People v. Ramirez CA1/5 ( 2016 )

Filed 5/6/16 P. v. Ramirez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143981
v.
SAMUEL RAMIREZ, (Contra Costa County
Super. Ct. No. 5-132103-3)
Defendant and Appellant.
Samuel Ramirez was convicted by a jury of 26 counts of committing a forcible
lewd act on a child under the age of 14. The offenses involved a single victim, Ramirez’s
stepdaughter, Jane Doe. He was sentenced to state prison for 156 years and ordered to
pay Doe $900,000 in noneconomic restitution. On appeal, Ramirez contends: (1) the
trial court abused its discretion in admitting evidence of uncharged sexual offenses
pursuant to Evidence Code sections 1101 and 1108;1 (2) the trial court abused its
discretion in admitting certain expert testimony; (3) his trial counsel was ineffective in
failing to object to the admission of hearsay; (4) the cumulative impact of alleged errors
requires reversal; and (5) the trial court’s restitution award constitutes an abuse of
discretion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ramirez was charged by information with 26 counts of committing a forcible lewd
act on Doe, a child under 14 (Pen. Code, § 288, subd. (b)(1)). The 26 offenses were
1 Undesignated statutory references are to the Evidence Code.
1
alleged to have occurred in Rodeo between December 1, 1993, and December 31, 1994.
It was further alleged that the statute of limitations was extended and Ramirez was
ineligible for probation because the offenses involved substantial sexual conduct (Pen.
Code, §§ 803, subd. (f), 1203.066, subd. (a)(8)).
Prosecution’s Case
Doe’s Testimony
Doe was 30 years old at the time of trial. Although Ramirez was technically her
stepfather, Doe considered Ramirez her father. She had known him since she was two
years old, when he and her mother, Sandra, moved in together.2 Doe’s family also
included her three siblings, Benjamin, Cruz, and Casandra (respectively ages 35, 22, and
21 at the time of trial), as well as two stepsiblings.
The family lived in Los Angeles until 1991. When Doe was about eight years old,
they moved to Mill Valley into a three bedroom duplex, where the molestations began.
During the time they lived in Mill Valley, Ramirez entered Doe’s bedroom a couple of
times a week or every couple of days, in the middle of the night, pulled her covers down,
removed her pants and underwear, and touched her buttocks and vagina. “It was always
the same.”
The family moved again sometime between April 1993 and April 1994, when Doe
was nine or 10 years old, to a four-bedroom house in Rodeo. In Rodeo, the molestations
continued. In addition to fondling her, sucking on her nipples, and kissing her, Ramirez
began to orally copulate Doe and lick her anus. Although Doe could not remember the
number of incidents, the molestations were frequent—occurring approximately several
times a week. The acts generally followed a consistent pattern.3 Doe began wearing
2
Ramirez and Sandra did not marry until Doe was an adult, in approximately
2008. They divorced several years later.
3On one memorable occasion in Rodeo, Ramirez had been drinking at the
neighbors’ house and came home momentarily in the late afternoon to retrieve a forgotten
item. On encountering Doe at home alone, he ripped off her shirt, hugged and French
kissed her, and kissed her chest.
2
multiple layers of clothing to bed, trying to hold up her pants before Ramirez forced them
down, and crossing her legs in an attempt to protect herself. Ramirez said “please” and
“come on” and she could not stop him. Generally, Doe would just “lay there lifelessly,”
sometimes crying.
The family moved to a three-bedroom house in Vallejo. The molestations
remained similar but became less frequent—happening approximately every other week.
When Doe was about 11, the family moved yet again to a residence at San Quentin,
where Ramirez worked as an electrician. The abuse in San Quentin occurred less
frequently than in Vallejo. Doe started saying “no.” Ramirez stopped orally copulating
Doe, but he continued to touch her vagina and buttocks. He began waking her up in the
morning by massaging her feet, touching her vagina, and applying lotion. When Doe
would say “no,” Ramirez responded, “I’m not hurting you.” On one occasion, she woke
up and Ramirez was trying to rub his exposed penis with her hand. That was the last time
Ramirez tried to touch her. When Doe was 16, the family moved to Jamestown. She
moved out a year later and lived with her boyfriend in Sonora.
Ramirez never verbally threatened Doe and never used physical violence during
the molestations. She just laid there, not understanding what was happening. However,
Doe felt trapped, scared, humiliated, and confused whenever Ramirez molested her.
Although Ramirez never spanked her during any of the molestations, this discipline was
part of the fear Doe experienced.4 She feared that, if she resisted or “said anything,” she
would be spanked. Doe felt trapped because Ramirez was in control and “what he said
went.” While the molestations were occurring, Ramirez never told her it was a secret or
not to tell anyone. Nonetheless, she did not tell anyone because she felt scared and
humiliated. Doe waited a very long time to tell her mother because she did not want to
destroy what appeared to be a happy marriage. Having a daughter herself gave Doe the
strength to come forward.
4 When Doe misbehaved, Ramirez disciplined her by spanking her bare bottom
with his hand.
3
In approximately 2008, when Doe was about 25 years old, she asked Ramirez why
he molested her. He said he had “a sickness.” Around 2012, when Doe was
approximately 28 or 29, she learned that Sandra and Ramirez were separating. Around
the same time, Doe told Sandra and her older brother, Benjamin, that Ramirez had
molested her. At a family meeting to discuss Sandra and Ramirez’s separation, Ramirez
admitted molesting Doe. Doe reported the abuse to police in March 2013.
Siblings’ Testimony
Doe’s younger brother, Cruz, attended the 2012 family meeting and heard
Ramirez admit he molested Doe. After that meeting, Ramirez wrote Cruz a letter, in
which he referred to “the revelation of my past with your sister.” Doe’s younger sister,
Casandra, also attended the 2012 family meeting. She heard Ramirez say, “I molested
your sister, [Doe].”
