a month before J. started sixth grade.) Defendant called J. into the master bedroom in the afternoon. He was in bed and asked her for a hug. When she gave him one, he pulled her up on top of him and positioned her legs to straddle him. He moved her hips in the same thrusting motion as he had during the first instance. After a few minutes, he undressed and told her to do so as well. She did because she "was just doing what he told" her to do. They laid side-by-side and he moved her hand up and down on his penis. He touched her body, including her vagina. Defendant then pulled J. back on top of him and rubbed her vagina against the backside of his penis. J. testified that defendant's penis did not penetrate the outer lips of her vagina. After about a minute, J. got off the bed. She bent down to get her clothes and defendant said, "Stay right there. Don't move." He masturbated while looking at J. and commenting on her appearance and body until he ejaculated. Based on the foregoing incident, defendant was charged in count 2 with forcible lewd acts on a child under 14 in violation of section 288, subdivision (b)(1).
J. testified that similar sexual encounters occurred "quite frequently" during her sixth grade year. Often, the abuse took place on Sundays when the rest of the family went to church. J.'s mother ran the church's Sunday school and was therefore out of the house early on Sundays and did not return home until the afternoon. J. testified that defendant typically would call her into the master bedroom. "It [would] always start[] off with a hug" followed by "[l]egs straddled on top, thrusting." Based on the foregoing evidence, defendant was charged in counts 3, 4, and 5 with forcible lewd acts on a child under 14 in violation of section 288, subdivision (b)(1).
J. testified that the first instance of oral copulation occurred during the summer between her sixth and seventh grade years. Defendant explained how to "69," told J. what to do, and she complied. They orally copulated one another briefly until J. stopped because she did not like it. Defendant was charged in count 12 with aggravated sexual assault of a child by oral copulation (§ 269, subd. (a)(4)) based on the foregoing incident.
On another occasion around the same time, defendant digitally penetrated J.'s vagina. Defendant was charged in count 14 with aggravated sexual assault of a child by sexual penetration (§ 269, subd. (a)(5)) based on that incident.
The sexual abuse continued when J. was in the seventh and eighth grades. Often, the incidents were similar—defendant called J. into the master bedroom, asked for a hug, pulled her on top of him, undressed them both, and engaged in thrusting against her body. J. recalled one specific instance of such conduct that took place on a Christmas Eve during middle school. She stayed home from church with her father to help him build bikes for her younger siblings. At some point that evening, he had J. sit on top of him while they were both clothed and did "the thrusting motion." The foregoing evidence formed the basis for the section 288, subdivision (b)(1) violations charged in counts 6 through 11. Counts 6, 7, and 8 charged defendant with forcible lewd acts committed during J.'s seventh grade year and the summer before she entered eighth grade. Counts 9, 10, and 11 charged defendant with forcible lewd acts committed during the portion of J.'s eighth grade year when she was 13 years old.
When J. was in seventh grade, defendant asked her to orally copulate him while he was seated on a sofa in the master bedroom. She refused, but he kept trying to convince her to do it. Eventually, he wore her down and she orally copulated him. There were other instances of oral copulation while J. was in middle school. On one of those occasions, defendant pushed J.'s head down towards his penis because she was moving too slowly. The oral copulation was charged in count 13 as aggravated sexual assault of a child by oral copulation (§ 269, subd. (a)(4)).
The abuse continued when J. was in high school. She was unable to describe a specific instance from her ninth grade year, explaining that "[i]t happened so frequently they all kind of blur together . . . ." Count 15 charged defendant with lewd acts on a child age 14 or 15 (§ 288, subd. (c)(1)) based on J.'s testimony that the abuse continued when she was in high school.
J. testified that she was scared to disobey her father because he was an adult and had "a job of high authority." She also testified that defendant threatened not to let her see her friends and not to buy things for her. Sometimes, J. would leave the master bedroom when defendant asked for a hug. He would follow her out of the room and verbally "harass" her until she returned, although he would not physically force her into the bedroom. Other times, J. told defendant "no"; he would respond with threats such as "Good luck going out with friends" and "Good luck having food on the table." More than once, J. made defendant "pink[y] promise . . . that it's the last time, that it needs to stop." J. testified that defendant would agree, but the abuse "just kept happening."
J. testified that she never told her older brother, with whom she was very close, about the abuse because she "didn't want him to feel like he failed at protecting his younger sister." She did not tell her mother because they were not particularly close and because J. felt as if she was the "other woman" in her parents' marriage and that she put a strain on their relationship.
The family moved to a home located between Gilroy and Hollister in late 2012, in the middle of J.'s junior year of high school. J. recalled an incident in the new home during which defendant attempted to have anal sex with her. She testified that his penis penetrated her anus, which hurt. She told him to stop and he did. He "then continued with what to [her] was the normal routine, where he would have [her] thrust on him, and then he would finish off himself." That incident formed the basis for the count 20 charge of forcible sodomy (§ 286, subd. (c)).
