People v. Sengphachanh CA4/1 ( 2022 )

Filed 6/7/22 P. v. Sengphachanh CA4/1
Opinion following rehearing
OPINION ON REHEARING
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077702
Plaintiff and Respondent,
v. (Super. Ct. No. SCD278835)
STEVE SENGPHACHANH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Esteban Hernandez, Judge. Affirmed as modified.
Johanna Pirko, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina, Melissa Mandel and Arlene A. Sevidal, Deputy Attorneys General,
for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Steve Sengphachanh of a lewd act on Jane Doe, 1 the
12-year-old daughter of his best friend, and found true the allegation he had
“substantial sexual conduct” with Jane, making him ineligible for probation.
(Pen. Code,2 §§ 288, subd. (a), 1203.066, subd. (a)(8).) The jury deadlocked on
the charge that Sengphachanh committed aggravated sexual assault of Jane.
(§ 269, subd. (a).) The trial court declared a mistrial as to that charge and
later dismissed it on the People’s motion. The court sentenced Sengphachanh
to the upper term of eight years in state prison and imposed various fines and
fees.
On appeal, Sengphachanh asserts several errors deprived him of his
constitutional right to a fair trial and mandate reversal of his conviction.
First, he asserts the trial court erred in failing to sua sponte instruct the jury
on the limited purpose of an expert’s testimony regarding general myths and
misconceptions of child sexual abuse and delayed disclosure, or alternatively,
his trial counsel was ineffective for failing to request such a limiting
instruction. Second, he asserts the court erred by failing to sua sponte
include optional language in the pattern instruction on witness credibility
that the jury may consider a witness’s admission of prior untruthfulness as a
factor in evaluating a witness’s testimony. Third, Sengphachanh asserts his
trial counsel rendered ineffective assistance of counsel when he failed to
object under Evidence Code section 352 to the prosecution’s motion to admit
evidence of a prior incident of sexual misconduct against Jane pursuant to
1 Pursuant to rule 8.90(b)(4) of the California Rules of Court, we use an
anonymous first name and surname to protect the victim’s identity.
2 All further undesignated statutory references are to the Penal Code.
2
Evidence Code section 1108. As to these claims, we conclude there was no
prejudicial error in the trial court’s instructions to the jury and trial counsel
did not render ineffective assistance of counsel.
Sengphachanh further asserts the matter should be remanded for
resentencing for two reasons: He was prejudiced by the trial court’s denial of
his request to be physically present in the courtroom at his sentencing
hearing. The trial court erred by imposing fines and fees without
determining his ability to pay pursuant to People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). He further asks us to vacate any unpaid portion
of the $154 criminal justice administration fee imposed under the recently
repealed Government Code section 29550.1. We shall modify the judgment to
vacate any unpaid portion of that fee as of July 1, 2021.
After we initially filed this opinion on March 29, 2022, wherein we
affirmed the judgment in all other respects, Sengphachanh filed a petition for
rehearing asking this court to consider an inadvertently omitted issue:
Whether he is entitled to be resentenced under Senate Bill No. 567 (Senate
Bill 567) (Stats. 2021, ch. 731, § 1.3), which was enacted while the appeal was
pending and amended section 1170, subdivision (b), effective January 1, 2022,
to limit the situations under which an upper term could be imposed. The
Attorney General conceded we should grant the rehearing petition and
remand the matter to the trial court for resentencing under the new law. We
accepted the Attorney General’s concession as proper, granted the rehearing
petition, and we now remand the matter to the trial court for resentencing.
We affirm the judgment in all other respects.
3
FACTUAL AND PROCEDURAL BACKGROUND
I.
Evidence at Trial
A. Prosecution’s Case
The prosecution called Jane, who was then 14 years old, her parents
Grace and Earl, the lead investigator, the social worker who forensically
interviewed Jane, and the child abuse pediatrician who medically examined
Jane to testify at trial.3 We summarize the trial evidence and relevant facts
below.
1. The Sexual Assault on January 15, 2018
Jane’s mother, Grace, married Earl when Jane was six years old.
Grace and Earl had two more children together. Earl then adopted Jane
when she was 12, in September 2017.
Earl and Sengphachanh were “best friends.” They served in the Navy
together and had known each other for 16 years. Earl and Grace considered
Sengphachanh like a brother. He had served as best man at their wedding.
Jane and her younger siblings also considered Sengphachanh, whom they
called “Uncle Steve,” as family. Jane and her family spent “a lot of time
together” with Sengphachanh and his family, “frequently” spending nights
and weekends at Sengphachanh’s house. The two families also vacationed
and celebrated holidays together, including Thanksgivings and Christmases.
3 The People also called an expert witness to testify about the general
myths and misconceptions regarding child sexual abuse and delayed
disclosure. We summarize the expert’s testimony in our discussion of
Sengphachanh’s claim of instructional error related to the expert’s testimony,
at Discussion, Section I.A., post.
4
Before January 2018,4 Jane was “really close” with Sengphachanh.
They were “affectionate” with one another, often “hugged” and “cuddled”
while watching television together. Jane found him “fun to be around” and
liked spending time with him at his house. On the day Earl adopted Jane,
Sengphachanh was there for Jane because “he was like a family member” to
her.
Sengphachanh lived with his wife, MaryBianca, and their toddler son,
C.S. When Jane slept over at Sengphachanh’s house, her parents would
typically be there. Grace and Earl and Jane’s younger siblings would usually
sleep downstairs, and Jane would sleep by herself in C.S.’s room upstairs.
Jane’s “normal routine” on arriving at Sengphachanh’s house was to give him
a hug and then go upstairs to C.S.’s room to watch Netflix.
On January 14, Jane slept over at Sengphachanh’s house without her
parents for the first time. Grace and Earl had to work early the next day and
asked Sengphachanh to babysit their children. Grace dropped the children
off at Sengphachanh’s house in the evening and planned to pick them up the
next day around 5:00 or 6:00 p.m. MaryBianca was away on military duty
that weekend, but her friend, Dashara, was at the house with her baby. Jane
had met Dashara a few times before.
After eating dinner, Jane went upstairs to C.S.’s room to watch Netflix,
as she “normally” would. She had been in the room by herself for hours when
her younger siblings and C.S. joined her. Jane was on the big bed in the
room, while her siblings and C.S. were together on the floor. At some point,
the three younger children fell asleep on the floor.
4 All further undated references are to 2018.
5
Jane was laying on the bed on her stomach with her chin resting on a
pillow. She was stretched out diagonally with her head at the foot of the bed.
She fell asleep with the television on. She was wearing one of Earl’s t-shirts
and a pair of underwear, and was uncovered.
Jane woke up in the middle of the night with a blanket over her head.
It covered her entire face but not any other part of her body. She realized her
body position had “changed.” She was now on her back and in a “more
horizontal” position. Her underwear was “off” and “on [her] ankle.” And she
“was in pain.” The pain was coming from her “private” area “between [her]
legs.” Sengphachanh was “on top” of her with his penis inside her vagina and
he was “moving back and forth.” Jane knew it was Sengphachanh because
“[h]e was the only male in the house.”
Jane “didn’t do anything” to resist because she was “really shocked,”
“paralyzed,” and “[s]cared.” She did not try to “fight back” or say anything to
Sengphachanh. She had not “moved at all” because she was “too scared.”
When Sengphachanh “finished,” he pulled her underwear back up, left
the room and closed the door. When she believed he was gone, Jane “quietly
got up,” grabbed her phone and texted Grace, “Mom I want to go home first
thing in the morning pl[ea]s[e].”5 It was 1:58 a.m. when Jane sent the text to
her mom. Jane then crawled in between C.S. and her little brother on the
floor, where she “felt safer,” and fell asleep waiting for a response from her
mother. She did not tell her mother in the text message what had happened
because she was “scared to tell.” She explained: “I knew my parents and
5 On January 5 and January 20, 2022, we directed the clerk of the
superior court to transmit to this court certain trial exhibits not included in
the appellate record, including the various text messages introduced at trial.
We have reviewed these additional trial exhibits in deciding this appeal.
6
[Sengphachanh] was really close. I didn’t think they would believe me.
Either they would call me a liar or, . . . they would disgrace me or something.”
The next morning, Jane went downstairs and sat on the couch and
watched television with Dashara and her baby. She did not say anything to
Dashara since she did not know or trust her. Jane went to the bathroom and
noticed blood on her underwear. She changed and put the bloody underwear
in a plastic bag and threw them away when she got home. Jane testified she
was not on her menstrual period at the time.
Sengphachanh came downstairs and asked Jane if she wanted to go get
food and what she wanted to do that day. Jane “said no to every single one of
[his] questions because [she] didn’t want to spend any time with him.”
Sengphachanh told her he was going to get a tattoo and left.
Grace was asleep when Jane texted her at 1:58 a.m. She saw her
daughter’s message at 6:47 a.m. and immediately texted Jane: “What
happened[?] Call me back.” Grace did not receive a response from Jane and
she texted again at 9:44 a.m.: “What are you doing[?] [Jane] is everything
ok[?]” Grace’s immediate thought when she saw Jane’s text was, “oh, my
gosh, what happened?” It was “very unusual” for Jane to text her in “the
middle of the night saying she wants to go home.”
Graced picked up the children from Sengphachanh’s home later that
day. She noticed “nothing unusual” about Jane’s behavior at the time. Jane
got in the car and told Grace, “I just want to go home.” Graced asked her “if
everything was okay” and Jane again replied, “I just want to go home.”
2. Jane’s Disclosure to Her Parents on March 12
Jane did not tell her parents what had happened right away because
she was scared. She thought her parents would “judge” her and they would
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not believe her because “[t]hey had a really close relationship” with
Sengphachanh.
Over the next two months, Jane’s family went to Sengphachanh’s house
“a couple times to have dinner.” Both Grace and Earl noticed that Jane was
not “acting like herself.” She no longer wanted to give Sengphachanh hugs.
She did not run upstairs to watch Netflix. Instead, she “was sticking to
[Grace] like glue” and was “clingy.”
Jane’s family went to Sengphachanh’s house again in March. Jane told
Grace and Earl she did not want to go but her parents made her go. At
Sengphachanh’s house, Jane again “stayed really close” to her mother
because she “felt protected” by her. Before the sexual assault, Jane “didn’t
care” if she was with her parents and would normally go upstairs by herself.
Grace asked Jane why she “wasn’t hugging Steve anymore” and Jane told
her, “because I don’t want to.” Jane was attached to Grace “like glue,” and
instead of going upstairs, Jane “follow[ed]” Grace everywhere. Grace
questioned Jane several times about her “unusual” behavior but Jane would
tell her, “I’m fine.” So Grace “didn’t question her” further.
While eating dinner on March 12, Jane asked Grace what the family
was going to do for Easter. When Grace told her they were going to
Sengphachanh’s house, Jane said, “Mom, I don’t want to go.” Graced asked
Jane several times, “What is wrong with you, [Jane]? . . . [Y]ou need to tell
me now.” Grace explained she had “such a strong reaction” to Jane’s refusal
to go to Sengphachanh’s house for Easter because Jane’s voice “sounded so
strenuous. It was like she couldn’t even swallow her own spit while telling
[Grace what happened].” Grace told Jane, “Enough is enough. You need to
tell me what is wrong with you right now.”
8
Jane started crying. Grace had “never” seen Jane “cr[y] like that” or
“react that way to anything.” Grace “reflected back” to the text message Jane
had sent her when she slept over at Sengphachanh’s house in January and
how Jane was “not her normal self at all” the few times they were at
Sengphachanh’s house after. Grace then confronted Jane: “What happened
at Uncle Steve’s? What is wrong with you? You have been not yourself.
What is going on?” As Jane described it, she had a “mental breakdown” and
“couldn’t hold it in anymore.” Jane was “shaking” and crying, and then told
Grace, “He raped me.”
Grace did not believe Jane at first and repeatedly asked her, “Are you
sure?” Grace wondered whether she had not spent enough time with Jane
and “didn’t know if [Jane] was saying it to get attention.” And “at the same
time,” Grace thought: “I had known [Sengphachanh] for a very long time. He
was the best man of our wedding, . . . I looked at him as a brother figure.”
Jane could see that her mother was “in disbelief” because she was asking
Jane “a lot of questions,” including “ ‘are you serious?’ and ‘[a]re you lying?’ ”
Jane “got mad and she [told Grace], ‘See, I was afraid to tell you.’ ” Despite
Grace’s repeated questioning, Grace testified that Jane never wavered.
Grace called for Earl to come downstairs. Jane told her father what
had happened and now both parents “were questioning her.” Earl asked
Jane, “[A]re you sure? Are you sure about this?” Jane again told them: “I
woke up with his thingy inside of me. I couldn’t scream because [the
children] were on the floor asleep. I had a blanket over my head.” Like
Grace, Earl had “difficulty” believing Jane because Sengphachanh was his
“best friend” and he “wouldn’t think Uncle Steve would do [something like]
that.” But to Earl, Jane “was stern it happened.” Earl had never seen his
daughter upset like this.
9
3. Forensic Interview and Medical Examination of Jane
on March 16
Grace called the police that same night on March 12. After officers
made the initial response to Jane’s home, Detective Johnson was assigned
the lead investigator. He arranged for Jane to be forensically interviewed
and medically examined at the Chadwick Center of Rady’s Children’s
Hospital on March 16.
Jane’s 40-minute forensic interview at the Chadwick Center was
videotaped. The social worker who conducted the interview testified to
authenticate the videotape of the interview, which was then played for the
jury. Defense counsel declined to cross-examine the social worker.
