NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKFECR20160015997)
Defendant Edwardo Vincent Olguin was convicted by jury of 8 counts of committing a lewd or lascivious act on the victim, 2 of which (Counts 1 & 2) were committed when she was under the age of 14 years (Pen. Code, § 288, subd. (a)), and the remaining 6 of which (Counts 3-8) were committed when she was 14 years old (§ 288, subd. (c)). Defendant admitted having a prior serious felony conviction for purposes of section 667, subdivision (a), and the three strikes law (§§ 667, subds. (b)- (i), 1170.12), specifically a prior conviction for committing a lewd or lascivious act on a child under the age of 14 years, rendering him eligible for one-strike sentencing on Counts 1 and 2. (§ 667.61.) The trial court sentenced defendant to serve an indeterminate state prison term of 100 years to life plus a consecutive determinate term of 22 years 8 months.
Undesignated statutory references are to the Penal Code.
On appeal, defendant raises two claims of evidentiary error, a related claim involving defendant's right to be present during critical portions of the trial, two claims of instructional error, and two assertions of sentencing error. Specifically, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights by allowing two prosecution witnesses, including the prosecution's expert on Child Sexual Abuse Accommodation Syndrome (CSAAS), to offer testimony vouching for the victim's credibility; (2) we must reverse defendant's convictions because he did not knowingly and intelligently waive his right to be present during the CSAAS expert's testimony; and (3) the trial court also prejudicially abused its discretion and further violated defendant's constitutional rights by allowing the admission of evidence he previously committed sexual offenses to establish a propensity to commit such offenses. We conclude the first of these claims is forfeited and also reject defendant's alternative argument that his trial counsel provided constitutionally deficient assistance by failing to object to the admission of this evidence. Defendant validly waived his right to be present for the CSAAS expert's testimony. And the prior sex offense evidence was also properly admitted.
Turning to defendant's claims of instructional error, he asserts the trial court prejudicially erred and violated his constitutional rights by (4) instructing the jury that Counts 1 and 2 need only have been committed "on or about" the dates alleged in the information; and (5) instructing the jury "[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone." Each of these claims is forfeited and, in any event, fails on the merits.
Finally, defendant contends: (6) the trial court erred in failing to award him presentence conduct credit; and (7) we must remand the matter to the trial court for a new sentencing hearing because Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2) (SB 1393)) that became effective January 1, 2019 and gives the trial court discretion to strike five-year prior serious felony enhancements in the interest of justice, applies retroactively to cases not yet final on appeal. We reject the first of these claims. We do, however, agree the matter must be remanded for an exercise of SB 1393 discretion.
Defendant began his sexual abuse of the victim when she was 13 years old and had just started the seventh grade. Defendant was nearly 50 years old and the victim's uncle on her father's side. He was also a convicted child predator. The victim's parents were no longer together and shared custody of her through an informal arrangement. The victim's mother lived in a house with her sister and brother, the victim's maternal aunt and uncle. The victim's father lived in a house with his brother, (defendant), and daughter, B., who was the victim's older half-sister. While the record is less than clear as to the details of the custody arrangement, it appears that during the school year, the victim lived primarily with her mother and stayed with her father every other weekend.
Counts 1 & 2
Defendant sexually assaulted the victim five times between the start of her seventh grade year, in August 2015, and November or December of that year. Each of these assaults occurred during the weekend when the victim was staying at her father's house. The victim testified about the first two assaults in some detail. The first happened during the daytime when she was home alone with defendant. She was in B.'s bedroom, sitting on the bed watching television, when defendant came into the room, asked her a question, and then "started inching his way over to the bed." The victim pushed defendant away when he got too close to her, but he immediately returned to the bed and grabbed her breasts over her shirt. Defendant then started to remove her shirt and bit one of her breasts with his mouth. The victim told defendant to stop and started kicking him, but he continued his assault. Eventually, a noise in the front yard caused defendant to stop and leave the room.
The second assault also happened when the victim was alone with defendant in the daytime during one of the weekends she was at her father's house. Like the first assault, the victim was in B.'s bedroom when defendant came in, and slowly approached her while making small talk. He then grabbed her breasts both over and under her shirt. The victim again told him to stop, saying: "Get off of me." Defendant continued and this time completely removed the victim's shirt. He again bit her breasts. And again, the assault ended when defendant heard a noise and left the room.
The victim did not specifically describe the other three assaults that happened during her seventh grade year, but said they were the same as the first two. Each time, defendant left pink bite marks on her breasts that lasted for two days. As mentioned, these assaults, supporting Counts 1 and 2, ended in November or December 2015.
The victim continued to stay at her father's house on alternating weekends during the school year, but defendant's abuse went dormant for about six months, during which the victim "started to trust him" again.
The abuse resumed in June 2016. The victim spent more time at her father's house during the summer months, staying there for a week at a time every other week. That summer, the victim was enrolled in a STEM (science, technology, engineering, and math) program at the University of the Pacific. The program lasted for about six weeks. During the weeks the victim stayed with her father, defendant drove her to the program in the morning and picked her up at 2:00 p.m. in the afternoon. The victim's father did not get home from work until around 5:00 p.m. Defendant sexually abused the victim every day during the time he was alone with her at the house. He did so in the same manner as before, squeezing and biting her breasts both over and under her clothes. The only difference was defendant "started getting more aggressive," as the victim explained, "squeezing me harder, biting me harder." When she resisted, defendant would say: "Stop, I'll bite harder." Defendant also threatened to "end" her and her family.
The abuse continued throughout the summer and into the victim's eighth grade year. Every sexual assault committed against the victim during this time period happened in B.'s bedroom except for one that occurred in the living room. During that particular assault, defendant did the same things to the victim he had done in the bedroom. But this time, while being assaulted on the couch, the victim could see a lady walking outside the house, apparently through the screen door. The victim screamed to get the lady's attention. Defendant closed her mouth with his hand and pulled her onto the floor with him, saying: "Stop. You're gonna make it worse." The lady briefly stopped and looked into the house, but then walked away.
In September of the victim's eighth grade year, during another of defendant's sexual assaults, he threatened to hurt the victim's best friend and her boyfriend if she told anyone what he was doing. The last sexual assault committed by defendant against his 14-year-old victim occurred the day before Thanksgiving. Defendant assaulted the victim on each of the three days leading up to the holiday. As mentioned, these sexual assaults, occurring between June and November 2016, supported Counts 3 through 8.
Disclosure of the Abuse
The victim disclosed the abuse in November of her eighth grade year. She first told her boyfriend about the abuse, but made him promise not to tell anyone, adding: "I'll tell my dad when the time is right." She then confided in her best friend, who told her to tell her mother and report the abuse to the police. The next morning, this friend pushed the victim to disclose the abuse to her maternal uncle, who was walking both girls to school when the friend said to the victim: "If you don't tell him, I will." When the victim's maternal uncle asked what her friend was talking about, the victim responded, "I'm being molested," and identified defendant as the abuser. The victim appeared "nervous, scared, and she was starting to like tear up" when she disclosed the abuse to her maternal uncle.