J. testified that defendant never inserted his penis into her vagina. However, when he thrusted with her straddling him, his penis sometimes went between the exterior vaginal lips, including when they lived near Gilroy. Based on the foregoing, defendant was charged in count 19 with forcible rape (§ 261, subd. (a)(2)).
J. testified that defendant orally copulated her after the move to the Gilroy area. And there was at least one incident after the move when defendant digitally penetrated J. The foregoing formed the basis for counts 16, 17, and 18, charging defendant with forcible sexual penetration (§ 289, subd. (a)(1)(A)).
J. attended San Benito High School for the second semester of her junior year. She became close friends with one of her water polo teammates, Rachel, and Rachel's younger sister. Rachel and her sister told J. that they had been molested. Shortly thereafter, J. disclosed to them that her father had been molesting her. Rachel encouraged J. to tell someone about the abuse, but J. was reluctant to do so.
In early June 2013, towards the end of the school year, J. and Rachel began dating. J. kept the relationship from her parents, but defendant suspected the relationship was romantic and confronted J. He disapproved of her being in a same-sex relationship and told her it would negatively impact her reputation. J. described her father as "homophobic."
J. and Rachel exchanged numerous text messages during the summer of 2013. In one exchange in July Rachel wrote: "I just want it to stop, and that is why I push you to tell. I don't want this to ever happen to you. And the least I can do is help you get through this, and make sure it never happens again. You are stronger than you think. . . . I would move into your house if I could and make sure your dad never has a moment alone with you." J. responded, in part: "I know things will get better with me. But whether I tell someone or not, I don't know yet. . . . And as much as I want to tell, I also don't want to send my dad to jail because he is an asshole, but that means my siblings will grow up without a dad, and a hard life, because my mom—with being a single mom working with three kids to feed." Later in the same exchange Rachel wrote: "What if this happens to [your younger sister]? I know you think it won't, but if it does you will feel a lot worse than having her grow up without a dad. Your mom is a strong woman with a supportive family. She can make it through this. The little ones will be fine without him. It will not be your fault. It will be your dad's."
On Saturday September 21, 2013—toward the beginning of J.'s senior year—J. and her parents fought about her relationship with Rachel. Defendant told J. during that fight that she was no longer allowed to see Rachel.
J. testified that the last incident of molestation occurred the following day, while her mother was at church. J. resisted defendant's initial requests to come into the master bedroom, but he "kept yelling [at] and harassing [her] for about five, six minutes until eventually [she] went into the room." As was often the case, she straddled him while they were both naked; after, he masturbated while looking at her. J. testified that she was wearing black underwear that day, which she put back on after the incident. She later removed them and put them in a hamper she shared with her siblings. Based on that incident, defendant was charged in count 21 with sexual battery (§§ 242-243.4, subd. (e)(1)).
A few days later, J. reported the abuse to her high school counselor. He testified that she told him she had "been sexually abused by her father . . . since 6th grade." He described her as "crying pretty much nonstop." As a mandated reporter, he reported the abuse to Child Protective Services. Defendant was arrested that evening.
J. and Rachel broke up in October 2013 and had not spoken for at least a year at the time of trial.
2. DNA Evidence
Prosecution and defense experts conducted bodily fluid and DNA testing on the black underwear J. testified she wore after the final molestation. The interior crotch of the underwear was tested for the presence of acid phosphatase, an enzyme found in semen. The test result was inconclusive. A low level of sperm cells was found on the interior crotch of the underwear. The DNA in those sperm cells matched defendant's DNA. Both prosecution and defense experts agreed that sperm cells can transfer from one garment to another in the laundry. One of the prosecution experts testified that pre-ejaculate contains a low level of sperm cells.
3. Child Sexual Abuse Accommodation Syndrome Evidence
Miriam Wolf, a licensed clinical social worker, testified for the prosecution as an expert on child abuse and child sexual abuse accommodation syndrome (CSAAS). She explained that CSAAS first was discussed in a 1983 article by psychiatrist Roland Summit. Dr. Summit identified five common patterns of behavior in the child sexual abuse victims he treated: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. Wolf testified that Dr. Summit intended to challenge certain myths regarding how and when children report sexual abuse, including the myth that "kids should report on time . . . ." She noted that CSAAS should not be used "to make a diagnosis or a determination about [whether] child sexual abuse" has occurred in a particular case.
4. Defendant's Testimony
Defendant took the stand and denied all of J.'s accusations. He testified that he believed J. falsely accused him because he was standing in the way of her relationship with Rachel. Defendant acknowledged that he had been unfaithful to his wife and that they had gone to counseling to address his infidelity. He further acknowledged that he had remained in contact with a woman with whom he had had an emotional affair and that he had lied to his wife about that relationship. Defendant also testified that he responded to personal ads posted by women and transgender women on Craigslist.
