Opinion
A145304
11-06-2018
THE PEOPLE, Plaintiff and Respondent, v. KYLE CLIFTON VOGT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC076804A)
A jury convicted Kyle Clifton Vogt of committing multiple sex offenses against his girlfriend's half sisters (J.A. and Jo.A.) and the daughter of a family friend (A.P.) when they were minors aged 15 or younger. Defendant raises a host of contentions on appeal. He argues the trial court erroneously admitted evidence linking him to a computer containing child pornography; his trial counsel provided ineffective assistance by failing to present certain evidence and witnesses at trial, including experts on computer forensics and Child Sexual Abuse Accommodation Syndrome (CSAAS); and the prosecution violated his right to due process by withholding evidence favorable to the defense and presenting false testimony at trial. We find no merit in these contentions and affirm.
To protect the victims' privacy, we refer to certain minors and family members by either their first names or initials. No disrespect is intended.
STATEMENT OF THE CASE
An amended information charged defendant with 10 felony sex offenses against J.A.: 1 count of aggravated sexual assault of a minor under age 14 (count 1; Pen. Code, § 269, subd. (a)(1)), and 9 counts of lewd or lascivious acts with a minor under age 14, involving substantial sexual conduct (counts 2-4, 6-11; § 288, subd. (a); § 1203.066, subd. (a)(8). Defendant was charged with 2 felony offenses against A.P.: 1 count of exhibiting harmful material to a minor with the intent of seduction (count 12: § 288.2, subd. (a)) and 1 count of committing a lewd or lascivious act with a minor age 14 or 15 (count 13: § 288, subd. (c)(1)). Defendant was charged with committing a lewd or lascivious act with Jo.A., a minor age 14 or 15 (count 14: § 288, subd. (c)(1)). Defendant pleaded not guilty.
All further statutory references are to the Penal Code unless otherwise stated.
Counts 5 and 15 were dismissed.
A jury found defendant guilty on all counts. After the verdicts, new defense counsel filed motions for a new trial. On April 15, 2015, the trial court denied the motions. On May 29, 2015, the trial court sentenced defendant to a total prison term of 15 years to life plus 24 years. The court granted credits for pre-sentence custody time, ordered defendant to pay restitution and other fines and fees, and issued a no contact order.
Defendant timely appealed.
STATEMENT OF THE FACTS
The Family History
Melissa is the oldest of six sisters, and J.A. is the youngest. Keith is the father of the four middle sisters. In 1999, the girls' mother died. Melissa, who was eighteen years old at the time, moved to South San Francisco along with her infant son Antonio, and three-year-old half sister, J.A., to live with their aunt, Luisa.
In the summer of 2002, Melissa moved to Davis with Antonio to study at UC Davis. That fall, Melissa started dating defendant. Around November 2006, Melissa bought a house on Hillside Boulevard, close to where J.A. was living with Luisa. In June 2009, Keith, along with Melissa's two other sisters, Jo.A. and K.A., moved into the Hillside Boulevard home. Defendant moved out of the Hillside Boulevard home for two periods of time when he and Melissa broke up. The first period was "[m]aybe" in 2009, and the second period was in 2010 and 2011.
Defendant frequently bought J.A., Jo.A., and K.A. gifts including shoes, clothes, and phones. Occasionally, defendant and the girls kept the gifts a secret if they thought Melissa or Luisa would disapprove.
J.A. Reports Defendant's Abuse
When J.A. was in seventh grade, she gave her friend Alanii a letter stating that her sister's boyfriend had been "messing with" her since she was eight years old, that she was "getting raped," and that she would get killed if Alanii told anyone. Alanii gave the letter back to J.A. and kept the secret.
When J.A. was a high school sophomore, she told another friend, Brianna, that defendant had been raping her since she was five years old. J.A. asked Brianna not to tell anyone, and Brianna complied.
In February 2012, when J.A. was 15 years old, she wrote a private message on Facebook to her sisters, Jo.A. and K.A., accusing defendant of raping her since she was five years old. Jo.A. told her sister A.A. what she had learned, and A.A. alerted Luisa. Luisa told J.A., who was staying with her sister in Reno at the time, to return home. Upon her return, J.A. gave Luisa a letter disclosing the abuse. Luisa immediately took J.A. to the police station where they met briefly with Sergeant Kenneth Chetcuti. Chetcuti interviewed J.A. further and arranged for her to be medically examined.
The Investigation
Chetcuti arranged for J.A. to make a pretext call to defendant. A recording of the call was played for the jury. During the call, J.A. confronted defendant about having molested and raped her, but defendant said he could not hear her and that there was a bad connection, and the phone call was disconnected, even though Chetcuti heard no static or voices cutting in and out. During the call, defendant denied ever having raped or threatened J.A.
Chetcuti interviewed J.A.'s family members and friends and identified Jo.A. and A.P. as two more potential victims.
Chetcuti arranged for A.P. make a pretext call to defendant. A recording of that call was played for the jury. As with J.A.'s pretext call, defendant claimed he could not hear A.P., and the call was eventually disconnected.
Defendant was arrested on March 1, 2012, at Melissa's Hillside Boulevard home. Officers took a cell phone from defendant's pocket that had the same phone number used for the pretext calls. They also seized a backpack containing electronic storage devices, and computers, including a black and gray Dell desktop computer stored in the garage.
At Chetcuti's request, criminalist Terence Wong searched the Dell computer for defendant's name and email address, child pornography, and any communications between defendant and J.A.
J.A.'s Allegations of Abuse in Davis (Counts 1-4)
Several witnesses testified that J.A. visited Melissa in Davis at least once a month during the school year and several times during the summer. During these visits, defendant watched J.A. and Antonio when Melissa had to go to work or class.
J.A. testified that defendant first had sex with her in Davis in the summer when she was five years old. Defendant, who was wearing only a shirt, played adult pornography videos and told J.A. to do what the people were doing in the videos. He removed J.A.'s clothes and put a blanket over her face. J.A. felt defendant pull her legs apart and press between her legs with his penis. His penis went inside J.A.'s vagina, causing her pain. J.A. complained, but defendant told her it would not hurt. This continued for an hour, until Melissa came home. Defendant then told J.A. to take a shower and threatened to kill her if she said anything. J.A. went into the bathroom and saw blood dripping down her legs and onto the floor. She took a shower and wiped the blood off the floor so Melissa would not see it.
J.A. testified that defendant had sexual intercourse with her about nine more times during her visits to Davis. Each time, she and defendant were in Melissa's bedroom, and defendant played pornography, put his penis in J.A.'s vagina, told her to take a shower, and threatened to kill her if she told anyone.
J.A. did not want anybody to know what was happening because she was scared she would get hurt. Melissa never noticed anything unusual. Luisa observed only that J.A. became more quiet around this age.
J.A.'s Allegations of Abuse at Antoinette Lane (Counts 6-7)
J.A. continued to visit Melissa, Antonio and Kyle after they moved to Antoinette Lane in South San Francisco. J.A. testified that defendant had sexual intercourse with her about 20 times at the Antoinette Lane apartment. Each time, defendant played pornography videos, put blankets or pillows over J.A.'s face, and ejaculated onto a towel. Defendant continued to tell J.A. he would kill her if she told anyone.
J.A.'s Allegations of Abuse at the Hillside Boulevard Home (Counts 8-11)
J.A. regularly visited Melissa's home on Hillside Boulevard. J.A. testified that, as in the past, defendant would watch pornography, put something over her face, have intercourse with her, and ejaculate on a towel. J.A. testified that defendant played the pornography on a gray Dell desktop computer. These assaults occurred about 10 times, usually in the back room or Melissa's bedroom, but also in Antonio's room and the garage. Defendant also began engaging in oral sex with J.A. before and after intercourse. Defendant made J.A. orally copulate him on about six occasions. Defendant orally copulated J.A. about 10 times.