The victim's mother was informed of the allegation the same morning and immediately picked her daughter up from school. When she asked the victim why she had not told her about the abuse, the victim "started crying." At home, the victim revealed details of the abuse to her mother. Her maternal aunt and uncle were also at the house, as were her maternal grandparents. The victim's mother then contacted the victim's father about the allegations and asked him to come over. When her father arrived, he was "upset," but not at defendant. Instead, he was "mad and yelling" at the victim. Despite the fact that defendant had previously been convicted of committing similar sex offenses against young girls, the victim's father "kept saying that . . . he wouldn't do that." As the victim described her father's reaction: "He was like, 'What am I supposed to do now?' He was like, 'I'm gonna lose you and my brother.' He was like, 'Why did you do this?' He goes, 'You broke the family up. Why?' Just kept saying 'why' over and over again." Eventually, the victim's father left the house, slamming the door behind him.
The next day, the victim disclosed the abuse to her school counselor, W. After crying for about 20 minutes, the victim explained her living situation and then "talked about how her 50-year-old Uncle Eddie . . . has been sexually molesting her." She was "shaking, trembling" when she disclosed the abuse to W. We recount relevant portions of W.'s testimony more fully later in the opinion. For present purposes, we note W. was required to report the allegations of abuse to law enforcement authorities and did so. The victim was interviewed by two patrol officers the same day and provided an account of the abuse that was consistent with her statements to W.
The detective investigating the victim's allegations of sexual assault against defendant determined that a sexual assault examination would not be fruitful due to the nature of the alleged conduct and the amount of time that had passed; and because defendant lived in the same house where the victim was staying with her father, the detective declined to test her clothing for trace DNA.
The detective briefly spoke to the victim on December 15, 2016. The victim was "very apprehensive" and tightly held onto a teddy bear during the conversation. The victim told the detective that defendant had sexually assaulted her five times while she was in the seventh grade, adding that she knew there were five assaults that year because she had written these incidents down as they occurred, but then destroyed the notes because she "didn't want to remember." The victim also told the detective that defendant tried to "rape her" over the Thanksgiving break of her eighth grade year, but "refused to go into any details regarding that incident." While it is unclear whether the victim was referring to the incident in the living room when she made that remark, she mentioned one of the incidents occurred in that room and refused to answer any of the detective's questions about it. The detective felt the victim was uncomfortable speaking with him and set up an appointment for a forensic interview at the Child Advocacy Center. That interview was conducted about two weeks later. During the forensic interview, the victim provided more details about the abuse than she provided in her previous statements.
The victim continued to see W. for counseling after making the disclosures noted above. She was "suicidal and depressed." Her grades fell to failing levels. No one on her father's side of the family would speak to her. During one of her sessions with W., the victim disclosed an incident in which defendant took photographs of her with a Polaroid camera and threatened to "show everyone [her] dirty little secret" if she told anyone about the abuse. This information was passed along to the detective, who determined too much time had passed following defendant's arrest to conduct a search for the camera or photographs. As the detective explained: "The fact that the defendant lived with his brother, his brother [i.e., the victim's father] did not believe the allegations. Not that he was uncooperative in our investigation, but he was very standoffish. He was taking the side of his brother over everything else, basically saying the incident didn't happen. It was our belief if there was any type of evidence in the house, that it's possible it would have been destroyed by the other occupants of the residence."
Additional Prosecution Evidence
The prosecution also presented testimony from David Love, an expert in CSAAS. He explained for the jury five typical characteristics of children who have been sexually abused: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed or unconvincing disclosure, and (5) retraction. This evidence was admitted solely to assist the jury in understanding the reasons for an abuse victim's seemingly self-impeaching behavior, such as the failure to immediately report the abuse. Other relevant aspects of Love's testimony will be set forth later in the opinion.
Finally, the prosecution presented evidence of prior sex offenses committed by defendant. Most analogous to the present crimes, defendant was previously convicted of committing a lewd or lascivious act on a child under the age of 14 years. This victim, N., was 11 or 12 years old when defendant began sexually abusing her. Defendant was in his twenties at the time and lived next door to N. and her family. On multiple occasions during the span of a few years, defendant entered N.'s bedroom window at night when her family was asleep, touched her vagina and breasts, and had vaginal and anal sex with her. Defendant also had sex with N. in his car on one occasion after they had gone to the fair together, and another time in her garage while her mother was in the house. N.'s testimony describing these offenses was admitted to establish defendant possessed a propensity to commit such offenses against young girls.
Defendant also committed a sexual assault against N.'s friend, S., one evening when S. was spending the night at N.'s house. S. was 16 years old. Defendant was 26 years old. S. initially noticed defendant looking at her from outside the bathroom window while she was taking a shower. He then came inside the house, entered the bathroom, and, as S. put it, "just tried to wash me a little bit." While doing so, defendant touched S.'s breasts and vagina. N. then came into the bathroom and told defendant to leave her friend alone. Defendant left, but returned as S. was drying off and asked if he could help her. N. again came into the bathroom and told defendant to leave. Defendant left, but returned a third time as S. was getting dressed in N.'s bedroom and again touched her vagina. Defendant was convicted of sexual penetration by foreign object on S., a person under the age of 18 years.
A third prior sex offense, committed about four years before defendant began abusing N., and about seven years before his sexual assault on S., was also admitted into evidence to prove his propensity to commit such offenses. This victim, J., was 13 years old when defendant, 19 years old at the time, had sex with her. J. met defendant at a concert and told him she was 15 years old. She later invited him over to her house. While J. did not remember many details about the incident, she did remember defendant left marks on her breasts. Defendant was convicted of unlawful sexual intercourse with a minor.
The defense case consisted primarily of testimony from the victim's father and his daughter B., the victim's half-sister who was also living at the house where the abuse occurred during the time period relevant to the first three counts. Both candidly admitted they did not believe the victim's allegations of abuse against defendant.
B. testified she was on doctor-ordered bed rest in July and August 2015 and never left the house during those months except to go to doctor appointments on certain weekday mornings. Thus, according to B., there was never a time when the victim was at her father's house during those two months that B. was not also at the house. B. also claimed she was at the house the entire time the victim was there in September of that year. While she was no longer on bed rest, she "didn't do a bunch" and "would stay there all the time." With respect to the remaining three months of the year, B. also claimed to have been home during the weekends the victim was there. B. testified that at no point during that entire period did her and the victim's father leave the victim alone at the house for several hours.
B. moved out of the house in January 2016 and temporarily moved back between April and June of that year. B. confirmed the victim started spending more time at the house in June. However, as with the time periods already discussed, B. claimed there was never a time the victim was home alone with defendant that month. B. further testified she never saw defendant behave inappropriately with the victim at any time.