B. Procedural History
The Santa Clara County District Attorney charged defendant with eleven counts of forcible lewd acts on a child under 14 (§ 288, subd. (b)(1), counts 1-11); three counts of aggravated sexual assault of a child (§ 269, counts 12-14); lewd acts on a child age 14 or 15 (§ 288, subd. (c)(1), count 15); three counts of sexual penetration by force, violence, duress, menace, or fear (§ 289, subd. (a)(1)(A), counts 16-18); forcible rape (§ 261, subd. (a)(2), count 19); forcible sodomy (286, subd. (c), count 20); and sexual battery (§ 242-243.4, subd. (e)(1), count 21).
The case proceeded to a jury trial in August 2015. After deliberating for more than three full days and requesting numerous read backs, jurors found defendant guilty of three counts of forcible lewd acts on a child under 14 (§ 288, subd. (b)(1), counts 1, 8, and 9); two counts of aggravated sexual assault of a child (§ 269, counts 12 and 14); sexual penetration by force, violence, duress, menace, or fear (§ 289, subd. (a)(1)(A), count 16); and sexual battery (§ 242-243.4, subd. (e)(1), count 21). The jury returned not guilty verdicts on counts 2 through 7, 10, 11, 13, 15, 17, and 18. The jury found defendant not guilty of forcible rape as charged in count 19, but guilty of the lesser included offense of assault with intent to commit rape. Finally, the jury found defendant not guilty of forcible sodomy as charged in count 20, but guilty of the lesser included offense of attempted sodomy by force.
Defendant moved unsuccessfully for a new trial. On April 15, 2016, the trial court sentenced defendant to a total term of 30 years to life consecutive to 38 years.
Defendant timely appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant claims there is insufficient evidence to support his convictions for three counts of forcible lewd acts against a child (§ 288, subd. (b)(1)), two counts of aggravated sexual assault on a child (§ 269), and one count of forcible sexual penetration (§ 289, subd. (a)(1)(A)). We disagree.
1. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.)
2. Section 288, subdivision (b)(1) Convictions (Counts 1, 8, and 9)
a. Legal Principles
Section 288, subdivision (a) makes it a crime to "willfully and lewdly commit any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." Section 288, subdivision (b)(1) makes it a crime to do the foregoing "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ."
For purposes of section 288, subdivision (b)(1), "force" means physical force that is substantially different from or substantially greater than that necessary to accomplish the lewd act itself. (People v. Jimenez (2019) 35 Cal.App.5th 373, 391.)
" '[D]uress,' as used in section 288[, subdivision] (b)(1), means ' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' " (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto).) Whether a molestation was accomplished by duress is determined by assessing the totality of the circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Veale (2008) 160 Cal.App.4th 40, 46 (Veale).) But "[d]uress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by [a direct or] implied threat . . . .' [Citation.]" (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.)
b. Analysis
Defendant was convicted of forcible lewd conduct as charged in counts 1, 8, and 9. He maintains there was insufficient evidence that he used force, violence, duress, menace, or fear of immediate and unlawful bodily injury in committing the lewd acts, such that those convictions should be reduced to convictions of the lesser included offense of violating section 288, subdivision (a). The Attorney General contends there was sufficient evidence of both force and duress. We address each count in turn.
Count 1 was based on the first molestation, which J. testified occurred around the first day of her sixth grade year. J. was home alone with defendant. At his prompting, she sat on his lap and hugged him. He then "grabbed" her legs and positioned them so that she was straddling him and moved her "hips and legs in a thrusting motion on top of him" while she hugged him. J. explained that defendant moved her in a "back and forth motion" so that her vagina rubbed against him. In order to move J.'s body in the manner she described, defendant must have held on to her.
There is substantial evidence that the first molestation was accomplished by force. Defendant positioned J.'s legs so that she was straddling him; he then held her and moved her body against his. Courts have held that acts of "grabbing" and "holding," such as J. described, are sufficient to constitute force for purposes of section 288, subdivision (b). (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) Likewise, positioning or manipulating the victim's body to accomplish the lewd conduct constitutes force in the context of section 288, subdivision (b). (See, e.g., People v. Bolander (1994) 23 Cal.App.4th 155, 160-161 [holding evidence of force sufficient to support section 288, subdivision (b) conviction where defendant bent the victim over and pulled the victim towards him before committing sodomy], disapproved on other grounds by Soto, supra, 51 Cal.4th at p. 248, fn. 12; People v. Babcock (1993) 14 Cal.App.4th 383, 386 [holding evidence of force sufficient to support section 288, subdivision (b) convictions where defendant physically moved the victims' hands to his genitals].)
Counts 8 and 9 were based on J.'s testimony that defendant regularly called her into the master bedroom, asked for a hug, pulled her on top of him, undressed them both, and engaged in thrusting against her body. Count 8 charged defendant with such conduct during J.'s seventh grade year; count 9, during her eighth grade year. J. testified that defendant was significantly larger than her and that, as a general matter, she was scared to disobey him because he was an adult and a deputy sheriff, which she considered "a job of high authority." Sometimes, J. would say "no" to defendant or attempt to avoid the molestation by leaving the master bedroom when he asked for a hug. On those occasions, defendant would follow and verbally harass her until she returned, including by threatening not to let her see her friends, not to buy things for her, and not to put food on the table. In other words, defendant would make threats of hardship and retribution.