Police Investigation
Sergeant Deborah Moss, of the Tuolumne County Sheriff’s Office, testified that
Doe reported the abuse on March 26, 2013. Doe said the abuse began in Mill Valley
when she was around seven years old and in the fourth grade. In fifth grade they moved
to Rodeo. Doe told Moss that, while in Rodeo, Ramirez came into her room every night
or every other night and touched her vagina, kissed her lips and breasts, and orally
copulated her.
Moss arranged a pretext call between Doe, Casandra, and Ramirez, which was
played for the jury. Ramirez admitted the molestations, which he said began in Rodeo
when Doe was seven or eight. He attributed the molestations to a “sickness.”
Police Interview of Ramirez
On April 17, 2013, Moss and Detective Kenny Hutton interviewed Ramirez.
Ramirez admitted that he molested Doe. He denied ever orally copulating Doe, and he
did not remember molesting her as frequently as twice a week. However, Ramirez
conceded that if Doe claimed that many molestations he would not disagree. He
remembered four episodes in the Rodeo house, only two of which involved touching
Doe’s vagina. He also denied any molestations occurred in Mill Valley. But Ramirez
4
remembered six to 10 incidents at the San Quentin residence when he had Doe
masturbate him. At the end of his statement to police, Ramirez wrote a letter to Doe in
which he admitted, among other things, rubbing her vagina, breasts, and buttocks, and
using her hand to masturbate him.
Police Interview of Doe
On April 29, 2013, Hutton took a more extensive interview of Doe. In its case-in-
chief, the prosecution introduced an abbreviated video and transcript of the April 2013
interview. In this abbreviated version, Doe told Hutton the molestations began in Mill
Valley. At that time, Ramirez would come into Doe’s bedroom about once a week, or
every other night, pull her pajamas down and “touch[ed]” and “finger[ed]” her. In
Rodeo, Ramirez continued molesting her every other day and began performing oral sex.
He would also try to kiss her and get her to touch him. Although Ramirez never
threatened her or used violence, she thought she would get in trouble if she did not
cooperate. Ramirez exposed his penis “sometimes.”
Expert Witness’s Testimony
Sergeant Antonio Benavides, an investigator with the Contra Costa County
District Attorney’s Office, testified as an expert in delayed disclosure, evolving
disclosure, victim behavior, and the profile of sexual abusers. Benavides testified that
some victims of sexual abuse will delay disclosure because of confusion, fear, shame,
guilt, and self-blame. Also, if the abuser is someone who has control or power over the
victim, it may take longer for the victim to come forward.
Defense Case
Ramirez was the only defense witness. He testified that when he met Sandra in
1987, she already had two children—Benjamin and Doe. He and Sandra began living
together about a year after they met, had a child together in 1991, and finally married in
2005.
Ramirez drank heavily throughout Doe’s childhood. For example, on a typical
weeknight, he drank four or five beers and a similar number of mixed drinks. He quit
5
drinking in October 2004. Ramirez admitted spanking Doe, although he probably
spanked her less than 10 times total.
Ramirez denied ever molesting Doe. He had consensual sex with her when she
was 16. While Sandra, Benjamin, and the younger siblings moved the family’s
belongings to their new home in Jamestown, Ramirez and Doe stayed an extra day to
paint the San Quentin home. Ramirez went to bed around 9:00 p.m., after consuming
about nine beers and half a fifth of vodka. He awoke to find Doe holding his penis. He
grabbed her hand and asked, “What are you doing?” After Ramirez tried to push her
hand away, she said, “No. Don’t stop me. I wanted this and I know you want it too.”5
Ramirez stopped resisting and had intercourse with Doe.
In 2010, Doe told Ramirez that she wanted to talk with him about what happened.
She said that what they had done was weighing on her, and she felt the need to disclose it.
Ramirez offered to talk with Sandra immediately, but they agreed it would crush her.
Ramirez offered to take responsibility and suggested he could tell Sandra he molested
Doe. Doe approved of that approach. Ramirez decided that admitting to molestation
would help Doe “come to terms with this.”
In October 2012, the family, including Doe, met to discuss the division of marital
assets. At the meeting, Doe asked Ramirez, “Don’t you have something to say to the
family?” Ramirez “could tell just what she wanted me to say,” so he said, “I molested
your sister.” Doe said that if Ramirez signed certain papers and made sure Sandra never
had to work again, she would not pursue the matter. Ramirez later signed an asset
agreement, in which he “[gave] up virtually everything.” In his letter to Cruz, Ramirez’s
reference to “my past with your sister” was a reference to the 1999 incident when Doe
was 16, “but of course nobody knew that.”
During the pretext call, Ramirez felt he was unable to defend himself. He felt that
telling the truth would be worse. He therefore made up the idea that he had a “sickness”
5Ramirez said Doe had entered his bedroom not fully dressed on four or five
previous occasions.
6
and hoped “[Doe and Casandra] would accept [this] so that [they] could move on.”
When the police interviewed him, Ramirez decided to continue lying. Since the family
had already alienated him, he did not think his predicament could get worse. He also lied
to police to protect Sandra and Doe and to provide Doe with closure. He was not
concerned that he was admitting crimes because the police had assured him that his case
was less serious. Ramirez fabricated details or took a nonsexual situation and sexualized
it. The letter he wrote to Doe at the end of the interview incorporated things suggested by
Hutton.
Rebuttal
In rebuttal, the prosecutor played the complete recording of Doe’s April 2013
interview, which was largely consistent with her testimony at trial.
Verdict and Sentence
Ramirez was convicted of all 26 counts and all special allegations were found true.
He was sentenced to state prison for a total term of 156 years. The trial court also
ordered Ramirez to pay $900,000 in restitution to Doe for pain and suffering. Ramirez
filed a timely notice of appeal.
II. DISCUSSION
Ramirez contends: (1) the trial court erred in admitting evidence of uncharged
sexual offenses pursuant to sections 1101 and 1108; (2) the trial court abused its
discretion in admitting Benavides’s expert testimony; (3) his trial counsel was ineffective
in failing to object to the admission of Doe’s out-of-court statements to police; (4) the
cumulative impact of the alleged errors requires reversal; and (5) the trial court’s
restitution award constitutes an abuse of discretion. None of Ramirez’s arguments has
merit.