The victim's father testified she spent five weekends with him between August and October 2015. He did not work weekends and never left the victim alone with defendant. The victim's father testified that during the only weekend the victim spent with him in August, he stayed at the house with her that Friday night, spent all of Saturday with her participating in an outreach program at his church, stayed home with her that night as well, and spent much of Sunday with her at church services. While he did not specifically account for that Sunday afternoon or evening, the victim's father stated generally that he would either drop the victim off at her mother's house after church on Sundays, or if she stayed that night as well, they "would watch TV or whatever" and he would drop her off the next morning.
According to the victim's father, this same general routine also occurred during the four weekends the victim spent with him in September and October 2015. With respect to September, he initially acknowledged he would occasionally walk a short distance to his mother's house and leave the victim at the house with defendant for "about 30 minutes," but then denied having done so during that month and said he "very seldom" went to his mother's house. The victim's father also acknowledged having the victim the same amount of time in November and December, but did not provide an account of their activities during these months.
The victim's father confirmed that beginning in June 2016, the victim began staying with him for a week at a time. He worked the day shift Monday through Friday. The victim's father also confirmed B. was living in the house in June and testified she was home most of the time. When B. was not at home, however, the victim would occasionally watch television in B.'s bedroom. The victim's father did not know whether or not B. left the victim alone with defendant for an extended period of time that month. Obviously, between July and November, after B. moved out, the victim would have spent a considerable amount of time alone with defendant at the house. The victim's father did not testify otherwise.
We decline to provide a detailed summary of the remaining defense witness testimony. It will suffice to note the victim's father's fiancée, who began dating her father in June 2016, frequently came over to the house at night and did not notice anything unusual about the victim's relationship with defendant. One of defendant's friends, who sometimes went with him to pick the victim up from the STEM program in the summer of 2016, also testified to their seemingly "regular" familial relationship. One of B.'s friends, who lived at the house with B. between 2013 and 2014 when she was 17 years old, testified defendant never behaved inappropriately towards her when they were alone together. And finally, defendant's ex-wife, who was living with defendant during the time period he molested N. and S., testified she did not believe he did so. With respect to N., she testified that she would have woken up if defendant was getting out of bed in the middle of the night to climb into N.'s bedroom window.
Improper Vouching and Profile Evidence
Defendant contends the trial court prejudicially abused its discretion and violated his federal constitutional rights by allowing both W., the school counselor, and Love, the prosecution's CSAAS expert, to offer expert testimony vouching for the victim's credibility. This contention is forfeited because defendant did not object to any of the testimony he now claims amounted to improper vouching. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 81-82 (Coffman and Marlow).) Also forfeited for failure to object in the trial court is the related claim these witnesses offered improper profile evidence. Anticipating forfeiture, defendant argues in the alternative that defense counsel's failure to object amounted to ineffective assistance of counsel. We disagree.
We are unpersuaded by defendant's arguments that the claims are preserved for review outside the ineffective assistance rubric either because objection would have been futile or because the claimed errors are sufficiently important for this court to consider them notwithstanding the failure to object. As we set forth immediately below, the first portion of challenged testimony came from W. and was made in response to a question from defense counsel on cross-examination. The challenged portion of W.'s response was nonresponsive in addition to the vouching claim raised on appeal. Had defense counsel objected to that portion of the answer, there is no reason to believe the trial court would not have sustained the objection and stricken the testimony. Nor is there any reason to believe the jury would not have been able to follow an admonition to disregard it. (People v. Bolton (1932) 215 Cal. 12, 26 [it is ordinarily presumed the jury will follow instruction to disregard evidence that is stricken from the record].) There is likewise no reason to believe a timely objection would have been futile with respect to the remaining claims of error. Finally, while we certainly have discretion to consider forfeited claims, at least outside the context of claimed evidentiary error, we are "in fact barred [from doing so] when the issue involves the admission . . . of evidence." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; Evid. Code, § 353.) --------
Defendant challenges the following testimony from W., arguing she "directly testified to [the victim]'s credibility."
On cross-examination, following up on W.'s testimony that the victim was enrolled in a special education program due to learning disabilities in the areas of auditory processing, auditory and visual short-term memory, and overall attention, defense counsel asked W. whether such disabilities would "leave her more vulnerable to being manipulated or coerced to make statements that were not true." W. answered: "I don't see that happening, but I see that because of her language delays it might be more difficult for her to be articulate enough to self-advocate." Following some back-and-forth discussion, in which W. stated the victim "could be more easily manipulated and be more easily a victim," defense counsel asked: "But to being manipulated into being a victim, can she also be manipulated into making untrue statements she's a victim?" W. answered: "Well, there's no correlation between a learning disability and that, but there is a correlation between having a learning disability and being susceptible to victimization." Defense counsel then asked whether W., outside of her cognitive testing of the victim for purposes of placing her in the special education program, knew "whether or not she is an honest or truthful person." W. answered: "No. But I will say that I found her very credible with her statement because it was so specific and accurate. And there were many times that she could have elaborated and made things more serious and she did not." (Italics added.) Defense counsel did not object to W.'s statement regarding the victim's credibility.
During redirect, the prosecutor asked W. how the victim's cognitive impairment, specifically her inability "to hear someone else's story and . . . consistently repeat it back," would affect defense counsel's suggestion that the victim was "manipulated into giving false statements." W. answered: "It would be very, very difficult for her to keep the facts straight because she just can't remember things that are said by other people.For example, if I could state, yesterday I gave her a test called the WRAML.It's a Wide Range Assessment of Memory and Learning.And part of that test is I just say two [para]graphs.And there's 40 questions.All she has to do is remember -- she doesn't even have to like do any higher level thinking skills.All she has to do is tell me there's a dog and his name is Oscar and they were fishing, you know, just some specific facts about that story.They don't have to be in order and there's no comprehension involved.And out of like 40 items of just the paragraph, she was only able to remember about five to seven items.She can't remember facts that other people told her.That's why I believe that she's more credible.Because she was so consistent about her story over and over, the facts never changed.When she said it stopped, it stopped.When she said it started back, she was consistent on the dates." (Italics added.) Defense counsel did not object to this testimony.
Defendant also challenges the following testimony from Love. As mentioned, Love testified as an expert in CSAAS. During his explication of the fourth general characteristic of child sexual abuse victims, i.e., delayed or unconvincing disclosure, Love explained how memory can be impaired by a traumatic event and affected by a child's participation in multiple interviews following that event. When asked what role consistency plays in determining whether or not an allegation of abuse is fabricated, Love answered: "Well, the more consistent a child is, the more probable it's accurate." (Italics added.) Later, during recross-examination, defense counsel posed a hypothetical scenario in which a child makes a false accusation of abuse in order to get the accused in trouble and asked: "Is there a way to determine whether or not that child is being honest or not outside of using this syndrome [i.e., CSAAS]?" Love answered: "Yes, outside the syndrome, but not within the syndrome." (Italics added.) While defense counsel did not object to this testimony either, defendant argues on appeal that it "indirectly vouched for [the victim]'s credibility" and "bolstered [W.]'s opinion" regarding her credibility.
