Opinion
C081080
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY PAUL VERGASON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F222)
A jury found that defendant Timothy Paul Vergason committed two lewd acts -- one each against half sisters J. and F. (counts one and two, respectively) -- and also committed an act of sexual penetration against F. (count three). The trial court sentenced defendant to two consecutive terms of 15 years to life for the lewd acts under the one strike law plus an additional six consecutive years for the sexual penetration.
Defendant appeals, raising the following three contentions: (1) the trial court erred in admitting expert testimony that defendant apologized for his acts against the victims and that apology was an admission; (2) the trial court erred in permitting expert testimony on child sexual abuse accommodation syndrome after the People had already presented an expert covering the same matters; and (3) the trial court erred in sentencing defendant to two terms under the one strike law because he lacked notice of the one strike allegations on the lewd acts. Disagreeing there was prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
J. (born in 1996) and her half sister F. (born in 1999) lived with their mother and her boyfriend in Weaverville. Starting in 2003, the boyfriend regularly beat the girls, but their mother would do nothing to stop it. The girls often spent weekends at defendant's house; they referred to defendant as an uncle. While at defendant's house, he touched both girls. At this time, J. was seven and F. was five.
In 2004, there was a sleepover at defendant's house. J. "caught [her] sister sitting on top of [defendant] and then [J.] was told to get on top as well," but J. "ran into the living room, where [she] was forced to touch" his penis. When J. initially caught F. sitting on top of defendant, his pants were down to his knees, and F. did not have any clothes over her genitals. He was holding her hips and rocking her back and forth. On other occasions, defendant "felt [J.] up." She did not tell her mother because "it made [J.] feel guilty and dirty."
Defendant also molested F. on more than one occasion. Once, he told her to straddle him and then "attempted to make an insertion, but as [she was] a five-year-old, it became just skin to skin contact." In a later incident, defendant put his fingers inside her vagina.
F. was removed from her mother's house at age seven. She did not tell her adopted mother about defendant's sexual abuse until age 12, when the adoptive mother received a phone call from a detective about the molest and then talked to F. to confirm it.
J. eventually disclosed the molestations in June 2011 when interviewed by Denise Hinchcliff, a child molestation investigator with the Lake County District Attorney's Office. Hinchcliff had interviewed several hundred other child molest victims and assisted in several hundred more. She was an expert in "the interviews of victims of sexual assault and the special characteristics common in victims of sexual assault and knowledge of sexual assault investigations." Based on her experience in those interviews, disassociation is common, which is when the victim is reluctant to talk and displays a flat affect. Some molest victims say they do not remember the assault, but later admit to her they remember, or sometimes the opposite is true (they admit the molest to her but then recant after being removed from the house of their custodial parent). The reasons for initial denials vary from being afraid to tell because they had been sworn to secrecy or because they believed something bad may happen to their families. When she interviewed J., J. crossed her arms a lot and did not show a lot of emotion. J. at first just said that "something had happened." Only later in the interview did she describe the molestations in detail. Hinchcliff had "just a couple" hours of training on child sexual abuse accommodation syndrome. That training did not play as much of a role in her forming opinions about common characteristics of sexual assault victims as her actual participation in interviews of sexual assault victims.
On September 7, 2011, Detective Jeremy Ammon of the Trinity County Sheriff's Department interviewed defendant. The DVD of the interview was played for the jury during Detective Ammon's testimony, and the jury was also given a transcript of that interview. The prosecutor asked Detective Ammon: "During your interview with [defendant] on September 7, 2011, did [he] apologize for his acts against the two victims in this case?" Detective Ammon answered, "Yes, he did." The transcript reflects the following apology: "Yes, I apologize. For allowing them to umm carry on and umm," which defendant then explained was oral sex between the two victims, not involving him, that he failed to stop. According to Detective Ammon, "an apology would indicate some type of admission." Detective Ammon repeatedly asked if something inappropriate happened with the two girls, and defendant never said the girls must be lying. Defendant "talked about playing house and kissing with the victims. He talked about the victims performing oral sex on each other as he watched." He thought that F. "wanted to go farther [with him] . . . [like] having sex like the victims' parents did." He "mention[ed] that he did hurt them, but he wasn't specific on details of what we were talking about." "He's had a difficulty knowing where to draw the line and he's been working on that for over 30 years."