A. Admission of Evidence of Uncharged Sexual Offenses
Over Ramirez’s section 352 objection, the trial court admitted, under sections
1101 and 1108, evidence of uncharged sexual offenses against Doe in addition to
7
evidence of the 26 charged molestations (which occurred in Rodeo during 1993–1994).6
Ramirez insists this was an abuse of discretion and deprived him of a fair trial.
“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s
disposition to commit such acts. ( . . . § 1101.) However, the Legislature has created
exceptions to this rule in cases involving sexual offenses ( . . . § 1108) and domestic
violence (. . . § 1109).” (People v. Reyes (2008) 160 Cal. App. 4th 246, 251.)
Section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced
in a sex offense prosecution to demonstrate the defendant’s disposition to commit such
crimes.” (People v. Reliford (2003) 29 Cal. 4th 1007, 1009.)
“Under . . . section 352, the trial court enjoys broad discretion in assessing whether
the probative value of particular evidence is outweighed by concerns of undue prejudice,
confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124.)
A trial court’s exercise of its discretion under section 352 “ ‘must not be disturbed on
appeal except on a showing that the court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ”
(Rodrigues, at pp. 1124–1125; accord, People v. Story (2009) 45 Cal. 4th 1282, 1295.)
“[A] court need not expressly weigh prejudice against probative value or even expressly
state that it has done so, if the record as a whole shows the court was aware of and
performed its balancing functions under . . . section 352.” (People v. Taylor (2001)
26 Cal. 4th 1155, 1169.)
6 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.” Section 352 provides: “The court
in its discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.”
8
1. Background
In pretrial motions, the prosecution moved to admit evidence of Ramirez’s
uncharged sexual offenses involving Doe, pursuant to section 1108. Ramirez opposed
the motion, arguing the evidence was unduly prejudicial. The trial court agreed with the
prosecutor that the uncharged acts were admissible under sections 352, 1101, and 1108.
The court explained its ruling as follows: “[I]t seems to me the history between them
would be relevant to [the force] issue with a child starting at age seven years old. [¶] I
have considered 352 and the obvious prejudice from that long history of alleged abuse,
but I think the probative value is very substantial and outweighs the prejudicial effect.”
2. Analysis
Ramirez contends that the probative value of Doe’s testimony regarding
uncharged offenses was outweighed by its prejudicial effect and that “[t]he hundreds of
additional uncharged acts . . . should have been excluded under . . . section 352.” We
disagree.
Section 1108 reflects a legislative determination that “ ‘evidence of uncharged
sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed
admissible without regard to the limitations of . . . section 1101.’ ” (People v. Britt
(2002) 104 Cal. App. 4th 500, 505–506, italics omitted; People v. Yovanov (1999)
69 Cal. App. 4th 392, 405.) “Under section 1108, courts . . . retain broad discretion to
exclude disposition evidence if its prejudicial effect, including the impact that learning
about defendant’s other sex offenses makes on the jury, outweighs its probative value.”
(People v. Falsetta (1999) 21 Cal. 4th 903, 919.)
In weighing prejudice against probative value under section 352, “five factors
stand out as particularly significant in [a] . . . section 1108 case. These factors are
(1) whether the propensity evidence has probative value, e.g., whether the uncharged
conduct is similar enough to the charged behavior to tend to show the defendant did in
fact commit the charged offense; (2) whether the propensity evidence is stronger and
more inflammatory than evidence of the defendant’s charged acts; (3) whether the
uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to
9
confuse or distract the jurors from their main inquiry, e.g., whether the jury might be
tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether
admission of the propensity evidence will require an undue consumption of time.
[Citation.] A trial court balances this first factor, i.e., the propensity evidence’s probative
value, against the evidence’s prejudicial and time-consuming effects, as measured by the
second through fifth factors.” (People v. Nguyen (2010) 184 Cal. App. 4th 1096, 1117.)
“[T]he probative value of ‘other crimes’ evidence is increased by the relative
similarity between the charged and uncharged offenses, the close proximity in time of the
offenses, and the independent sources of evidence (the victims) in each offense.
[Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged
offenses resulted in actual convictions and a prison term, ensuring that the jury would not
be tempted to convict the defendant simply to punish him for the other offenses, and that
the jury’s attention would not be diverted by having to make a separate determination
whether defendant committed the other offenses.” (People v. Falsetta, supra, 21 Cal.4th
at p. 917.) In assessing prejudice, we must remember that “[t]he prejudice which
exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll
evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in . . .
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.’ ” (People v.
Karis (1988) 46 Cal. 3d 612, 638.)
Applying these factors here, we conclude Doe’s testimony had significant
probative value and was not “cumulative,” as Ramirez suggests. The uncharged conduct
was extremely similar to the charged conduct and was part of a recurrent pattern of abuse,
wherein the incidents occurred very close in time. Doe’s testimony regarding the early
molestations, which began when she was about eight, was also relevant to place the
charged offenses in context. Specifically, her testimony about these early offenses, if
10
true, tends to explain why Doe felt forced to submit to the sexual activity in the charged
offenses.
Evidence of Ramirez’s uncharged acts was no more inflammatory than Doe’s
testimony regarding the charged offenses, so any additional prejudicial effect was
minimal. (See People v. Ennis (2010) 190 Cal. App. 4th 721, 725–726 [“[w]hatever
emotional bias might have been invoked against [the defendant] at trial, would have been
fully invoked by the multitude of horrific crimes actually charged . . . [, and] additional
evidence suggesting he may have done more of the same [to the same victim], would not
significantly change the jury’s perception of him”].) Doe was only about seven or eight
years old when the uncharged offenses began. However, we cannot say that these early
acts were qualitatively different or any more inflammatory than the facts underlying the
charged crimes, which also involved oral copulation. We cannot agree with Ramirez that
the number of uncharged offenses was unduly prejudicial standing alone. As Ramirez
concedes, the charged acts were also numerous.