Defendant further complains, also without having objected below, that Love indirectly vouched for the victim's credibility by citing statistics concerning the infrequency with which children fabricate abuse. During Love's direct examination, at the conclusion of his explanation of the fifth characteristic of sexually abused children, i.e., retraction, Love stated a study done by the "National Center for Child Abuse and Neglect found as a 'best estimate' that 'one percent of children who make accusations flat out fabricate or lie or don't tell the truth.' " (Italics added.) Later, on cross-examination, defense counsel asked Love a series of questions concerning whether he had seen any children who made abuse accusations that turned out to be fabricated. Love answered that the organization he worked for, Valley Community Counseling Services, had identified "eight or nine cases where the child was pretty clear about it initially and then later on we discovered that the -- what they were saying, they were -- something else was going on. But keep in mind I treat six to eight hundred kids a year in our clinic in San Joaquin County. So, yes, have we seen some? Yes. Absolutely. The National Center said about one percent. Pretty consistent with us." (Italics added.) When asked whether other studies had found the "rate of false reporting, misreporting, fabrication, confabulation" to be "closer to five to eight percent," Love pointed out the National Center for Child Abuse and Neglect had the largest database to analyze, but agreed there were other studies showing a higher percentage, adding: "But it's still pretty darn small if you think about the total hundred percent end." (Italics added.)
Additionally, in response to a question regarding whether a certain scholar had discredited CSAAS, Love disagreed with that characterization and added: "In his article he agrees -- and he's got a number of articles.But he kind of consistently agrees that secrecy, helplessness, are pretty consistent with kids.He states in at least one of his articles -- and I apologize I couldn't quote which one exactly it was -- that he believes that most children are truthful when they come forward and say they were sexually molested." (Italics added.)
Finally, defendant also challenges for the first time on appeal Love's testimony about behavior that is consistent with having experienced a traumatic event such as sexual abuse, including "drug or alcohol use," "inappropriate age level sexual activity," and "clinical depression," creating a "higher risk of cutting, self-mutilation and suicide." Again, despite failing to object below, defendant argues this evidence, coupled with testimony from W. and the victim concerning the victim's depression and suicidal thoughts, amounted to improper "profile evidence."
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him [or her] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)
1. Deficient Performance
We must first determine whether or not defense counsel's failure to object to the challenged testimony fell below an objective standard of reasonableness.
"The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (Coffman and Marlow, supra, 34 Cal.4th at p. 82.) Likewise, "[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744.) "[T]he reasons are several. With limited exceptions, the factfinder, not the witnesses, must draw the ultimate inferences from the evidence. . . . A lay witness is occasionally permitted to express an ultimate opinion based on [her or] his perception, but only where . . . the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.] Finally, a lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence [citation], nor does it bear on any of the other matters listed by statute as most commonly affecting credibility [citation]. Thus, such an opinion has no 'tendency in reason' to [prove or] disprove the veracity of the statements." (Ibid.)
Beginning with W.'s testimony, contrary to defendant's argument on appeal, this witness was not testifying as an expert, but rather as a percipient witness to whom the victim disclosed the sexual abuse she suffered at the hands of defendant. Nevertheless, as noted above, she still was not permitted to vouch for the veracity of the victim's disclosure of abuse. Whether or not defense counsel's failure to object to that improper testimony fell below an objective standard of reasonableness is another matter. "In reviewing an ineffective assistance of counsel claim, courts do not generally second guess counsel's tactical decisions. [Citations.] 'Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action [or inaction] "might be considered sound trial strategy." [Citation.]' [Citation.]" (In re Alcox (2006) 137 Cal.App.4th 657, 665.)
Here, in response to W.'s first statement regarding the victim's credibility, rather than object, defense counsel instead questioned W. about various inconsistencies between the victim's initial statement to her and subsequent statement in which she first disclosed the incident involving Polaroid photographs, ending that line of inquiry with: "So you don't know if someone had manipulated her into making this second statement to you?" W. answered: "No. Of course not. I can only take what she told me." Given the fleeting nature of W.'s first objectionable statement, defense counsel may well have determined an objection and admonition would only have served to highlight her opinion that the victim was telling the truth, and following up with specific questions about inconsistencies between the victim's statements was a better tactic to deal with that objectionable testimony. We cannot, however, say the same with respect to the second time W. voiced that opinion. By the time W.'s opinion regarding the victim's credibility was repeated on redirect, we conclude the failure to object fell below an objective standard of reasonableness.
Turning to Love's expert testimony, we first note that "[e]xpert testimony on 'the common reactions of child molestation victims,' known as CSAAS theory evidence, 'is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation.' [Citation.] ' "Such 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." ' [Citation.]" (People v. Julian (2019) 34 Cal.App.5th 878, 885 (Julian).) However, "such evidence 'is not admissible to prove that the complaining witness has in fact been sexually abused.' [Citation.]" (Ibid.)
We conclude Love's testimony went beyond the permissible scope of CSAAS testimony. The most obvious transgression was his repeated estimate that only about one percent of children make false allegations of abuse. As the Court of Appeal explained in Julian: "The expert providing CSAAS testimony may not give ' "general" testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.' [Citation.] Nor is it proper for an expert to present 'predictive conclusions' [citation], such as alleged child abuse victims 'should be believed' or 'abused children give inconsistent accounts and are credible nonetheless.' [Citation.] Such predictive conclusions go beyond the scope of CSAAS evidence and may confuse the jury. '[T]he jurors' education and training may not have sensitized them to the dangers of drawing predictive conclusions.' [Citation.] Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence. [Citation.]" (Julian, supra, 34 Cal.App.5th at pp. 885-886.) In that case, as here, the CSAAS expert testified that children rarely fabricate allegations of sexual abuse and estimated the percentage of false allegations to be "as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases." (Id. at p. 885, italics omitted.) The court concluded this probability evidence "invited jurors to presume [the defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886; see also People v. Wilson (2019) 33 Cal.App.5th 559, 570-571.) As in Julian, we conclude "there is no justification for counsel's failure to object to [Love's] statistical evidence on false allegations. It was inadmissible and it improperly suggested [defendant] was guilty based on statistical probabilities that were irrelevant to this case." (Id. at p. 888.)
We also conclude Love's testimony indicating consistency in a child's statements is a predictor of veracity and victims of trauma often experience depression and suicidal thoughts transgressed the confines of CSAAS testimony. With respect to the former, such testimony also amounts to a predictive conclusion, i.e., children who provide consistent statements should be believed. With respect to the latter, Love himself acknowledged the general experiences of children who suffer trauma is not part of CSAAS. As previously explained, CSAAS testimony is admissible only to disabuse the jury of common misconceptions about child sexual abuse and the seemingly self-impeaching behavior of victims of such abuse. The Attorney General offers no theory under which an abuse victim's post-trauma depression or suicidal thoughts might be misunderstood by the jury in a way that would arguably impeach his or her credibility. Instead, that evidence was transparently offered to establish that the victim fit the profile of someone who suffered trauma, and was therefore more likely to have been sexually abused by defendant. While there is nothing wrong with introducing evidence of the victim's depression and suicidal thoughts, or with the prosecution arguing for such an inference, the problem lies in employing the testimony of an expert to bolster it. (See People v. Bledsoe (1984) 36 Cal.3d 236, 251 ["Lay jurors are, however, fully competent to consider such evidence in determining whether a rape occurred, and '[p]ermitting a person in the role of an expert to suggest that because the complainant exhibits some of the symptoms of rape trauma syndrome, the victim was therefore raped, unfairly prejudices the appellant by creating an aura of special reliability and trustworthiness' "].) Defense counsel's failure to object to this evidence also fell below an objective standard of reasonableness.