Dr. Anthony Urquiza, a professor and director of the child abuse treatment program in the pediatrics department at the University of California at Davis Medical Center, testified as an expert on child sexual abuse accommodation syndrome. The concept of child sexual abuse accommodation syndrome originated from a doctor in 1983 to educate therapists about typical behavior exhibited by child sexual abuse victims and to dispel any misperceptions about how child victims might react. There are five parts to child sexual abuse accommodation syndrome: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation. Secrecy is when victims keep quiet because it is not safe to talk about being sexually abused, possibly because there is an ongoing relationship with the abuser, the abuser will do something bad to the victim, or the victim may even get blamed. Helplessness is when victims feel there is nothing they can do or should do about the abuse because it is being perpetrated by someone who is bigger, stronger, and of more authority than the victim. Entrapment and accommodation are coping mechanism victims use to manage their feelings about the abuse. One coping mechanism is dissociation, which is when victims disconnect from their feelings about the abuse and remain emotionless when discussing the molest with therapists. Another coping mechanism is refusal to talk about the molest, thinking, "if I cannot talk to anybody about this, if I can just get past it, that is the best thing for me to do." Delayed and unconvincing disclosure is the concept that when reporting abuse, children first "test[] the waters. And if the response [from the adult who is listening] comes back supportive, then they tell more and more about what happened." At first, the listener "shouldn't expect a disclosure to be very clear and articulate. There may be a first version, a third version, they may make errors and mistakes in how they describe things." Finally, recantation is analogous to retraction.
DISCUSSION
I
The Court Erred By Admitting Expert Testimony That Defendant Apologized
And This Was An Admission, But The Error Was Harmless
During Detective Ammon's testimony, the prosecutor asked: "During your interview with [defendant] on September 7, 2011, did [he] apologize for his acts against the two victims in this case?" Detective Ammon answered, "Yes, he did." The detective further explained that "an apology would indicate some type of admission." Defendant contends the trial court violated his federal due process right to a fair trial by soliciting this evidence and that it was improper expert witness testimony. Defendant forfeited his federal argument and, as to his state law argument, we hold that while this testimony was not the proper subject of expert witness testimony, its admission did not prejudice defendant.
At trial, defense counsel's only objections to this evidence were that it lacked foundation and it was not the proper subject of expert witness testimony. As such, on appeal he has forfeited his claim that this evidence violated his due process right to a fair trial. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Alvarez (1996) 14 Cal.4th 155, 186.)
As to the evidentiary objection defendant raised in the trial court that he now renews on appeal, he is correct that whether defendant apologized and whether an apology is an admission were not the proper subject of expert witness testimony. A person with "special knowledge, skill, experience, training, or education" in a particular field may qualify as an expert witness and offer testimony in the form of an opinion. (Evid. Code, §§ 720, 801.) Such expert opinion testimony is admissible only if the subject matter of the proposed testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) We review the trial court's ruling on the admissibility of expert testimony for an abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.) Whether a defendant apologized and whether that apology was an admission is not a subject matter beyond common experience. As such, it was not the proper subject of expert testimony, and the trial court abused its discretion by admitting it.
However, it is not reasonably probable a result more favorable to defendant would have been reached had this testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Prieto (2003) 30 Cal.4th 226, 247 [standard to be applied to erroneous admission of expert testimony].) The DVD of the interview was played for the jury during Detective Ammon's testimony, and the jury was also given a transcript of that interview. Detective Ammon testified that the DVD and transcript correctly reflected his interview with defendant. Thus, the jury knew the exact apology that defendant had made, namely, "Yes, I apologize. For allowing them to umm carry on and umm," which he then explained was oral sex between the two victims, not involving him, that he failed to stop.
Defendant notes that there are blacked out portions in the transcript and claims the jury could have thought that there was a more explicit apology and admission in those redacted portions. But Detective Ammon testified that the redacted transcript accurately reflected the statements defendant made to him on September 7, 2011. And, as to the redactions on the transcript (and the corresponding silence in the DVD), the jury was instructed "not to consider [those] as relevant to the trial." We presume the jury followed this instruction. (People v. Osband (1996) 13 Cal.4th 622, 714.) Based on these facts, the error in admitting Detective Ammon's testimony was harmless.
II
The Trial Court Was Within Its Discretion To Permit An Expert On Child Sexual Abuse
Accommodation Syndrome, Despite Some Overlap With Another Prosecution Witness
Defendant contends the trial court abused its discretion under Evidence Code section 352 by permitting Dr. Urquiza's testimony on child sexual abuse accommodation syndrome because a prior prosecution witness, Denise Hinchcliff, had "essentially testified about the same matters." Although there was some overlap between their testimony, the court did not abuse its discretion in admitting Dr. Urquiza's testimony.
