People v. Murillo CA3 ( 2023 )

Filed 3/9/23 P. v. Murillo CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094665
Plaintiff and Respondent, (Super. Ct. No. 17FE020278)
v.
FERNANDO ELIAS MURILLO,
Defendant and Appellant.
A jury found defendant Fernando Elias Murillo guilty of multiple sex offenses.
He was sentenced to an aggregate term of 32 years in state prison. On appeal, he makes
several challenges to his conviction, including that the admission of child sexual abuse
accommodation syndrome evidence was error, and that he was deprived of a fair trial
when a juror was removed during deliberations without the appropriate inquiry into
allegations of juror misconduct. He also argues the trial court erred in imposing upper
term sentences due to the amendments to Penal Code section 1170, subdivision (b), made
by Senate Bill No. 567 (2021-2022 Reg. Sess.). We agree with defendant in this last
regard and shall remand his case for resentencing, but otherwise affirm the judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
Given the nature of the instant appeal, we briefly summarize the facts supporting
the conviction. We will expand upon facts necessary for the resolution of each issue as
we address them.
Defendant is the brother of Rene Murillo and uncle to Rene’s children Y.D., F.D.,
and J.D. The families lived in the same apartment complex and saw each other
frequently. In 2010, Y.D. told law enforcement that her father, Rene, sexually assaulted
her. Rene was subsequently convicted of sexual abuse. In 2012, Y.D., F.D., and J.D.
made sexual abuse allegations against defendant.1
Y.D.’s Allegations
In the summer of either 2010 or 2011, when Y.D. was 12 or 13 years old, she and
a friend went swimming with defendant in the pool at their apartment complex. At one
point, Y.D.’s friend left the pool. Y.D. was holding onto the side of the pool in the deep
end when defendant grabbed her around the waist from behind with both of his hands.
Y.D. tried to move away from defendant but was unable to; defendant was holding her
tight. Y.D. repeatedly told defendant to stop.
Defendant then took one of his hands and pulled his penis out of his shorts and
pulled down Y.D.’s bikini bottom. He placed his hard penis against Y.D.’s buttocks and
rubbed his penis back and forth between her buttocks for a couple of minutes. After
defendant stopped, Y.D. pulled up her bikini bottom, got out of the pool, and ran home.
During the incident, various people came and went in the nearby parking lot. Y.D. hoped
that someone might see her through the plexiglass barrier that separated the pool from the
parking lot, but no one did. She did not tell anyone about the incident until much later.
Despite the fact that the incident with defendant took place before she disclosed
her father’s abuse, she did not disclose this incident with defendant at the time she
1 The jury was informed that “due to a bureaucratic error, criminal charges were not filed
in this case until 2017.” Defendant does not raise any issue regarding prosecutorial delay
on appeal.
2
disclosed the abuse by her father. Y.D. explained that she delayed reporting defendant’s
abuse because she was afraid that people might think she was lying. Before the pool
incident, Y.D. enjoyed a good relationship with defendant.
In April of 2012, Y.D. fainted at school, which prompted a call to child protective
services (CPS).2 On May 8, 2012, Y.D. spoke to a CPS social worker and told the social
worker that defendant previously touched her inappropriately. On May 22, 2012, Y.D.
was interviewed at the Special Assault Forensic Evaluation (SAFE) Center in
Sacramento. During this interview, Y.D. demonstrated that defendant grabbed her
vaginal area with his hands under her bathing suit while they were in the pool.
F.D.’s Allegations
Y.D.’s youngest brother, F.D., was 15 years old at the time of trial. He testified
defendant inappropriately touched him when F.D. was five or six years old. F.D. was
playing outside when defendant called him over to the backseat of a truck that had tinted
windows. Defendant sat next to F.D. in the backseat and grabbed F.D.’s penis over his
clothes. Defendant rubbed F.D.’s penis for about a minute. F.D. did not know what to
do. Defendant then pulled down his own pants and took out his erect penis. Defendant
placed F.D.’s hand on defendant’s penis. Defendant then grabbed F.D. by the back of his
neck and pushed F.D.’s head down onto his penis. Defendant then told F.D. to use his
mouth to go up and down on defendant’s penis; defendant kept one hand on F.D.’s neck,
moving F.D.’s head. F.D. felt as if defendant’s penis was in F.D.’s mouth for a long
time. At one point, defendant told F.D. to stop, and F.D. did so. Defendant told F.D. not
to tell his mother what had happened. F.D. purposefully stayed away from defendant
after the incident. A few months or up to a year later, F.D. told his mother what had
2 After Y.D. fainted, the paramedics responded to the school. Initially, defendant (an
emergency contact) intended to accompany Y.D. to the hospital. Y.D.’s mother arrived
and told school officials that defendant was sexually inappropriate with Y.D. and should
not be allowed to ride in the ambulance. A mandated reporter contacted CPS.