We now turn to the question of prejudice and conclude there is no reasonable probability that, but for defense counsel's failure to object to the challenged evidence recounted above, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 687.)
We begin by noting the case against defendant, independent of the challenged testimony, was very strong. The victim's testimony recounting the abuse she endured at the hands of defendant was both internally consistent and consistent with her prior statements disclosing the abuse. Those prior statements were also consistent with each other. While the victim disclosed additional details about the abuse in her forensic interview, and did not disclose the Polaroid incident until later, Love's properly-admitted testimony concerning delayed disclosure informed the jury this was not uncommon among children who have suffered sexual abuse. In addition to the victim's testimony, her mother, the uncle she confided in on the way to school, the friend who prompted her to do so, her boyfriend, and W. each testified to the emotion the victim displayed when talking about the abuse. Additionally, as we discuss in greater detail later in the opinion, the victim's account of defendant's offenses against her was similar to the prior sexual offenses defendant committed against N., S., and J., providing strong evidence of defendant's propensity to commit such offenses against young girls. For all of these reasons, the jury was likely to have considered the victim's testimony to be credible even without the objectionable evidence recounted above.
Defendant disagrees, arguing, the victim "was not a compelling witness" because "there was considerable evidence that she lied about at least some of the 2015 incidents, for numerous witnesses made a strong case that she could not have been alone at the house with [defendant] in August and September, much less alone with him in the room where bed-ridden [B.] almost continuously remained." We acknowledge B. testified she was on doctor-ordered bed rest in August of that year, she never left the house except to go to doctor appointments, and these doctor appointments were during the week when the victim was not at the house anyway. Thus, if believed, the victim was never alone with defendant in B.'s bedroom during the month of August. And while B. testified she was not on bed rest in September, she claimed she was home the entire time the victim visited for the two weekends she stayed at her father's house that month as well. We also acknowledge the victim's father generally corroborated B.'s testimony concerning the time she was on bed rest and remained at the house. He also provided a fairly detailed account of his and the victim's activities during the weekend she spent with him in August and claimed the same general routine also occurred during the two weekends she spent with him in September.
Defendant argues this testimony must have swayed at least part of the jury because it submitted a question asking whether Counts 1 and 2 had to have occurred in August and September, respectively, or instead could be based on events occurring in October, November, and December. As defendant points out, Count 1 alleged the lewd or lascivious conduct occurred "[o]n or about August 2015" and Count 2 alleged the lewd or lascivious conduct occurred "[o]n or about September 2015." In response to the jury's question, without objection, the trial court reread an instruction informing the jury the "on or about" language simply meant the offense took place "reasonably close" to the dates stated in the information. The jury also requested readback of the victim's testimony concerning the five incidents of abuse in 2015. Shortly after hearing that readback of testimony, the jury returned its verdict convicting defendant on all counts.
We do not attach the same significance to the foregoing events as defendant. As we explain in greater detail later in the opinion, the victim did not specifically claim the first incident of abuse occurred in August, or that the second incident of abuse occurred in September. Instead, the victim testified to five incidents of abuse occurring sometime between August and November or December of her seventh grade year. The jury was properly instructed it could use any two of those incidents to find defendant guilty of the lewd conduct alleged in Counts 1 and 2, as long as the jury unanimously agreed about which lewd acts he committed, and as long as those incidents were reasonably close in time to August and September, respectively. After hearing the readback of the victim's testimony concerning these five incidents, the jury returned its verdict. Nothing about these events indicates the jury disbelieved the victim's testimony about any of the abuse.
We conclude there is no reasonable probability of an outcome more favorable to defendant had his trial counsel objected to the improper testimony challenged in this claim on appeal.
Waiver of Defendant's Right to Personal Presence
Defendant also claims we must reverse his convictions because he did not knowingly and intelligently waive his right to be present during Love's testimony. Not so.
"A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043." (People v. Concepcion (2008) 45 Cal.4th 77, 81.) Such a defendant "clearly has a right to be present when witnesses testify at trial." (Id. at p. 82; United States v. Gagnon (1985) 470 U.S. 522, 526 .)
"A defendant's right to presence, however, is not absolute. The high court has stated that a defendant's 'privilege may be lost by consent or at times even by misconduct. [Citation.]' [Citations.]" (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202 (Gutierrez).) And although section 977, subdivision (b)(1), states, "in all cases in which a felony is charged, the accused shall be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence" (italics added), this provision "does not preclude a defendant from being 'voluntarily absent' during the taking of evidence under section 1043, subdivision (b)(2)." (Gutierrez, supra, at p. 1203.) That provision states: "The absence of the defendant in a felony case after the trial has commenced in his [or her] presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." (§ 1043, subd. (b)(2).)
Thus, we "must determine, on the whole record, whether defendant's absence was knowing and voluntary." (People v. Connolly (1973) 36 Cal.App.3d 379, 385; Gutierrez, supra, 29 Cal.4th at p. 1205 ["In determining whether a defendant is absent voluntarily, a court must look at the 'totality of the facts' "].)
Here, at the start of the afternoon session on the last day of the prosecution's case-in-chief, defense counsel informed the trial court defendant was not feeling well and wanted to be excused for the afternoon. The trial court then asked defendant, "do you waive your appearance for this afternoon?" Defendant answered: "Yes, sir." The trial court also asked defendant whether he understood both that he had the right to be present and that the matter could be continued to another time if he wished. To both questions, defendant answered: "Yes." The trial court then asked the prosecutor: "Now how many witnesses do we have this afternoon?" The prosecutor indicated the only witness that afternoon would be the CSAAS expert. The trial court again asked defendant whether he understood he had the right to be present, to which defendant answered: "Yes, I do." The court then asked whether defendant gave up that right. Defendant answered: "Yes." Defendant also signed a form in open court waiving his right to be present during the remainder of the day's proceedings, after which the court found defendant "made a knowing, intelligent, voluntary waiver of his right to be present."
As defendant acknowledges in his briefing on appeal: "The court carefully inquired of [defendant] personally in order to ensure that his waiver was knowing and intelligent." The problem, defendant argues, was that Love's testimony went beyond the scope of permissible CSAAS testimony in the ways already discussed. This, according to defendant, rendered invalid his waiver of the right to be present during Love's testimony. We are not persuaded.