Jane’s statement to the social worker on March 16 was largely
consistent with her March 12 disclosure to Grace and Earl and her testimony
at trial. She told the social worker she was “raped” by her “dad’s best friend,”
whom she calls Uncle Steve. It was during her first overnight stay at her
uncle’s house without her parents. Her younger siblings and Sengphachanh’s
son had fallen asleep on the floor. She was on the bed wearing one of her
father’s shirts and a pair of panties, and fell asleep watching Netflix without
any covers on. She woke up with her “face . . . covered with a blanket” and
pain in her “private part.” She “felt like . . . his thingy” was “[i]nside [her],
moving.” She could not say anything and “couldn’t move” because she was
scared. She waited until he left the room and quickly grabbed her phone to
text her mom to pick her up.
Following the forensic interview, a board-certified child abuse
pediatrician performed a medical examination of Jane. The pediatrician
testified Jane’s examination was “normal” but explained “the genital exam of
a female patient who is examined non-acutely [i.e., more than 72 hours after
the abuse] will be normal 90 to 95 percent of the time.”
10
4. Pretext Text Messages Between Jane and Sengphachanh
Detective Johnson met with Jane on March 22 to prepare her to engage
Sengphachanh in a “pretext texting conversation.” Jane texted with
Sengphachanh on March 23 and March 24.
On March 23, Jane wrote to Sengphachanh: “I need to talk to you.
Uncle Steve, Uncle Steve, I really need to talk to you.” 6 Sengphachanh
responded and they agreed to talk when Jane came home from church. The
text conversation continued the next morning on March 24 and included the
following exchanges:
Jane: “I am scared, and I haven’t told my parents. I’m not
sleeping or eating, and I wake up at night scared.
Also, my private part is hurting me.”
Sengphachanh: “Scared of what? YIY [why is your] private part
hurting you?”
Jane: “We need to talk and [¶] . . .[¶] you can’t tell my mom
or dad.”
Sengphachanh: “Talk about what?”
Jane: “Promise me that you won’t tell them.”
Sengphachanh: “Promise . . . Hello?”
Jane: “We are going to learn about sex in school.”
Sengphachanh: “Okay? And? We all learned sex in school.”
Jane: “And that night when you stuck your thingy in me,
and after that night, my private started hurting. Is
that supposed to happen?”
Sengphachanh: “When did I stick my thing in you? I have never done
that to you.”
6 Where we summarize text messages, we rely on the reporter’s
transcript of the witness reading the text conversation to the jury. We have
also reviewed the relevant text messages and, as defense counsel noted in his
cross-examination of Jane, Jane and Sengphachanh often did not use
punctuations in their text messages to each other.
11
Jane: “Yes, you have that night when I called my mom to
pick me up, to come pick me up.”
Sengphachanh: “No, I did not call. I was sleeping the whole night.”
Jane: “No, you weren’t. I woke up with your thingy inside
me. You really hurt me.”
Sengphachanh: “Are you talking about the last time you spent the
night? You fell asleep on my . . . [b]ed. And then you
went to sleep with your brother and sister. [Jane],
this is very serious. I would never do that to you.”
Jane: “I didn’t fall asleep on your bed. And you did do that
because I was in pain.”
Sengphachanh: “I have never touched you or stuck my thing in you.
See, this is why your parents say and I say that you
[¶] . . .[¶] can’t come sleep with me.”7
Jane: “Yes, you have, and you put a blanket over my face.”
Sengphachanh: “[Jane], do you know that if you tell this lie and
assumed I did this to you, I can get in very -- in
trouble for this because you said that I did something
to you. I told you that I would never do anything to
you. I love you as you are my own daughter. All I
remembered that night was you came into my bed.
[¶] . . .[¶] Watched some TV, and fell asleep. After
you left, I went and check up on you guys to see if
everything was okay. This is pretty serious that you
are accusing me of having sex with you. You need to
delete these messages because if somebody else sees
this, we will both be in trouble.”
Jane: “No. That night, mommy brought me, [my siblings
and the dog] over and we went upstairs and
[¶] . . . [¶] [w]ent in [C.S.’s] room, and we watched
Netflix. Then we fell asleep. [The children] were
sleeping on the floor and me on the bed. Then I woke
up with your thingy inside in my private and a
7 Jane did not recall going into Sengphachanh’s room that night but, in
the past, she would sometimes sleep with him in his bed after watching
television in his room.
12
blanket over my head. And that is why I asked my
mom to come pick me up.”
Sengphachanh: “[Jane], you are freaking me out right now.”
Jane: “You did this on January 15th this year. It was on
the night where mom had to work, and my dad was
working at the airport. And Ms. Dashara and [her
baby] was there in the living room sleeping.”
Sengphachanh: “Stop it. I have never touched you. I need to tell
your dad. This is something serious.”
Jane: “No. You promised me you wouldn’t tell him.”
Sengphachanh: “How do you know I did this to you? I don’t
remember this. I can get in a lot of trouble for this.
Do you know this?”
Jane: “Well, I have been holding this in for this whole time,
Uncle Steve. How do you think I feel? You are
someone close to me, and you did this me.”
Sengphachanh: “I did not do this to you. This is very illegal and
wrong.”
Jane: “Don’t tell my parents.”
Sengphachanh: “Please don’t mention this again, please. I just told
your dad that your private parts hurts and you need
to go get checked. That’s it.”
Jane: “Okay. What you want me to do because he is going
to ask why. Because he asks 50 million questions.”
Sengphachanh: “Well, we don’t know why your private part hurts.”
Jane: “I will let you know what he said.”
Sengphachanh: “Okay. I don’t understand that. I know you for many
years, and all of a sudden this comes up. [¶] . . . [¶]
You spent the night with me before and nothing has
happened.”
Jane: “Uncle Steve, you did this. . . . You did this to me. It
was hard for me to come out and tell you this because
I couldn’t believe it that night. And you’re my dad’s
best friend. And for me to wake up with you on top of
me, I was in shock.” (Capitalization added as stated
in transcript.)
Sengphachanh: “You were in shock, but you didn’t move.” (Italics
added.)
13
Jane never told Sengphachanh “about not moving [during the sexual
assault] before.” Their texting on March 24 was the first conversation they
had about what happened in January. And neither Grace nor Earl had
spoken with Sengphachanh about the sexual assault before Jane’s
conversation with Sengphachanh. Under cross-examination, Jane confirmed
she did not move during the sexual assault and testified: “I was in shock, but
I never told [Sengphachanh] that I didn’t move. So how would he know that I
didn’t move?”
5. Pretext Text Messages and Call Between Earl and Sengphachanh
Detective Johnson also had Earl engage Sengphachanh in pretext text
messages and phone calls. On March 23, Sengphachanh texted Earl to tell
Earl that Jane needed to talk to Sengphachanh “about something” but he did
not know what. The next day on March 24, Sengphachanh texted Earl: “Her
private parts hurts and she is scared. Schedule an appointment to get her
stuff checked. Don’t ask her questions knowing you want all infos.” Earl
wrote back: “I see. Okay. I guess on Monday I’ll have her. I’ll have to call
her doctor. Thanks, bro.”
On March 28, Sengphachanh texted Earl and asked, “Well, what
happened?” Earl told him “[t]hey took bloodwork” and “[t]hey’re going to get
back to me . . . next week.” Sengphachanh asked if the doctor knew why Jane
was in pain and Earl said they did not but “[t]hey are going to schedule some
more tests.” Sengphachanh responded: “She said she hid some bloody
panties somewhere. She felt embarrass [sic]. [¶] . . . [¶] Don’t ask her stuff,
bro. She finally coming out and talking about her feelings. [¶] . . . [¶] She
says she hasn’t had her period in two months now. That’s not good.” (Italics
added.) Earl had not discussed “bloody panties” or Jane being
“embarrass[ed]” with Sengphachanh.
14
On April 1, Earl texted Sengphachanh. The two engaged in their usual
banter about random topics when Sengphachanh suddenly asked Earl:
“Didn’t you say that you can trace [Jane’s] messages?” Earl responded: “No.
I can’t trace [Jane’s] message. Why you say that? [¶] . . . [¶] Bro, is there
something I need to know?” After a long pause, Sengphachanh responded: “I
was trying not to tell you, but it’s hearts breaking for me and it’s serious.
Don’t mention it to [Jane], but she is accusing me of molesting her. I don’t
know how and where she gets this from. I’m stressing the fuck out over this.
[¶] She said that the last time she spent the night over here, I stuck my
thing in her. Why would I do such a thing? She is like a daughter to me.
[¶] . . .[¶] So I don’t know how to even pursue this. She said I did. I know
damn well I didn’t. This ain’t no April fools either. This is real shit, bro.
Like, if it is true, you can put a bullet in my head your damn self.” When
Earl responded with “I see,” Sengphachanh wrote back, “Damn, bro. That’s
all you have to say?” Earl replied: “I am in shock. My daughter doesn’t lie.
She hasn’t said any[thing] to me or her mother. I haven’t anything to say.”
The conversation continued with Sengphachanh telling Earl that Jane
asked him “to keep it a secret and not tell [Earl]” but he had to because Earl
was his “boy.” Earl responded, “I need to find out myself what’s going on.”
Sengphachanh suggested that Jane “had sex with somebody” and was
“accusing” him. Earl told Sengphachanh he knows Jane “is not having any
sex” and asked Sengphachanh, “what happened that night?” Sengphachanh
explained that Jane was in his room watching television, he fell asleep, then
Jane went into C.S.’s room with the kids, he “woke up to check on them” and
then went back to sleep. He said, “That’s all I can remember. But her side of
the story said I was on top of her and stuck my thing in her.” Earl told
15
Sengphachanh “this is disturbing to read” and he wanted to “meet up” later
to talk.
The next day on April 2, Sengphachanh texted Earl, “Get a pregnancy
test at the dollar store.” Earl told Sengphachanh that he would call him the
next day. Sengphachanh responded, “Take her to the doctor, and they will
examine her if she got penetrated or not.”
On April 3, at the police station with Detective Johnson, Earl placed a
pretext telephone call to Sengphachanh. The 24-minute call was recorded.
Earl used a ruse and told Sengphachanh the doctor informed him that Jane
was pregnant. Sengphachanh responded: “Really?” “What the fuck?” “How
the fuck that happens?” Earl said, “Shit, you tell me, bro.” Sengphachanh
repeated: “She tested positive to be pregnant, ‘cause that’s blood work, right?
[¶] . . .[¶] So she is pregnant.”
Sengphachanh then asked, “Well, now what?” Earl implored with
Sengphachanh that they had been friends “for a long time” and asked him if
he had any recollection of what happened. Sengphachanh replied, “the only
thing I can think about is, the only way I could do that is if I’m sleepwalking .”
He told Earl there were two occasions a long time ago, before he met his wife,
where he had been sleepwalking. Once he woke up “outside” and found
himself “just look[ing] around.” The other time, he was looking through his
blinds with his rifle in his hand. Earl asked Sengphachanh if he thought
“this could happen” while Sengphachanh was sleepwalking. Sengphachanh
replied, “Yeah, sleepwalking. Is that, how, how the hell do I get my dick
caught while I’m sleepwalking?” Earl responded he did not know and
Sengphachanh responded, “I don’t know either. [¶]. . . [¶] But that’s a
fucking shocker that [Jane] is pregnant, though.”
16
Sengphachanh told Earl, “as a father, you have to abort it.” Earl
replied he “can stop this right here” but he wanted to know what
Sengphachanh remembered. Sengphachanh said, “the only thing I can think
of, . . . if I was sleepwalking and did it.” Sengphachanh told Earl the last
time he sleep-walked was “about six months ago” or “sometime last year.”
Sengphachanh told Earl he talked to Dashara to see if she remembered
what happened that night. Dashara told Sengphachanh they were not
drinking, she was sleeping upstairs and didn’t hear anything, and when she
saw Jane the next morning, Jane “looked like she was fine.” Earl responded,
“Maybe . . . she’s in shock.” Sengphachanh replied, “That’s what she said,
‘cause she said that she was in shock. She didn’t move.” (Italics added.)
Earl suggested he would ask the doctor to do a DNA test and asked
Sengphachanh if he thought the baby would be his. Sengphachanh
answered, “I can’t tell you, man, ‘cause if you, if you say that, if, if I was
sleepwalking and did it, then who knows? ‘Cause I, I really don’t know what
to believe anymore.” Earl asked Sengphachanh if he would provide his DNA
for testing and “talk with the cops.” Sengphachanh agreed to give a DNA
sample but told Earl he did not want to talk to the police “ ‘cause that’s gonna
be more investigation[.]” Sengphachanh told Earl, “the outcome [of any
investigation] is gonna be very bad” because the police will “try to find who is
the father of this fetus.” Sengphachanh again urged Earl to “abort it” and
said, “hopefully, we forgive and forget.”
Sengphachanh continued to tell Earl he did not want the police to be
involved, and asked: “Can you let me retire first? I got three, three years
and four months left. So I can have some fucking type of money to help out
my wife and kid.” Earl responded he could not wait that long and have Jane
“suffering.” When Earl told Sengphachanh an investigation would exonerate
17
him, Sengphachanh responded, “Yeah. But what, what if it is me?” Earl
asked Sengphachanh why he would say that and Sengphachanh responded,
“sleepwalking.” Sengphachanh said, “I did, if I did sleepwalk, and I did it,
then it’s possible [the fetus] is mine.” He continued, “Blood work shows that
she’s pregnant, so I obviously, somebody did it.” When Earl suggested the
investigation “will clear [his] name,” Sengphachanh responded: “That’s the
thing, man, I don’t even want to know the outcome. I just want to fucking
forgive and forget, bro.”