3
happened. F.D. did not disclose the incident right away because he was worried
defendant might hurt him if he did.
F.D. participated in a SAFE interview on July 26, 2012. The prosecutor played
F.D.’s SAFE interview for the jury. F.D. acknowledged he did not initially tell the
interviewer that defendant put his penis in F.D.’s mouth, but he disclosed that part before
trial. F.D. also acknowledged that in the interview, he reported defendant improperly
touched him in his grandparents’ living room while his grandparents and siblings were
present. At trial, F.D. maintained that defendant’s molestation of him had occurred in the
truck.
J.D.’s Allegations
J.D., who was 18 years old at the time of trial, testified that between 2006 and
2010, when he was between six and nine years old, defendant touched him
inappropriately. The abuse first started when defendant told J.D., “let’s go wash the
truck.” J.D. clarified that “the truck” was Rene’s white Chevy Tahoe SUV. Defendant
would take J.D. into the middle of the back seat and pull down J.D.’s shorts and
underwear. Defendant would also pull his pants down just far enough so that he could
pull them up quickly if anyone came near. Defendant would bend J.D.’s body over on
the floor of the truck so that J.D. was on his hands and knees. Defendant would then
place his penis inside J.D.’s buttocks to penetrate J.D. J.D. would sometimes “wiggle” or
lie flat to avoid penetration.
Between 10 and 20 times, defendant moved his body back and forth as he rubbed
his hard penis on J.D.’s buttocks. A couple of times, defendant ejaculated on J.D.’s
buttocks. Either J.D. or defendant would use a towel to clean J.D. off. Defendant would
tell J.D. not to tell his mom and that defendant would bring him a snack.
About the fifth time defendant did this, he also touched J.D.’s penis with his own
penis as defendant was moving from behind J.D.’s buttocks. This happened in
subsequent incidents as well. Defendant’s penis would also touch J.D.’s testicles.
4
Twice, over J.D.’s protests, defendant took J.D.’s hand to rub defendant’s penis
back and forth. Defendant would then place his penis on J.D.’s buttocks and then
defendant would ejaculate. One time, defendant put his penis in J.D.’s mouth while
defendant moved back and forth until defendant ejaculated. At first, J.D. said this only
happened once, but later testified that defendant put his penis in J.D.’s mouth two or three
separate times.
J.D. testified that he tried to run away from defendant, but defendant would catch
him and get mad. J.D. was afraid to tell defendant that he wanted defendant to stop;
when he did tell defendant “no,” defendant would get mad.
J.D. did not tell his mother about what was going on because he was scared that
“[m]ore problems” would result. When J.D. was older, he disclosed to his mother what
defendant had done because J.D. was still bothered by it. J.D. was interviewed at the
SAFE Center in July 2012.
Trial Court Proceedings
With regard to Y.D., the prosecution charged defendant with one count of
violating Penal Code section 288, subdivision (a)3 (count one), and two counts of section
288, subdivision (b)(1) (counts two and three). With respect to F.D., the prosecution
charged defendant with one count of violating section 288, subdivision (a) (count five).
With respect to J.D., the prosecution charged defendant with six counts of violating
section 288, subdivision (a) (counts six through eleven).4 With respect to J.D., the
prosecution also alleged that defendant, in violating section 288, had substantial sexual
contact with a victim who was under the age of 14 years old, under 1203.066, subdivision
3 Undesignated statutory references are to the Penal Code.
4 Prior to the case going to the jury, the trial court granted the People’s motion to dismiss
count four.
5
(a)(8). The prosecution alleged in each count that the children were each under the age of
14 years old at the time of the respective offenses.
The jury found defendant guilty on all counts and found true the special allegation
that he had substantial sexual contact with J.D.
The trial court sentenced defendant to an aggregate term of 32 years in state
prison. The sentence consisted of consecutive upper term sentences of eight years on
count two (§ 288, subd. (b)) and eight years on count three (§ 288, subd. (b)). For each of
the remaining counts, the trial court sentenced defendant to consecutive terms of two
years.