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.) "We review rulings under [Evidence Code] section 352 for abuse of discretion." (People v. Hernandez (2011) 200 Cal.App.4th 953, 966.)
Here, the court's decision to admit Dr. Urquiza's testimony on child sexual abuse accommodation syndrome despite trial counsel's objection that "[h]e's testifying to the exact same thing that Denise Hinchcliff testified to" was within the bounds of the court's discretion. Hinchcliff's testimony about child sexual abuse accommodation syndrome was limited because Hinchcliff had "[j]ust a couple" hours of training on child sexual abuse accommodation syndrome. She admitted that this training did not play as much of a role in her forming opinions about common characteristics of sexual assault victims as her actual participation in and observations of interviews of sexual assault victims. She did testify to dissociation, delayed disclosure, and recanting, but her testimony lacked explanation of the other aspects of the syndrome and lacked the rationale behind and any overview of the syndrome that was provided in detail by Dr. Urquiza, who was the only one qualified as an expert on the syndrome. Our Supreme Court has made clear that " '[s]uch expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1301.) The trial court reasonably concluded that it was not cumulative to have Dr. Urquiza testify in detail about the syndrome given his expertise in it and experience with it, which Hinchcliff admitted she lacked.
III
Defendant Had Notice That He Was Subject To Life Terms
For The Lewd Acts Under The One Strike Law
Defendant contends the trial court unlawfully sentenced him to two consecutive life terms for the lewd acts under the one strike law because he had no notice that the multiple victim allegation applied to more than one count, as it was alleged only with respect to F. in the sexual penetration charge. As the trial court concluded, defendant had adequate notice, so the court could lawfully impose a 15-year-to-life sentence for each lewd act under the one strike law.
In making his argument, defendant relies on People v. Mancebo (2002) 27 Cal.4th 735. In Mancebo, "the narrow question presented" was whether the fact of gun use, which had already been properly pled and proved as a basis for invoking one strike sentencing, could be used instead as a sentence enhancement under Penal Code section 12022.5, subdivision (a), while substituting the proven but not pled fact of multiple victims, all without prior notice. (Mancebo, at pp. 738-739, 749.) Mancebo's general principle is that a defendant has a due process right to fair notice of the factual allegations that will be invoked to impose a sentence enhancement or otherwise increase the punishment for the charged crimes. (Mancebo, at p. 747.)
There was no such notice problem here. The pleadings put defendant on notice that he would be subject to a multiple victim one strike allegation on the lewd act charges. The People charged defendant with committing a lewd act against two victims: J. in count one and F. in count two. Following each of these counts, the information set forth special allegations (enumerated one and two) under the one strike law, specifying as to each count "special allegation . . . sex crimes -- aggravating circumstances . . . within the meaning of Penal Code sections 667.61(j)(2) and (e)." While the (j)(2) allegation did not end up being applicable because it was enacted after defendant's crimes were committed, the allegation did place defendant on notice that (e) was also being charged, which included subdivision (e)(4) as follows: "The defendant has been convicted in the present case or cases of committing an offense . . . against more than one victim." (Pen. Code, § 667.61, subd. (e)(4).) In addition, at the end of the information, the People also alleged as special allegation three, "It is further alleged, within the meaning of Penal Code section 667.61(b) and (e), as to the defendant's actions that the following circumstances apply: The defendant has committed an offense specified in PC 667.61(b)/(e)(4)." (Italics added.) It is reasonable to interpret this last special allegation (special allegation three) as alleging that the lewd act charges would be subject to the one strike enhancement, as the only basis for the section 667.61, subdivision (e)(4) multiple victim "circumstances" based on defendant's "actions" would be the lewd acts he committed against J. and F. -- acts alleged in counts one and two -- and not the unlawful sexual penetration against F. alleged in count three. This reading is also reflected in the filled-in verdict forms, as the jury found true allegations as to the lewd act charges that defendant committed a lewd act against more than one victim "within in the meaning of Penal Code section 667.61(b)/(e)(4)." Thus, unlike in Mancebo, the People here put defendant on notice that he would be subject to the one strike law for the lewd act charges if it was proved and found true that he committed the charged lewd acts against the two victims.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.