The next day, on April 3, Sengphachanh texted Earl: “I really don’t
want to talk to the cops, bro.” He then told Earl to do the DNA test so they
could avoid getting law enforcement involved. Earl responded, “[O]kay. So
what if the DNA comes back and it is yours?” Sengphachanh replied, “If it is
mine, then why we need an investigation? There is your proof.”
B. Defense Case
Sengphachanh denied sexually assaulting Jane. Defense counsel
sought to undermine Jane’s credibility in cross-examination, suggesting she
had various motives to lie about the assault, and impeached her with prior
inconsistent statements. Sengphachanh testified in his own defense, and
called his wife and several witnesses who testified they did not observe
anything unusual about Jane or Sengphachanh during the relevant weekend
and to his good character.
1. Cross-Examination of Jane
Jane denied she had any reason to be upset with Sengphachanh on
January 14. She initially testified she “might have been grounded” two
weeks before January 14. Defense counsel showed her a January 12 text
message she sent to her mother stating, “I’m grounded.” She confirmed the
text message and explained she was grounded at that time because her
18
grades were “really low.” As a consequence, her mother “turned off [the]
apps” on her mobile phone, which included games, social media, and her
camera roll. However, Jane still had her “apps” during the weekend at
Sengphachanh’s house and explained she had other devices and other things
to do “even if [her] mom grounded [her] from [her] phone.” Still, Jane
acknowledged she was bored at Sengphachanh’s house that weekend.
Defense counsel asked Jane if she told her mom that Sengphachanh had
raped her because she was bored at his house, and “[s]aying . . . he raped me
. . . was effective” to avoid returning to his house. Jane answered, “I didn’t
want to go back [¶] . . . [¶] [b]ecause he raped me.”
Jane looked up a video on YouTube on “how to tell my parents that I
got raped.” She explained she did that in order to talk to other members of
her family about the sexual assault, including her grandparents and aunts.
The video helped her understand “[t]o stay calm and to tell the truth.” She
did not recall when she looked for the video, but data retrieved from her
phone showed a Google search on March 16 for, “How to Tell Parents . . .
About Being Raped.” She denied searching for the video in order to prepare
for the “official interview” she was to have with the social worker at
Chadwick that same day.
Defense counsel asked Jane whether it was true Earl adopted her after
her “allegation of being raped.” Jane testified, Earl “[a]dopted me before” the
assault occurred. He then asked Jane whether she ever “felt kind of left out”
and told her mom she “felt like [she wasn’t] as loved as much as their [other]
two kids were.” Jane agreed she had told her mom that.
Defense counsel questioned Jane on her late disclosure of the assault.
On redirect, Jane explained the kind of lie she had previously told her
parents included telling them she would “stay in the neighborhood” when she
19
did not. She had never lied about “Uncle Steve” and would never lie “about
something like this happening to [her.]”
During her direct examination, Jane testified her friends had talked
about “photos of sex or videos of sex” before January. She “was really curious
about what [her friends] were talking about because [she had] never actually
heard of it.” Data retrieved from her mobile phone showed she had accessed
seven pornography videos on the internet on December 15, 2017, and had
opened each video for “no more than 30 seconds.” Jane denied “watch[ing]”
the videos and stated she “just scrolled through” them. At her forensic
interview on March 16, the social worker had asked Jane, “Have you ever
been shown any pictures or movies of people with no clothes on?” Jane shook
her head “No” in response. In cross-examination, defense counsel asked Jane
whether she was being honest with the social worker or whether she had
forgotten about the videos since “people [were] naked in those videos.” Jane
testified she had forgotten.
In direct examination, Jane denied that she confused what she saw in
the pornography videos with what happened to her in January. Jane
believed the blood on her underwear was an indication to her that “it really
happened” and “wasn’t a bad dream.” She testified she was not on her
menstrual period at the time of the assault, despite texting her mother on
January 12, “Mom, I started my period.” Defense counsel questioned Jane on
her previous statements regarding the length and timing of her menstrual
cycles. He then asked Jane whether the “reason [she] actually laid on the
floor” was so she “wouldn’t stain the bed with blood from a period.” She said,
“No.”
Defense counsel had Jane confirm her statement to the social worker
that, other than the January incident, Sengphachanh never touched her
20
anywhere other than “put his arm around [her] in a friendly hug.” Jane also
confirmed she denied at the preliminary hearing that “anyone” had touched
her inappropriately. After confirming these prior statements, defense
counsel impeached Jane with a statement she made to the prosecutor “right
before trial” that she remembered Sengphachanh touched her breast when
they were under a cover together watching television. The prosecution had
not introduced this incident in its direct examination of Jane. Jane
confirmed the statement, and testified Sengphachanh would touch her right
breast over her clothes with one hand while they were both underneath a
cover. And it happened “more than once.” She explained “[t]he more I
thought about it, it came to me.” On redirect, she explained she did not feel
the touch was wrong or a “bad touch” in that moment. She only cuddled with
one person, Sengphachanh, and thought “maybe that is how you cuddle.”
2. Amber M.
Amber had known Sengphachanh for about four years, they were both
in the Navy, and she had gotten to know him well. Amber was
Sengphachanh’s roommate “[o]n and off” for approximately two years since
2016, and lived in his house in January 2018 but was deployed at the time.
Amber knew Sengphachanh to have a reputation of being “very honest, very
truthful, [a] great guy.”
3. MaryBianca
MaryBianca had been married to Sengphachanh for three years and
they had, in addition to 5-year old C.S., a 17-day-old newborn at the time of
trial. MaryBianca was not home the weekend of January 14. She had been
away and returned January 22. When she returned, MaryBianca was
cleaning the upstairs bathroom when she found “a bunch of . . . bloody pads”
in the trash bin. Sengphachanh told her they belonged to Jane because she
21
was on her period. MaryBianca described Jane as “the black sheep of the
family” who kept “to herself a lot.” She suggested there was not much of a
relationship between Jane and her parents. Jane and Sengphachanh,
however, had “more of a father-daughter relationship.”
4. Dashara F.
Dashara knew Sengphachanh as “Uncle Steve,” which she said is what
everyone called Sengphachanh. On January 14, Dashara was at
Sengphachanh’s house for the weekend, with her friend Bria A. and
Dashara’s two children, who were then about two years old and six months
old. Jane and her siblings arrived at the house sometime in the evening.
Throughout the evening, Jane was “fine, her normal, typical self” and
Dashara saw “nothing out of the ordinary” with her demeanor. During this
time, Dashara did not see any interaction or communication between
Sengphachanh and Jane.
Everyone went to bed “a little bit after midnight,” including the
children. Dashara slept in one of the upstairs bedrooms with her baby, while
her two year old slept downstairs with Bria. She had her bedroom door
“cracked” open and was up “every two hours” to nurse her baby. She heard
nothing unusual that night, “[i]t was quiet.” Dashara went to the bathroom
next door about four times that night and did not see anyone walking around.
The room Dashara stayed in does not share a wall with C.S.’s room and at no
point did she enter C.S.’s room after the children went to bed.
Dashara woke up the next morning around 6:00 a.m. and went
downstairs to make the children breakfast. At some point, Jane came
downstairs and started to play with Dashara’s baby. Jane was “happy,”
“cheerful,” and “her typical, normal self.” Dashara did not see any signs that
Jane was in “discomfort or pain as she moved around,” and she did not
22
express any discomfort, nor did she say “something bad happened to her that
night.” Sengphachanh came downstairs, said good morning to everyone, and
then left to get his tattoo. Dashara did not see any change in Jane’s
demeanor.
According to Dashara, Earl came to pick up Jane and her siblings
sometime after Sengphachanh left. She was “positive” and had “no doubt” it
was Earl, and not Grace, who picked up the children.8 She had a “good
recollection” of that weekend.
Defense counsel then asked Dashara, “Were you on your period [that
weekend]?” Dashara testified she was, and that she was able to recall this
fact because it was her “normal date” and “[i]t hasn’t changed in four years.”
She testified she left used feminine pads in the upstairs bathroom trashcan.
Contrary to Sengphachanh’s testimony, Dashara testified she did not have a
conversation with him in March 2018 about what happened that weekend.
The first time she spoke about the weekend events was with a defense
investigator in January 2019.
5. Bria A.
Bria knew Sengphachanh through Dashara and was at
Sengphachanh’s house the weekend of January 14. On January 14, Jane
arrived around 7:00 or 8:00 p.m. and “wasn’t in the greatest of . . . moods.”
Grace “told [Jane] she was put on punishment because of something that
happened with her grandparents” and Jane was being “standoffish” and
acting like a “preteen.” Grace had taken the apps off her phone so “[s]he
wasn’t really allowed to do much while there.” Jane was bored. This was not
her typical behavior, “[s]he is usually a little bit more upbeat.” Bria was not
8 Grace and Jane testified Grace picked up the children on January 15.
23
“close” to Jane and had only seen her a few times before. Bria went to sleep
between 1:00 and 2:00 a.m. on the couch downstairs. Jane and her siblings
went upstairs to bed between 1:00 and 2:00 a.m. When she saw Jane the
next morning, Jane’s demeanor had not “really change[d] from the night
before” and she “was still pretty much in the same mood.” She did not notice
Jane “distressed,” “scared,” or “nervous,” even when Sengphachanh came
downstairs.
6. Sengphachanh
Sengphachanh denied he sexually assaulted Jane and denied he could
have raped her while he was sleepwalking. He explained he “discuss[ed] the
idea” of sleepwalking with Earl because he was trying to give Earl “a[n]
opinion” or an “option” or a “conclusion” of how it could happen. He explained
he felt “compelled to try and reach some conclusion or option” because that is
how he is. No matter the situation, he would “try to find a result of
everything.” Sengphachanh testified he “doubt[s]” or “second-guess[es]”
himself a lot and when confronted with the accusation by Jane and Earl, he
asked himself, “Did I really do it?”
Sengphachanh explained he “used to sleepwalk a lot” in the past,
especially when he was taking Ambien in 2017. When he stopped taking
Ambien, the sleepwalking “stopped” or became “minimal.” He still
sleepwalks but he would always catch himself and not leave his bedroom.
Because he would wake up “every time” he sleepwalked, Sengphachanh
testified it was not possible he sexually assaulted Jane while sleepwalking.
He also knew “deep down” he “would never do that to a human being.”
Sengphachanh entered his son’s bedroom “[e]arly after midnight”
around 1:00 or 2:00 a.m. on January 15 to “check up on” the children. He saw
Jane on the bed without a blanket over her, so he grabbed one and “just
24
threw it over her. That was it. [He] went back to bed.” He explained he
threw the blanket “in the air” and it landed on “[h]er whole body,” including
covering her face.
Sengphachanh came downstairs around 9:00 or 9:30 a.m. and saw
Jane. He told everyone good morning and that he was leaving for his tattoo
appointment. Jane was the “[s]ame as always.” She “didn’t avoid [him] or
anything like that.”
Sengphachanh explained that his text to Jane⎯“You were in shock, but
you didn’t move.”⎯“was just a general question when she said she was
shocked.” It was “just a question,” like, “ ‘If you were shocked, why didn’t you
move?’ ” He explained further that he was trained in the military that “if
you’re provoked or anything that way, you would defend yourself, scream,
have somebody hear for help.” And he was “just questioning her shock with
[his] shock.”
About his statement to Earl to “forgive and forget,” Sengphachanh
explained he meant forgive “that [Jane] accused [him] of this” and “let’s just
forget about this and resume our friendship.” He was not “asking Earl to
forgive and forget that [he] raped [Jane].”
Sengphachanh confirmed Jane was “like a daughter” to him and every
time he would see Jane, she was “always smiling” with him. He described
her “routine” upon arriving at his house was to “always [go] upstairs” to
watch movies in his son’s room. He acknowledged there were no “issues in
[his] relationship with [Jane]” the weekend of January 14. He confirmed he
cannot imagine a reason why Jane would make up the assault.
25
II.
Verdict and Sentencing
After deliberating a little over two days, the jury found Sengphachanh
guilty of committing a lewd act on Jane (§ 288, subd. (a); count 2) and found
true the allegation he had “substantial sexual conduct” with Jane
(§ 1203.066, subd. (a)(8)), making him ineligible for probation.
The jury failed to reach a verdict on count 1 that Sengphachanh
committed aggravated sexual assault of Jane (§ 269, subd. (a)). A mistrial
was declared on count 1⎯the jury was polled at three votes for guilty and
nine votes for not guilty⎯ and it was later dismissed on the People’s motion.
The trial court sentenced Sengphachanh to the upper term of eight years in
state prison on count 2 and imposed various fines and fees.
DISCUSSION
I.
CALCRIM No. 1193
The jury heard expert testimony from Anthony Urquiza regarding
“common myths or misconceptions” about when and how sexual abuse is
disclosed by children. On appeal, Sengphachanh does not challenge the
admission of Urquiza’s testimony. Rather, he contends the trial court had a
sua sponte duty to instruct the jury with CALCRIM No. 1193 9 on the limited
9 CALCRIM No. 1193 provides: “You have heard testimony from
________ regarding child sexual abuse accommodation
syndrome. [¶] ________’s testimony about child
sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against (him/her) [or any conduct or
crime[s] with which (he/she) was not charged]. [¶] You may consider this
evidence only in deciding whether or not ________’s conduct was not inconsistent with the conduct of someone
26
purpose of Urquiza’s testimony, or alternatively, his trial counsel was
ineffective for failing to request the limiting instruction, and the failure to
give such an instruction was prejudicial error. We conclude the absence of
CALCRIM No. 1193 was not prejudicial, and because Sengphachanh cannot
establish he was prejudiced by counsel’s failure to request the limiting
instruction, his claim of ineffective assistance of counsel also fails.