DISCUSSION
I
Child Sexual Abuse Accommodation Syndrome Evidence
A. Additional Background
Prior to trial, the prosecutor sought to introduce evidence of child sexual abuse
accommodation syndrome (CSAAS) through the testimony of Dr. Anna Washington. In
in limine motions prior to her testimony, the prosecutor offered that Dr. Washington
would explain that an abused child often feels shame, concern, and love for the abuser
and how memory and development can be affected by trauma. Dr. Washington, the
prosecutor continued, could also assist jurors in understanding the myths or
misconceptions regarding how abused children behave and different manners in which
they cope, including factors unique to male children who have been abused. After a
hearing outside the jury’s presence on the matter, the trial court indicated it would admit
the evidence for the purpose of dispelling misconceptions about child abuse, including
explaining why an abused child’s behavior might not be consistent with having been
previously assaulted. The court also indicated that the jury would be properly instructed
that such expert testimony is not intended and cannot be considered to determine whether
6
the allegation of abuse is true. Defense counsel said she had no objection as long as the
prosecution followed the guidelines it set out.
Dr. Washington proceeded to testify that she is a clinical psychologist, and she
works at the CARE Center at the University of California at Davis providing assessments
and treatment for children and families who have a history of child abuse. She had
previously testified in about 30 cases regarding CSAAS. Here, Dr. Washington testified
as “an expert in the area of child sexual abuse and the affects that sexual abuse has on
children.” Dr. Washington testified that she did not know anything about this case or the
complaining witnesses.
She testified that there is a myth that children get abused by strangers, when in fact
most victims of child sexual abuse tend to be abused by someone they already know. She
also explained the concept of “grooming” as “systematically preparing a child for sexual
abuse and finding ways to make sure that a child is quiet about sexual abuse.” In this
context, the children and perpetrators tend to have a preexisting, positive, trusting
relationship prior to the onset of sexual abuse. It may start with special attention to the
child, appropriate and desirable physical touches that gradually become more ambiguous
or invasive over time. The touching may be accompanied by threats, intimidation, or
other types of manipulation. Grooming, according to Dr. Washington, can be different
depending on the specific circumstances of the relationship with the child. Dr.
Washington explained that most children “tend to seemingly go with sexual abuse”
without threats, partly because they have conflicted feelings about the perpetrator. For
example, if it is someone the child loves, depends on, or wants to have a relationship
with, it would be very uncomfortable or threatening for that child to disclose the abuse
because the relationship could be lost.
On direct examination, the prosecutor asked whether grooming could include
offering food or toys or doing activities such as swimming or washing a car. Dr.
Washington answered affirmatively, explaining “I would say any items or activities that
7
that child finds enjoyable and that could also include a special attention from the
perpetrator as well.” The prosecutor also asked whether nonverbal communication is
used to signal to the child they should not disclose the abuse. Dr. Washington stated that
a message to stay silent does not have to be explicitly said to a child, noting that
sometimes the abuse is something that only happens when they’re alone with the
perpetrator or in other situations where other people are around but cannot see or
understand what is happening. In response to the prosecutor’s request for clarification on
this point, Dr. Washington explained, “It may be situations where another caregiver for
example is present but sleeping in the same room so they’re not aware of what is going
on, but the perpetrator may still sexually abuse the child in those circumstances. Or the
perpetrator may bring the child to a public setting, for example, you know, a grocery
store bathroom or something like that where there are lots of people around but they
don’t necessarily know that a child is being sexually abused in that bathroom stall.” The
prosecutor asked, “So in your experience have you worked with children who disclose
being molested or abused in fairly public areas?” Dr. Washington replied, “I have, yes.
It appears to be rather common.” Dr. Washington then opined that a perpetrator might
choose to do the acts in a public area in an effort to legitimize their behavior, or to send
the message to that child that they are helpless in their position as no one will notice or
intervene.
Dr. Washington explained that incremental disclosure was common; disclosure
was more of a process rather than an “event.” When the perpetrator and child have a
close relationship, there tends to be longer delays in disclosing the abuse. In addition, a
one-time incident of abuse might be easier for a child to disclose specific details of that
event. She also testified that male victims tend to wait longer to disclose the abuse.
The prosecutor also asked Dr. Washington whether she worked with children who
had been the victims of abuse by more than one perpetrator. Dr. Washington confirmed
8
that she had worked with that population and explained that in general, perpetrators tend
to choose a victim who is more vulnerable.
On cross-examination, defense counsel asked about CSAAS. Dr. Washington
testified CSAAS provides a framework for understanding some common myths about
sexual abuse as well as some reasons that children may react to, or disclose, sexual abuse;
CSAAS does not indicate whether a child was actually sexually abused. She clarified
that much of her testimony would be included in that model; ways that children disclose
and react to, as well as the dynamics of, sexual abuse are included in that model. She
said her testimony was based on her clinical experience and overall body of literature and
research on the topic.