The jury reasonably could have concluded that those threats were sufficient to coerce a reasonable person of ordinary susceptibilities to acquiesce in the molestation. (Soto, supra, 51 Cal.4th at p. 246.) The disparity in size and age between J. and defendant and defendant's position of authority in the family (and in society) likewise support a finding of duress. (Veale, supra, 160 Cal.App.4th at p. 47.)
In sum, defendant's sufficiency of the evidence challenges to his forcible lewd conduct convictions fail.
3. Section 269 and 289 Convictions (Counts 12, 14, and 16)
a. Legal Principles
Aggravated sexual assault of a child is the commission of certain enumerated acts on a child under the age of 14 and seven or more years younger than the defendant, including oral copulation (§ 269, subd. (a)(4)) and sexual penetration (§ 269, subd. (a)(5)). The underlying oral copulation or sexual penetration must be accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (§ 269, subds. (a)(4) and (a)(5); former §§ 288a, subd. (c)(2); 289, subd. (a).)
Section 289, subdivision (a)(1)(A) makes it a crime to commit "an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ."
The amount of force required to violate section 269, subdivisions (a)(4) and (a)(5) and section 289, subdivision (a)(1)(A) is force sufficient to overcome the victim's will. (In re Asencio (2008) 166 Cal.App.4th 1195, 1200, 1205.) Duress has the same meaning in the context of sections 269 and 289 as it does in the context of section 288, subdivision (b)—a direct or implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity to do or submit to something that he or she would not otherwise do or submit to. (CALCRIM Nos. 1015, 1045.)
b. Analysis
Defendant's section 269 convictions were based on J.'s testimony that, during the summer between her sixth and seventh grade years, she and defendant engaged in mutual oral stimulation and defendant digitally penetrated her vagina. The section 289 conviction was based on J.'s testimony that defendant orally copulated her after the family moved to the Gilroy area.
Our duress analysis for counts 8 and 9 applies fully to defendant's convictions for violating sections 269 and 289. As discussed above, J. testified that she tried to rebuff defendant's attempts to engage in sexual activity with her. When she did so, he issued threats of hardship and retribution that jurors reasonably could have concluded were sufficient to coerce a reasonable person of ordinary susceptibilities to acquiesce in the molestation, particularly given defendant's position of authority in the family and in the greater community. Accordingly, we reject defendant's sufficiency of the evidence challenges to his aggravated sexual assault and forcible sexual penetration convictions.
B. Lesser Included Offenses
Defendant maintains the trial court erred by failing to sua sponte instruct the jury on certain lesser included offenses. Specifically, he contends jurors should have been instructed on nonforcible lewd acts with a child (§ 288, subd. (a)) as a lesser included offense of forcible lewd acts with a child (§ 288, subd. (b)(1)), as charged in counts 1, 8 and 9. He further contends jurors should have been instructed on nonforcible oral copulation with a minor (former § 288a, subd. (c)(1)) and simple assault or battery (§§ 240, 242) as lesser included offenses of aggravated sexual assault on a child (§ 269; counts 12 and 14) and forcible sexual penetration (§ 289, subd. (a)(1)(A); count 16). The Attorney General disagrees, arguing that there was no evidence from which jurors could have concluded that defendant was guilty of a lesser included offense. The Attorney General has the better argument.
1. The Duty to Sua Sponte Instruct on Lesser Included Offenses
A trial court is obligated to instruct on all lesser included offenses " 'when the evidence raises a question as to whether all of the elements of the charged offense were present' " and "evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 154, 162 (Breverman).) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.)
"The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." (Breverman, supra, 19 Cal.4th at p. 154.) "[T]he rule seeks the most accurate possible judgment by 'ensuring that the jury will consider the full range of possible verdicts' included in the charge, regardless of the parties' wishes or tactics." (Id. at p. 155.) Of course, the court need not instruct on lesser included offenses " 'when there is no evidence that the offense was less than that charged.' " (Id. at p. 154.) We independently review the court's decision whether to instruct on lesser included offenses. (People v. Leal (2009) 180 Cal.App.4th 782, 792 (Leal).)
2. Analysis
Defendant argues that for counts 1, 8, 9, 12, 14, and 16—which charged him with crimes for which force or duress is an element—jurors should have been instructed as to one or more lesser included offense that does not include the element of force or duress. That argument lacks merit because there was no substantial evidence that defendant was guilty only of acts of molestation not accomplished by force or duress. Put differently, "the evidence show[ed] that if the defendant [was] guilty, he [was] guilty of the greater offense[s]." (Leal, supra, 180 Cal.App.4th at p. 792.)
We begin with count 1, in which defendant was charged with forcible lewd conduct (§ 288, subd. (b)(1)) based on the first day of school incident. As discussed above, J.'s description of that incident involved the use of force by defendant—namely the grabbing, holding, and positioning of her body. Either jurors believed J., in which case defendant was guilty of violating section 288, subdivision (b)(1), or they disbelieved her, in which case he was not guilty of any crime. "[N]o reasonable juror could have found that [defendant] was guilty of [nonforcible lewd conduct] but not guilty of [forcible lewd conduct]." (Leal, supra, 180 Cal.App.4th at p. 792.)