The sexual abuse did not cause J.A. physical problems, and no one noticed anything. J.A. continued acting normally because she feared defendant would kill her or Melissa would get hurt if anyone found out. However, she tried to avoid spending the night or being alone with defendant. Defendant stopped having intercourse and oral sex with J.A. when she was 13 years old, around the time Keith, Jo.A., and K.A. moved into the Hillside Boulevard house. However, defendant later offered J.A. money if she would send him nude photographs of herself, but she declined.
A.P.'s Allegations of Lewd Conduct (Counts 12-13)
A.P. and her family lived next door to J.A., and the parents became good friends with defendant and Melissa. A.P. testified that when she was 12 or 13 years old, she began to feel like she was defendant's girlfriend. They called and sent text messages to each other, sometimes using coded messages. Defendant told A.P. to delete their messages because he could get in trouble if anyone saw them. A.P.'s parents once found some of their texts and confronted defendant, but A.P. and defendant continued communicating until A.P.'s senior year of high school.
When A.P. was 12 or 13 years old, she was with defendant in the back room of Melissa's house when defendant showed her a picture of an erect penis on his phone. He said it was his penis and commented that it was large. He also said there were condoms in a nearby drawer. Defendant and A.P. then "made out" by kissing and touching.
When A.P. was 14 years old, she slept over at Melissa's house several times. One night, defendant woke A.P. and they went to the back room, where he kissed her and put his hand on her back under her shirt. A.P. testified about interactions she had with defendant other than the acts that were charged. When A.P. was 14, she was on a video chat with defendant. He said she had a nice body and asked to see more of it, so A.P. took off her shirt. Defendant said A.P. should take off the rest, and she took off her bra.
A.P. further testified that when she was 15, she and defendant made out in A.P.'s father's shop and defendant wrote their combined initials "KAVP" on a wall. When A.P. was 16, she and defendant "made out" at A.P.'s house by "dry humping" with their clothes on. Also, defendant asked A.P. to send him a nude photo of herself, though she did not do so.
During the 2012 investigation, officers found on the micro SD card in defendant's phone pictures of a penis, which Melissa identified as defendant's. Officers also photographed the "KAVP" graffiti on the wall in A.P.'s father's shop.
Jo.A.'s Allegations of Lewd Conduct (Count 14)
Jo.A. testified that when she was living in Melissa's house, she and defendant once had a fight. When defendant apologized, he put his hand on her knee, said she was like a sister to him, and gave her a kiss or "peck" on the neck. Jo.A. testified that it felt "weird" and "inappropriate" but did not feel it was sexual. Jo.A. was 15 years old at the time.
Jo.A. and K.A. both described other interactions with defendant that made them uncomfortable. Once, Jo.A. was talking with defendant about a scar she had on her chest. Jo.A. was wearing a low-cut shirt, and while they were talking, defendant put his finger in her shirt, pulled on her shirt and the cup portion of her bra to expose her breast, and looked and laughed. Jo.A. testified that this made her feel uncomfortable, and she walked out of the room. Jo.A. told K.A. about this incident. On another occasion, Jo.A. was bending over, and defendant stuck his finger inside her pants and joked that "crack kills." Defendant would tell the girls they were beautiful, and rub their feet or touch their hair. K.A. testified that when she was 13 years old, defendant asked if she was a virgin, and he suggested to K.A. that they could have a "quickie." Defendant teasingly said that Jo.A. should strip for him to pay him back for buying things for her, and that he would throw money at K.A. if she took her clothes off. Jo.A. and K.A. also were upset and complained to Melissa and Keith that defendant made everyone keep their bedroom doors open and would walk into their room without knocking when they were not fully dressed. In addition, J.A. and K.A. thought defendant had taken photos of them in the shower.
On the micro SD card in defendant's phone, officers found deleted pictures that appeared to have been taken through the window of Antonio's room while Jo.A. was taking selfies wearing only a bra and pajama pants. Officers also found on defendant's phone deleted pictures of K.A. and unidentified females, nude and partly clothed, which appeared to have been taken through the window of Melissa's bathroom. On the Dell computer, officers found traces of deleted selfies that Jo.A. had taken in her underwear or nude. Jo.A. testified that the selfies had been on the memory card in her pink camera that went missing, and that she had never downloaded the selfies to the computer or shared them with defendant.
The Child Pornography Videos
In examining the Dell computer retrieved from Melissa's Hillside Boulevard home, Wong found seven videos that he suspected of being child pornography based on file names such as "pedophilia" and "PTHC" (pre-teen hard core). Four of the videos were saved to the computer on April 1, 2009, one was saved on June 9, 2009, and two others were saved on August 1, 2009. Melissa, Jo.A. and Keith testified that defendant was living at the Hillside Boulevard house around that time. Chetcuti viewed the videos and found they contained child pornography. He described the contents of the videos and showed the jury 18 still photographs excerpted from the videos.
The first video was entitled "Hot mother licks her 8-year old daughters sweet pussy as her brother fucks her." Chetcuti testified that in the video, a woman and a girl who appeared to be around 8 years old performed sexual acts on a boy, about age 10.
The second video was titled "blond 10-year old girl and boy play sex." Chetcuti testified that it depicted "a boy and a girl having sexual intercourse" in "many positions" with an adult nearby.
The third video, four minutes long, was "Two girls, maybe 12 years old, pedophile's dream." Chetcuti testified that it depicted two girls fondling an elderly man's penis and performing oral copulation on him before the man performs oral sex and sexual intercourse with one of the girls.
The fourth video was called "12-year old boy fucks 12-years old girl kiddie pedo by Lolita" Chetcuti testified that it depicted intercourse between a boy and girl appearing to be 12 years old.
The fifth video was titled "Two, 13-year old girls get cum in face." Chetcuti testified that this video showed two girls, appearing to be about 13 years old, performing oral sex on a man and kissing each other, then the male masturbating and ejaculating on a girl's face and chest.
The sixth video was "Vicky compilation 10-year old gets what she wants. Nude naked pedo XXX hardcore." Chetcuti testified that this video depicted a girl about 10 years old wearing a mask and performing sex acts with an adult male.
The seventh video was just under 7 minutes long and called "Incesto Vicky 2." Chetcuti testified that it depicted a man having anal sex with a girl who was young enough that her breasts had not yet developed.
Defendant's Character Witnesses
The defense presented two character witnesses, Mylyka Sanderford and Grace Barajas. Both testified they knew defendant, had never seen him engage in inappropriate behavior around young girls, and had no concerns with him interacting with their daughters. Sanderford, who lived in Woodland, testified that she dated defendant for six months in the spring or summer of 2009 and, to her knowledge, defendant was living "out in the Bay Area" at the time and would come to visit her in Woodland.
DISCUSSION
I. Possession of Child Pornography as Evidence of Sexual Intent and Criminal Propensity
Defendant argues the admission of the child pornography evidence—including the video file list, still photographs, and testimony of Wong and Chetcuti regarding the discovery and content of the videos—was in violation of due process and Evidence Code section 352 because the evidence was of little or no probative value and was unduly prejudicial. Defendant also contends his trial counsel provided ineffective assistance by failing to oppose the prosecutor's motion in limine for approval to present the child pornography evidence, and by not objecting sooner to Chetcuti and Wong's testimony.
a. The Proceedings
At the start of trial, the prosecution moved in limine to admit evidence of defendant's possession of child pornography found on the Dell computer as relevant to prove his criminal propensity, intent and lack of mistake. The trial court (Hon. Clifford Cretan) ruled the evidence was admissible under Evidence Code sections 1101, subdivision (b), and 1108. The parties stipulated the videos themselves would not be played for the jury, but the jury would hear testimony regarding how the videos were discovered and view still photographs from the videos.