At the close of evidence, the trial court instructed the jury with CALCRIM Nos.
332 regarding expert witness testimony, 333 regarding opinion testimony of lay
witnesses, and 1193 regarding CSAAS evidence. Specifically, CALCRIM No. 1193
states, in part, that CSAAS is not evidence that the defendant committed any of the
crimes charged against him or her, and may be considered only in deciding whether or
not the victims’ conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of the alleged victim. (CALCRIM
No. 1193.)
B. Analysis
On appeal, defendant challenges the introduction of CSAAS evidence, faulting the
court, prosecutor, and defense counsel for their role in allowing the evidence to be
introduced. Defendant argues that the trial court erred in allowing the expert to testify
because the evidence was: (1) irrelevant as public awareness of the reporting dynamics
around child sexual abuse has greatly increased since People v. McAlpin (1991)
53 Cal.3d 1289 (McAlpin), and there was no indication defendant’s jury did not
understand various reasons as to why a child might recant an abuse allegation; (2)
unnecessary because the complaining witnesses were older at the time they testified and
9
explained their reasoning in delaying reporting of the abuse; (3) improperly tailored to fit
the circumstances of the alleged abuse; and (4) more prejudicial than probative in
violation of Evidence Code section 352 and his due process rights. Alternatively,
defendant argues that the prosecutor committed misconduct by eliciting expert testimony
beyond the scope of CSAAS, including testimony of factors “predictive” of child sexual
abuse, and defense counsel provided ineffective assistance of counsel by failing to object
to the introduction of this evidence. We disagree.
“A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.” (Evid. Code, § 720, subd. (a).) Similarly, Evidence Code
section 801, subdivision (a) permits the introduction of opinion testimony by a qualified
expert on a subject sufficiently beyond common experience when the opinion would
assist the trier of fact. In addition, evidence is generally admissible if it is relevant.
(Evid. Code, § 351.) Relevant evidence is that which has a tendency to prove or disprove
a disputed fact that is of consequence to the determination of the action, including the
credibility of a witness. (Evid. Code, § 210.) The court has discretion to “exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352.) A trial court’s decision to admit evidence is reviewed for an abuse of discretion.
(People v. Brooks (2017) 3 Cal.5th 1, 43.) An appellate court cannot reverse a judgment
based on the erroneous admission of evidence unless the admitted evidence “resulted in a
miscarriage of justice.” (Evid. Code, § 353, subd. (b).)
CSAAS is a model for understanding the behavior of children who have been
sexually abused. The five components of the model are secrecy, helplessness,
accommodation, disclosure, and recantation. (People v. Mateo (2016) 243 Cal.App.4th
1063, 1069.) In California, “it has long been held that in a judicial proceeding presenting
10
the question whether a child has been sexually molested, CSAAS is admissible evidence
for the limited purpose of disabusing the fact finder of common misconceptions it might
have about how child victims react to sexual abuse.” (In re S.C. (2006) 138 Cal.App.4th
396, 418; see also Mateo, at p. 1069; People v. Patino (1994) 26 Cal.App.4th 1737, 1744
(Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Bowker (1988)
203 Cal.App.3d 385, 393-394 (Bowker).) Although expert testimony about how child
sexual abuse victims commonly react is not admissible to show a child has in fact been
sexually abused, it is admissible to show the alleged victim’s conduct was not
inconsistent with the conduct of someone who has been molested, and also to evaluate
the believability of the alleged victim’s testimony. (Patino, at pp. 1744-1745; Housley, at
p. 955.) That other jurisdictions have resolved the issue differently also does not compel
a contrary result. (People v. Williams (1997) 16 Cal.4th 153, 195 [case from a sister state
is not controlling].)
Initially, we note that Dr. Washington’s testimony regarding CSAAS was limited.
Although she explained that CSAAS provides a framework for understanding some
common myths about sexual abuse as well as some reasons that children may react to, or
disclose, sexual abuse, she never testified to the actual components of CSAAS or link
specific types of behavior to each component. Rather, she testified to her own personal
observations regarding disclosure of sexual abuse by children based on her experience as
a clinical psychologist at the SAFE Center. Permitting a witness to testify regarding a
topic for which she has particularized training and experience does not offend the normal
rules for admitting expert testimony, and defendant does not argue otherwise. (See Evid.
Code, § 720.)