As discussed above, the acts charged in the other counts at issue were accomplished by duress—namely, defendant's use of threats, which were not idle given his position of authority. The evidence provided no basis for concluding that the charged sex acts occurred and, rather than being accomplished by duress, were willingly engaged in by J. She testified that she said "no," made defendant promise to stop, and tried to avoid the molestations; he denied that the sexual encounters took place at all. Thus, again, either jurors believed J.'s testimony and defendant was guilty as charged, or they disbelieved her and he was not guilty of any crime.
Accordingly, the court did not err in failing to instruct the jury as to the lesser included offenses.
C. The Court Did Not Err in Instructing the Jury with CALCRIM No. 1193
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 1193, which he says improperly authorizes jurors to rely on expert CSAAS testimony to evaluate the credibility of a complaining witness. We disagree.
1. Factual Background
The trial court instructed the jury with CALCRIM No. 1193 as follows: "You have heard testimony from Miriam Wolf regarding Child Sexual Abuse Accommodation Syndrome. Miriam Wolf's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [J.'s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." (Italics added.) On appeal, defendant takes issue with the final, italicized phrase.
2. Standard of Review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The pertinent inquiry is whether the instructions as a whole fully and fairly set forth the applicable law. (Ibid.) Where jury instructions are ambiguous or internally inconsistent, and therefore subject to an erroneous interpretation, we assess whether there is a " 'reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.) If there is such a reasonable likelihood, then we consider whether the instructional ambiguity was prejudicial. (People v. Williams (2000) 79 Cal.App.4th 1157, 1171.)
3. Analysis
Defendant argues that using CSAAS evidence to "evaluat[e] the believability of [the complaining witness's] testimony" is equivalent to using the evidence "to determine whether the victim's molestation claim is true," something case law prohibits. (People v. Bowker (1988) 203 Cal.App.3d 385, 394 ["the jury must be instructed simply and directly that the expert's [CSAAS] testimony is not intended and should not be used to determine whether the victim's molestation claim is true"].) We are not persuaded.
CSAAS evidence "is not admissible to prove that the complaining witness has in fact been sexually abused[. But] it is admissible to rehabilitate such 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." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Here, there was evidence that the victim engaged in conduct that might appear inconsistent with molestation (and thus undermine her credibility), including delayed disclosure of the abuse. Wolf testified that CSAAS is designed to dispel myths about child sexual abuse, such as that an abused child will disclose the abuse in a timely fashion. She testified that CSAAS is not used to determine whether sexual abuse actually occurred and she offered no opinion as to the veracity of the allegations in this case. CALCRIM No. 1193 specifically informed the jury that Wolf's testimony "is not evidence that the defendant committed any of the crimes charged against him."
In view of the foregoing, there is no reasonable likelihood that the jury understood CALCRIM No. 1193 as allowing it to use the CSAAS evidence to determine that defendant sexually abused J. Rather, it is likely the jury properly understood CALCRIM No. 1193 as permitting it to use the CSAAS evidence in evaluating the believability of J.'s testimony that the molestations occurred, in light of the evidence that she engaged in conduct seemingly inconsistent with the conduct of a child who had been molested. Therefore, we reject defendant's claim.
D. Evidence of Extramarital Affairs
Defendant contends the trial court erred in admitting evidence of his extramarital affairs, which he says should have been excluded as unduly prejudicial under Evidence Code section 352. Recognizing this claim of error may not have been preserved for appellate review, defendant alternatively asserts an ineffective assistance of counsel claim.
1. Factual Background
Defendant moved in limine to exclude evidence that he engaged in extramarital affairs as irrelevant and unduly prejudicial. The motion did not discuss the nature of any such potential evidence. At the hearing on in limine motions, the trial court stated, "based upon the e-mail exchange yesterday between counsel, it appears to the Court that there is an agreement that [the prosecution] would not present that evidence as part of his case in chief, but that if [defendant] testifies that [the prosecution] would be permitted to cross-examine. Is that the agreement?" The prosecutor clarified that the agreement also would permit admission of evidence of defendant's extramarital affairs if the defense called character witnesses. Defense counsel represented that was the agreement and that he had "no problem" with it.
At trial, the subject of defendant's infidelity first came up during J.'s testimony. J. explained that she did not disclose the abuse to her mother because she "was aware that [defendant] had affair issues with [her] mother. He would constantly be cheating." J. felt like she "was that other woman" and therefore "didn't feel comfortable talking to her [mother]."
Defendant's wife (and J.'s mother) addressed the topic when she testified for the defense. She testified that defendant told her his relationships with other women during their marriage were not sexual and that she believed him. On cross examination, she testified that defendant had lied to her about ending a relationship with another woman.