When the prosecution later sought to present the still photographs to the jury, defense counsel objected under Evidence Code section 352. The trial court (Hon. Leland Davis) noted that Judge Cretan had already ruled the evidence was admissible. Judge Davis further noted that he had exercised his independent discretion to disallow more than half of the photographs the prosecution initially sought to admit. The trial court ruled that it had achieve a fair balance and that the evidence was admissible under Evidence Code section 352.
The trial court instructed the jury using the standard instructions for evidence admitted under Evidence Code sections 1101, subdivision (b) (CALCRIM No. 375), and 1108 (CALCRIM No. 1191). In particular, jurors were instructed that they could consider the evidence of the uncharged offense "for the limited purpose" of deciding whether or not defendant acted with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the child in counts 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14, and to conclude that defendant was disposed or inclined to commit sexual offenses, and based on that decision, was likely to commit the offenses charged in this case. The jurors were also instructed that they "may consider this evidence only if the People have proved by a preponderance of the evidence that the Defendant in fact committed the uncharged acts" and explained how the preponderance of evidence standard is different from proof beyond a reasonable doubt. The court further instructed the jury: "It is not sufficient, by itself, to prove that the Defendant is guilty of the crimes charged in this case or that the allegations charged in this case ha[ve] been proved. [The] People must still prove each charge and allegation beyond a reasonable doubt."
b. The trial court did not err in finding that the potential prejudice of the child pornography evidence did not substantially outweigh its probative value.
Evidence Code, section 1108 "is an exception to the general prohibition against admitting character evidence to prove criminal disposition or propensity." (People v. Jandres (2014) 226 Cal.App.4th 340, 352-353.) It provides that "[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1108, subd. (a).) The statutory definition of "sexual offense" includes a crime under section 311.11 (possession or control of child pornography). (Evid. Code, § 1108, subd. (d)(1)(A).)
"Under [Evidence Code] section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) The factors in the Evidence Code section 352 weighing process that are "particularly significant" in an Evidence Code section 1108 case are: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117 (Nguyen).)
"We will not overturn or disturb a trial court's exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (Jennings, supra, at p. 1314.)
Probative Value
In order to have probative value, "the uncharged sex offense evidence 'must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged.' " (People v. Jandres (2014) 226 Cal.App.4th 340, 355, italics omitted.) Defendant argues that the offense of possessing child pornography is not similar enough to any of the charged crimes in this case to have probative value. We disagree. "In certain circumstances, evidence of sexual images possessed by a defendant has been held admissible to prove his or her intent." (People v. Page (2008) 44 Cal.4th 1, 40 (Page).) Thus, in People v. Memro (1995) 11 Cal.4th 786 (overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2), the defendant was charged with murdering a seven-year-old boy whom the defendant had taken to his apartment to photograph in the nude. (Memro, supra, at p. 861.) The Supreme Court found no abuse of discretion in the admission of pornographic magazines and photographs featuring young boys in the nude found in the defendant's possession because they "yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction. (Id. at p. 865.)
Similar circumstances were present in this case. The videos found on the Dell computer depicted sexual intercourse and oral copulation between adult males and young girls of similar ages to J.A., A.P. and Jo.A. at the time of the abuse. There was also evidence at trial that defendant solicited nude photographs from J.A. and A.P., stole intimate photographs of Jo.A., and surreptitiously photographed Jo.A. and K.A. while they were in the shower. Thus, the child pornography videos at issue were probative of defendant's sexual attraction to young girls and his intent to act on that attraction. (Memro, supra, at p. 865.)
Defendant's reliance on People v. Earle (2009) 172 Cal.App.4th 372 (Earle) is unavailing. In Earle, the court held it was error to instruct the jury that the commission of misdemeanor indecent exposure could be used as propensity evidence for felony sexual assault because "a propensity to commit one kind of sex act cannot be supposed, without further evidentiary foundation, to demonstrate a propensity to commit a different act." (Id. at p. 399.) Here, in contrast, the similarities between the charged offenses and the sexual conduct depicted in the child pornography videos, along with the evidence of defendant's efforts to obtain nude and intimate photographs of the victims, provided a sufficient evidentiary foundation to demonstrate his criminal propensity to commit the charged crimes against these victims.
Defendant argues the child pornography videos had no nexus to the charged offenses because J.A. testified that defendant watched adult pornography, not child pornography, while molesting her. Even if the child pornography videos at issue were not themselves used in the commission of the charged offenses, there was still a sufficient nexus to make the evidence probative because J.A. testified that defendant watched pornography videos on the Dell computer while molesting her. In other words, the child pornography videos and the pornography videos used in the commission of the charged offenses were traced to the same computer.
Defendant argues there was little probative value because the foundation linking the child pornography to him was weak. This argument dovetails with his claim that the prosecution engaged in misconduct and other errors in linking the child pornography to him. Because we reject those arguments (as discussed more fully below), we do not find the evidentiary foundation linking the videos to defendant to be so weak that the evidence lacked probative value.
Stronger and More Inflammatory than the Charged Acts
The descriptions of the videos by Chetcuti, accompanied by still photographic excerpts, were obviously disturbing. But in our view, they were not more inflammatory than the charged offenses against J.A., which involved dozens of instances of rape, oral sex, and threats to kill J.A. that began when she was 5-years-old. Nor were the videos substantially more prejudicial than probative as to the charged offenses against A.P. and Jo.A. given that the probative value in establishing defendant's intent to commit lewd or lascivious acts with them was substantial. (Memro, supra, at p. 865.) It was necessary for Chetcuti to describe the videos in sufficient detail so that the jury knew they depicted sexual acts involving children, particularly young girls with adult men.
Defendant's reliance on People v. Harris (1998) 60 Cal.App.4th 727 (Harris) is unavailing. In Harris, the court reversed a conviction for sex offenses involving two female patients at the mental health facility where the defendant worked due to the admission of evidence of a prior violent crime involving sexual mutilation for which the defendant was convicted more than 20 years prior. The Harris court found the evidence of the prior crime to be "inflammatory in the extreme," likely to confuse the jury, stale, and lacking "any meaningful similarity at all" to the charged offenses. (Id. at pp. 737-741.) This bears no resemblance to the instant case, where the uncharged offenses were not more inflammatory than the charged offenses, were occurring contemporaneously with the charged offenses, and had meaningful similarities to the charged offenses, as we have discussed.
Remote or Stale
The evidence was not stale in time. The child pornography videos were saved on the Dell computer in April, June and August of 2009 while the abuse of J.A. was ongoing or just coming to an end, and while defendant was engaged in lewd acts with A.P. and Jo.A. The videos remained on the computer at the time of defendant's arrest.
Likely to Confuse or Distract
In our view, the jury was not likely to be confused or distracted from the main inquiry by the limited presentation of the child pornography evidence. The charged offenses involved discrete acts committed against the testifying victims, easily distinguishable from the separate issue of defendant's possession of child pornography videos. While the jury could have been tempted to punish defendant for the uncharged offense of possessing child pornography, we cannot say this potential prejudice substantially outweighed the probative value of the evidence for the reasons discussed above.
Undue Consumption of Time
The record does not suggest the presentation of the child pornography evidence consumed an undue amount of time at trial. The trial court exercised reasonable discretion in limiting the presentation of this evidence to minimize prejudice. Testimony on the subject of the child pornography videos involved only 2 of the 21 witnesses and occupied only 26 pages of a large, 15-volume trial transcript.
For all of these reasons, we conclude the trial court acted within its discretion when it admitted the evidence of child pornography to prove defendant's sexual intent and criminal propensity. In light of this conclusion, defendant's related claim of ineffective assistance of counsel for failure to oppose the in limine motion and object sooner to the admission of the child pornography evidence is without merit. (See People v. Jones (1998) 17 Cal.4th 279, 309 (Jones) [counsel not deficient for failing to register meritless objection].)
c. The jury instruction on the uncharged offense did not lessen the prosecution's burden of proof.