To be sure, portions of Dr. Washington’s testimony were, effectively, consistent
with CSAAS research and theory. (See, e.g., Bowker, supra, 203 Cal.App.3d at p. 389
[first articulated in 1983, CSAAS has five stages—secrecy, helplessness, entrapment and
accommodation, delayed disclosure, and retraction].) She discussed common myths and
11
misconceptions regarding how child sexual abuse victims tend to report or disclose the
abuse, including observations that disclosures may occur at different times and over a
lengthy period of time (delayed disclosure). She also testified about the elements
involved in grooming, such as warning the victim not to tell anyone (secrecy), and
various techniques employed by the perpetrator to impart a feeling of helplessness on the
victim or reasons why victims might accommodate the abuser. In addition, the parties
treated the evidence as CSAAS. Defense counsel asked Dr. Washington whether CSAAS
covered most of her testimony and Dr. Washington agreed that much of what she had
testified to would be included within the CSAAS model, but she also indicated that her
testimony was more general, some of which would not be included in the model. When
asked to identify which portions of her testimony would fall outside of the model, she
indicated her testimony about gender differences were not specifically discussed in
CSAAS.
At the outset, the People claim that defendant forfeited his challenges to the
evidence by failing to object in the trial court. We agree. The general rule is that when
an in limine ruling admits evidence, the party seeking exclusion must object when the
evidence is actually offered in order to preserve the issue for appeal, although a
sufficiently definite and express in limine ruling may also serve to preserve a claim.
(People v. Brown (2003) 31 Cal.4th 518, 547.) A judgment shall not be reversed based
on the erroneous admission of evidence unless “[t]here appears of record an objection to
or a motion to exclude or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd.
(a).) The failure of counsel to state a timely and specific objection on the same ground
raised on appeal forfeits that ground. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-22;
People v. Partida (2005) 37 Cal.4th 428, 433-434.)
Because defense counsel failed to object to the admission and use of CSAAS
evidence, we address those issues within the context of defendant’s claim that counsel
12
provided ineffective assistance in failing to so object. Nonetheless, we find defendant’s
claims unpersuasive because, as discussed below, defendant cannot show counsel’s
performance “fell below an objective standard of reasonableness” “under prevailing
professional norms,” as there was no error that required an objection. (Strickland v.
Washington (1984) 466 U.S. 668, 688, 694 [defendant claiming ineffective assistance of
counsel must show deficient performance resulting in prejudice].)
1. CSAAS Evidence was Relevant to Dispel Common Misconceptions About Child
Sexual Abuse.
Defendant contends that as a matter of policy, CSAAS evidence should not be
admissible because it no longer serves a purpose in today’s society. He claims there no
longer exists misconceptions to correct and there was no reason to conclude his particular
panel of jurors held any such misconceptions. Accordingly, he argues, CSAAS evidence
is no longer relevant.
More than 30 years ago in McAlpin, supra, 53 Cal.3d 1289, our Supreme Court
held that while CSAAS evidence is not admissible to prove a victim has in fact been
sexually abused, it is admissible “ ‘to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional antecedents of abused children’s
seemingly self-impeaching behavior.’ ” (Id. at p. 1301.) Defendant acknowledges that
McAlpin remains the law in this state. He also recognizes that California courts have
routinely recognized “the well-established relevance, necessity, reliability, and
importance of [CSAAS] evidence.” (People v. Munch (2020) 52 Cal.App.5th 464, 472
(Munch).)
Nevertheless, he urges us to rely on out-of-state authority to conclude, contrary to
McAlpin, that CSAAS evidence is categorically inadmissible because it is no longer
necessary to dispel misconceptions about abuse; jurors are already well educated on the
matter. In the alternative, he urges us to depart from the reasoning in Munch and to
determine that the holding in McAlpin is limited to cases in which there is evidence of
13
jurors who actually harbor some misconception(s) to dispel. In support of his claim that
the public no longer has misconceptions about child victims of sexual abuse, defendant
cites to a footnote from People v. Robbie (2001) 92 Cal.App.4th 1075, 1086, as well as to
out-of-state and federal circuit cases concluding the reasons children do not come
forward are within the range of common experience.
We decline defendant’s invitation to deviate from McAlpin and its progeny. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [appellate courts must
follow California Supreme Court decisions].) Moreover, we are not bound by out-of-
state or federal circuit cases (People v. Troyer (2011) 51 Cal.4th 599, 610 [out-of-state
cases not binding on California courts]; People v. Williams (2013) 56 Cal.4th 630, 668
[federal appellate authority not binding on California courts]) and, as courts have recently
explained, “the vast majority of jurisdictions . . . have rendered decisions that are
consistent with McAlpin.” (Munch, supra, 52 Cal.App.5th at p. 472; see also King v.