A. Urquiza’s Testimony
Urquiza has been a licensed psychologist for about three decades. He is
also a professor in the Department of Pediatrics at the University of
California, Davis Medical Center in Sacramento and the director of a child
abuse treatment program within the university’s Department of Pediatrics.
He holds an undergraduate degree in child development, a master’s degree in
clinical psychology, and a doctorate degree in clinical psychology.
He explained to the jury there are common myths or misconceptions
about when and how sexual abuse is disclosed by children.10 The “most
common misperception[ ]” is that children disclose “right away.” Instead,
there is usually a “significant delay” between the abuse and disclosure,
“[t]hat can be easily weeks or months, sometimes even years down the road.”
Fear is the primary reason for the delayed disclosure. The child may be
afraid she will not be believed, someone will think she did something wrong
who has been molested, and in evaluating the believability of (his/her)
testimony.” (Boldface omitted.)
10 Urquiza’s testimony was not explicitly about child sexual abuse
accommodation syndrome (CSAAS), but his opinions were consistent with
CSAAS research. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389 &
fn. 3 (Bowker) [first articulated in 1983, CSAAS has five stages⎯secrecy,
helplessness, entrapment and accommodation, delayed disclosure, and
retraction].)
27
or something is wrong with her, she may have been threatened or believe
somebody could get hurt. Shame also makes it difficult for children to
disclose the abuse.
Most kids are sexually abused by someone with whom they have an
existing and ongoing relationship, and whom they may even love. The
perpetrator may live in the same household or is close to the child’s family.
In such an existing relationship of familiarity and trust, the child may not
want “a bad thing to happen” to the perpetrator. That causes the child to feel
anxiety or ambivalence about what to do when they are sexually abused,
particularly where the child does not have a sophisticated understanding
about sexual activity.
There are a number of factors that might lead children to disclose
sexual abuse, such as a change in the relationship between the child and
perpetrator or the child matures and develops a better understanding of the
abuse. Children may disclose to their parents if they have confidence they
will be protected, but they may fear that disclosure will “break up” the family
or the parent will take “strong action” against the perpetrator.
Sexually abused children “[o]ften” will not disclose everything that
happened all at once. Instead, they will “test[ ] the waters” by disclosing
some information and “assess the response.” If they feel supported, believed,
and trusted, they begin to disclose more information. A negative response,
one that conveys to the child she should not continue to talk about the abuse
or doubt about the child’s disclosure, “usually shuts down any effort to
continue to disclose.” Disclosure is not a “singular event” but a process.
Children who are sexually abused do not have a “drive to want to talk
about everything that happened.” They do not want to recall all of the
details. So while victims can accurately describe the acts they experienced,
28
they may have difficulty recalling and describing peripheral details which are
not the focus of their attention. Consequently, such peripheral details are not
“easily or clearly encoded” in their memory in the first instance. Disclosure of
sexual abuse is not usually “a rote verbatim description.” A victim may be
initially reluctant to talk about everything, even though she remembered the
event, or she may remember more with the passage of time, or the victim
may disclose more as she feels she is in a safer and more trusted place.
Another misconception is that there is an obvious “tell” of sexual abuse
that should be discernible to other people. Urquiza explained there is not.
Children “accommodate” or cope with the experience of distress and trauma
by “disassociat[ing],” “compartmentalizing,” or “suppressing” their feelings.
As a result, others may not recognize that the victim is distraught or upset,
even when she is around the perpetrator.
Last, Urquiza explained to the jury: “You have not heard from me any
opinion about whether a particular child has been abused or not or a
particular person is guilty or innocent of a crime for two reasons: I don’t
know anything about this case. The other one is that is not a place for
somebody who is an expert witness. That is the responsibility of a jury.” He
told the jury he had not read any reports about the case, he did not interview
the victim or meet with any individual associated with the case, including the
defendant. In cross-examination, he reiterated that he was presenting only
“general information” to the jury based on his experience and research, and
that he did not know anything “whatsoever” about the case.
B. The Absence of CALCRIM No. 1193 Was Harmless Error
Expert testimony to explain the behavior of child abuse victims, often
known as CSAAS evidence, has long been held admissible in California for
limited purposes: “[E]xpert testimony on the common reactions of child
29
molestation victims is not admissible to prove that the complaining witness
has in fact been sexually abused; it is admissible to rehabilitate such
witness’s credibility when the defendant suggests that the child’s conduct
after the incident—e.g., a delay in reporting—is inconsistent with his or her
testimony claiming molestation.” (People v. McAlpin (1991) 53 Cal.3d 1289,
1300 (McAlpin); see Bowker, supra, 203 Cal.App.3d at pp. 389, 392-394.)
“ ‘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.’ ”
(McAlpin, at p. 1301.)
CALCRIM No. 1193 is the standard limiting instruction that sets forth
the permissible uses and limitations of CSAAS evidence. (See fn. 9 ante.)
Defense counsel did not request the instruction and the trial court did not
give it. The court reviewed proposed jury instructions with counsel during a
preliminary conference and a final conference after the close of evidence.
Both times, the court went through the proposed instructions by “number and
title” and told counsel to “speak up” if there was any objection. Both times,
defense counsel did not object to the proposed instructions or request
additional instructions.
The parties acknowledge there is a split of authority as to whether the
trial court has a sua sponte duty to instruct with CALCRIM No. 1193 or a
similar limiting instruction when CSAAS evidence is admitted. (Compare
People v. Housley (1992) 6 Cal.App.4th 947, 959 (Housley) [holding that trial
courts have a sua sponte duty to provide a limiting instruction “in all cases in
which an expert is called to testify regarding CSAAS”] with People v. Mateo
(2016) 243 Cal.App.4th 1063, 1074 (Mateo) [disagreeing with Housley and
holding a limiting instruction “need only be given if requested”]; see also
30
People v. Stark (1989) 213 Cal.App.3d 107, 116 [“if requested the jury must be
admonished ‘that the expert’s testimony is not intended and should not be
used to determine whether the victim’s molestation claim is true” (italics
added)]; People v. Sanchez (1989) 208 Cal.App.3d 721, 735 [same]; People v.
Bothuel (1988) 205 Cal.App.3d 581, 587−588 [same].)
Not surprisingly, Sengphachanh urges us to adopt the holding of
Housely and the Attorney General urges us to reject it and follow Mateo. We
need not decide whether Housley is correctly decided. Based on the record
before us, we conclude that even if the court had a sua sponte duty to give
CALCRIM No. 1193, the absence of an instruction was harmless error under
the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(Mateo, supra, 243 Cal.App.4th at p. 1074; Housley, supra, 6 Cal.App.4th at
p. 959.)
In Housley, the expert twice told the jury she had not met the victim
and had no knowledge of the case, her testimony was presented in general
terms, and she described behavior common to abused victims as a class, not
to any individual victim. (Housely, supra, 6 Cal.App.4th at p. 959.) Under
those circumstances, the court concluded “it is unlikely” the jury would have
misunderstood or misapplied the expert testimony as proof the victim was in
fact sexually abused. (Ibid.) Thus, even though the Housely court decided
the trial court had a sua sponte duty to give a limiting instruction, it had no
difficulty in concluding the absence of a limiting instruction “was clearly
harmless.” (Ibid.) The court determined that, “[o]n this record it is not
reasonably probable appellant would have received a more favorable verdict
if an appropriate limiting instruction had been given.” (Ibid.)
In Mateo, the expert had also not interviewed or evaluated anyone
involved in the case, and testified that CSAAS was not intended to predict
31
whether a child had suffered abuse. (Mateo, supra, 243 Cal.App.4th at
p. 1074.) Thus, the court concluded no prejudice was shown by the failure to
instruct pursuant to CALCRIM No. 1193, reasoning that “[w]here, as here,
the expert testifies regarding the behavior of abused children as a class, there
is little, if any, chance the jury will misunderstand or misapply the evidence.”
(Mateo, at p. 1074.)
Similarly, in this case, even absent a limiting instruction, the jury
would not have misunderstood or misapplied Urquiza’s testimony as proof
that Jane was in fact sexually abused. Like the experts in Housely and
Mateo, Urquiza presented only “general information” to the jury based on his
experience and research. He told the jury he did not know anything about
the case, he had not read any reports about the case, he had not interviewed
the victim or anyone associated with the case. He never expressed an opinion
as to whether Jane had been sexually abused or whether she was being
truthful. Indeed, Urquiza went to lengths to make explicit to the jury that
that was not the purpose of his testimony: “You have not heard from me any
opinion about whether a particular child has been abused or not or a
particular person is guilty or innocent of a crime for two reasons: I don’t
know anything about this case. The other one is that is not a place for
somebody who is an expert witness. That is the responsibility of a jury.”
(Italics added.)
Sengphachanh asserts Urquiza “did not specifically testify that his
opinion was predicated on the assumption that the abuse occurred,” and thus
his testimony was different from that of the expert in Mateo, who “plainly
disclaimed” his testimony was intended to be predictive and “approached the
child’s behavior from an assumption that the child had been abused.” But
Sengphachanh overlooks that defense counsel, in cross-examination, prefaced
32
his questions to Urquiza with the statement, “[t]he assumption is there was a
rape or assault.” Urquiza then made clear, “What I have testified to so far
today is research on what happens with kids who have been sexually
abused.” Together with his earlier, unambiguous statement to the jury that
he was not giving “any opinion about whether a particular child has been
abused or not,” his testimony left no room for interpretation that it was not
intended to be predictive.
The prosecutor also clearly explained the limited purpose of Urquiza’s
testimony to the jury in her closing argument. She emphasized: “Let me be
clear about the purpose of [Urquiza’s] testimony. He has not met [Jane]. He
has never met the defendant. His testimony is not evidence of guilt. [¶] But
the way that you use it is to consider whether or not [Jane’s] conduct, her
disclosures, her statements, whether it is consistent with victims of child
sexual abuse. [¶] What did we learn about those victims in general?
Because there are a lot of myths and misconceptions about who these victims
are and how this crime is perpetrated. Kids don’t tell. This is not something
that happens with, like, immediate disclosures all the time that the moment
it happens, she is running to police. That is not how these crimes occur.”
(Italics added.)
The prosecutor never encouraged the jury to interpret or use Urquiza’s
testimony in an impermissible manner. Sengphachanh does not contend
otherwise. Instead, he argues the prosecution placed “great reliance” on
Urquiza’s testimony “to support” Jane’s credibility and “to explain away her
delayed disclosure.” But those are the proper uses of the expert’s testimony.
(See McAlpin, supra, 53 Cal.3d at p. 1300 [CSAAS expert testimony
admissible to rehabilitate victim’s credibility when defendant suggests
delayed reporting is inconsistent with her testimony claiming sexual abuse];
33
People v. Lapenias (2021) 67 Cal.App.5th 162, 171 [“While CSAAS evidence is
not relevant to prove the alleged sexual abuse occurred, it is well established
in California law CSAAS evidence is relevant for the limited purpose of
evaluating the credibility of an alleged child victim of sexual abuse.”].) Had
the jury been instructed with CALCRIM No. 1193, they would have been told
to use Urquiza’s testimony in exactly the same manner as argued by the
prosecutor. (CALCRIM No. 1193 [“You may consider this evidence . . . in
evaluating the believability of [the victim’s] testimony.” (Boldface omitted.)].)
Here, like in Mateo, the trial court also gave CALCRIM No. 332 on
expert witness testimony and instructed the jury it was not required to accept
the expert’s opinion as true or correct, it had to determine the meaning and
importance of any opinion, and it could disregard any opinion it found
“unbelievable, unreasonable, or unsupported by the evidence.” (See Mateo,
supra, 243 Cal.App.4th at p. 1074.)
Moreover, independent of Urquiza’s testimony, the prosecution’s case
against Sengphachanh was strong. Jane’s testimony about the sexual
assault was consistent with her initial disclosure to her parents and with her
statements to the forensic examiner. She testified she fell asleep on the big
bed, wearing a t-shirt and a pair of underwear and was uncovered. The other
children were asleep on the floor. She woke up in the middle of the night
with a blanket over her head and pain in her vaginal area, and
Sengphachanh was “on top” of her with his penis inside her vagina. She did
not say anything to Sengphachanh and could not “move[ ] at all” because she
was “really shocked” and “too scared.” She waited until he “finished” and left
the room, and then immediately texted her mother at 1:58 a.m., “Mom I want
to go home first thing in the morning pl[ea]s[e].” Despite her parents’ initial
34
disbelief and repeated questioning, Jane never wavered in what she told
them and was “stern it happened.”
Although the defense attempted to impeach Jane,11 Jane’s description
of the assault did not change. Further still, Sengphachanh’s own testimony
corroborated Jane’s description of many of the details surrounding the
incident. Sengphachanh testified he entered his son’s bedroom around 1:00
or 2:00 a.m. to check up on the children. Jane was asleep on the bed without
a blanket, so he grabbed one and threw it “in the air” and it landed on her
body and covered her face. Moreover, Jane’s abrupt shift in behavior towards
Sengphachanh lent further credibility to her testimony of the assault. It was
not disputed that, before January 15, Jane and Sengphachanh were “really
11 The defense urged the jury to find that Jane lied about the sexual
assault based on her delayed disclosure and because she had been impeached
on a number of matters. It argued Jane’s statement that Sengphachanh
touched her breast was fabricated because it was impeached by her prior
inconsistent statement to the forensic interviewer and preliminary hearing
testimony that Sengphachanh had not otherwise touched her
inappropriately. The defense also focused a great deal of time attempting to
establish that Jane was on her period at the time of the assault, despite her
denial, because it believed it to be an “important” and “significant” fact that
demonstrated Jane lied about the assault. Defense counsel even
acknowledged to the jury that maybe he “overdid it” on this subject.