Defendant argues the preponderance of evidence instruction in this case impermissibly lessened the prosecution's burden to prove the charged offenses beyond a reasonable doubt. Although defendant acknowledges that the preponderance standard is generally appropriate for proving uncharged crimes used to show intent and criminal propensity (People v. Reliford (2003) 29 Cal.4th 1007, 1015 (Reliford)), he contends it is inappropriate here because the evidence of the uncharged offense was within the "direct chain of proof" of the charged offense. (People v. Tewksbury (1976) 15 Cal.3d 953, 965, fn. 12 (Tewksbury).) Defendant argues the instant matter is more akin to cases involving the use of charged sexual offenses as evidence of propensity to commit other charged sexual offenses, and in these cases, the instructions must specify that a currently charged offense must be proved beyond a reasonable doubt before it can be used to show criminal propensity for another charged offense. (People v. Cruz (2016) 2 Cal.App.5th 1178, 1186; People v. Villatoro (2012) 54 Cal.4th 1152, 1168 (Villatoro).)
The Supreme Court in Reliford upheld former CALCRIM No. 1191 and a similar instruction against claims that they unconstitutionally lowered the prosecution's burden of proof. The court found that the instructions did not mislead the jury because they stated that a finding of the prior sexual offense by a preponderance of the evidence was " 'not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.' " (Reliford, supra, 29 Cal.4th at pp. 1013-1014.) Similarly, the instructions challenged here specified that the uncharged offenses were not sufficient alone to prove the charged offenses and that the prosecution still had the burden to prove each charged offense beyond a reasonable doubt.
Defendant's attempt to distinguish Reliford and similar cases based on Tewksbury is unavailing. In Tewksbury, the Supreme Court held that the factual issue of whether an individual was an accomplice was "collateral to the question of the accused's guilt or innocence" and did "not bear directly on any link in the chain of proof of any element of the crime," and therefore, "[t]here is no constitutional compulsion that such collateral fact be proved beyond a reasonable doubt." (Tewksbury, supra, 15 Cal.3d at pp. 964-965.) In a footnote, Tewksbury noted that "[w]hen the People bear the burden of proof of a fact deemed to lie outside the direct chain of proof of an accused's guilt of the crime charged, they are not required to prove that fact beyond a reasonable doubt." (Id. at p. 965, fn. 12.) Based on the Tewksbury footnote, defendant argues that the uncharged offense of possessing child pornography was within the direct chain of proof of the charged offenses, and therefore, the jury had to be instructed that the reasonable doubt standard of proof applied.
The Court of Appeal in People v. Anderson (2012) 208 Cal.App.4th 851 (Anderson) rejected a similar argument based on the Tewksbury footnote. The uncharged offenses in Anderson included an incident in which the defendant fondled the victim's genital area while she swung on a punching bag. (Id. at p. 858.) Citing Tewksbury, the defendant argued this incident was "in the direct chain of proof" of the charged offense because it marked the start of his continuous course of conduct against the victim and therefore had to be proved beyond a reasonable doubt. (Id. at p. 894.) The Anderson court disagreed, holding that "the uncharged offenses were not in the direct chain of proof as that term is used in Tewksbury. Rather, a defendant's propensity to commit a particular type of crime, here lewd act, is the type of collateral fact addressed in Tewksbury. Anderson's propensity to commit such crimes does not 'bear directly on any link in the chain of proof of any element of the crime.' [Citation.] The fact one of the uncharged offenses marked the start of Anderson's continuous course of conduct is insufficient to alter this result." (Id. at p. 897.)
We likewise conclude that the uncharged offense of possessing child pornography does not directly bear on any link in the chain of proof of any element of the charged offenses of rape, lewd or lascivious conduct, or exhibiting harmful materials (a picture of defendant's erect penis, not child pornography) to a minor. The prosecution was not required to present evidence of defendant's criminal propensity in order to establish a direct chain of proof of the elements of the charged offenses; rather, the jury was permitted, "but . . . not required to," consider such evidence for limited purposes. While the child pornography evidence was also offered to establish the essential element of defendant's sexual intent in committing the charged offenses under sections 288, subdivision (a), and 288.2, this did not make the uncharged offense a link in the direct chain of proof of the sexual intent element. Rather, "facts regarding another offense are simply evidentiary facts to be considered along with other evidence in the case on the question of . . . intent; although the jury may entertain some reasonable doubt as to the proof of the other offense or of particular items of evidence, it is sufficient if they are convinced beyond a reasonable doubt of the ultimate fact of . . . intent." (People v. Mendoza (1974) 37 Cal.App.3d 717, 724; see also People v. Virgil (2011) 51 Cal.4th 1210, 1259-1260.)
We also find no merit in defendant's attempt to analogize this matter to cases involving the cross-admissibility of charged offenses, as defendant was not charged with possession of child pornography. (See Anderson, supra, 208 Cal.App.4th at p. 897 [rejecting reliance on Villatoro where propensity evidence consisted of uncharged offenses].) Defendant's argument is based on the faulty assumption that the jury was likely confused because the uncharged and charged offenses involved the same witnesses. We believe, however, that the jurors were entirely capable of differentiating between the distinct act of possessing child pornography and the commission of sexual assault and lewd and lascivious acts against the testifying victims and apply the appropriate standards of proof. As noted in Reliford, "This is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty—as stated in the instructions—to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations." (Reliford, supra, 29 Cal.4th at p. 1016.)
II. The Evidence Linking Defendant to the Dell Computer
Defendant raises three challenges regarding the evidence linking him to the computer containing child pornography and intimate photographs of Jo.A. First, he argues his trial counsel provided ineffective assistance by failing to retain and present a forensic computer expert to dispute the testimony of Wong and establish that there were other users of the Dell computer. Second, defendant argues the prosecutor committed error under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and violated California's reciprocal discovery statute (§ 1054 et seq.) by withholding from the defense Wong's technical notes documenting his analysis of the Dell computer, which defendant contends were favorable and material to his defense. Third, defendant contends the prosecution violated due process when Wong falsely testified that an email address attributed to him was the most frequently used email address on the Dell computer and that the majority of inboxes on the computer were for that account.
a. The Proceedings
At trial, Wong testified that during his examination of the Dell computer, he determined the email account for "kyle2002@yahoo.com" was the "the most frequent used e-mail" on that computer because he "saw many in-boxes for that e-mail address. . . ¶ . . . [T]he e-mail in-boxes say the majority of them were for that e-mail address." On cross-examination, Wong acknowledged that he saw other email addresses on the computer but did not do a statistical analysis and could not conclusively say who controlled the computer. Melissa testified that defendant was "usually" the only user of the Dell computer, but it was not password protected and was left out for others to use. J.A. and K.A. testified that they did not see anyone using the computer other than defendant.
During the litigation, the only discovery obtained by defendant's trial counsel concerning the Dell computer was a three-page report by Wong and copies of the still photographs that the prosecution intended to present at trial. In his report, Wong stated that, at Chetcuti's request, he searched the contents of the Dell computer only for "1. Suspect's email address. 2. Communication between the suspect and the victim(s). 3. Child pornography, including photos of the victim." The prosecutor invited defendant's trial counsel to obtain a mirror image of the computer contents, but counsel declined.