Commonwealth (Ky. 2015) 472 S.W.3d 523, 534-535 (dis. opn. of Abramson, J.) [41
states recognize the admissibility of accommodation syndrome expert testimony for some
purpose, and six states have rejected any type of accommodation syndrome testimony].)
Finally, People v. Robbie is easily distinguishable as it did not involve CSAAS evidence.
Rather, in that case, the prosecutor argued that a juror would naturally understand that a
rape is a harsh, violent, threatening, and unrelentingly brutal experience, leading to a
“profile” for rapists. (People v. Robbie, supra, 92 Cal.App.4th at pp. 1085-1086.) The
court noted that the “presupposition that the public shares the mistaken view articulated
by the Attorney General is certainly debatable.” (Id. at p. 1086, fn. 1.) In contrast,
CSAAS evidence, when properly used, addresses the myths regarding the expected
behavior of a child victim of sexual abuse, and does not identify a “profile” for either
child sexual abusers, or their victims.
We likewise reject the merits of defendant’s argument that CSAAS evidence is
inadmissible because the reactions of child victims of sexual abuse no longer fall outside
14
the common experience of jurors in general or there were no misconceptions harbored by
any juror in this case. Even if the public might generally be aware that sexual abuse
occurs, and that victims of sex offenses may delay reporting for a myriad of reasons, such
does not supply proof that there are no longer misconceptions about child sexual
molestation. We certainly cannot assume such from the cases defendant cites, or that
expert testimony on the subject would be unhelpful to the jury. (See McAlpin, supra,53 Cal.3d at pp. 1299-1300 [even when the jury has some knowledge of the subject
matter, expert opinion may be admitted whenever it would assist the jury].) Moreover,
defendant does not point to any basis upon which to conclude that the jurors here did not
harbor common misconceptions associated with child victims of sexual abuse. (See
People v. Lapenias (2021) 67 Cal.App.5th 162, 172-173 [rejecting a similar claim when
the record does not establish that all the empaneled jurors were aware of the entire
spectrum of CSAAS evidence (secrecy, helplessness, entrapment, accommodation, and
recantation)].)
2. CSAAS Evidence was Relevant to Rehabilitate Witness Credibility.
Defendant additionally argues it was unnecessary for an expert to explain reasons
why children might wait to report abuse when each complaining witness explained the
delay. In particular, defendant argues that two of the three complaining witnesses
testified as adults, and the third witness was 15 years old at the time of trial; each was
capable of relaying their reasons for delayed disclosure. According to defendant, the
expert testimony only served to improperly vouch for the credibility of the witnesses.
We disagree.
CSAAS evidence is admissible “to rehabilitate [a child] 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 [or their] testimony claiming molestation.”
(McAlpin, supra, 53 Cal.3d at p. 1300.) Here, defendant attacked the credibility of the
three witnesses by pointing out inconsistencies and delays in their disclosures. Defense
15
counsel questioned Y.D. about specific details of the event involving defendant in the
pool; Y.D. could not remember the year, her age, whether it was morning or afternoon, or
if anyone else was around at the time. Y.D. was also unable to remember how much time
had passed between the incident and her first disclosure or between her first and second
disclosure. During closing argument, defense counsel argued Y.D.’s actions at the pool
(by failing to scream or in leaving her friend behind) were not reasonable if she had been
molested. As to F.D., defense counsel elicited that he told the SAFE interviewer that
defendant molested him on the couch with others around but at trial testified it happened
in the backseat of a truck. F.D. was also unable to remember what year or time of year
the alleged molestation took place. During closing argument, defense counsel drew
attention to the discrepancies between F.D.’s SAFE interview and testimony. Finally, as
to J.D., defense counsel vigorously cross-examined him regarding the details of the
incidents with defendant. J.D. had difficulty remembering specific time frames or his age
at the time of the molests. Defense counsel argued to the jury that J.D. did not
thoughtfully answer questions posed to him, but instead just regurgitated the same story.
Because defendant asserted the complaining witnesses’ conduct, as children, was
inconsistent with their allegations of abuse, CSAAS evidence was admissible to
rehabilitate the complaining witnesses’ credibility. The fact that the complaining
witnesses were older at the time of their testimony does not lessen its relevance. (See
Patino, supra, 26 Cal.App.4th at p. 1744 [CSAAS testimony is admissible for the limited
purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a
molestation].)