However, Dashara directly contradicted MaryBianca’s testimony regarding
whose used feminine products were left in the bathroom and severely
undermined the defense’s contention. Moreover, despite defense counsel’s
attempt to impeach Jane on what it perceived as inconsistencies in the dates
and duration of her cycle, even the child abuse pediatrician explained
“periods are pretty hard to predict . . . , especially in a 12-year old girl.”
Finally, the defense further argued Jane had reason to lie because she was
bored at Sengphachanh’s house and did not want to go back, and she was the
“black sheep” of the family and the rape claim would bring her closer to her
parents. The jury was able to assess Jane’s credibility and found the
defense’s attempts at impeaching Jane on these points unconvincing.
35
close.” She loved Sengphachanh and liked spending time with him at his
house. But after the assault, she resisted going to Sengphachanh’s house,
declined to hug him, and, when her parents forced her to go see him, rather
than run upstairs to watch Netflix⎯which even Sengphachanh testified was
her “routine” at his house⎯she clung to her mother “like glue.”
Sengphachanh himself could not imagine a reason why Jane would make up
the assault.
Further corroborating Jane’s testimony were⎯as the prosecutor argued
to the jury⎯the “inside[ ]” details that Sengphachanh inadvertently revealed
about the assault in the pretext conversations with Jane and Earl. Jane had
never told Sengphachanh she did not move during the assault, yet
Sengphachanh told her on March 24, “You were in shock, but you didn’t
move.” In his conversation with Earl on March 28, Sengphachanh told Earl
that, “[Jane] said she hid some bloody panties somewhere. She felt
embarrass[ed].” But neither Jane nor Earl had told Sengphachanh she had
blood on her underwear or that she hid or was embarrassed about “bloody
panties.” As the prosecutor urged the jury to find, these details evidenced
Sengphachanh’s “insider knowledge about what happened in that room.”
Further still, upon being told the ruse that Jane was pregnant,
Sengphachanh’s explanation that he could have had sexual intercourse with
Jane because he was sleepwalking and his repeated appeals to Earl to have
Jane “abort” the presumed fetus were strong evidence of his consciousness of
guilt.
Sengphachanh contends, however, that prejudice is demonstrated by
the jury’s inability to reach a verdict on the aggravated sexual assault
charge. He deduces from the fact that nine jurors voted to acquit him of
count 1 means that nine jurors “necessarily” determined the prosecution had
36
failed to prove beyond a reasonable doubt that Sengphachanh “even ‘slight[ly]
penetrated [Jane’s] vagina with his penis.’ ” He reasons that the jury’s
impasse on count 1, “which swayed heavily in [his] favor, demonstrates that
this was a ‘close case’ that ‘turned entirely on [Jane’s] credibility.’ ” In such a
close case, and because CSAAS evidence is “ ‘so potentially damaging,’ ” he
argues there was more than an abstract possibility that one or more jurors
may have found him not guilty of the lewd act if they had been instructed
with CALCRIM No. 1193.
We are not persuaded. Sengphachanh’s speculation about the jury’s
inability to reach a verdict on a different count does not establish prejudice,
and it is based on a questionable assumption. Sengphachanh was charged in
count 1 with aggravated sexual assault of a child who is under 14 and at least
seven years younger than Sengphachanh, by the act of rape. (§§ 269 subd.
(a)(1), 261, subds. (a)(2) and (6).) A conviction on that count required the jury
to find Sengphachanh had sexual intercourse with Jane “against [her] will by
means of force, violence, duress, menace, or fear of immediate and unlawful
bodily injury” to her or another person. (§ 261, subd. (a)(2) and (6), italics
added; CALCRIM Nos. 1000 and 1123.) The jury was so instructed. Jurors
could reasonably have concluded that Jane’s testimony did not establish
beyond a reasonable doubt that Sengphachanh used force, violence, duress,
menace, or fear to accomplish the rape, not that Jane was to be disbelieved or
there was no penetration. Sengphachanh’s argument also overlooks that the
jury found true the allegation that he had “substantial sexual conduct” with
Jane in the commission of the lewd act. (§1203.066, subd. (a)(8).)
“ ‘Substantial sexual conduct’ means penetration of the vagina” (§ 1203.066,
subd. (b)), and although the definition also includes “oral copulation” or
37
“masturbation” of the victim (ibid.), here, there was no evidence that
Sengphachanh orally copulated or masturbated Jane.
In sum, we conclude it is unlikely the jury misunderstood or misapplied
Urquiza’s testimony as proof that Jane was in fact abused, and the other
evidence against Sengphachanh was overwhelming proof of his guilt. On this
record, we are satisfied that it is not reasonably probable Sengphachanh
would have achieved a more favorable result had a limiting instruction like
CALCRIM No. 1193 been given.12 Sengphachanh has failed to establish
prejudice.13
C. Because Sengphachanh Cannot Establish Prejudice, His Ineffective
Assistance of Counsel Claim Also Fails
Sengphachanh alternately asserts his trial counsel was ineffective in
failing to request a limiting instruction on Urquiza’s testimony. To establish
a claim of ineffective assistance of counsel, Sengphachanh must show that
12 Sengphachanh contends that because of the prosecution’s “great
reliance” on Urquiza’s testimony to support Jane’s allegations and credibility,
the trial court’s failure to give CALCRIM No. 1193 deprived him of “a
constitutionally fair trial by lowering the prosecution’s burden to prove guilt
beyond a reasonable doubt.” Since we conclude the jury would not have
misunderstood or misapplied Urquiza’s testimony as proof that Jane was in
fact abused, we reject this contention as well. The jury was properly
instructed on the prosecution’s burden of proving all elements of the crimes
beyond a reasonable doubt.
13 Sengphachanh argues the trial court “compounded the prejudice” that
resulted from the omission of CALCRIM No. 1193 by instructing the jury,
pursuant to CALCRIM No. 303, that “certain evidence was admitted for a
limited purpose” and it “may consider that evidence only for that purpose and
for no other,” without telling the jury it was Urquiza’s testimony that was so
limited. (Boldface omitted.) We reject this contention since we have
concluded no prejudice resulted from the omission of CALCRIM No. 1193.
38
counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and, as a result, it is reasonably
probable that the verdict would have been more favorable to him.
(Strickland v. Washington (1984) 466 U.S. 668, 687−694 (Strickland); People
v. Lucas (1995) 12 Cal.4th 415, 436.) “If the record does not shed light on
why counsel acted or failed to act in the challenged manner, we must reject
the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.”
(People v. Scott (1997) 15 Cal.4th 1188, 1212 (Scott).)
Because we have concluded the absence of CALCRIM No. 1193 was
harmless error, Sengphachanh cannot establish he was prejudiced by
counsel’s failure to request a limiting instruction, and thus his ineffective
assistance of counsel claim also fails. (Strickland, supra, 466 U.S. at p. 687;
see People v. Ledesma (1987) 43 Cal.3d 171, 217 [generally, for purposes of a
claim of ineffective assistance of counsel, prejudice must be affirmatively
proved].)
Moreover, Sengphachanh cannot establish counsel’s performance was
deficient because the record sheds no light on why counsel did not request the
limiting instruction. (Scott, supra, 15 Cal.4th at p. 1212.) And we perceive
no basis in the record to conclude counsel’s performance was deficient.
Sengphachanh argues trial counsel’s failure to request CALCRIM No. 1193
cannot be justified as a reasonable tactical decision, because counsel
understood “how deeply damaging CSAAS expert testimony can be.” He
argues counsel subjected Urquiza to a foundational hearing under Evidence
Code section 402 to determine his qualifications and the limits of his
proposed testimony before it was presented to the jury, and he sought to elicit
the expert’s testimony on false allegations of abuse, all of which showed
39
counsel’s concern with the expert testimony. But “[a]s a tactical matter,
competent counsel could rationally conclude that it would be
counterproductive to request an instruction highlighting [CSAAS] expert
testimony supporting the victim’s credibility.” (Mateo, supra, 243
Cal.App.4th at p. 1076; see also People v. Maury (2003) 30 Cal.4th 342, 394
[“A reasonable attorney may have tactically concluded that the risk of a
limiting instruction . . . outweighed the questionable benefits such instruction
would provide.”].)
II.
CALCRIM No. 226
Jane admitted she had lied to her parents in the past, about matters
her parents considered to be “small” things such as whether she texted a boy
or threw out the trash. The trial court instructed the jury with CALCRIM
No. 226, which sets forth the factors for the jury to consider in evaluating
witness credibility, as follows:
“You alone, must judge the credibility or believability of the
witnesses. In deciding whether testimony is true and accurate,
use your common sense and experience. You must judge the
testimony of each witness by the same standards, setting aside
any bias or prejudice you may have.
“You may believe all, part, or none of any witness’s testimony.
Consider the testimony of each witness and decide how much of it
you believe.
“In evaluating a witness’s testimony, you may consider anything
that reasonably tends to prove or disprove the truth or accuracy
of that testimony. Among the factors that you may consider are:
• How well could the witness see, hear, or otherwise perceive
the things about which the witness testified?
• How well was the witness able to remember and describe
what happened?
• What was the witness’s behavior while testifying?
40
• Did the witness understand the questions and answer them
directly?
• Was the witness’s testimony influenced by a factor such as
bias or prejudice, a personal relationship with someone
involved in the case, or a personal interest in how the case
is decided?
• What was the witness’s attitude about the case or about
testifying?
• Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
• How reasonable is the testimony when you consider all the
other evidence in the case?
• Did other evidence prove or disprove any fact about which
the witness testified?
• What is the witness’s character for truthfulness?
• Has the witness engaged in other conduct that reflects on
his or her believability?
“Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the differences are
important or not. People sometimes honestly forget things or
make mistakes about what they remember. Also, two people may
witness the same event yet see or hear it differently.
“If the evidence establishes that a witness’s character for
truthfulness has not been discussed among the people who know
him or her, you may conclude from the lack of discussion that the
witness’s character for truthfulness is good.
“If you do not believe a witness’s testimony that he or she no
longer remembers something, that testimony is inconsistent with
the witness’s earlier statement on that subject.
“If you decide that a witness deliberately lied about something
significant in this case, you should consider not believing
anything that witness says. Or, if you think the witness lied
about some things, but told the truth about others, you may
simply accept the part that you think is true and ignore the rest.”
Sengphachanh did not object or request any addition to the instruction.
On appeal, he contends the trial court erred in failing to sua sponte include
41
an optional factor that would have further told the jury to consider: “Did the
witness admit to being untruthful?” (CALCRIM No. 226.) Sengphachanh
argues the omission of the factor prejudiced him and mandates reversal
because “no other instruction highlighted for the jury the importance of past
lies to the assessment of witness credibility.” We reject this argument, and
conclude the court did not err in omitting the additional factor and, even if we
presumed error, it was harmless under the circumstances of this case.
A. Additional Background
Defense counsel cross-examined Jane on her late disclosure of the
sexual assault. On redirect, Jane explained the kind of lie she had previously
told her parents included telling them she would “stay in the neighborhood”
when she did not. She has never lied about Sengphachanh and would never
lie “about something like this happening to [her.]”
Grace testified it was “possible” that she did not initially “put a lot of
weight into” what Jane told her had happened because Jane had “lied to [her]
about certain things” in the past. On redirect, Grace explained Jane has
never “made an accusation of this magnitude to [her] before.” Rather, Jane
had lied to her about “small” things, like throwing out the trash or whether
she texted a boy. Earl also testified Jane has never lied “about something of
this magnitude before”; she has lied about texting with friends or going out.
The trial court instructed the jury with CALCRIM No. 226, as
previously noted. In closing arguments, both the prosecutor and defense
counsel addressed Jane’s admission of previously lying to her parents. The
prosecutor argued:
“Again, when [Jane] was asked about times that she has lied to
her parents, she didn’t sit up here and tell you ‘I’m a perfect
angel; I never lie.’ She was honest about things she lied about to
her parents. This is teenage stuff. Whether she is done with her
homework; is she texting with friends; did she go out and see
42
friends. That is corroborated by what her parents -- even the
defense witnesses have to say about what they know about her.
[¶] So the inquiry is not just how she lied before, and therefore, if
so, we don’t believe anything she has to say. Of course not.
[¶] Think about what she has gone through since disclosing.
There is no immediate gain. There is no getting out of any kind
of immediate trouble. Really think about what it takes for her to
come in here. What she went through when she disclosed to her
parents; going to a forensic interview; having to testify in court;
being subject to cross-examination for hours to the point that she
is nauseous and gagging on the stand. Does she have a motive to
make this up for all of that? No.”
“[Her parents] repeatedly questioned her over and over. What
did they see? Her behavior was unlike anything that they had
ever experienced before. She is shaking. She is sobbing. They
were honest with you. They have seen their daughter lie to them
before. They’re parents. She is 14. That is not what this is. Her
disclosure is not that.”
In his closing argument, defense counsel urged the jury to conclude
that Jane lied about the sexual assault and argued the various factors
included in CALCRIM No. 226 supported that conclusion. (See fn. 11, ante.)
Defense counsel argued Jane lied about being on her period, about the reason
she looked up a video on YouTube on “how to tell my parents that I got
raped,” and about Sengphachanh touching her breast, among other things.
Specifically, defense counsel argued to the jury, “The reason that you should
doubt her credibility is because she lied.”
B. Analysis
An instruction on the credibility of witnesses must be given sua
sponte⎯ “at least in part”⎯by the court in every criminal case. (People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 883 (Rincon-Pineda), italics added.)