After the verdicts, defendant's new counsel consulted with an expert in forensic computer analysis, Samuel Plainfield, who reviewed a copy of the Dell computer hard drive. In support of defendant's motion for new trial, defendant's new counsel submitted Plainfield's reports and technical notes regarding his examination of the computer. Plainfield found that the email address kyle2002@yahoo.com did not appear at all on the Dell computer. Rather, a search of the computer for the words "kyle vogt" resulted in the discovery of a different email address for defendant: "kvogt2002@yahoo.com." Plainfield testified that he did not see email inboxes or outboxes (referring to standalone email programs) for the kvogt2002@yahoo.com address. He also did not recollect seeing any composed emails either to or from an email address associated with "KVogt," but he acknowledged that he was "trying to find something related to e-mails in 2009, so . . . [he] might have found some e-mails, but if they fell out of the purview of 2009, [he] didn't take much note of them." Plainfield's analysis of the computer did, however, come up with over 428,741 "hits" for the name "Kyle." He also found some folders on the computer's desktop associated with the name Kyle, including a folder that appeared to contain music files.
By "hits," Plainfield meant that the particular text string showed up on the hard drive.
Additionally, Plainfield found evidence that other people used the computer in 2009, such as backup files for various devices in 2009, evidence of purchases linked to J.A. and Keith, entries linked to Yahoo profiles for various persons including Antonio, J.A. and Jo.A., hits for a various names including Jo.A., Keith, and J.A., and documents such as Keith's resume and a school paper written by Jo.A. According to Plainfield, the data did not show which of the various users downloaded or viewed the child pornography videos, which were downloaded through a program called Limewire into a folder with no associated user name.
In opposition to defendant's motion for new trial, Wong testified that he once again examined the data contained in the Dell computer's hard drive and determined that he had mistakenly transcribed the email address in his report. He confirmed the correct email was kvogt2002@yahoo.com. He further testified that he discovered 22 more files containing suspected child pornography in a folder entitled "Limewire Saved." Wong also found additional information indicating defendant's use of the Dell computer between April and August 2009. For instance, a folder on the desktop called "KYLE'S IPOD MUSIC! DO NOT DELETE!!!!" contained music files from November 2008 and November 2009. Using forensic software and a web page editor, Wong was able to partially retrieve a web-based email inbox for an address for "Kyle" containing 105 emails, and he was able to view 7 emails from February 2009. Wong saw other inboxes for defendant, 82 Craigslist entries from March 2009, and "flash cookies" from Facebook for "Kyle Vogt" created in June and August 2009. Wong also testified that the "Limewire Saved" folder contained pornography videos and over 2,000 music files, some of which were duplicates of files found in the desktop music folder bearing defendant's name. On cross-examination, Wong acknowledged that he did not write down all of the email addresses on the Dell computer because he was only requested to find the email address for defendant.
After the conclusion of testimony on the new trial motion, defendant moved to compel production of Wong's technical notes. The prosecutor informed the court that she had advised defense counsel she did not have any such notes, she had not seen them, and she believed the notes could only be obtained by a request to the FBI. Wong was able to produce the technical notes to defense counsel the following day.
In denying defendant's motion for new trial, the trial court held it could not determine what defendant's trial counsel was thinking in not calling a computer forensics expert, and thus, the court could not say his tactics were unreasonable. The court further found there was no prejudice to defendant because Plainfield did not exclude him as the person most responsible for the child pornography, and Plainfield's testimony would not have overcome the "extremely credible" and "compelling" testimony of the prosecution witnesses, specifically, Jo.A., J.A. and A.P.
b. Counsel's failure to retain a computer forensics expert did not prejudice defendant.
"A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome." (Jones, supra, 17 Cal.4th at p. 309.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
We must "presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.) Thus, where the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (People v. Pope (1979) 23 Cal.3d 412, 426, overruled in part on another ground in People v. Berryman (1993) 6 Cal.4th 1047, 1081, fn. 10.)
The record here sheds no light on why defense counsel failed to present a forensic computer expert. The Attorney General posits that defense counsel may have concluded, after speaking with defendant, that his client was responsible for downloading the videos, and the Dell computer was likely to contain evidence linking its usage to him at the time the videos were downloaded. Thus, the Attorney General argues defense counsel may have decided as a tactical matter to simply attack the perceived weaknesses in the prosecution's evidence rather than present a defense expert whose own analysis might have led to the discovery of further evidence linking defendant to the Dell. While plausible, this does not explain why defense counsel failed to obtain a copy of the Dell's hard drive. Even assuming defendant had confessed to his counsel that the child pornography was his, an expert might have still been able to cast doubt on the prosecution's ability to prove this point. We cannot assume defense counsel had any kind of meaningful consultation with a forensic computer expert while lacking sufficient information on the contents of the hard drive.
In any event, defendant has not sufficiently demonstrated a reasonable probability that the outcome would have been different absent the claimed error. Defendant argues an expert could have undermined the prosecution's evidence linking him to the videos on the Dell computer by showing that other people used the computer during the relevant timeframe. As the trial court found, however, Plainfield's testimony was not compelling in this regard because he could not exclude defendant as a user of the Dell computer or as a person who accessed the child pornography at the relevant time periods.
Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, cited by defendant, does not compel a different conclusion. In that case, the court noted that being one of several users of a home computer containing child pornography images does not, without more, show the defendant was the person who had intentionally accessed the images. "There was, however, more" (id. at p. 1413), and the court went on to discuss the additional evidence suggesting the defendant intentionally accessed the child pornography images. (Ibid.) Likewise, the evidence in this case was not simply that defendant was one of several users of the computer containing the child pornography. The prosecution presented testimony from others in the household and from Wong's forensic examination that defendant was the main or most frequent user of the Dell computer.
Furthermore, a defense expert was not needed to make the point that the Dell computer was used by others in the household. On cross-examination, Jo.A. admitted to sometimes downloading photographs of herself onto the Dell computer, and Wong admitted he saw other email addresses on the computer and could not conclusively determine who controlled it. While a computer forensics expert could have further corroborated these points, the testimony might not have come without downsides. For instance, Plainfield acknowledged that his search yielded 428,741 hits for "Kyle," compared to 8,671 hits for "Jo.A.," the next most frequent term that Plainfield testified to searching. Although Plainfield stated that such hits are not necessarily indicative of actual use of the computer by the named persons, we cannot say that the comparatively high number of hits for defendant's first name had no tendency in reason to suggest that defendant was the primary user of the Dell computer. In this way, the proposed testimony of the defense computer expert could have done more harm than good.
Indeed, defendant also relies on search results showing hits associated with the first names of Jo.A. and J.A. to contend that other people used the computer in 2009.
Furthermore, had defendant's trial counsel decided to make the issue of who controlled the computer a stronger focal point of the defense, the additional evidence found in Wong's post-trial examination of the hard drive may have come to light. This evidence included the pornography files found in the Limeware Saved folder, which contained duplicates of music files found in another folder bearing defendant's name, as well as traces of defendant's web-based email, Craigslist and Facebook activity in the March to August 2009 timeframe.
Defendant argues a computer expert would have been able to impeach the testimony of Melissa, J.A., K.A., and Keith that defendant was the sole user of the Dell computer. In actuality, none of these witnesses testified in conclusive terms that defendant was the sole user of the Dell, and as discussed, the jury heard Jo.A.'s testimony that she would sometimes use the Dell computer to download photographs of herself. Thus, the proposed testimony of a computer forensics expert for the defense would have provided mostly cumulative testimony from which the jury would infer that defendant was a frequent but not the exclusive user of the Dell computer.
Keith did not remember if there was a desktop computer at the Hillside Boulevard residence when he moved in. Melissa testified that defendant was "[u]sually" the only user of the Dell, but the computer was not password protected, it was left out for others to use, and defendant only "[s]ometimes" took the computer's power cords with him when he left the house. J.A. and K.A. (both of whom did not live at the Hillside Boulevard home) testified only that they did not "see" anyone using the computer other than defendant, and J.A. testified that defendant would "[n]ot really" let others use it. K.A. testified that defendant would disconnect the computer or the Internet "every now and then" so that they could not go online.