This situation is not like the cases defendant cites in support of this claim. Most analogous, but readily distinguishable, is People v. Johnson (2013) 221 Cal.App.4th 943 (Johnson). In Johnson, a murder case, the defendant waived her right to be present for the readback of certain testimony during the jury's deliberations. She was not informed the jury also wanted a demonstration of the gun's operation. That demonstration was conducted by the bailiff outside the defendant's presence without her knowledge. The Court of Appeal held the trial court violated the defendant's statutory and constitutional right to be present during the bailiff's demonstration, during which he spoke extensively to the jury about the gun's operation, "essentially amount[ing] to testimony" from an unsworn witness and "result[ing], in effect, in the jury's receipt of evidence." (Id. at p. 955.) Unlike Johnson, where the defendant waived her right to be present while already-admitted testimony was read back for the jury but did not waive her right to be present while new evidence in the form of a demonstration was effectively admitted against her, here, defendant essentially acknowledges he validly waived his right to be present during most of Love's testimony, i.e., his CSAAS testimony, but claims he did not knowingly do so for the portions of the testimony transgressing the confines of permissible CSAAS testimony. However, there is always the possibility that a witness's testimony will exceed the scope of permissible content. When it does, the defendant, through counsel, may object and request a curative admonition, raise the evidentiary issue on appeal if the objection is overruled, or raise ineffective assistance of counsel if no objection is made, as in this case. What the defendant may not do is transform an evidentiary error into a constitutional violation by voluntarily absenting himself or herself from the witness's testimony altogether.
Evidence of Defendant's Prior Sex Offenses
Defendant further asserts the trial court prejudicially abused its discretion and also violated his constitutional rights by allowing the admission of evidence he previously committed sex offenses against N., S., and J. He is mistaken.
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).)
One such exception is found in Evidence Code section 1108. This section provides in relevant part: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) This provision "permits ' " 'consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.' " ' [Citation.] As this court has previously observed, ' "[i]n enacting [Evidence Code] section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101 ." [Citation.]' [Citations.]" (People v. Holford (2012) 203 Cal.App.4th 155, 182 (Holford).) The admission of evidence under this section is, however, expressly subject to the limitations of Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Indeed, Evidence Code section 1108 "passes constitutional muster if and only if [Evidence Code] section 352 preserves the accused's right to be tried for the current offense. 'A concomitant of the presumption of innocence is that a defendant must be tried for what he [or she] did, not for who he [or she] is.' [Citations.]" (People v. Harris (1998) 60 Cal.App.4th 727, 737.)
Here, over defendant's objection, the trial court allowed the prosecution to present testimony from N., S., and J. recounting sex offenses defendant committed against them. We have already described this testimony in detail and decline to repeat it here. We do note that in ruling this evidence was admissible under Evidence Code sections 1108 and 352, the trial court specifically found the prior offenses were "very similar" to the present offenses, and therefore "very probative" of defendant's propensity to commit the crimes in this case. The trial court also found the danger of undue prejudice did not outweigh the probative value. Addressing remoteness, the trial court stated: "So here, yes, these are old, from . . . what is it? 1987? That's 30 years. But then followed by 1994, which was 23 years ago. But looking at all the factors, I think that it's within my discretion to allow those. And as I say, I don't think that 352 would prevent them from coming in. So I'm going to allow them under 1108." We agree with this assessment.
Defendant does not dispute that Evidence Code section 1108 applies. He does argue the trial court abused its discretion in admitting the prior sex offenses under Evidence Code section 352. That section provides: "The court in its discretion may 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 begin by observing "that ' "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " [Citations.]' [Citation.]" (Holford, supra, 203 Cal.App.4th at p. 167.) Moreover, "[e]vidence is not inadmissible under [this provision] unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights." (Ibid.)
As the trial court correctly observed, the prior sex offenses were similar to the current crimes and therefore highly probative of defendant's propensity to commit such offenses. (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch) ["if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses"].) While these prior offenses were committed many years before the current crimes, between 1986 and 1993, "the time gap alone does not compel exclusion of the evidence." (People v. Cordova (2015) 62 Cal.4th 104, 133.) Instead, "[r]emoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, . . . significant similarities between the prior and the charged offenses may 'balance[ ] out the remoteness.' [Citation.]" (Branch, supra, 91 Cal.App.4th at p. 285.) In Branch, such similarities were held to balance out a 30-year gap. (Ibid.; see also People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [similarities between charged and uncharged sexual offenses, occurring between 15 and 22 years before trial, "balanced out the remoteness"].) We reach the same conclusion here.
Weighed against the probative value is the inevitable prejudice flowing from the admission of prior crimes evidence. However, we cannot conclude the nature of the uncharged crimes was "more inflammatory than the charged offenses." (Branch, supra, 91 Cal.App.4th at p. 283.) The crimes committed against J. and S. were not more inflammatory than the present offenses against this victim. And while, as in Branch, defendant "engaged in a wider variety of sexual offenses over a longer period of time with [N.], the nature of the offenses was very similar to the ones involving [this victim]. Thus, it is unlikely that the jury would have been so prejudiced against [defendant] as a consequence of [N.'s] 'inflammatory' testimony that he was denied a fair trial." (Id. at pp. 283-284.) Finally, we cannot conclude the evidence would have misled the jury or caused it to be confused as to the issues before it. The trial court did not abuse its discretion under Evidence Code section 352.
Having concluded the evidence was admissible under Evidence Code section 352, "we must also reject defendant's argument that he was deprived of his constitutional right to a fair trial." (Holford, supra, 203 Cal.App.4th at p. 180.)
"On or About" Instruction
Defendant also contends the trial court prejudicially erred and violated his constitutional rights by instructing the jury Counts 1 and 2 need only have been committed "on or about" the dates alleged in the information. However, defendant's trial counsel did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We conclude there was no error, much less a miscarriage of justice.
In Counts 1 and 2, defendant was alleged to have engaged in lewd or lascivious conduct with the victim when she was 13 years old. As set forth in greater detail earlier in the opinion, the victim testified to five incidents of such conduct between August 2015 and November or December of that year. Neither her testimony nor any of the other prosecution evidence established the exact dates of these incidents of abuse. They occurred during the weekends the victim stayed at her father's house, but those specific weekends were not established.
Count 1 alleged the lewd or lascivious conduct occurred "[o]n or about August 2015" and Count 2 alleged the lewd or lascivious conduct occurred "[o]n or about September 2015." It is apparent the months of August and September were chosen because the victim described the first two incidents of abuse in greater detail than the other three incidents.
Defendant attempted to establish lack of opportunity to commit these offenses. As mentioned, the victim's father testified the victim spent only one weekend with him in August and provided a fairly detailed account of their activities that weekend, claiming he stayed at the house with her that Friday night, spent all of Saturday with her participating in a church outreach program, stayed home with her that night as well, and spent much of Sunday with her at church services. The victim's father also testified the same general routine occurred the two weekends the victim spent with him in September. And while the victim's father acknowledged, at least initially, that during September he occasionally left the victim at the house with defendant for about 30 minutes while he went to his mother's house, B. testified that she was at the house the entire time the victim was there during both August and September. Thus, according to the victim's father and B., there was never a time during August and September that the victim was at the house alone with defendant.