A pastor who had counseled defendant in connection with his infidelity testified for the defense as a character witness. He opined that defendant is an honest and truthful person. The pastor further testified that he thought defendant was genuine in his desire to work on his marriage and to be faithful to his wife.
On direct examination, defendant acknowledged having an emotional, non-sexual affair with a woman named Sandra. On cross examination, he admitted that he continued the relationship with Sandra after telling his wife he would end it. Evidence was admitted showing that on the day before his arrest, defendant received an email confirming his subscription to affairshookups.com. Evidence also showed that defendant received an email in late 2012 confirming his subscription to "official jail baits forum." Defendant testified that he did not recall signing up for either subscription. Defendant admitted on cross examination that he responded to personal ads from women (including transgender women) who may have been prostitutes on Craigslist. Defendant read aloud an email he sent in response to such an ad, which clearly indicated he was seeking sex.
Defense counsel never objected when the foregoing testimony and evidence was admitted.
2. Forfeiture
The Attorney General argues that defendant forfeited his challenge to the admission of the infidelity evidence by agreeing to its admission at the hearing on in limine motions and by failing to object at the time the evidence was admitted. We agree that the claim of error has been forfeited. (See Evid. Code § 353; People v. Solomon (2010) 49 Cal.4th 792, 821 ["A motion in limine can preserve an appellate claim, so long as the party objected to the specific evidence on the specific ground urged on appeal at a time when the court could determine the evidentiary question in the proper context"].)
3. Ineffective Assistance of Counsel
Defendant argues trial counsel provided ineffective assistance in failing to object to the admission of the infidelity evidence.
a. Legal Principles and Standard of Review
Only relevant evidence is admissible. (Evid. Code, § 350.) The Evidence Code defines "relevant evidence" broadly as "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210, italics added.) " '[T]he trial court has broad discretion to determine the relevance of evidence.' " (People v. Tully (2012) 54 Cal.4th 952, 1010.) A trial court has the discretion to "exclude evidence if its probative value is 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.) For purposes of Evidence Code section 352, evidence is "prejudicial" if it " ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) " ' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." [Citation.] ' " (People v. Scott (2011) 52 Cal.4th 452, 491.) "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352." (Kipp, supra, at p. 1121.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
b. Analysis
We turn immediately to the prejudice prong. The pertinent question is whether defendant has shown a reasonable probability of a more favorable trial outcome had the infidelity evidence been excluded. He has not.
In support of his prejudice argument, defendant points to the length of the jury's deliberations. "[U]nduly lengthy deliberations" can support an inference that a case was a close one. (People v. Walker (1995) 31 Cal.App.4th 432, 439.) But there was nothing unwarranted about the length of deliberations in this case. Jurors heard six days of testimony from 14 witnesses, requested numerous readbacks, and were faced with 21 counts charging defendant with violations of seven different Penal Code sections. Given those circumstances, the jury's deliberation over more than three full days "could as easily be reconciled with [its] conscientious performance of its civic duty, rather than its difficulty in reaching a decision." (Ibid. [where jury deliberated for six and one-half hours following a two and one-half-hour-long trial, declining to infer any difficulty in reaching a decision from the length of the deliberations]; People v. Houston (2005) 130 Cal.App.4th 279, 301 [concluding that four days of jury deliberations suggested "diligence" rather than a close case where the trial involved "over three dozen witnesses occurring on 10 different days spread over three weeks, as well as lengthy closing arguments and jury instructions spread over two additional days"].) In sum, the length of deliberations does not support defendant's contention that he was prejudiced by the admission of the extramarital affair evidence.
Defendant also notes that the jury requested two readbacks of J.'s testimony and argues those requests show jurors "had some concerns about [her] credibility." But jurors also requested two readbacks of defendant's testimony as well as readbacks Rachel's testimony, Wolf's testimony, defendant's wife's testimony, and the testimony of the DNA experts. If defendant is right, then jurors likewise had concerns about his own credibility and that of most of the other witnesses. In our view, the fact that the jury requested numerous readbacks instead indicates that it carefully and dispassionately parsed the evidence in reaching its verdicts.
The mixed verdict—acquitting defendant of some charges and convicting him of others—likewise demonstrates that the jury was not overcome by passion or prejudice, but carefully considered the evidence as to each of the 21-counts.
For the foregoing reasons, defendant's ineffective assistance of counsel claim fails.
E. Ineffective Assistance of Counsel for Failure to Object to Prosecutor's Argument
Defendant argues the prosecutor improperly vouched for J.'s credibility during his closing argument and that trial counsel was constitutionally ineffective in failing to object.