3. The Scope of the Expert’s Testimony Was Not Improper.
We also disagree with defendant’s argument that the scope of the CSAAS
evidence was improper because it closely tracked the facts of the case and invited the jury
to conclude the victims were in fact sexually abused. He argues that by linking the
specific facts of the case to characteristics of common ways sexual abuse is perpetrated,
16
Dr. Washington impermissibly provided testimony that predicted the demeanor and
characteristics of a sexual assault victim and violated the prohibition against introducing
evidence that could lead jurors to conclude that Y.D., F.D. and J.D. were abused because
they fit Dr. Washington’s overall victim profile.
Much of defendant’s argument is based on a misplaced reliance on Bowker, supra,
203 Cal.App.3d 385 and People v. Clotfelter (2021) 65 Cal.App.5th 30 (Clotfelter). In
Bowker, a psychologist (Dr. Murphy) offered expert testimony on CSAAS. As the
Bowker court noted, “Dr. Murphy’s testimony accounted for nearly 70 pages of
reporter’s transcript and was replete with comments designed to elicit sympathy for child
abuse victims and solicitations that children should be believed. Murphy in effect said
regardless how inconsistent a child’s accounts of abuse are, abused children give
inconsistent accounts and are credible nonetheless.” (Bowker, at p. 394.) Specifically,
Dr. Murphy volunteered “ ‘It is very important that a young child, say, any age from four
to ten, 12 years old, that they be believed.’ ” (Id. at p. 389.) He testified that
inconsistency is commonplace and should not invalidate a child’s account. (Id. at
pp. 389-390.) Dr. Murphy ultimately painted a picture that matched what happened to
the two children in the case. “[B]y delineating each stage of the CSAAS theory, Murphy
constructed a ‘scientific’ framework into which the jury could pigeonhole the facts of the
case.” (Id. at p. 395.) The Bowker court thus concluded that an expert providing CSAAS
testimony may not give “ ‘general’ testimony describing the components of the syndrome
in such a way as to allow the jury to apply the syndrome to the facts of the case and
conclude the child was sexually abused.” (Id. at p. 393.)
In Clotfelter, the appellate court found there was a dearth of direct evidence
supporting the charges that the defendant communicated with teenage boys with an intent
to commit a sexual offense. (Clotfelter, supra, 65 Cal.App.5th at pp. 60, 64-65.) The
prosecution presented several experts, including Dr. Carmichael, who testified regarding
CSAAS evidence and, as relevant here, testified that “the ‘vast majority’ of victims are
17
sexually abused ‘by people they know and see regularly.’ ” (Id. at p. 62.) Without
objection, the prosecutor also elicited CSAAS-type testimony from two police sergeants
who each testified that, in their experience, it was not uncommon for children who have
been sexually abused to delay reporting and/or fail to report the abuse at all. (Id. at
p. 63.) During rebuttal argument to the jury, the prosecutor told the jurors, “ ‘A lot has
been made about how the victims never thought they were victims and they didn’t act
like victims and they didn’t present like victims and no one noticed signs that they were
victims. [Defense counsel] made a lot of that. But that is exactly why I put Dr.
Carmichael on the stand to talk to you. He’s an objective expert, he knew nothing about
the case for good reason: So that he could testify about victimology, about how victims
do and do not react to these kind of situations, how they do and do not present as victims
in this case, and he told you that victims don’t always show signs of abuse.’ ” (Ibid.)
The prosecutor also argued that victims don’t react the way you might traditionally
expect and that all the witnesses who provided CSAAS evidence “ ‘testified that they
actually saw in practice in their extensive, extensive experience, training and experience
working these cases.’ ” (Ibid.)
The Clotfelter court did not take issue with the scope of the CSAAS expert’s
testimony, like defendant does here, but rather questioned whether the CSAAS testimony
was relevant at all, as two of the named victims denied they had been touched
inappropriately, and the court concluded evidence of the crimes alleged pertaining to a
third victim was insufficient to find the defendant guilty. Furthermore, the Clotfelter
court found the prosecutor’s use and characterization of CSAAS evidence in closing
argument improper. It concluded that while CSAAS testimony is admissible under some
circumstances, such evidence is “ ‘ “not admissible to prove that the complaining witness
has in fact been sexually abused,” ’ ” which the court held “is precisely the argument that
the prosecutor was making to the jury; that it could use the CSAAS testimony to infer
18
that [the named victims] were victims of the crimes charged.” (Clotfelter, supra,