Ramirez also contends the evidence should have been excluded because the
uncharged acts were “remote, unpunished, and unverified by a third victim or witness.”
We agree with the People that there was essentially no gap between the charged and
uncharged offenses. Even if we look only at the first or last uncharged offenses, they
occurred within a few years of the charged offenses, which is not remote. (See People v.
Robertson (2012) 208 Cal. App. 4th 965, 992 [upholding admission of uncharged sexual
assault occurring 34 years before charged sexual offense].) The probative value of this
testimony may not be heightened because Doe was the victim in all of the offenses. We
also agree that there was some risk that the jury would be tempted to convict Ramirez of
the charged offenses, regardless of guilt, to assure that he would be punished for the
uncharged offenses. (See People v. Merriman (2014) 60 Cal. 4th 1, 59; People v. Balcom
(1994) 7 Cal. 4th 414, 427.) However, the trial court weighed these factors, none of
which are dispositive. (Merriman, at p. 59.)
Most importantly, because of the similarity of all the acts and Ramirez’s uniform
defense that none of the acts occurred, it is highly unlikely the jury would return a guilty
11
verdict based upon the uncharged misconduct rather than the charged offenses. If the
jury was not inclined to believe Doe’s testimony regarding the charged acts, it is highly
unlikely that hearing her testimony about uncharged acts would have changed the jury’s
assessment. (People v. Ennis, supra, 190 Cal.App.4th at p. 734.) The risk of prejudice
was also significantly reduced by the court’s instruction to the jury, pursuant to
CALCRIM No. 1191, that the evidence of uncharged sexual offenses “is not sufficient by
itself to prove that the defendant is guilty . . . . The People must still prove each charge
beyond a reasonable doubt.” 7 Juries are presumed to follow the instructions given.
(People v. Pinholster (1992) 1 Cal. 4th 865, 919, disapproved on other grounds by People
v. Williams (2010) 49 Cal.4th 405,458–459.)
In light of all of the above circumstances, the trial court did not abuse its discretion
when it concluded that the probative value of the uncharged acts testimony was not
outweighed by its risk of undue prejudice. Because the trial court properly admitted the
evidence under section 1108, we do not consider whether, as Ramirez suggests, the trial
7 Pursuant to CALCRIM No. 1191, the jury was instructed: “The People
presented evidence that the defendant committed the crimes of Forcible Lewd Act upon a
Child or Lewd Act upon a Child under 14 that were not charged in this case. These
crimes are defined for you in these instructions. [¶] You may consider this evidence only
if the People have proved by a preponderance of the evidence that the defendant in fact
committed the uncharged offenses. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. [¶] If the People have not met this burden of proof, you must disregard this
evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses,
you may, but are not required to, conclude from that evidence that the defendant was
disposed or inclined to commit sexual offenses, and based on that decision, also conclude
that the defendant was likely to commit, and did commit Forcible Lewd Act upon a Child
as charged in Counts 1 through 26, or Lewd Act upon a Child under 14, which is a lesser
charge as to each count. If you conclude that the defendant committed the uncharged
offenses, that conclusion is only one factor to consider along with all the other evidence.
It is not sufficient by itself to prove that the defendant is guilty of Forcible Lewd Act
upon a Child or Lewd Act upon a Child under 14. The People must still prove each
charge beyond a reasonable doubt.”
12
court abused its discretion in also admitting the evidence under section 1101. (People v.
Story, supra, 45 Cal.4th at p. 1295; People v. Britt, supra, 104 Cal.App.4th at p. 506.)
B. Admission of Expert Testimony
Next, Ramirez contends the trial court abused its discretion in admitting
Benavides’s expert testimony related to child sexual abuse accommodation syndrome
(CSAAS). Specifically, he maintains Benavides implicitly vouched for Doe’s credibility
by opining on the significance of facts too closely mirroring her testimony. We disagree.
“As a general rule expert opinion testimony is limited to an opinion that is
‘[r]elated to a subject that is sufficiently beyond common experience that the opinion . . .
would assist the trier of fact.’ (. . . § 801, subd. (a).) Because admissibility of expert
opinion is a question of degree, and a jury need not be wholly ignorant of the subject
matter under the statutory rule, exclusion is only necessary where the opinion would add
nothing at all to the jury’s common fund of information. (People v. McAlpin (1991)
53 Cal. 3d 1289, 1299–1300.) For example, courts have repeatedly recognized the
appropriate use of expert testimony when an alleged victim’s actions during or following
a crime seem to contradict the victim’s claims in cases of alleged molestation or abuse.
(See People v. Riggs (2008) 44 Cal. 4th 248, 293 [expert testimony addressing battered
woman’s syndrome]; People v. Patino (1994) 26 Cal. App. 4th 1737, 1744 [expert
testimony concerning [CSAAS]].) ‘A trial court’s decision as to whether a particular
subject is a proper one for expert opinion is reviewed for abuse of discretion.’ ” (People
v. Dejourney (2011) 192 Cal. App. 4th 1091, 1110.)
“The general rule is that an expert may not give an opinion whether a witness is
telling the truth, for the determination of credibility is not a subject sufficiently beyond
common experience that the expert’s opinion would assist the trier of fact; in other
words, the jury generally is as well equipped as the expert to discern whether a witness is
being truthful.” (People v. Coffman and Marlow (2004) 34 Cal. 4th 1, 82.) Although
expert testimony on the common reactions of a child molestation victim is not admissible
to prove a charged sex crime actually occurred, “ ‘CSAAS testimony “is admissible to
rehabilitate [the molestation victim’s] credibility when the defendant suggests that the
13
child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or
her testimony claiming molestation.” ’ ” (People v. Perez (2010) 182 Cal. App. 4th 231,
245; accord, People v. Bowker (1988) 203 Cal. App. 3d 385, 394 (Bowker).)
The Bowker court outlined limitations on the admission of CSAAS evidence.