CALCRIM No. 226 sets forth factors for the jury to consider in evaluating
witness credibility, and it provides additional, optional factors in bracketed
language which may be included in the instruction. Relying on Rincon-
43
Pineda and the bench note to CALCRIM No. 226, Sengphachanh asserts the
trial court had a sua sponte duty to instruct on all bracketed factors that are
relevant based on the evidence. The Attorney General responds that while a
trial court has a sua sponte duty to instruct on general principles of witness
credibility, that duty does not necessarily require a court to instruct on every
applicable bracketed factor in the absence of a request. We agree with the
Attorney General.
In Rincon-Pineda, the California Supreme Court revisited “legal
principles of long standing legitimacy” that required a trial court to instruct
in a forcible rape case that “ ‘the law requires [the jury to] examine the
testimony of the female person named in the information with caution.’ ”
(Rincon-Pineda, supra, 14 Cal.3d at pp. 866, 870−871 [referring to CALJIC
No. 10.22].) Reversing it prior decisions, the Court held the cautionary
instruction was no longer to be used and stated: “We deem it appropriate
instead to reaffirm and reinforce the existing instructions as to the credibility
of witnesses which must presently be given -- at least in part (see Pen. Code,
§ 1127) -- sua sponte by the trial court in every criminal case.” (Id. at p. 883,
first italics added.) The Court further explained that “the substance of the
instruction set forth as CALJIC No. 2.20 should henceforth always be given,
and while those paragraphs thereof inapplicable under the evidence may be
omitted, the paragraphs alerting the jury to the bearing on the credibility of a
witness of the ‘existence or nonexistence of a bias, interest, or other motive’
and the attitude of the witness ‘toward the action in which he testifies or
toward the giving of testimony,’ should be given in any case in which the
victim of the alleged offense has testified for the prosecution, regardless of
whether specific evidence of any motive or disposition to misstate facts on the
part of the complaining witness has been adduced by the defendant.” (Id. at
44
pp. 883−884, footnote omitted.) Thus, Rincon-Pineda holds that a trial court
must instruct on the credibility of witnesses in every criminal case, but it
does not state there is a duty, absent a request, to instruct on any bracketed
factor other than a witness’s bias or attitude. Rincon-Pineda does not extend
as far as Sengphachanh urges.
Sengphachanh also relies on the bench note to CALCRIM No. 226,
which states that a trial court is to “[g]ive all of the bracketed factors that are
relevant based on the evidence.” Like Rincon-Pineda, the bench note is not
clear there is a sua sponte duty to do so. Suggesting the contrary, the bench
note states “[t]here is no sua sponte duty to instruct on inconsistencies in
testimony or a witness who lies”⎯both of which are optional bracketed factors
in CALCRIM No. 226. (Judicial Council of Cal. Crim. Jury Instns. (2014)
Bench Note to CALCRIM No. 226, p. 58, italics added.) And although the
court in People v. Martinez (1978) 82 Cal.App.3d 1, also cited by
Sengphachanh, held it was harmless error for the trial court to have omitted
from the standard instruction the factor relating to a witness’s admission of
untruthfulness, the case is unhelpful to us because it does not indicate
whether the defense requested the omitted factor, nor does it hold that the
court had a sua sponte duty to include the omitted factor. (Id. at pp. 19−20;
see People v. Andrews (1989) 49 Cal.3d 200, 218 [“Generally, [however,] a
party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.”].)
“It is well established in California that the correctness of jury
instructions is to be determined from the entire charge of the court, not from
a consideration of parts of an instruction or from a particular instruction.
[Citations.] ‘[T]he fact that the necessary elements of a jury charge are to be
45
found in two instructions rather than in one instruction does not, in itself,
make the charge prejudicial.’ [Citation.] ‘The absence of an essential
element in one instruction may be supplied by another or cured in light of the
instructions as a whole.’ ” (People v. Burgener (1986) 41 Cal.3d 505, 538−539
(Burgener), disapproved of on other grounds, People v. Reyes (1998) 19
Cal.4th 743, 755−756; accord People v. Musselwhite (1998) 17 Cal.4th 1216,
1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016 (quoting Burgener, at
p. 538.) “There is no error in a trial court’s failing or refusing to instruct on
one matter, unless the remaining instructions, considered as a whole, fail to
cover the material issues raised at trial. As long as the trial court has
correctly instructed the jury on all matters pertinent to the case, there is no
error. The failure to give an instruction on an essential issue, or the giving of
erroneous instructions, may be cured if the essential material is covered by
other correct instructions properly given.” (People v. Dieguez (2001) 89
Cal.App.4th 266, 277 (Dieguez).) We review claims of instructional error de
novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
Here, the trial court instructed the jury that: “In evaluating a witness’s
testimony, you may consider anything that reasonably tends to prove or
disprove the truth or accuracy of that testimony.” (Italics added.) Among the
factors enumerated in the given instruction, the jury was told they may
consider the witness’s “character for truthfulness,” if any, in evaluating her
credibility. Moreover, the jury was instructed that: “If you decide that a
witness deliberately lied about something significant in this case, you should
consider not believing anything that witness says. Or, if you think the
witness lied about some things, but told the truth about others, you may
simply accept the part that you think is true and ignore the rest.” (Italics
added.) Thus, contrary to Sengphachanh’s contention that “no . . . instruction
46
highlighted for the jury the importance of past lies to the assessment of
witness credibility,” the jury was properly instructed that they were free to
draw whatever conclusion they wished from Jane’s testimony, and they were
instructed to consider and were given guidance as to how to consider Jane’s
admission of prior untruthfulness. Thus, the court did not err in omitting the
additional optional factor essentially reiterating that the jury may consider
whether the witness admitted to being untruthful. Viewing CALCRIM No.
226 in its entirety, we are satisfied the trial court adequately instructed the
jury on the relevant legal principles regarding witness credibility. (Burgener,
supra, 41 Cal.3d at pp. 538–539; Dieguez, supra, 89 Cal.App.4th at p. 277.)
Even if we were to presume the trial court erred in omitting the
additional optional factor, we would conclude the error was harmless. Any
improper omission of jury instructions is evaluated under the standard set
forth in Watson, supra, 46 Cal.2d at p. 836. (People v. Larsen (2012) 205
Cal.App.4th 810, 830.) “[T]he Watson test for harmless error ‘focuses not on
what a reasonable jury could do, but what such a jury is likely to have done
in the absence of the error under consideration. In making that evaluation,
an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected
the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.)
As we have already noted, the jury was properly instructed that in
evaluating a witness’s credibility they could consider “anything that
reasonably tends to prove or disprove the truth or accuracy of that
testimony,” including specifically a witness’s prior untruthfulness. Both
attorneys’ arguments also focused the jury on Jane’s prior untruthfulness in
47
evaluating her credibility. But, as the prosecutor pointed out, the things
Jane admitted being untruthful about were relatively minor “teenage stuff.”
And while defense counsel argued that Jane had lied about matters
significant to the case, such as Sengphachanh previously touching her breast,
Jane did not admit that she was untruthful about anything concerning
Sengphachanh or the allegations at issue in the case.
Moreover, as we have previously concluded, the prosecution’s case
against Sengphachanh was strong. Sengphachanh makes the same
argument that the jury’s inability to reach a verdict on count 1 is evidence
that “nine of the jurors did not believe [Jane’s] story that she had been raped”
and thus had the jurors been instructed to take account of her past lies, it
was reasonably probable they would have reached a different outcome. For
the reasons we have already discussed, we reject this interpretation of the
jury’s failure to reach a verdict on count 1. Given the combination of the
whole instruction given, the attorneys’ arguments to the jury, and the
strength of the prosecution’s evidence against Sengphachanh, we conclude it
is not reasonably probable Sengphachanh would have achieved a more
favorable result had the trial court included in its CALCRIM No. 226
instruction the additional bracketed factor.
III.
Cumulative Error
Sengphachanh asserts the cumulative effect of the claimed
instructional errors deprived him of a fair trial and requires reversal.
“Cumulative error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant.” (People v. Capers (2019) 7
Cal.5th 989, 1017.) As we have explained, to the extent the trial court’s
failure to give either instruction was error, that error was harmless. For the
48
reasons already discussed, we further conclude that the cumulative effect of
any individual instructional errors was harmless. (People v. Chism (2014) 58
Cal.4th 1266, 1309 [“To the extent there are instances in which we have
found error or assumed its existence, we have concluded no prejudice
resulted. We do not find reversible error by considering the claims
cumulatively.”]; see People v. Hinton (2006) 37 Cal.4th 839, 872 [no
cumulative error where “the errors are relatively few and . . . the prejudicial
effect was in each instance minimal to nonexistent”].) We therefore reject
Sengphachanh’s claim that his trial was fundamentally unfair. (People v.
Rivera (2019) 7 Cal.5th 306, 348; People v. Stewart (2004) 33 Cal.4th 425,
522.)
IV.
Evidence of Prior Uncharged Sexual Offense
Pursuant to Evidence Code section 1108
In a motion in limine, the prosecution sought to admit testimony from
Jane that, on a prior occasion, Sengphachanh “touch[ed] her breasts as he
cuddled her on the couch,” pursuant to Evidence Code section 1108 (the 1108
evidence).14 Defense counsel objected to introduction of the 1108 evidence on
the basis that Jane disclosed the incident late, apparently on “the eve of
trial.” The trial court overruled the defense objection and granted the
14 Evidence Code section 1108, subdivision (a), provides: “In 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 Section 1101, if the evidence is not inadmissible pursuant to
Section 352.”
49
prosecution’s motion, stating Jane’s late disclosure was “fodder for full cross-
examination.”15
However, despite the ruling in its favor, the prosecution did not
introduce the 1108 evidence in its direct examination of Jane, or at any other
time. As previously discussed, it was defense counsel who elicited testimony
about the uncharged sexual offense from Jane in order to impeach her. (See
Factual and Procedural Background, Section I.B.1, ante.) On appeal,
Sengphachanh does not contend his trial counsel rendered ineffective
assistance of counsel by affirmatively introducing the 1108 evidence to
impeach Jane. Rather, he contends his trial counsel was ineffective when he
failed to object under Evidence Code section 352 to the prosecution’s motion
to admit the 1108 evidence in the first instance. We are not persuaded.
As we have discussed, “ ‘[i]n order to demonstrate ineffective
assistance, a defendant must first show counsel’s performance was deficient
because the representation fell below an objective standard of reasonableness
under prevailing profession norms. [(Strickland, supra, 466 U.S. at
pp. 687−688.)] Second, he must show prejudice flowing from counsel’s
performance or lack thereof. 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.’ ” (People v.
Majors (1998) 18 Cal.4th 385, 403 (Majors).) Moreover, “[w]here ‘there was
no sound legal basis for objection, counsel’s failure to object to the admission
15 The Attorney General is incorrect that the court “tentatively ruled it
would admit the evidence”; rather, the court “granted” the prosecution’s
motion.
50
of evidence cannot establish ineffective assistance.’ [Citation.] And, even
when there was a basis for objection, ‘ “[w]hether to object to admissible
evidence is a tactical decision; because trial counsel’s tactical decisions are
accorded substantial deference [citations], failure to object seldom establishes
counsel’s incompetence.” [Citation.] “In order to prevail on [an ineffective
assistance of counsel] claim on direct appeal, the record must affirmatively
disclose the lack of rational tactical purpose for the challenged act or
omission.” ’ ” (Ibid., italics added.) And where the record is silent as to
counsel’s motivation, the reviewing court must reject an ineffective assistance
of counsel claim “unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.”
(Scott, supra, 15 Cal.4th at p. 1212.)
Here, Sengphachanh argues trial counsel’s failure to object to the 1108
evidence under Evidence Code section 352 “is unexplainable as a reasonable
tactical decision.” He asserts trial counsel “was obviously concerned about
introduction of this evidence” because he objected “strenuously” to its
admission. The record does not support Sengphachanh’s contentions.
Defense counsel did not “strenuously” object to introduction of the 1108
evidence, and then affirmatively introduced the evidence to impeach Jane.
This was the entire colloquy between the court and defense counsel regarding
the defense’s objection to the prosecution’s motion:
Court: “Here, the People’s offer of proof is that the defendant
touched [Jane’s] breast area when they cuddled together on
the couch before the alleged incident in the current
Information. [¶] So the defense objected that this
disclosure came out just last Friday; so there was late
notice of this. And that she made no mention of it during
the prelim. The preliminary examination was extensive,
and she made no mention of being touched in the chest
beforehand. [¶] The [c]ourt’s tentative is to allow this,
51
understanding that failing to disclose it at the prelim, or
previously, is fodder for full cross-examination. [¶] Any
additional objections for the record, [defense counsel]?”
Defense: “No, Your honor.”
Court: “So that motion is granted under [Evidence Code] 1108.”
Sengphachanh’s sole defense against the charges of child sexual abuse
was that Jane lied. Defense counsel’s strategy in cross-examining Jane was
to undermine her credibility by impeaching her with prior inconsistent
statements and late disclosures. Consistent with that strategy, defense
counsel sought to portray Jane’s late disclosure of the breast touching
incident as yet another example of fabrication. Sengphachanh attempts to
explain that trial counsel “likely introduced the evidence because, and only
because, he was left with no choice” because “there was a clear threat” the
prosecution would rely on the evidence. This is pure speculation. The
prosecution conducted an extensive direct examination of Jane and did not
attempt to elicit testimony from her regarding the prior incident. Thus, even
if there was a basis for trial counsel to object to the 1108 evidence under
Evidence Code section 352, Sengphachanh has failed to show that the record
“affirmatively” discloses a lack of rational tactical purpose for counsel to not
object on that ground. (Majors, supra, 18 Cal.4th at p. 403.) On that basis
alone, we reject the claim of ineffective assistance of counsel. (Ibid.; Scott,
supra, 15 Cal.4th at p. 1212.)