The jury was given an instruction combining CALCRIM Nos. 207 and 3501, stating in relevant part: "The defendant is charged with lewd act upon a child in Count 1 sometime during the period of August of 2015; [¶] Count 2 sometime during September of 2015; [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] One, you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense, or you all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged. [¶] It is alleged that the crimes occurred on or about the dates stated. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day."
During the jury's deliberations, it submitted a question asking whether Counts 1 and 2 had to have occurred in August and September, respectively, or instead could be based on events occurring in October, November, and December. In response, without objection, the trial court reread the foregoing instruction. The jury also requested readback of the victim's testimony concerning the five incidents of abuse in 2015. A short time after hearing the readback, the jury returned its verdict convicting defendant on all counts.
In general, an accusatory pleading need not state the exact date on which a crime was committed. (§ 955.) "Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information." (People v. Jennings (1991) 53 Cal.3d 334, 358.) Thus, an information may allege a crime was committed "on or about" a certain date, and a variance of a few months is routinely upheld on appeal. (See People v. Peyton (2009) 176 Cal.App.4th 642, 660-661 [variance of about one year held to be immaterial]; People v. Triplett (1945) 70 Cal.App.2d 534, 541-542 [variance of two months].)
However, while the information need not plead the exact date of the offense, "when the prosecution's proof establishes the offense occurred on a particular day to the exclusion of other dates, and when the defense is alibi (or lack of opportunity), it is improper to give the jury an instruction using the 'on or about' language." (People v. Jennings, supra, 53 Cal.3d at pp. 358-359.) For example, in People v. Jones (1973) 9 Cal.3d 546 (overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046), where the prosecution's witness testified to buying marijuana from the defendant on a particular day, and the defendant offered evidence that he was in Texas on that date, it was error to give the jury an instruction stating "if the jury finds that the crime was committed it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date." (Jones at p. 556-558 & fn. 8.)
Similarly, in People v. Barney (1983) 143 Cal.App.3d 490 (Barney), a case in which the defendant was convicted of committing two lewd or lascivious acts on his granddaughter, the granddaughter testified the second charged act occurred on a particular Sunday. Although other evidence widened that time period to include that entire weekend, it excluded other time periods. (Id. at p. 498.) The defense, as in this case, was lack of opportunity and was supported by testimony claiming the defendant's son and daughter-in-law were present during the relevant time period. This court held the trial court erred in instructing the jury that the prosecution "need not specifically prove the time of the charged offense." (Ibid.) As we explained: "[I]f the defense is alibi or, as here, lack of opportunity to commit the offense, the exact time of commission becomes critically relevant to the maintenance of the defense. An instruction which deflects the jury's attention from temporal detail may unconstitutionally impede the defense. The defendant is entitled as a matter of due process to have fixed the time of commission of the offense in order to demonstrate he [or she] was elsewhere or otherwise disenabled from commission of the alleged offense." (Id. at p. 497.)
Defendant relies heavily on Barney, supra, 143 Cal.App.3d 490 in arguing the trial court erred in providing a similar instruction in this case. That case, however, is distinguishable. Most importantly, unlike Barney, here, the prosecution's evidence did not establish two discrete incidents of abuse, one occurring during a particular weekend in August and the other occurring during a particular weekend in September, to the exclusion of other time periods. Instead, the victim testified to five incidents of abuse occurring sometime between August and November or December of her seventh grade year. More specifically, the victim did not testify the first incident occurred in August. She testified it occurred on a weekend after school began. She acknowledged school began in August, but did not specifically testify she was abused that month. Nor did she testify the second incident of sexual abuse occurred in September. Thus, unlike Barney, where the evidence established the charged offense occurred during one specific weekend, here, it would be entirely consistent with the victim's testimony if both charged offenses occurred in September, or for one to have occurred in September and the other in October, or for both to have occurred in October.
Barney is distinguishable in another important respect. There, the prosecution adduced evidence of other acts of sexual abuse, committed against the same victim, that were close in time to the charged acts of abuse, but that evidence was admitted only to establish defendant was more likely to have committed the charged offenses. (Barney, supra, 143 Cal.App.3d at p. 498.) Accordingly, while the prosecution relied on a particular discrete event occurring during a specific weekend to establish the second charged count of lewd conduct, there was a danger the jury may have believed the defendant's lack of opportunity defense with respect to that particular weekend but nevertheless convicted him of that crime because a different act of abuse occurred at another time "near the weekend in question." (Ibid.) In contrast, here, the victim testified to five incidents of sexual abuse, any two of which could support defendant's convictions in Counts 1 and 2, as long as the jury unanimously agreed as to which two were proved beyond a reasonable doubt. The jury was so instructed.
In sum, the first predicate of the rule precluding an "on or about" instruction, i.e., "the prosecution's proof establishes the offense occurred on a particular day to the exclusion of other dates" (People v. Jennings, supra, 53 Cal.3d at pp. 358-359), is not present in this case. Nor is there the danger that the jury convicted defendant of an offense other than the ones charged because Counts 1 and 2 were based on all five incidents and the unanimity instruction required the jury to agree on which two were proved beyond a reasonable doubt. There was no error in providing the jury with the challenged instruction.
Complaining Witness Testimony Instruction
Nor are we persuaded the trial court erred in instructing the jury "[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone" (CALCRIM No. 1190) in conjunction with the general instruction that "[t]he testimony of only one witness can prove any fact," but before so concluding, the jury "should carefully review all the evidence" (CALCRIM No. 301). As with the previous instructional error claim, defendant's trial counsel did not object to these instructions at trial. This claim is therefore forfeited unless the error resulted in a miscarriage of justice. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.) Here, too, there was no error.
In People v. Gammage (1992) 2 Cal.4th 693 (Gammage), our Supreme Court held the trial court did not err in providing the jury with CALJIC Nos. 2.27 and 10.60, the predecessors of CALCRIM Nos. 301 and 1190. Rejecting the defendant's argument that the combination of these instructions "unconstitutionally 'creates a preferential credibility standard for the complaining witness' " (id. at p. 700), the court explained: "Although the two instructions overlap to some extent, each has a different focus. CALJIC No. 2.27 focuses on how the jury should evaluate a fact (or at least a fact required to be established by the prosecution) proved solely by the testimony of a single witness. It is given with other instructions advising the jury how to engage in the fact-finding process. CALJIC No. 10.60, on the other hand, declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes. [¶] Because of this difference in focus of the instructions, we disagree with defendant . . . that, in combination, the instructions create a preferential credibility standard for the complaining witness, or somehow suggest that that witness is entitled to a special deference. The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other. . . . The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Id. at pp. 700-701.)
Acknowledging we are bound by Gammage (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), defendant attempts to distinguish that case on the ground CALJIC No. 10.60 "states that the complaining witness's testimony need not 'be corroborated by other evidence[,]' " whereas CALCRIM No. 1190 states: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." However, as the Attorney General correctly observes, the language employed in CALCRIM No. 1190 "is simply just another way of saying that the complaining witness's testimony need not be corroborated."
The trial court did not err in instructing the jury with CALCRIM Nos. 301 and 1190.