On this record, we cannot say there was a reasonable probability of a different result had defense counsel presented the proposed testimony of a computer forensics expert. (Strickland, supra, 466 U.S. at p. 694.) Thus, defendant has not shown he was prejudiced by the claimed errors of his trial counsel.
c. The prosecution's failure to disclose Wong's technical notes did not constitute Brady error or violate California's reciprocal discovery statute.
"The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials." (People v. Zambrano (2007) 41 Cal.4th 1082, 1132, overruled in part on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses" (In re Sassounian (1995) 9 Cal.4th 535, 544) and material " 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " (Kyles v. Whitley (1995) 514 U.S. 419, 433 (Kyles).) "A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.' " (Id. at p. 434.) We independently review whether a Brady violation occurred, but the trial court's findings of fact are given great weight if they are supported by substantial evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
California's reciprocal discovery statute also requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, "[a]ny exculpatory evidence" that is "in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies." (§ 1054.1, subd. (e).)
We conclude there was no constitutional or statutory error by the prosecution in this case because the technical notes were not exculpatory or favorable to the defense within the meaning of Brady and section 1054.1, subdivision (e). The most significant aspect of the technical notes was that they revealed an error in Wong's final report as to the precise email address he attributed to defendant. However, this transcription error did not alter the substance of Wong's testimony that he found many instances of an email address associated with defendant on the Dell computer.
It is immaterial that the technical notes showed Wong's failure to document any other email addresses appearing on the Dell computer. Defense counsel was already aware of the limited nature of Wong's examination from his report, and defense counsel elicited Wong's testimony that he saw other email addresses on the computer but did not make note of them. Thus, the technical notes were merely cumulative to the other evidence showing the limited scope of Wong's examination.
Defendant claims the technical notes showed Chetcuti's bias because they contained a "communication log" entry between Wong and Chetcuti stating: "The computer was only accessed by the suspect, so any suspicious images are relevant." In our view, this remark simply reflected Chetcuti's view of the scope of the search for child pornography. Notably, it did not stop Wong from examining the Dell to see if defendant's email address was the most frequently used, compared to others, and defendant cites no other evidence of Chetcuti's bias against him. Even without the technical notes, Wong's examination was vulnerable to attack (and was, in fact, attacked) for not thoroughly documenting the other users of the computer.
While the technical notes could have been used to make Wong appear careless and less credible, this would not have likely changed the outcome of the case. We assume that on redirect, Wong would have simply clarified the correct email address and then taken the same position as before that the majority of email activity found on the Dell computer was attributable to defendant. The case as a whole would not have taken on "such a different light" so as to undermine our confidence in the verdict. (Kyles, supra, at p. 435.) Thus, we find no lapse by the prosecution, constitutional or statutory, with respect to the failure to disclose Wong's technical notes.
d. Wong did not give knowingly or materially false testimony.
"A prosecutor's presentation of knowingly false testimony [citation], or the failure to correct such testimony after it has been elicited [citation], violates a defendant's right to due process of law under the United States Constitution." (People v. Vines (2011) 51 Cal.4th 830, 873, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104.) " 'False evidence is "substantially material or probative" if it is "of such significance that it may have affected the outcome," in the sense that "with reasonable probability it could have affected the outcome . . . ." ' " (In re Malone (1996) 12 Cal.4th 935, 965-966, italics omitted.) Reversal is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." (United States v. Agurs (1976) 427 U.S. 97, 103.)
The record before us does not support defendant's contention that Wong's testimony was knowingly or materially false. Wong's reference to the kyle2002@yahoo.com email address was a mistake based on a transcription error in his report discovered after trial during the new trial motion proceedings. Defendant does not claim the prosecutor knew or should have known of this error prior to or during trial. That Wong mistakenly wrote the wrong email address and did not take notes of his observations of other names and email addresses appearing on the computer made his methodology vulnerable to criticism, but it does not support the inference that Wong fabricated results or concealed information in a materially misleading way.
Although Plainfield drew conclusions that were different from Wong's, he did not say that he replicated Wong's methodology, and defendant does not argue that the differences in results cannot be explained by differences in methodologies or the types of forensic software used. Furthermore, Plainfield testified that his analysis of emails was focused on the year 2009, and it is not clear if Wong's testimony was based on seeing more email activity attributable to defendant in other years.
In other ways, Plainfield's analysis was not inconsistent with Wong's findings. For instance, in supplemental technical notes, Plainfield stated that an indexed search for an email address with Keith's name in it resulted in 112 hits in 29 files, while an indexed search for "kvogt2002" resulted in 228 hits in 43 files. Assuming defendant would have highlighted any other relevant email addresses that showed more activity, Plainfield's finding was not inconsistent with Wong's testimony that "most" or the "majority" of email activity was attributable to defendant.
In short, defendant has not shown the falsity of Wong's statement that his analysis of the Dell computer showed that an email address attributable to defendant was shown to constitute a majority of the activity on the Dell computer. Wong's incorrect testimony on the precise email address attributed to defendant was not a knowing or material falsehood. Accordingly, the premise for defendant's claim of a violation of due process fails.
III. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Defendant contends the admission of testimony from social worker Miriam Wolf on CSAAS and forensic interviewing in child sex abuse cases violated his due process rights. Defendant further contends his trial counsel provided ineffective assistance by not objecting to the CSAAS testimony and by failing to present expert testimony about the flaws in CSAAS.
a. The Proceedings
The prosecution moved in limine seeking to present an expert on CSAAS. The prosecution argued the testimony would be only an "academic discussion." Defense counsel said he would object if the expert relied on articles that had not been provided to defense counsel, and counsel reserved the right to call his own expert. The trial court granted the motion subject to any objections that might be raised and agreed that if the prosecution expert testified, defense counsel would be entitled to call an impeaching expert.
Dr. Wolf testified that CSAAS is a framework for categorizing patterns of behavior commonly observed in children who report sexual abuse. It was first discussed in a 1983 article by Dr. Roland Summit in which he described five commonly observed patterns of behavior in children he was treating for sexual abuse. The five parts of CSAAS are: secrecy; helplessness; entrapment and accommodation; delayed, conflicting, and unconvincing disclosure; and recantation.
Regarding secrecy, Dr. Wolf testified that abusers are usually more powerful and older than the child, and the child may think no one will believe her if she says anything. The abuser may also communicate that the matter should be kept secret, either by direct threats or subtle messages. Secrecy may be promoted by "grooming"—special treatment like spending time with or buying gifts for the child.
As to helplessness, Dr. Wolf testified that children may feel they cannot go to someone for help, especially if the abuser is a caretaker or has authority over the child. Thus, children do not often protest when they have to interact with a molesting family member.
With regard to entrapment and accommodation, Dr. Wolf testified that it can be emotionally difficult for a child to think a caregiver is doing something bad, so the child may come up with a different explanation or feel at fault. Some children disassociate from what is happening and show no outward clues.
As for delayed, conflicted, and unconvincing disclosure, Dr. Wolf testified that children may not disclose the abuse to anyone until months or years later. A child who does disclose abuse may be conflicted and the recounting may be jumbled.
Finally, as to retraction, Dr. Wolf testified that children may take back their claims once they understand the consequences of telling.
On cross-examination, Dr. Wolf agreed with defense counsel that there is no major organization that accepts CSAAS as a diagnosis, and that an overly supportive mother or guardian could influence and give support to a false allegation. Dr. Wolf also agreed there was no way to tell whether a child had been sexually abused by looking at or even interacting with the child. Dr. Wolf acknowledged on cross-examination that in a 1992 paper, Dr. Summit chastised prosecutors and defense attorneys for how they were using his materials, and acknowledged that an assertion that any specific child is suffering from or displaying the symptoms of CSAAS was improper. Dr. Wolf further acknowledged Dr. Summit's theory that all kids recant. Defense counsel did not call an opposing expert.