1. Factual Background
During closing arguments, the prosecutor alluded to the jury instruction regarding how to evaluate witness credibility. He then argued that the content of J.'s testimony and her delivery indicated that she was not "fram[ing]" defendant because "her testimony had the absolute ring of truth, and it's worthy of your belief." The prosecutor reminded the jury of J.'s testimony regarding the typical pattern of abuse, saying: "She describes him masturbating, almost always ejaculating on himself. She said something with an incredible amount of truth. [¶] He'd have her bend over so he could look at her as she bent over. There were times that he would have her look over her shoulder while he was looking at her masturbating." Later, the prosecutor discussed the DNA evidence and argued it showed that J. told "the truth." The prosecutor also referred to the school counselor's testimony regarding J.'s disclosure of the abuse. The prosecutor argued that the counselor's description of J.'s demeanor supported an inference that she was being truthful because it was "exactly how someone [first disclosing long term sexual molestation] would act." The prosecutor then argued: "And I would suggest to you, ladies and gentlemen, very strongly, she told you the truth that the defendant is guilty of counts 1 through 21." Finally, the prosecutor sought to rebut the defense theory that defendant was telling the truth and J. was lying to protect her relationship with Rachel, saying that defendant had "tremendous . . . bias, motive, and interest to lie here," whereas J. was "no longer seeing Rachel. She's got no reason to come in and testify. [¶] One reason, and one reason only, is that it's true." Defense counsel did not object to any of the foregoing arguments.
2. Legal Principles
"[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . The prosecutor is entitled to draw conclusions from the evidence presented and to state them to the jury. The right is very broad and includes the opportunity to fully state his views as to what the evidence shows and as to the conclusions to be drawn therefrom. [Citations.]" (People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)
" 'A prosecutor may make "assurances regarding the apparent honesty or reliability of" a witness "based on the 'facts of [the] record and the inferences reasonably drawn therefrom.' " [Citation.] But a "prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record." [Citation.]' [Citation.]" (People v. Redd (2010) 48 Cal.4th 691, 740.) In other words, " '[i]mpermissible "vouching" may occur where the prosecutor . . . suggests that information not presented to the jury supports [a] witness's testimony.' " (People v. Williams (1997) 16 Cal.4th 153, 257.)
The law governing ineffective assistance of counsel claims is set forth above. We need not repeat it here.
3. Analysis
Defendant now contends that each time the prosecutor argued J. was telling the truth, he committed prosecutorial misconduct by improperly vouching for J.s' credibility. Defendant further argues that trial counsel's failure to object constituted ineffective assistance.
When the prosecutor's comments are read in context, it is clear that he did not improperly vouch for J.'s credibility by assuring jurors that evidence they had not heard corroborated her testimony. Rather, he commented on the evidence (including her testimony, defendant's testimony, the DNA evidence, and the school counselor's testimony) and encouraged jurors to credit J.'s testimony. Because we conclude there was no prosecutorial misconduct warranting a defense objection, we must reject defendant's ineffective assistance of counsel claim. (People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections."]; People v. Cunningham (2001) 25 Cal.4th 926, 1038 (Cunningham ) [failure to object to claimed prosecutorial misconduct is not ineffective assistance of counsel when there was no misconduct].)
F. Juror Bias
Defendant argues his convictions must be reversed because one of the jurors was biased against him and the trial court erroneously failed to discharge that juror.
1. Factual Background
During jury voir dire, defense counsel asked the potential jurors whether they would reject the testimony of a witness who expressed views about homosexuality that they strongly disagreed with and considered inappropriate. No potential juror indicated they would do so. During opening statements, jurors learned from defense counsel that J.'s parents believe homosexuality is a choice and one they did not want their daughter to make.
Immediately after opening statements, Juror No. 14 said, "Your Honor, I have something on my mind." The trial court asked the juror to put his concern in writing. Then, outside the presence of the other jurors and before the first witness was called, the court addressed Juror No. 14. According to the court, the juror's note indicated that he was "in a gay marriage and want[ed] to know if he [could] still serve as a fair juror." The following exchange then took place:
"THE COURT: . . . I will ask you, does that fact interfere with your ability to be fair and impartial as a juror in this case? [¶] JUROR NO. 14: Don't know. [¶] THE COURT: Okay. Yesterday we asked a lot of questions. Do you know why perhaps we didn't have this discussion yesterday? [¶] JUROR NO. 14: Yesterday—for the past few days I don't think my situation would sway me, left or right, with either party. But this morning with the testimony with the father does not approve of J[.]'s relationship with her girlfriend, that is something that is running over my mind. The father disapprove[s] of the daughter's gay relationship. [¶] I kind of put myself in that situation, if my parents would not approve of my relationship with my partner. The question if I can be—if I put myself in this situation of the kind of disappointment—that my parents would treat me that way. [¶] But with that said, I am very sure that I can be fair to both parties. Like you always remind us, that we come here with a blank sheet of papers. I just want to point out there, even on my questionnaire, my answer was that I'm married, but I never indicated that I was in a gay marriage. I just wanted to make that clear to both parties so both lawyers can either keep me or dismiss me as a juror. I just want to be out there. [¶] THE COURT: Very fine. So this was more about letting everyone know about your marital status? [¶] JUROR NO. 14: Yes. [¶] THE COURT: And we don't ask really because we don't care. Marriage is marriage. However, having heard now the opening statements, which are not evidence, but the opening statements, and having thought through your personal experience, which touches upon issues that you will hear about in this case, are you able to set aside your personal experiences about your parents' lack of approval or approval, or whatever happened in your world, are you able to set those aside and come here and view the evidence neutrally and impartially? [¶] JUROR NO. 14: Yes. Since day one when I answered that 50 questions I'm already comforted I can be very fair to both sides. [¶] THE COURT: So in your world this was more just about letting everyone know? [¶] JUROR NO. 14: Letting the parties know. [¶] THE COURT: [Prosecutor], do you have any additional questions of [Juror No. 14]? [¶] [PROSECUTOR]: I do not. [¶] THE COURT: [Defense counsel]? [¶] [DEFENSE COUNSEL]: I do not. [¶] THE COURT: [Prosecutor], are you satisfied that [Juror No. 14] shall remain as a juror? [¶] [PROSECUTOR]: I am. [¶] THE COURT: And [defense counsel]? [¶] [DEFENSE COUNSEL]: Yes, Your Honor."