First, the evidence “must be targeted to a specific ‘myth’ or ‘misconception’ suggested by
the evidence,” such as the significance of delayed reporting. (Bowker, supra, 203
Cal.App.3d at pp. 393–394.) Second, “the jury must be instructed simply and directly
that the expert’s testimony is not intended and should not be used to determine whether
the victim’s molestation claim is true. . . . The evidence is admissible solely for the
purpose of showing that the victim’s reactions as demonstrated by the evidence are not
inconsistent with having been molested.” (Id. at p. 394, some italics added.)
1. Background
In advance of trial, Ramirez filed a motion to exclude testimony from the
prosecution’s proposed expert psychologist, Dr. Anthony Urquiza. Ramirez argued
Urquiza’s proposed testimony on CSAAS was irrelevant and not accepted in the
scientific community. Ramirez also argued that, if the expert were to testify, opinions
regarding Doe’s credibility should be excluded. The prosecutor responded that the
admission of CSAAS expert testimony is approved in sexual assault cases. The
prosecutor specifically noted the evidence’s relevance to this case, saying, “[t]here [are]
delayed disclosures, there are [victim] behaviors, and there was grooming, and there was
dissuasion and there was force, all of which arise and are described in CSAAS.”
The trial court explained it would need to hear the cross-examination of Doe
because “whether there are myths to be dispelled will depend on what she says.”
However, the court also said, “I do understand there’s at minimum the issue of delayed
disclosure for many years here, so I think it’s likely that I will admit [the expert’s]
testimony. [¶] . . . [¶] I can’t in advance give specific rulings as to what questions are
admissible and what questions are not. [¶] I would generally keep his testimony to the
valid purposes of type of expert testimony to dispel myths . . . .”
14
After Doe testified, however, the prosecution gave notice that the testimony of
Benavides would be offered instead to provide “information related to the late disclosure
and evolving disclosure, victim behavior, general sexual assault investigation . . . and [to]
very, very, very narrowly have him testify . . . that there is no profile of the sexual assault
perpetrator . . . .” Ramirez’s trial counsel submitted on the admissibility of delayed
disclosure expert testimony, but he also made clear that he believed the testimony should
be limited so that “no hypotheticals would be proposed and no specifics about this . . .
case would be discussed.”
The trial court concluded the evidence was admissible and explained: “I do think
. . . people do have misimpressions about child sexual assault victims and how they are
likely to behave and the significance of a delayed or evolving disclosure. So I think it is
helpful to the jury to have the general expertise about the experience in this field. . . . [¶]
. . . [¶] I will impose the limitations that are required by the case law; that is, there should
be no hypotheticals mirroring the facts of this case and no elicitation of an opinion on the
question whether the victim in this case was, in fact, a victim of child sexual assault. [¶] I
will provide [a] limiting instruction to the jury on the nature of this testimony . . . .”
Benavides was qualified as an expert in delayed disclosure, evolving disclosure,
victim behavior, and the profile of sexual abusers. At the conclusion of his voir dire of
Benavides, Ramirez’s trial counsel said, “I’ll just restate my earlier objection from the in
limines and submit.” Ramirez’s continuing objection to Benavides’s testimony is only to
particular instances of his testimony. Specifically, Ramirez challenges Benavides’s
response to the following inquiry from the prosecutor: “Have you had any cases
specifically where there’s . . . a familial relationship or a father/child-type relationship?”
Benavides responded, “Yes. [¶] . . . [¶] [S]uspects have described just using the power
that they have . . . as a father or as the . . . patriarch of the house. [¶] They’ve also
described using fear or using gifts or . . . generally just trying to keep the victim on their
good side to prevent them from disclosing.”
Benavides also testified regarding delayed disclosures: “[F]or example when you
have a . . . father/daughter type of relationship or a close familiar relationship . . . you
15
may have a reluctance to report because of a fear that that person that they love, that they
care about, or that has raised them . . . may go to jail or may be in trouble or they may not
see them again. [¶] And that person may have reinforced that behavior by telling . . . the
victim that’s what’s going to happen, or the victim if they’re sophisticated enough can
make that inference on their own.” The prosecutor also asked Benavides about widely-
held stereotypes about child molesters and whether they were accurate. Benavides
responded, “In my experience, I can say that I’ve probably had out of the hundreds of
cases that I have investigated ten at the most cases where . . . the suspect was unknown to
the victim. The rest of those cases are all a victim who knows their perpetrator. [¶] . . .
[¶] I would say probably two thirds to three quarters [are direct parental authority cases].”
Benavides also explained why a victim may not be able to distinguish repeated
instances of abuse. “[A]s we do things over and over again, for example, even innocuous
things like . . . getting gas, if those things . . . happen over and over again, they sort of
become indistinguishable one from the other. [¶] And this behavior also sort of gets
indistinguishable. . . . I . . . might only be able to pull out landmark events in their
memory, for example, the first time, the last time, or a time when something was
different, particularly violent, something changed . . . .”
2. Analysis
Ramirez contends that Benavides’s testimony was improperly tailored to reflect
the facts of this case, making it appear that Doe was telling the truth. Contrary to the
People’s assertion that Ramirez forfeited this argument, we conclude he adequately
preserved it. (See People v. Perez, supra, 182 Cal.App.4th at p. 245, fn. 5.) In any event,
the trial court did not abuse its discretion in admitting the testimony.
“Supreme Court precedent requires that expert testimony related to [CSAAS] be
narrowly confined, subject to a proper foundational showing that such evidence is
necessary to rebut popular misconceptions which would challenge the victim’s
credibility. After the testimony has been received, the jury must be admonished so that it
understands the limited purpose for admitting such evidence.” (Bowker, supra,
203 Cal.App.3d at pp. 387–388.)
16
In Bowker, supra, 203 Cal. App. 3d 385, a psychologist testified “at great length”
on CSAAS and explained in detail each of the five stages of the syndrome theory. (Id. at
p. 389.) When asked why a child would doubt that an adult believed the child’s claim,
the expert responded as a hypothetical child: “ ‘ “If they believe me, why are they taking
me away from my mom? If they believe me . . . , why are they bringing me in [this
courtroom]? How many times do I have to say it? I told the lady at the hospital, the
policeman, I told the detective, I told the guy downtown in the suit, and they took me into
this big courtroom.” ’ ” (Id. at pp. 389–390.)