In moving for a new trial, defendant submitted the declaration and testimony of forensic psychologist Dr. Annette Ermshar, who opined that CSAAS is not a useful or relevant tool in legal proceedings and can unduly influence jurors. Dr. Ermshar stated that CSAAS is not generally accepted by the psychological community as a diagnosis. She further testified that CSAAS summarized one man's observations from over 30 years ago based on a very narrow population of confirmed, known victims of sexual abuse, so the fact of abuse was not being tested, and it was written for advocacy and clinical purposes, not legal proceedings. Dr. Ermshar opined that using CSAAS in a legal proceeding unduly influences the jury members into the perception that it has an artificial scientific weight. Dr. Ermshar further opined that the CSAAS factors are not predictive, not correlative, and can be seen in children who have never been abused. Dr. Ermshar and another psychologist, Dr. Diana Everstine, also provided information as to why children can be unreliable reporters, as their memories can be distorted by suggestive questioning, influence by authority figures, interview bias, and childhood trauma.
The jury was instructed, pursuant to CALCRIM No. 1193, that Dr. Wolf's testimony about CSAAS "is not evidence that the defendant committed any of the crimes charged against him" and that the jury "may consider this evidence only in deciding whether or not J.A.'s conduct was not inconsistent with conduct of someone who has been molested, and in evaluating the believability of her testimony."
b. Admission of the CSAAS testimony did not violate due process.
Defendant's due process argument is based on the premise that CSAAS evidence is non-probative, non-reliable and likely to mislead the jury. As we explain, we disagree with this premise because the law in California is settled that CSAAS is relevant and probative for the limited purpose of rebutting misconceptions about child sexual abuse victims.
The California Supreme Court has decided three cases that together establish the applicable substantive law on the admissibility of CSAAS evidence. We briefly summarize these decisions. Of the three cases, one involves child sexual assault and the other two involve survivors of rape and domestic violence, but all three are instructive because our Supreme Court recognizes a "close analogy" between expert testimony on the behavior of victims for each of these crimes. (People v. Brown (2004) 33 Cal.4th 892, 905 (Brown).)
People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin) is a child molestation case in which the challenged testimony was admitted to explain the behavior, not of the victim, but of her mother. The Supreme Court found no fault with the admission of expert testimony to the effect that it was not unusual for a parent to refrain from reporting her own child's molestation, and giving reasons for such behavior. (Id. at p. 1299.) Citing with approval several court of appeal decisions allowing testimony of accommodation syndrome, McAlpin explains that expert testimony on the common reactions of a child molestation victim is "admissible to rehabilitate [the child'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." (Id. at p. 1300.) Such " '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.' " (Id. at p. 1301.) But this same testimony "is not admissible to prove that the complaining witness has in fact been sexually abused." (Id. at p. 1300.)
McAlpin discusses and follows the earliest of the three cases in this trio of Supreme Court decisions, People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe). (See McAlpin, supra, 53 Cal.3d at p. 1300.) In Bledsoe, the prosecution called a counselor who had treated a rape victim to testify that the woman suffered from rape trauma syndrome, which is an " 'acute stress reaction to trauma.' " (Bledsoe, supra, at p. 242.) Observing that "expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths," the court nonetheless held that it was error to admit such evidence in Bledsoe's case, where it served no such purpose. (Id. at pp. 247-248.) The victim in Bledsoe "promptly reported the attack, immediately exhibited the type of severe emotional reaction that the normal lay juror would associate with rape and suffered bruises and other physical injuries that corroborated her claim that she had been violently assaulted." (Id. at p. 248.) Thus, the expert witness testimony served, "not to rebut misconceptions about the presumed behavior of rape victims, but rather as a means of proving—from the alleged victim's post-incident trauma—that a rape" had occurred. (Ibid.) This was a purpose for which the evidence was not admissible, the court held, as rape trauma syndrome was a "therapeutic tool" to help counselors assist victims, rather than a method developed and validated for forensic purposes. (Id. at p. 249.)
The most recent case in the trio, Brown, supra, 33 Cal.4th 892, applies the logic of Bledsoe and McAlpin to a domestic violence case, holding that an expert witness may be called to explain why domestic violence victims "often later deny or minimize the assailant's conduct." (Id. at p. 895.) This expert testimony "cannot be admitted to prove the occurrence of the charged crimes," but is relevant to rebut "common notions about domestic violence victims akin to those" at issue in Bledsoe and McAlpin. (Id. at pp. 906-908.)
Defendant argues, without any supporting authority or evidence, that past misconceptions about how abused children behave are now obsolete given changes in the public's knowledge and perceptions about child sex abuse. We need not consider this unsupported argument. (See Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) Defendant also cites several out-of-state authorities for the position that other states have excluded CSAAS evidence because it improperly bolsters the credibility of child witnesses who allege molestation. However, given the California Supreme Court precedent discussed above, we are not at liberty to accept defendant's reliance on out-of-state authority that California courts should categorically reject CSAAS testimony. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In light of McAlpin, Bledsoe, and Brown, we conclude that Dr. Wolf's testimony was probative and relevant to disabuse the jury of any misconceptions it may have had about the behavior of child sexual abuse victims such as J.A., who kept defendant's abuse secret for many years and did not outwardly show signs of abuse. Because of her experience in the field, Dr. Wolf had more knowledge than jurors about the behavior of child sexual abuse victims, and her testimony on this subject could assist the jurors in understanding such behavior. (See Evid. Code, § 801, subd. (a).) Any potential confusion about the use of the CSAAS evidence was addressed by the limiting instructions, which properly stated the law.
For these reasons, we conclude that defendant's due process rights were not violated by the admission of the CSAAS evidence.
c. Counsel's failure to object to the CSAAS evidence and present an opposing expert did not constitute ineffective assistance or prejudice defendant.
Counsel was not ineffective for failing to object to the CSAAS evidence, which, as we have discussed, was relevant and probative to rebut misconceptions about child sexual abuse victims. (McAlpin, supra, 53 Cal.3d at p. 1301; see Jones, supra, 17 Cal.4th at p. 309.) As for counsel's failure to present an expert to rebut the testimony of Dr. Wolf, because the record sheds no light on the reason for this decision, the claim of ineffective assistance of counsel must be rejected. (People v. Wilson (1992) 3 Cal.4th 926, 936 (Wilson).)"
Even if we assumed counsel was deficient in this regard, defendant was not prejudiced. The main flaws in CSAAS highlighted by Dr. Ermshar in the new trial motion—that it is not generally accepted by the psychiatric community as a diagnosis, is outdated and not useful to legal proceedings, has been criticized by Dr. Summit, and does not account for the influence of overly supportive parents or guardians—were directly elicited from Dr. Wolf on cross-examination.
Furthermore, Dr. Ermshar testified that the problem of suggestibility was "less of a possibility" where the report was spontaneously made by an abused child to a peer, without influence from a parent, authority figure or interviewer. Because J.A.'s initial reports of defendant's abuse were made spontaneously to her peers, the typical causes of suggestive questioning were less of a possibility in this case. Thus, on this record, defendant fails to show a reasonable probability of a different result had his counsel presented an expert to testify consistent with the proposed testimony of Dr. Ermshar.
IV.Remaining Ineffective Assistance of Counsel Claims
In this section, we address defendant's remaining claims that his trial counsel provided ineffective assistance by failing to (1) obtain juvenile records that could have been used to impeach the credibility of Keith and Jo.A.; (2) present the testimony of Amanda Hartman to establish that defendant was living in Woodland or Davis when the child pornography videos were downloaded; and (3) cross-examine Melissa on prior statements she made to law enforcement.
a. Counsel's failure to obtain and present juvenile records to impeach Jo.A. and Keith did not constitute ineffective assistance or prejudice defendant.