Sengphachanh has also failed to demonstrate prejudice. He asserts
“there is a likelihood that the trial court would have − if asked − excluded the
evidence under Evidence Code section 352.” We cannot agree. “The 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
52
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. In applying [Evidence Code] section 352, “prejudicial” is not
synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 639.)
The breast touching incident is minor in comparison to the charged offenses,
which included aggravated assault of a child by rape, such that there is little
risk of it evoking an emotional bias against the defendant. Even
Sengphachanh acknowledges “the alleged prior touching was of such little
consequence to [Jane] that she did not even remember it until right before
trial.” Sengphachanh argues again the jury’s impasse in his favor on count 1
demonstrates it “did not believe that [Sengphachanh] penetrated [Jane]” and
“reflected it had serious doubts about [Jane’s] credibility.” We have already
disposed of this argument. Moreover, here, the jury’s failure to reach a
verdict on count 1 demonstrates that it diligently weighed the evidence,
applied the law, and gave Sengphachanh the benefit of reasonable doubt and
held the prosecution to its burden of proof, rather than be persuaded by any
emotional bias as a result of the 1108 evidence.
In sum, we conclude Sengphachanh has failed to demonstrate trial
counsel rendered ineffective assistance by failing to object to the 1108
evidence on Evidence Code section 352 grounds.
V.
Sentencing
Sengphachanh originally asserted he was entitled to remand for
resentencing for two reasons. First, the trial court prejudicially erred when it
denied his request to be physically present at his sentencing hearing based
53
on public health and safety issues posed by the ongoing COVID-19 pandemic.
The Attorney General concedes this was error but argues it was harmless.
We accept the Attorney General’s proper concession and conclude the error
was harmless under either Chapman v. California (1967) 386 U.S. 18, 23
(Chapman) or Watson, supra, 46 Cal.2d at page 836.
Second, Sengphachanh asserts the trial court erred by imposing fines
and fees without determining his ability to pay pursuant to Dueñas, supra,
30 Cal.App.5th 1157 and he is entitled to remand for an ability to pay
hearing. We reject this contention. However, due to a change in the law
while this appeal was pending, the Attorney General concedes, and we agree,
Sengphachanh is entitled to have any unpaid portion of the $154 criminal
justice administration fee as of July 1, 2021 vacated.
In his petition for rehearing, Sengphachanh asserts a third reason for
remand on sentencing. He asserts he is entitled to retroactive application of
the recent amendments to section 1170, subdivision (b), which limit the
situations in which the trial court may impose an upper term. The Attorney
General concedes the amendments are retroactive under In re Estrada (1965)
63 Cal.2d 740, 744−745 (Estrada) and remand is appropriate. Accepting the
concession as proper, we will remand the matter to the trial court for
resentencing consistent with section 1170, subdivision (b), as amended.
A. Additional Background
On June 12, 2020, due to the ongoing COVID-19 global pandemic and
its effects on court services, the trial court conducted a telephonic hearing on
a matter which is not at issue in this appeal. Sengphachanh waived his
personal appearance for the proceeding pursuant to section 977, subdivision
(b)(1) and defense counsel appeared on his behalf. During the proceeding,
defense counsel informed the court that Sengphachanh wished to be
54
“physically present” in the courtroom for all future hearings and he did not
waive his presence for those hearings.
The trial court denied Sengphachanh’s request and set the matter for
sentencing on July 10, 2020. It ruled his participation “visually” from jail by
videoconference would be “sufficient,” in particular because he would have
counsel on a separate, confidential telephone line to discuss any matters with
his attorney during the proceeding. The court further explained that it based
its ruling on the “public health and safety issues due to the COVID-19
pandemic,” and noted the court was closed “for all but the most time sensitive
essential functions from March 17 through May 22” and strict health orders
were still in effect. These included orders requiring people to shelter in place;
prohibiting gatherings of more than one person except for specific exceptions;
requiring closure of schools; and mandating that all persons entering the
courthouse submit to a temperature check, wear masks, and observe a 6-foot
social distancing rule.
The sentencing hearing was conducted remotely by videoconference on
July 10, 2020. Only the trial judge and essential court staff were present in
the courtroom. All others, including Sengphachanh, Jane and her family,
and the attorneys, appeared by videoconference. Before proceeding to
sentencing, Sengphachanh raised a Marsden16 motion to relieve his court-
appointed attorney; the motion is not at issue in this appeal. The court made
“the necessary technical arrangements” to close the proceedings to provide
Sengphachanh a “closed, confidential hearing” to address his Marsden
motion. The court denied the motion and resumed the video hearing for
sentencing with all parties and attorneys present.
16 People v. Marsden (1970) 2 Cal.3d 118.
55
In advance of sentencing, on November 15, 2019, Sengphachanh filed a
“Sentencing Memorandum and Statement in Mitigation” with five letters
from family and friends requesting a lenient sentence and various
photographs of Sengphachanh and his family. The court read and considered
Sengphachanh’s submissions before imposing sentence, and had also received
the prosecution’s statement in aggravation and the probation report. The
prosecution had also given the defense prior notice that Jane and her family
would be presenting victim impact statements, and defense counsel
confirmed she had received a copy of a letter Jane sent to the court on
March 3.
In his sentencing memorandum, Sengphachanh requested the court
impose the low term of three years state prison, and asserted eight factors in
mitigation: He was 36 years old with no criminal history; had honorably
served in the Navy for 18 years; had the respect of his peers and friends; has
the love and support of his wife; is the proud father of two small children; has
been a productive citizen and supported his family; is not substance
dependent and is a good candidate for rehabilitation; and is not a threat to
the community and will comply with his parole terms. He further asserted
he does not pose a risk to the public or to the victim. Defense counsel
reiterated these factors in mitigation and requested the court impose the low
term at the sentencing hearing, and stated she “would also like to be heard
later as to restitution.”
The prosecution then informed the trial court that Jane and her family
were prepared to join the video hearing to give their impact statements. At
that moment, Sengphachanh spoke up and stated: “Well, as of right now, I
would like to be sentenced -- I’d like to be present to be sentenced.” The court
denied the request, again due to the COVID-19 pandemic and concerns with
56
safely moving prisoners from jail to the courthouse. It found the “video
sentencing [wa]s fulfilling all the same needs of confrontation.”
Jane and her parents gave their impact statements. Both Earl and
Grace stated they had forgiven Sengphachanh and wished him well. The
prosecutor requested the court impose the upper term of eight years in state
prison, arguing, among other factors, “the act itself [wa]s horrifying, one of
the worst things imaginable that one could do to a child let alone anyone.”
The trial court confirmed Sengphachanh was statutorily ineligible for
probation due to the jury’s true finding that he had “substantial sexual
conduct” with Jane pursuant to section 1203.66, subdivision (a)(8). It stated,
however, that even if Sengphachanh was eligible for probation, it would deny
probation because he committed the crime with criminal sophistication,
having waited until Jane was asleep and placing a blanket over her head to
commit the sexual assault. As to count 2, lewd act upon a child, the court
sentenced Sengphachanh to the upper term of eight years in state prison.
The court selected the upper term because it found Sengphachanh took
advantage of a position of trust and confidence to commit the offense.
As for fines and fees, the trial court ordered Sengphachanh to pay a
$2,400 restitution fine (§ 1202.4, subd. (b)) and a parole revocation restitution
fine of $2,400 (§ 1202.45). Before concluding its orders, defense counsel
interrupted the trial court and requested she be heard “as to restitution.”
The court responded, “Okay. We’ll get to victim restitution in a moment.
These are the fines.” (Italics added.) Defense counsel then stated she was
also asking the court to “consider suspending or staying restitution fines
based on the fact of [Sengphachanh’s] inability to pay.” She argued the fines
“would be very overwhelming” because Sengphachanh “will be going to state
prison” and the court will order some victim restitution. The court responded
57
that it would continue imposing the fines and then it will address “that
issue.” The court imposed a $30 court security fee (§ 1465.8); a $40 criminal
conviction assessment fee (Gov. Code, § 70373); a $154 criminal justice
administration fee (Gov. Code, § 29550.1); and a $300 sex registration fee
(§ 290.3). Based on the Victim Compensation Board’s request and
Sengphachanh’s agreement, the court ordered Sengphachanh to pay a total of
$3,590.13 in victim restitution (§ 1202.4, subd. (f)). At the conclusion, the
court asked the attorneys, “Is there anything else?” Defense counsel
responded, “I don’t believe so, Your Honor.”
B. Denial of Sengphachanh’s Physical Presence at Sentencing Was
Harmless Error
A felony defendant’s right to be present at every critical stage of a
criminal proceeding, including at the time of sentencing, is guaranteed by the
federal Constitution under the confrontation clause of the Sixth Amendment
and the due process clauses of the Fifth and Fourteenth Amendments, as well
as article I, section 15 of the California Constitution and sections 977 and
1043. (People v. Mendoza (2016) 62 Cal.4th 856, 898 (Mendoza); People v.
Blacksher (2011) 52 Cal.4th 769, 798−799 (Blacksher); People v. Robertson
(1989) 48 Cal.3d 18, 60 (Robertson)). Like other constitutional rights, the
right to be present may be waived but it must be a voluntary, knowing and
intelligent waiver. (Mendoza, at pp. 898−899; see §§ 977, subd. (b)(1) and
1193, subd. (a).)17
17 Section 977, subdivision (b)(1), provides that a felony defendant “shall
be personally present . . . at the time of the imposition of sentence” and “shall
be personally present at all other proceedings unless [he or she] shall, with
leave of court, execute in open court, a written waiver of [his or her] right to
be personally present.”
58
At the time of Sengphachanh’s sentencing hearing, Governor Newsom
and Chief Justice Cantil-Sakauye had issued a series of orders in response to
the COVID-19 pandemic to ensure court operations occurred in a safe
environment for the public, court users, judicial officers and court personnel.
(See Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167.) On April 6,
2020, acting on the authority granted by the Governor, the Judicial Council
adopted 11 emergency rules. (See E.P. v. Superior Court (2020) 59
Cal.App.5th 52, 55 (E.P.).) Emergency Rule 3(a)(1), addressed the use of
technology for remote appearances and provided that “in order to protect the
health and safety of the public, including court users, both in custody and out
of custody defendants, witnesses, court personnel, judicial officers, and
others,” courts “may require that criminal proceedings and court operations
be conducted remotely.” However, “[i]n criminal proceedings, courts must
receive the consent of the defendant to conduct the proceeding remotely and
otherwise comply with emergency rule 5. . . . As used in this rule, ‘consent of
the defendant’ means that the consent of the defendant is required only for
the waiver of the defendant’s appearance as provided in emergency rule 5.”
(Emergency Rule 3(a)(2), italics added.) Emergency Rule 5 provides that
“[w]ith the consent of the defendant, the court must allow a defendant to
Section 1193, subdivision (a), provides, in relevant part, that a
defendant convicted of a felony “shall be personally present when judgment is
pronounced against him or her, unless the defendant, in open court and on
the record, or in a notarized writing, requests that judgment be pronounced
against him or her in his or her absence, and that he or she be represented by
an attorney when judgment is pronounced, and the court approves his or her
absence during the pronouncement of judgment, or unless, after the exercise
of reasonable diligence to procure the presence of the defendant, the court
shall find that it will be in the interest of justice that judgment be
pronounced in his or her absence.”
59
waive his or her personal appearance and to appear remotely, either through
video or telephonic appearance, when the technology is available” or waive
his or appearance and permit counsel to appear on the defendant’s behalf
under certain circumstances. (Emergency Rule 5(b)(1) and (2), italics added.)
Sengphachanh’s constitutional and statutory right to be present at his
sentencing is not in dispute. The Attorney General concedes the trial court
erred when it denied Sengphachanh’s request to be physically present at his
sentencing and conducted his sentencing remotely without his consent. The
question then is whether the error prejudiced Sengphachanh. Our high court
has “reaffirm[ed] that review of any error under sections 977 and 1043 is
conducted under the Watson standard [(Watson, supra, 46 Cal.2d at
p. 836)]⎯asking whether it is ‘reasonably probable a result more favorable to
the defendant would have been reached in the absence of the error.’ ”
(Mendoza, supra, 62 Cal.4th at p. 902.) “ ‘Under the federal Constitution,
error pertaining to a defendant’s presence is evaluated under the harmless-
beyond-a-reasonable-doubt standard set forth in [Chapman, supra, 386 U.S.
at p. 23].’ ” (Mendoza, at p. 902.) And it is “ ‘[Sengphachanh who] has the
burden of demonstrating that his [physical] absence prejudiced his case[.]’ ”
(Blacksher, supra, 52 Cal.4th at p. 799.)
Here, Sengphachanh’s asserts the prosecution’s request for the upper
term was “premised” on “alleged facts that were not supported in light of the
not guilty verdict on count 1 which reflected a determination that the
prosecution had not adequately proven [he] raped [Jane.]” He asserts that
“[h]ad [he] been physically present at the [sentencing], he may have been able
to more quickly react and assist his counsel in rebutting the prosecution’s
argument, and in arguing against imposition of the upper term.” Not so.
First, the jury did not acquit him of the aggravated sexual assault in count 1,
60
and as we have already discussed, the jury’s failure to reach a unanimous
verdict on that count can be explained by its reasonable conclusion that the
prosecution failed to prove beyond a reasonable doubt the existence of force,
violence, duress, menace or fear of immediate and unlawful bodily injury.