2. Legal Principles and Standard of Review
Pursuant to section 1089 , "[t]he trial court may discharge a juror for good cause at any time, including during deliberations, if the court finds that the juror is unable to perform his or her duty." (People v. Lomax (2010) 49 Cal.4th 530, 588.) " 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." [Citation.]' " (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Section 1089 provides in pertinent part, "[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged
" 'Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions must be shown by the record to be a "demonstrable reality." The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]' [Citations]." (People v. Jablonski (2006) 37 Cal.4th 774, 807 (Jablonski).)
3. Analysis
Defendant's claim that the trial court erred in failing to discharge Juror No. 14 has been forfeited by the lack of any objection below. (People v. Virgil (2011) 51 Cal.4th 1210, 1242.) The claim also fails on the merits. The record fails to demonstrate that Juror No. 14 concealed anything; there is no evidence that he was asked about his sexual orientation or the gender of his spouse. The absence of any such concealment distinguishes this case from the one on which defendant relies—People v. Diaz (1984) 152 Cal.App.3d 926, 932. And the dialogue between the court and Juror No. 14, set forth in full above, shows the juror expressed no equivocation about his ability to set aside his own experiences. He unambiguously stated that he could do so and could be impartial. "The record before us does not show that the juror was unable to fulfill [his] functions as a demonstrable reality. Accordingly, we find no abuse of discretion in the trial court's decision to retain the juror." (Jablonski, supra, 37 Cal.4th at p. 807.)
G. Cumulative Error
Defendant contends that the cumulative effect of the errors he raises was to deprive him of his due process rights. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) There are no errors to cumulate. Thus, the claim fails.
H. Improper Modification of Verdict Form
After the jury returned its verdicts, the parties stipulated to the amendment of the verdict forms for counts 19 and 20 so that each form reflected a violation of section 220. The parties agree that only the count 19 verdict form should have been so amended.
1. Background
Defendant was charged in count 19 with forcible rape (§ 261, subd. (a)(2)). Jurors also were instructed on and received verdict forms for two lesser included offenses—attempted rape (§§ 664/261, subd. (a)(2)) and assault with intent to commit forcible rape (§ 220, subd. (a)(2)). The jury found defendant not guilty of forcible rape but guilty of the lesser included offense of assault with intent to commit forcible rape. The verdict form for that lesser included offense erroneously referenced section 261, subdivision (a)(2); in fact, assault with intent to commit forcible rape is a violation of section 220, subdivision (a)(2). That error was noticed as the verdicts were being read and the parties stipulated that "the [reference to] Penal Code Section 261(a)(2) on [the] Count 19 [verdict form] will be [amended to] Penal Code Section 220." The parties do not challenge that amendment.
Defendant was charged in count 20 with forcible sodomy (§ 286, subd. (c)). Jurors also were instructed on and received verdict forms for two lesser included offenses—attempted forcible sodomy (§§ 664/286, subd. (c)) and assault with intent to commit sodomy (§ 220, subd. (a)(2)). The jury found defendant not guilty of forcible sodomy but guilty of the lesser included offense of attempted forcible sodomy. The count 20 verdict form for the lesser included offense of attempted forcible sodomy contained no error. However, apparently believing the count 20 verdict form suffered from the same error as the count 19 verdict form, the parties stipulated to the amendment of that form just as they had stipulated to the amendment of the count 19 verdict form. Specifically, they stipulated that the count 20 verdict form would be amended to reference section 220.
The court sentenced defendant for two violations of section 220, subdivision (a)(2) for counts 19 and 20.
2. Analysis
The amendment to the count 20 verdict form effectively changed the jury's verdict on that count from a conviction for attempted forcible sodomy to a conviction for assault with intent to commit sodomy. As the parties assert, that was improper and cannot stand despite their agreement to it below. We shall reverse and remand with directions to the trial court to amend the judgment and resentence defendant.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. On remand, the trial court is directed to amend the minute order and abstract of judgment to reflect that defendant was convicted in count 20 of attempted forcible sodomy in violation of Penal Code sections 664 and 286, subdivision (c). The trial court is further directed to resentence defendant.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
GROVER, J.