The Bowker court stressed: “It is one thing to say that child abuse victims often
exhibit a certain characteristic or that a particular behavior is not inconsistent with a child
having been molested. It is quite another to conclude that where a child meets certain
criteria, we can predict with a reasonable degree of certainty that he or she has been
abused. The former may be appropriate in some circumstances; the latter—given the
current state of scientific knowledge—clearly is not.” (Bowker, supra, 203 Cal.App.3d at
p. 393.) The Bowker court concluded that the psychologist’s testimony exceeded the
permissible bounds of CSAAS evidence, as it “was replete with comments designed to
elicit sympathy for child abuse victims and solicitations that children should be
believed.” (Id. at p. 394.) “[T]he picture painted by [the psychologist also] happened to
be of the two children in the case,” in that his comment, “ ‘Why are they taking me away
from my mom?’ ” directly mirrored the fact that complaining witnesses had been
removed from parental home as a result of sex abuse investigation. (Ibid.) Most
troubling was that, “by delineating each stage of the CSAAS theory, [the expert]
constructed a ‘scientific’ framework into which the jury could pigeonhole, the facts of the
case. Thus, even though [the psychologist] was precluded from using CSAAS as a
predictor of child abuse, the jury was free to superimpose these children on the same
theory and conclude abuse had occurred.” (Id. at p. 395.)
Here, the expert testimony did not go beyond that found permissible in Bowker.
Ramirez cross-examined Doe regarding the timing of her reports to police as well as the
timing and details of specific molestations, which tended to challenge her credibility.
17
Benavides’s testimony helped explain why Doe’s delay in reporting the alleged abuse, as
well as her inability to pin down specific instances, was not inconsistent with her claim
that she was so abused. Benavides couched his testimony in terms of victims as a class,
he did not refer to Doe specifically. Benavides’s testimony regarding the lack of any
profile for a “typical” child molester was also admissible. (See People v. McAlpin, supra,
53 Cal.3d at p. 1302 [without expert testimony “many jurors would tend to rely . . . on the
widespread public image of the child molester as an old man in shabby clothes who
loiters in playgrounds or schoolyards and lures unsuspecting children into sexual contact
by offering them candy or money”]; id. at pp. 1302–1304.)
The trial court also properly instructed the jury with CALCRIM No. 1193: “You
have heard testimony from Inspector Benavides regarding dispelling common
misconception of the behavior of sexual assault victims. [¶] Inspector Benavides’s
testimony about the behavior of sexual assault victims is not evidence that the defendant
committed any of the crimes charged against him. [¶] You may consider this evidence
only in deciding whether or not Doe’s conduct was not inconsistent with the conduct of
someone who had been molested and in evaluating the believability of her testimony.”
(Italics added.) We must presume the jury followed this instruction. (People v.
Pinholster, supra, 1 Cal.4th at p. 919.) Accordingly, it is extremely unlikely Benavides’s
testimony was used improperly to find Doe had been molested. The court did not abuse
its discretion in admitting Benavides’s challenged expert testimony.8
8 Our conclusion is not altered by Ramirez’s reliance on People v. Roscoe (1985)
168 Cal. App. 3d 1093, in which a psychologist opined that the complaining witness
“ ‘was diagnosed as a victim of child molest.’ ” (Id. at pp. 1098, 1095.) The Roscoe
court held “the expert testimony authorized . . . to permit rehabilitation of a
complainant’s credibility is limited to discussion of victims as a class, supported by
references to literature and experience (such as an expert normally relies upon) and does
not extend to discussion and diagnosis of the witness in the case at hand.” (Id. at p. 1100,
fn. omitted.) In reaching that conclusion, the court observed: “Thus, for example, a
victim whose credibility is attacked for initially denying that he had been molested could
be rehabilitated by expert testimony that such denials are more likely than not in
molestation cases. The testimony would not be that this particular child was a victim of
18
C. Ineffective Assistance of Counsel
Next, Ramirez maintains his trial counsel provided ineffective assistance by
failing to object to admission of Doe’s prior statements to police. Specifically, he
contends Doe’s recorded police interview and earlier statements to Moss were hearsay.
“In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating, first, that counsel’s performance was deficient because it
‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that
‘counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.’
[Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the
manner challenged,’ an appellate claim of ineffective assistance of counsel must be
rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability
that but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” (People v. Ledesma (2006) 39 Cal. 4th 641, 745–746; People v. Lopez (2008)
42 Cal. 4th 960, 966.)
We conclude that Ramirez’s trial counsel was not ineffective in failing to object to
admission of the recorded April 2013 interview with Hutton or Doe’s March 2013
statements to Moss. First, even if we assume that an objection could have properly been
sustained, “ ‘failure to object will rarely establish ineffective assistance.’ ” (People v.
Carrasco (2014) 59 Cal. 4th 924, 985.) “Generally, failure to object is a matter of trial
tactics as to which we will not exercise judicial hindsight. [Citation.] ‘When a defendant
molestation, causing him to react in a certain way, but rather that as a class victims of
molestation typically make poor witnesses, and are reluctant to disclose or discuss the
sordid episodes.” (Id. at p. 1099.) Benavides’s testimony was in the latter vein.
19
makes an ineffectiveness claim on appeal, the appellate court must look to see if the
record contains any explanation for the challenged aspects of representation. If the
record sheds no light on why counsel acted or failed to act in the manner challenged,
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation” [citation], the contention must be rejected.’
[Citation.] A reviewing court will not second-guess trial counsel’s reasonable tactical
decisions.” (People v. Kelly (1992) 1 Cal. 4th 495, 520.) “ ‘ “Reviewing courts will
reverse convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.” ’ ” (People v. Bradford (1997) 14 Cal. 4th 1005, 1052.)