At the start of trial, the prosecutor indicated that she had advised defense counsel there might be juvenile records regarding various witnesses, which counsel could seek to obtain by filing a petition pursuant to Welfare and Institutions Code section 827. Defense counsel stated he intended to file a petition to obtain the records but never did. After the verdicts, defendant's new attorney obtained a court order to gain access to the records. In his motion for a new trial, defendant attached the juvenile records as exhibits and argued that his trial counsel provided ineffective assistance by failing to obtain the records for the purposes of impeaching the credibility of Jo.A. and Keith.
In denying the motion, the trial court remarked that it was not in a position to speculate on why defense counsel failed to obtain the juvenile records, and the court questioned whether the records would even have been admitted in the first place. The court concluded that even if defense counsel's performance was deficient, the court was "certainly not convinced" the juvenile records "would have resulted in any sort of exculpatory evidence."
Because the record sheds no light on why counsel did not obtain and present the juvenile records at trial, we reject the claim of ineffective assistance of counsel. (Wilson, supra, 3 Cal.4th at p. 936.) Even assuming deficient performance, we conclude defendant was not prejudiced, for two reasons. First, we think it is highly unlikely the trial court would have admitted the juvenile records into evidence, as the trial court intimated in denying the motion for new trial, or that it would have allowed witnesses to be cross-examined on the events discussed in those records. Admission of such evidence would have necessitated an undue consumption of time while yielding no significant probative evidence exculpating defendant or impeaching the witnesses against him. (Evid. Code, § 352, Nguyen, supra, 184 Cal.App.4th at p. 1117.) A review of the records suggests that admitting the records or evidence related to them would have required a mini-trial on events having very little to do with this case in order to resolve the conflicting statements contained therein.
Second, without divulging the details of the confidential juvenile records, we think defendant's arguments about the impact of the records is highly speculative and fails to establish a reasonable probability that the records would have caused a different outcome in this case. While the juvenile records may have provided some basis to call Jo.A.'s credibility into question, her specific testimony in this case about defendant's abuse was bolstered by K.A., who corroborated some of the instances of inappropriate and unwanted conduct by defendant. Defendant makes no argument at all as to how the information in the juvenile records would have undermined the credibility of J.A. and A.P. On this record, defendant fails to show a reasonable probability of a different result had his counsel obtained and presented the juvenile records.
b. Counsel's failure to present Hartman's testimony did not constitute ineffective assistance or prejudice defendant.
Defendant argues his trial counsel provided ineffective assistance by failing to present the testimony of Amanda Hartman. As shown by her testimony on the new trial motion, Hartman would have testified that defendant lived with her and her boyfriend for one week in Sacramento in late May or early June 2009, and that he lived in Davis or Woodland in the summer of 2009. Defendant argues this testimony would have established that he was not living at the Hillside Boulevard home when the child pornography videos were saved to the Dell computer in April, June and August 2009.
The record sheds no light on why counsel did not call Hartman as a witness, and therefore, the claim of ineffective assistance of counsel must be rejected. (Wilson, supra, 3 Cal.4th at p. 936.) Competent defense counsel may have determined that Hartman's testimony was not a strong alibi defense given that the foundation for her testimony was simply that defendant lived with her and her boyfriend for only one week in late May early June 2009, and she saw him in Davis or Woodland on other occasions during that summer. Moreover, Hartman's testimony could have been understood to conflict with the testimony of defendant's character witness, Sanderford, who testified that defendant was living in the Bay Area in the summer of 2009.
In any event, even if defense counsel had called Hartman as a witness, her testimony would not have established that defendant did not have the Dell computer with him, since she testified that she did not know one way or the other if defendant had a computer with him at the time he stayed with her. Thus, defendant fails to establish a reasonable probability that the outcome would have been different had Hartman testified. (Strickland, supra, 466 U.S. at p. 694.)
c. Counsel's failure to cross-examine Melissa on her prior inconsistent statements to law enforcement did not constitute ineffective assistance or prejudice defendant.
Defendant argues his trial counsel provided ineffective assistance by failing to cross-examine Melissa on several statements she made to Chetcuti that, according to defendant, were favorable to the defense.
First, defendant contends his trial counsel should have asked Melissa about her statement that J.A. "was barely even up in Davis. She only visited like a couple times and I can't even—I wasn't with Kyle the whole time I was there, so I can't even—" Melissa made this statement to Chetcuti when asked if there was any indication that her sisters were fearful of being left alone with defendant. Defendant argues this statement cast doubt on J.A.'s claims of being raped and assaulted by defendant on 10 different occasions in Davis.
Defendant further contends his trial counsel should have also asked Melissa about statements she made to Chetcuti about the photographs of Jo.A. found on defendant's phone. Melissa stated, "And you would find the most pictures of [Jo.A.] on any of our stuff, because she loves to take pictures." When asked why defendant would have photos of Jo.A. on his phone, Melissa responded, "Because they all send pictures of each other. . . . Because they would send—sometimes they'd send pictures of him and it would go to me and stuff like this." When asked if she thought it was odd that Jo.A. would be sending photographs of her in her shorts to defendant and then deleting them, Melissa responded, "These—I think [defendant and Jo.A.] shared some phones. And [Jo.A.], uh, [Jo.A.]'s been known to send photos to her boyfriend." Defendant argues these statements provided innocent explanations for why intimate pictures of Jo.A. were found on defendant's phone and on the Dell computer.
The record contains no explanation for counsel's decision not to cross-examine Melissa regarding these statements to Chetcuti. As to Melissa's statements regarding the photographs of Jo.A., the Attorney General argues, and defendant does not dispute, that Melissa was never questioned about these photographs at trial. Thus, defense counsel had no reason to present impeachment evidence against Melissa on this issue. Accordingly, there was no deficient performance.
Melissa did testify on the frequency of J.A.'s visits to Davis, stating that J.A. visited her in Davis "maybe like ten times" during the school year and "[a]round three times" or "at least once a month" during the summer. The Attorney General argues that trial counsel may have determined Melissa was a sympathetic witness and it would not be a wise trial strategy to attack her testimony with statements she made to the police when she was still in a state of shock from learning about the allegations. Defendant responds that there was no reason to believe impeaching Melissa would have done more harm than good, and at least the jury would have known that she had not been consistent and could have considered the prior inconsistent statement for its truth.
Even if we assumed counsel's performance was deficient, we conclude there was no reasonable probability of a different outcome had counsel cross-examined Melissa. Viewed in context, Melissa's statement to Chetcuti was made early in the investigation before she had time to refresh her recollection, and the statement was both vague and facially incomplete. Her eventual trial testimony about the frequency of J.A.'s visits to Davis was fully corroborated by J.A. and Luisa. Thus, there is no reasonable probability that a cross-examination of Melissa on her prior inconsistent statement would have so undermined her testimony that the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.)
V. Cumulative Error
Finally, defendant argues the cumulative effect of the alleged errors at his trial requires reversal of his conviction, even if none alone was individually prejudicial. We disagree. The errors we have assumed for purposes of argument were harmless under any standard, whether considered individually or collectively, and they did not deny defendant due process and a fair trial. (See People v. Williams (2009) 170 Cal.App.4th 587, 646; People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [test for cumulative error is whether defendant received due process and fair trial].) In each instance, the points which defendant's trial counsel failed to present through witnesses or evidence were adequately elicited through cross-examination, or their omission had little impact on the trial as a whole. Taken together, the cumulative effect of these assumed errors did not prejudice defendant. (People v. Martinez (2010) 47 Cal.4th 911, 959.)
DISPOSITION
The judgment is affirmed.
/s/_________
Tucher, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Lee, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.