Presentence Conduct Credit
Defendant further asserts the trial court erred in failing to award him 42 days of presentence conduct credit. We disagree.
Section 4019 sets forth the "two types of conduct credit," i.e., worktime credit and good behavior credit, "available to prisoners 'confined in or committed to' county or city jails, industrial farms, or road camps" prior to being convicted, sentenced, and committed to state prison. (People v. Dieck (2009) 46 Cal.4th 934, 939.) This section provides eligible prisoners with "a total of two days of conduct credit for every four-day period of incarceration" where the prisoner is "sentenced or otherwise 'committed' . . . for a period of at least six days . . . ." (Id. at pp. 939-940.)
However, notwithstanding section 4019 or any other provision of law, the total amount of presentence conduct credit that may be awarded to a person convicted of a violent felony listed in section 667.5, subdivision (c), including lewd or lascivious conduct with a child under 14 years, "shall not exceed 15 percent of the actual period of confinement . . . ." (§§ 2933.1, subds. (a) & (c), 667.5, subd. (c)(6).)
Here, defendant spent 286 days in presentence confinement, entitling him to 42 days of presentence conduct credit (15 percent) unless barred by some other provision from receiving such credit altogether. The Attorney General argues a 2006 amendment to section 667.61 bars defendant from receiving any conduct credit. Prior to this amendment, section 667.61, subdivision (j) provided: "Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of 25 or 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 or 15 years in the state prison." (Stats. 1998, ch. 936, § 9; Assem. Bill No. 105 (1997-1998 Reg. Sess.) § 9.) This provision was removed in 2006. (Stats. 2006, ch. 337, § 33.)
The Attorney General argues, "[i]t is unclear whether the 2006 amendment to section 667.61 was intended to eliminate presentence conduct credit for defendants sentenced under the One Strike law," and therefore turns to the legislative history, finding the following indications the amendment was so intended: "The Senate Committee on Public Safety's analysis of Senate Bill No. 1128 (2005-2006 Reg. Sess.) provides: 'Elimination of Sentencing Credits for One-Strike Inmates [¶] Existing law provides that a defendant sentenced to a term of imprisonment of either 15 years to life or 25 years to life under the provisions of the "one-strike" sentencing scheme shall not have his or her sentence reduced by more than 15% by good-time/work-time credits. (. . . § 667.61, subd. (j).) [¶] This bill eliminates conduct/work credits for inmates sentenced under the one-strike law.' (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended March 7, 2006, p. N, underscoring omitted; accord, id. at p. W ['This bill eliminates sentencing credits that under existing law can reduce a defendant's minimum term by up to 15%'. (underscoring omitted)]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended May 26, 2006, pp. 8-9 [Sen. Bill No. 1128 eliminates eligibility 'for credit to reduce the minimum term imposed']; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 1128 (as amended May 30, 2006) p. 9 [same].)" The Attorney General also cites Couzens and Bigelow, Sex Crimes: California Law and Procedure (The Rutter Group, 2015) paragraph 13:15, in which the authors conclude: " 'Section . . . 667.61 (One Strike law) . . . [was] amended in 2006 to eliminate the provision that allowed such crimes to accrue 15 % conduct credits, whether before or after sentencing[.] Now there are no conduct credits allowed against the minimum term.' "
This analysis was recently adopted by our colleagues at the Second and Fourth Appellate Districts. (People v. Adams (2018) 28 Cal.App.5th 170, 181-182; People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268.) We concur. The trial court did not err in declining to award defendant presentence conduct credit.
Retroactivity of SB 1393
Defendant was sentenced in September 2017. The law at that time did not allow the trial court to strike a serious felony prior used to impose a five-year enhancement under section 667, subdivision (a)(1). SB 1393 removed this prohibition effective January 1, 2019. (Stats. 2018, ch. 1013, §§ 1, 2.)
Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues these amendments apply to him because his judgment is not yet final. In Estrada, our Supreme Court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) This includes "acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Ibid.) Thus, under Estrada, absent evidence to the contrary, we presume the Legislature intended a statutory amendment reducing punishment to apply retroactively to cases not yet final on appeal. (Id. at pp. 747-748; People v. Brown (2012) 54 Cal.4th 314, 324.) Our Supreme Court has also applied the Estrada rule to amendments giving the trial court discretion to impose a lesser penalty. (People v. Francis (1969) 71 Cal.2d 66, 76.)
The Attorney General concedes the rule of Estrada, supra, 63 Cal.2d 740 requires retroactive application of SB 1393 to defendant's case, but argues remand is nevertheless unnecessary. As the Attorney General points out, we are not required to remand the matter to allow the trial court to exercise its discretion if "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement." (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Moreover, the trial court need not have specifically stated at the original sentencing hearing that it would not have stricken the enhancement if it had the discretion to do so. Rather, we may infer what the trial court's intent would have been from its statements and sentencing decisions at the original sentencing hearing. (People v. McVey (2018) 24 Cal.App.5th 405, 419 ["In light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement"]; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez) ["the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence" and therefore "no purpose would be served in remanding for reconsideration"].)
The Attorney General argues remand is unnecessary because "the trial court sentenced [defendant] to a total of 122 years 8 months to life in state prison as follows: for [Count 3], 6 years the upper term doubled; for [Counts 4-8], a consecutive 16 months for each count, one-third the mid-term doubled; for [Counts 1 & 2], a consecutive 50 years to life, the term for each doubled, plus two 5-year enhancements. The trial court's decision to impose an upper term and consecutive terms strongly showed that the court would not have exercised any leniency towards [defendant]." We are not persuaded. As our colleagues at the Second Appellate District recently observed, "what a trial court might do on remand is not 'clearly indicated' by considering only the original sentence." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110-1111 (Almanza).) In Gutierrez, in imposing the maximum possible sentence, the trial court "stated that imposing the maximum sentence was appropriate" in order to " 'keep [the defendant] off the street as long as possible.' " (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) Here, the trial court made no such statements when imposing what amounted to the maximum possible sentence upon defendant.
Finally, while we acknowledge that "any resulting reduction in the sentence will not appreciably reduce the time the defendant must actually serve," that was also the case in Almanza, supra, 24 Cal.App.5th 1104, where the defendant was sentenced to serve an aggregate term of 137 years to life. (McDaniels, supra, 22 Cal.App.5th at p. 427.) We agree with the McDaniels court's conclusion that "the length of any potentially reduced sentence says nothing about the trial court's intent, and even a very long reduced sentence may someday be further reduced through other avenues of postconviction relief or retroactive legislative changes. A remand for resentencing is not an idle act just because a defendant may not derive a present practical benefit should the trial court exercise its discretion in the defendant's favor." (Ibid.)
The matter is remanded to the trial court for the limited purpose of allowing the trial court to exercise its sentencing discretion in determining whether or not to strike the prior serious felony conviction for purposes of imposing the previously mandatory five-year enhancements under Penal Code section 667, subdivision (a)(1). In all other respects, the judgment is affirmed.
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________