Here, Ramirez’s trial counsel was not asked to explain why he did not object. We
agree with the People that Ramirez’s trial counsel may very well have acted with a
tactical purpose when he failed to object—i.e., he believed admission of Doe’s statements
to police would be helpful to the defense to the extent her prior statements revealed
inconsistencies with her trial testimony. In his cross-examination of Doe, Ramirez asked
about the substance of her prior statements to police, in an apparent attempt to highlight
such inconsistencies.9 Ramirez also referred to the asserted inconsistencies in his closing
9
Specifically, the record reflects the following exchange between Doe and
Ramirez’s trial counsel:
“Q. Now, when you were originally talking with . . . Deputy Moss, the first time
that you had a conversation with the police, you disclosed to Deputy Moss
that it was in [Ramirez’s brother’s] house where the abuse actually started; is
that true?
A. No.
Q. . . . So what your testimony is is that the abuse happened not at [Ramirez’s
brother’s] house but somewhere else?
A. Yes.
Q. And do you recall telling Deputy Moss that it happened in Mill Valley when
you were sleeping on a pullout couch?
A. No. No. [¶] . . . [¶]
Q. Now, you’ve described the frequency of abuse at the Mill Valley house as I
think something in the neighborhood of a couple times a week.
A. Yes.
20
argument. Of course, Ramirez is correct that Doe’s statements to police were potentially
damaging to Ramirez because they were largely consistent with her trial testimony.
“Competent counsel often are confronted with tactical choices that have cons as well as
pros; a fortiori, they are permitted, indeed required, to make them.” (People v. Kelly,
supra, 1 Cal.4th at p. 522.) This is not a case where there could be no satisfactory
explanation for counsel’s failure to object. The pretrial discussion between counsel and
the court regarding section 356 further supports the presumption Ramirez’s trial counsel
took a calculated risk that, if he chose to elicit the substance of any recorded statement,
the prosecution could move to admit the entire recording.10 Ramirez has not rebutted the
presumption his trial counsel elected not to object for a valid tactical reason.
Furthermore, an objection would not have been meritorious. Ramirez maintains
his counsel should have objected when, to counter his cross-examination of Doe, the
prosecution offered excerpts (and eventually the entire recording) from Doe’s April 2013
interview, as well as Moss’s testimony describing Doe’s statements in March 2013.
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
Q. Okay. Do you remember describing the abuse to the deputies when you had
interviews with them as happening more frequently than that?
A. Well, it happened all the time, . . . I can’t say exactly how many times a week
it happened but it happened a lot. [¶] . . . [¶]
Q. And do you recall telling Deputy Hutton that when you would put on clothes
that you wore sometimes up to ten pairs of pants?
A. Yes. [¶] Well, I mean ten pairs of pants? [¶] Well, maybe it was over
exaggerated. But maybe like four. [¶] . . . [¶]
Q. And . . . do you recall telling Deputy Moss and Deputy Hutton that you were
kind of exhausted all the time?
A. Yes. Absolutely.”
10Section 356 provides, in relevant part: “Where part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same subject
may be inquired into by an adverse party; . . . and when a detached act, declaration,
conversation, or writing is given in evidence, any other act, declaration, conversation, or
writing which is necessary to make it understood may also be given in evidence.”
21
stated.” (§ 1200, subd. (a).) Unless an exception applies, “hearsay evidence is
inadmissible.” (§ 1200, subd. (b).) Here, although Doe’s statements to police were made
out of court and were offered for their truth, section 356 acts as an applicable exception
to the hearsay rule. (See People v. Harrison (2005) 35 Cal. 4th 208, 239 [“[o]nce
defendant had introduced a portion of [a witness’s] interview with [the police officer]
into evidence, the prosecution was entitled to introduce the remainder of [the witness’s]
interview to place in context the isolated statements of [the witness] related by [the
officer] on direct examination by the defense”]; People v. Parrish (2007)
152 Cal. App. 4th 263, 269.)
The purpose of section 356 is “to prevent the use of selected aspects of a
conversation, act, declaration, or writing, so as to create a misleading impression on the
subjects addressed.” (People v. Arias (1996) 13 Cal. 4th 92, 156.) “ ‘In applying . . .
section 356 the courts do not draw narrow lines around the exact subject of inquiry. “In
the event a statement admitted in evidence constitutes part of a conversation or
correspondence, the opponent is entitled to have placed in evidence all that was said or
written by or to the declarant in the course of such conversation or correspondence,
provided the other statements have some bearing upon, or connection with, the admission
or declaration in evidence.” ’ ” (People v. Zapien (1993) 4 Cal. 4th 929, 959, italics
omitted.) Because Ramirez’s trial counsel elicited some of the substance of Doe’s
statements regarding the molestations to both Moss and Hutton during cross-examination,
the entirety of her conversations with those officers was admissible. Ramirez provides no
argument regarding section 356 and has not shown his trial counsel’s performance was
deficient.
In any event, even if trial counsel’s failure to object fell below the objective
standard of reasonableness, it was not prejudicial. Doe’s police interview statements
were largely repetitive of her testimony at trial. Thus, by virtue of trial counsel’s failure
to object, the jury was not exposed to significantly new or different incriminating
evidence. Furthermore, the case against Ramirez was overwhelming: Doe’s testimony
was corroborated by Ramirez’s repeated pretrial admissions—in a family meeting, a
22
pretext call, a police interview, and an apology letter. Ramirez’s defense—that he
repeatedly admitted serious criminal conduct to spare Sandra’s feelings and help Doe
“come to terms” with their consensual sex—is inherently improbable. It is not
reasonably probable Ramirez would have achieved a more favorable result but for trial
counsel’s failure to object. (People v. Carrasco, supra, 59 Cal.4th at p. 986; People v.
Lopez, supra, 42 Cal.4th at p. 966.)
D. Cumulative Error
Ramirez also argues that the cumulative effect of the asserted errors requires
reversal of the judgment. We have rejected all of Ramirez’s arguments on the merits.