The record also demonstrates Sengphachanh was able to fully present his
arguments in support of requesting the low term before the court imposed
sentence.
Robertson is instructive here. There, a jury found defendant guilty of
two first degree murders, found true nine charged special circumstances, and
fixed the penalty at death. (Robertson, supra, 48 Cal.3d at p. 28.) After the
court announced its decision that the penalty should be death, defendant
made a statement in which he took responsibility and expressed remorse.
The court then set the matter for a penalty-reduction hearing and sentencing.
Through his attorney, defendant informed the court he wished to waive his
presence at the penalty-reduction hearing and subsequently executed a
written waiver. The waiver specifically referred to the penalty-reduction
hearing but was silent as to imposition of sentence. The defendant did not
appear at the penalty-reduction hearing and sentencing, and the court
formally imposed the judgment of death. (Id. at pp. 59−60.) The defendant
argued his absence at sentencing deprived him of the opportunity to address
the court before pronouncement of final judgment. (Id. at p. 62.) The Court
concluded defendant’s waiver was not a knowing and intelligent waiver of his
presence at the time of sentence. However, it held the error was harmless
beyond a reasonable doubt under the Chapman standard because defendant
61
had made a statement to the court following its sentence verdict and before
pronouncement of judgment.18 (Id. at pp. 61−62.)
Here, as in Robertson, the court considered all of Sengphachanh’s
written submissions, including his sentencing memorandum and statement
in mitigation, letters and information from family and friends, and defense
counsel was permitted to present additional oral arguments before the court
imposed sentence.
In his reply brief, Sengphachanh adds to his assertion of prejudice that
“[n]othing is known about if the video feed was working correctly, how well
appellant could see the court, how well the court could see appellant and
observe his demeanor, and if there was any delay caused by having to
communicate with his counsel only by phone.” He argues “[w]e do not know if
the camera could accurately convey to the court the full scope of [his]
demeanor, the assessment of which may have influenced the court’s choice of
the upper term.” We see nothing in the record to support Sengphachanh’s
conjecture of technical problems with the video connection. At no time did
the trial judge, the lawyers, Sengphachanh, or any participant state they
could not see or hear a speaker, and Sengphachanh provides no record
citation to show otherwise. Contrary to Sengphachanh’s suggestion he may
18 E.P., on which Sengphachanh relies, does not persuade us to reach a
different result as it is inapposite. There, the court granted the minor’s
petition for writ of mandate challenging the juvenile court’s blanket and
ongoing local rule, issued in response to the COVID-19 pandemic, that
required all minors to show good cause in order to personally appear at all
proceedings in juvenile court. (E.P., supra, 59 Cal.App.5th at pp. 54, 56.)
The court’s primary concern in granting mandamus relief was that “absent
[the] court’s intervention, petitioner and other minors in pending delinquency
proceedings will continue to be barred from being physically present at
juvenile court hearings absent a good cause finding.” (Id. at p. 61.)
62
have had difficulty in speaking confidentially with his attorney, he
successfully conferred with his attorney off the record, via the separate
confidential telephone line, about whether he would stipulate to the amount
of victim restitution. The court also successfully made “the necessary
technical arrangements” to conduct a “closed, confidential hearing” on his
Marsden motion. Sengphachanh also showed he was able to react in real
time to the proceedings when he addressed the court several times. For
example, Sengphachanh interjected when the prosecutor announced that
Jane and her family will be giving their impact statements to inform the
court that “as of right now” he wanted to be present at sentencing. Finally,
the court imposed the upper term because it found Sengphachanh took
advantage of a position of trust and confidence to commit the offense, not
because of Sengphachanh’s demeanor or lack of remorse.
In sum, Sengphachanh was able to meaningfully participate at his
sentencing, even virtually. Under these circumstances, we conclude
Sengphachanh has failed to demonstrate he was prejudiced by his virtual
participation at sentencing, under either Chapman or Watson.
C. Any Unpaid Portion of the $154 Criminal Justice Administration Fee
Shall Be Vacated
After Sengphachanh was sentenced and while his appeal was pending,
Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill No. 1869) was
signed into law. As of July 1, 2021, pursuant to Assembly Bill No. 1869, the
statutory provision pursuant to which the court ordered Sengphachanh to
pay a $154 criminal justice administration fee (former section 29550.1 of the
Government Code) was repealed, and Government Code section 6111 was
added. (Assem. Bill No. 1869, §§ 11, 24.) Government Code section 6111,
subdivision (a), provides that: “On and after July 1, 2021, the unpaid balance
of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of
63
Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections
read on June 30, 2021, is unenforceable and uncollectible and any portion of a
judgment imposing those costs shall be vacated.” The Attorney General
concedes, and we agree, Sengphachanh is entitled to vacatur of any unpaid
balance of his criminal justice administration fee as of July 1, 2021.
D. Trial Court Did Not Err in Imposing the Balance of the Fines and Fees,
and Any Error Is Harmless
Relying on Dueñas, Sengphachanh asserts the trial court erred by
imposing a $2400 restitution fine pursuant to section 1202.4, subdivision (b),
as well a $30 court security fee (§ 1465.8) and a $40 criminal conviction
assessment fee (Gov. Code, § 70373), without first determining his ability to
pay. He asserts he is entitled to remand for an ability to pay hearing. We
disagree.
In Dueñas, the Court of Appeal held that due process requires the trial
court to hold an ability to pay hearing before imposing fines, fees, or
assessments and that the burden to prove ability to pay is on the prosecution.
(Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172.) The court further held
that execution of any restitution fine imposed under section 1202.4,
subdivision (b), must be stayed “until and unless” the trial court holds an
ability to pay hearing and the People demonstrate the defendant has the
ability to pay the restitution fine. (Id. at p. 1172.) Sengphachanh urges us to
follow Dueñas. But “[o]ther courts, including this court, have disagreed with
Dueñas on these key principles.” (People v. Keene (2019) 43 Cal.App.5th 861,
863; see, e.g., People v. Cota (2020) 45 Cal.App.5th 786, 795; People v. Allen
(2019) 41 Cal.App.5th 312, 326 [“[W]e would adopt the reasoning of the
numerous courts that have rejected Dueñas’s due process analysis.”];
People v. Hicks (2019) 40 Cal.App.5th 320, 326, review granted Nov. 26, 2019,
S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 93−98 (Kopp), review
64
granted Nov. 13, 2019, S257844.) Our Supreme Court is currently
considering the viability of Dueñas as it pertains to whether a trial court
must consider a criminal defendant’s ability to pay assessed fines and fees,
and if so, which party bears the burden of proof. (Kopp, supra, 38
Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
We need not delve into the broader issues of Dueñas, though, to address
the issue before us in this case. Here, the trial court imposed a restitution
fine of $2400 and, even before Dueñas, section 1202.4 expressly permitted
challenges to the imposition of a restitution fine in excess of the statutory
minimum of $300. (§ 1202.4, subds. (b)(1), (d); People v. Lewis (2009) 46
Cal.4th 1255, 1321; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Section 1202.4, subdivision (d) provides, in relevant part: “In setting the
amount of the fine pursuant to subdivision (b) in excess of the minimum
fine pursuant to paragraph (1) of subdivision (b), the court shall consider any
relevant factors, including, but not limited to, the defendant’s inability to
pay.” (Italics added.) The statute also makes clear that “[a] defendant shall
bear the burden of demonstrating [his or her] inability to pay.” (§ 1202.4,
subd. (d), italics added.) In cases since Dueñas, courts have clarified “it is
[the defendant’s] burden to make a record below as to their ability to pay
these [fines, fees, and] assessments.” (Kopp, supra, 38 Cal.App.5th at p. 96;
People v. Santos (2019) 38 Cal.App.5th 923, 934 [“it is the defendant’s burden
to demonstrate an inability to pay, not the prosecution’s burden to show the
defendant can pay, as the Dueñas decision might be read to suggest”]; People
v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [“Given that the defendant is
in the best position to know whether he has the ability to pay, it is incumbent
on him to object to the fine and demonstrate why it should not be imposed.”].)
65
Here, defense counsel initially raised the issue of the Sengphachanh’s
ability to pay and asked the court to “consider suspending or staying
restitution fines based on the fact of [Sengphachanh’s] inability to pay.” The
only issues that defense counsel raised were that Sengphachanh was going to
prison and the court was also going to order some victim restitution. The
trial court indicated it would address the issue after it finished imposing all
fines and fees. The court then ordered victim restitution of $3,590.13, an
amount Sengphachanh agreed to, and imposed various common fines and
fees of a lesser amount. Although the trial court had not directly addressed
the issue of Sengphachanh’s ability to pay, defense counsel was given the
opportunity but did not raise the issue again and did not present any further
evidence or argument.
As an initial matter, the trial court was not required to make an
express finding regarding Sengphachanh’s ability to pay. (§ 1202.4, subd.
(d).) The court was, however, required to consider the defendant’s ability to
pay the restitution fine (§ 1202.4, subd. (c)), and there is at least some
ambiguity in the record before us as to whether and to what extent the trial
court did so here. Regardless, any error arising from the court’s failure to
conduct an ability to pay hearing, or to adequately consider the issue, is
harmless because the record demonstrates Sengphachanh cannot make the
requisite showing that he is unable to pay the fines and fees imposed. (People
v. Jones (2019) 36 Cal.App.5th 1028, 1035; see also People v. Cervantes (2020)
46 Cal.App.5th 213, 229 [“the error would be harmless because the record
demonstrates, beyond a reasonable doubt, that [the defendant] will be able to
pay the total amount imposed”].)
Sengphachanh was 36 years old at the time of sentencing. He has a
high school degree and had served in the United States Navy since 2001,
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working as a diesel mechanic. He was sentenced to prison for eight years and
indicated he would be discharged from the Navy as a result of his conviction,
but his skills as a mechanic are transferable and there is nothing in the
record to suggest he cannot earn wages both in prison and upon his release.
(See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may
consider defendant’s ability to pay in the future, including “defendant’s
ability to obtain prison wages and to earn money after his release from
custody”]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court
may consider the defendant’s future ability to pay, including his ability to
earn wages while in prison].) Further, at the time of sentencing, he owned a
home in San Diego and his wife was also gainfully employed. Moreover,
Sengphachanh agreed to the amount of $3,590.13 for victim restitution,
indicating he had the ability to pay that amount, and the total amount of the
other fines and fees imposed is less than $3,000. There are no facts
presented in the record or on appeal that would allow us or the trial court to
conclude Sengphachanh does not also have the ability to pay the additional
$3,000.
We, therefore, conclude the trial court did not err in imposing the fines
and fees, and, even if error, we conclude it was harmless.
E. The Matter Shall Be Remanded for Resentencing Pursuant to Section
1170, Subdivision (b), as Amended
At the time of Sengphachanh’s sentencing, section 1170, former
subdivision (b), left it to the sentencing court’s “sound discretion” to select the
appropriate term within a sentencing triad that “best serves the interests of
justice.” (§ 1170, former subd. (b), as amended by Stats. 2018, ch. 1001
(Assem. Bill No. 2942) § 1.) Here, the trial court sentenced Sengphachanh to
the upper term of 8 years on count 2, lewd act upon a child, and explained it
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chose the upper term because it found Sengphachanh took advantage of a
position of trust and confidence to commit the offense.
While the present appeal was pending, the Legislature enacted Senate
Bill 567, which made significant amendments to section 1170, subdivision (b).
(Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, a “court may impose a
sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subds. (b)(1), (b)(2).) Bifurcation of such jury findings are also
now required. (Id., subd. (b)(2) [“Except where evidence supporting an
aggravating circumstance is admissible to prove or defend against the
charged offense or enhancement at trial, or it is otherwise authorized by law,
upon request of a defendant, trial on the circumstances in aggravation
alleged in the indictment or information shall be bifurcated from the trial of
charges and enhancements. The jury shall not be informed of the bifurcated
allegations until there has been a conviction of a felony offense.”].)19
Under the Estrada rule, we presume, absent evidence to the contrary,
that statutes that reduce punishment for criminal conduct apply retroactively
to all defendants whose sentences are not final. (People v. Frahs (2020) 9
Cal.5th 618, 626; People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada,
19 Although not relevant to this appeal, subdivision (b)(3) of section 1170
permits a sentencing court to “consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” New sentencing rules reflected in
subdivision (b)(4) through (b)(7) of section 1170 likewise do not bear on this
appeal.
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supra, 63 Cal.2d 740.) By narrowing the permissible grounds on which a
sentencing court can impose an upper term under section 1170, subdivision
(b), Senate Bill 567 is ameliorative on some sentences. Because the
Legislature gave no indication these amendments should apply prospectively
only, under the Estrada rule we infer that the Legislature intended the new
law to apply retroactively to all nonfinal convictions on appeal. (See People v.
Lopez (May 10, 2022, D078841) ___ Cal.App.5th ___ [2022 WL 1467716 at
p. *7] (Lopez) [finding Senate Bill No. 567 retroactive].)
The Attorney General concedes, and we agree, the aggravating factors
the trial court relied upon were neither stipulated to nor found true beyond a
reasonable doubt by a trier of fact. Accordingly, the sentence imposed does
not comply with section 1170, subdivision (b), as amended. We therefore
remand the matter to the trial court for resentencing consistent with section
1170, subdivision (b). (See Lopez, supra, ___ Cal.App.5th ___ [2022 WL
1467716 at p. *7].)
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DISPOSITION
Any portion of the $154 criminal justice administration fee imposed
pursuant to former Government Code section 29550.1 unpaid as of July 1,
2021 is vacated. The matter is remanded to the trial court for resentencing.
The judgment is affirmed in all other respects.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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