Ramirez was entitled to a trial “in which his guilt or innocence was fairly adjudicated.”
(People v. Hill (1998) 17 Cal. 4th 800, 844.) He received such a trial.
E. Restitution Order
Finally, Ramirez maintains the $900,000 restitution award was an abuse of
discretion because it was impermissibly based, in part, on loss caused by uncharged
offenses. “A victim’s restitution right is to be broadly and liberally construed.” (People
v. Mearns (2002) 97 Cal. App. 4th 493, 500.) “With one exception, restitution orders are
limited to the victim’s economic damages.” (People v. Smith (2011) 198 Cal. App. 4th
415, 431 (Smith).) The exception is found in Penal Code, section 1202.4, subdivision
(f)(3)(F), which authorizes a trial court to award restitution in “a dollar amount that is
sufficient to fully reimburse the victim [for] . . . : [¶] . . . [¶] Noneconomic losses,
including, but not limited to, psychological harm, for felony violations of [Penal Code
section] 288.” (Italics added.) “[W]e review the trial court’s restitution order for abuse
of discretion.” (People v. Giordano (2007) 42 Cal. 4th 644, 663.)
At sentencing, the prosecution requested a restitution award of $13 million—
$1 million for each month of abuse in the charged period—to compensate Doe for pain
and suffering. Ramirez opposed the request as excessive. In awarding Doe $900,000 for
noneconomic loss, the trial court explained: “Jane Doe was the victim in all 26 counts of
forcible lewd act upon a child in violation of Penal Code Section 288(b)(1) on which
[Ramirez] was convicted. Jane Doe was molested by [Ramirez], her mother’s boyfriend
23
and the only father figure in her life, frequently and repeatedly from the age of
approximately eight or nine years old until she was fifteen years old. Jane Doe felt
trapped, terrified each night for the bulk of her childhood that [Ramirez] would come into
her bedroom in the middle of the night to molest her again. [¶] . . . [¶] Although it is
impossible to know the extent to which [Ramirez’s] abuse of Jane Doe has impacted the
remainder of her life, no one can reasonably contest that [Ramirez’s] long-term and
extensive molestation of Jane Doe caused her immeasurable psychological harm. Jane
Doe has suffered the effects of the defendant’s abuse for her entire life, and will continue
to suffer for the remainder of her life. Based upon Jane Doe’s testimony at trial, and
upon the exhibits and authorities submitted by the People, the Court concludes that an
award of $900,000 for emotional distress, past and future, is appropriate.” (Italics
added.)
“ ‘When there is a factual and rational basis for the amount of restitution ordered
by the trial court, no abuse of discretion will be found by the reviewing court.’ ” (People
v. Mearns, supra, 97 Cal.App.4th at p. 499.) “Unlike restitution for economic loss,
however, loss for noneconomic loss is subjectively quantified.” (Smith, supra,
198 Cal.App.4th at p. 436.) We will affirm such a restitution award “that does not, at
first blush, shock the conscience or suggest passion, prejudice or corruption on the part of
the trial court.” (Ibid.)
In Smith, supra, 198 Cal. App. 4th 415, the defendant was convicted of molesting
his stepdaughter from the time she was eight years old until she turned 15. (Id. at
pp. 419, 420–424.) Evidence of uncharged offenses against the complaining witness was
also presented. (Id. at pp. 421–422.) The court awarded $750,000 in noneconomic
restitution to the victim, noting that the defendant’s acts against his stepdaughter actually
occurred over a 15-year period—between age eight to age 23. The court multiplied that
15 years by $50,000 per year, thus arriving at $750,000. (Id. at pp. 420, 433.)
On appeal from the restitution order, the defendant maintained the amount
awarded was an abuse of discretion, in part because it was based on the victim’s suffering
“during years after the crimes were committed.” (Smith, supra, 198 Cal.App.4th at
24
p. 435; id. at pp. 420.) The Smith court referenced the civil jury instruction for
noneconomic loss, and adopted the standard for reviewing such damage awards.11
(Smith, at p. 436.) The court concluded $750,000 in noneconomic damages for years of
sexual abuse did not shock the conscience or suggest passion, prejudice or corruption.
(Ibid.) In reaching that conclusion, the Smith court cited Ortega v. Pajaro Valley Unified
School Dist. (1998) 64 Cal. App. 4th 1023, 1033, 1059–1061, in which a jury award of
$1.5 million in noneconomic damages was affirmed for a single act of molestation.
(Smith, at pp. 436–437.) The Smith court was also untroubled by the trial court’s
reference to years beyond those in which the charged offenses occurred. “As would a
jury, the court was searching for some way to quantify [the victim’s] pain and suffering.
And there is no credible argument, especially on the facts of this case, that [the victim’s]
psychological harm ended when she was 15 years old. Accordingly, the court did not
abuse its discretion.” (Id. at p. 437.)
Here, as in Smith, the trial court may have referred to the entire history of
Ramirez’s offenses against Doe. However, contrary to Ramirez’s assertion, we see no
evidence that the trial court ordered him to pay any sum of restitution for loss attributable
solely to uncharged conduct. It was reasonable for the trial court, who observed Doe’s
demeanor, to conclude that her pain and suffering did not end in 1994 and will continue
indefinitely. The trial court’s award does not shock the conscience or suggest passion,
prejudice or corruption.12
III. DISPOSITION
The judgment and restitution order are affirmed.
11 CACI No. 3905A provides in relevant part: “No fixed standard exists for
deciding the amount of these noneconomic damages. You must use your judgment to
decide a reasonable amount based on the evidence and your common sense.”
12 Ramirez misplaces his reliance on People v. Woods (2008) 161 Cal. App. 4th
1045, People v. Lai (2006) 138 Cal. App. 4th 1227, and People v. Percelle (2005)
126 Cal. App. 4th 164, as none of these cases involve an award of noneconomic damages
for pain and suffering under Penal Code section 1202.4, subdivision (f)(3)(F).
25
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
SIMONS, J.
26