65 Cal.App.5th at p. 64.)
While we recognize “the expert’s testimony must be narrowly tailored to the
purpose for which it is admissible” (People v. Bothuel (1988) 205 Cal.App.3d 581, 587,
citing Bowker, supra, 203 Cal.App.3d at p. 394), we find Dr. Washington’s testimony
was limited to addressing common misconceptions about child abuse and explaining why
the complaining witnesses’ behavior were not inconsistent with his or her having been
abused. (See Bothuel, at p. 587.) The instant case is vastly different than Bowker and
Clotfelter. Here, neither the prosecution’s questions nor the expert’s responses tracked
the complaining witnesses’ testimony so closely that they “told the jury” it should believe
the abuse allegations. To the contrary, Dr. Washington testified that CSAAS was not
intended to be used as a diagnostic tool, and nothing about her testimony could be
interpreted as leading the jury to conclude the complaining witnesses in this case were in
fact sexually abused. The four points in Dr. Washington’s testimony upon which
defendant relies do not persuade us otherwise.
Defendant first argues that questions regarding whether it was common for sexual
abuse to occur in close proximity of other people and/or public settings was designed to
pigeonhole the account of the complaining witnesses into the framework of CSAAS
evidence. Dr. Washington volunteered that sometimes abuse takes place in situations
where other people are present but cannot see or understand what is happening. In
providing examples of this, however, Dr. Washington did not include a swimming pool
or a parking lot—the areas where the abuse took place in this case. Instead, she said
examples included abuse when another caregiver was asleep in the same room or in a
grocery store bathroom stall. In this regard, unlike in Bowker, Dr. Washington’s
testimony did not mirror the facts of this case. Although Dr. Washington said abuse in
public settings was “rather common,” there was nothing about her testimony that invited
the jury to leap to the conclusion that because Y.D., F.D., and J.D. all described events
19
that took place in public settings, and abuse in public settings is common, the
complaining witnesses must have actually been abused by defendant. Rather, evidence
that abuse occurs in a public setting fits into the CSAAS’s component by helping explain
that victims may feel helpless, not only because of the nature of their relationship with
the abuser, but because of the seemingly open manner in which the abuse is carried out.
For similar reasons, we reject defendant’s contention that the use of swimming or
washing a car as hypothetical examples of activities included in grooming constituted
improper testimony. In response to those examples, Dr. Washington broadly answered,
“I would say any items or activities that that child finds enjoyable and that could also
include a special attention from the perpetrator as well.” This testimony is too broad to
constitute a mirror of the facts of the case or to invite the jury to find defendant guilty
based on that characteristic. Contrary to defendant’s claim, the fact that it is common for
abusers to have a preexisting and enjoyable relationship with their victims, as the children
here did, does not mean that the jury was asked to conclude defendant actually abused
them. Dr. Washington’s testimony merely informed the jury that perpetrators may take
advantage of close relationships to act out their criminal intent. Dr. Washington did not
say, and we conclude a jury would not be predisposed to opine, that a close relationship
with a family member, by itself, gives rise to an inference of guilt. Additionally, this
testimony specifically addressed the common myth in sexual abuse cases, that offenders
are often strangers to their victims.
Defendant next objects to Dr. Washington’s testimony that a child who has been
previously sexually abused may have increased vulnerability to additional abuse, arguing
such testimony is beyond the scope of CSAAS evidence and was merely designed to
provide an expert explanation for why Y.D., who the jury learned had been previously
abused by her father, would “allow a repeat of previously experienced sexual abuse.”
Defendant does not fully develop this argument, providing no analysis of the issue.
Nonetheless, we find Dr. Washington’s testimony that perpetrators tend to choose victims
20
who are more vulnerable, and such victims might be vulnerable for different reasons such
as being nonverbal, having health problems, or being desensitized to sexual touch or
contact possibly due to prior abuse, was permissible to explain that the failure to disclose
abuse by more than one perpetrator is not inconsistent with the behavior of someone who
has been abused.
Also contrary to defendant’s claim, the fact that the children all had a positive
relationship with defendant prior to his abusive conduct does not mean that the jury was
asked to conclude defendant actually abused them, based on that characteristic. Dr.
Washington’s testimony merely informed the jury that perpetrators may take advantage
of close relationships to act out their criminal intent. Dr. Washington did not say, and we
conclude a jury would not be predisposed to opine, that a close relationship with a family
member, by itself, gives rise to an inference of guilt.
4. Evidence Code Section 352 and Due Process.
Defendant argues because the CSAAS evidence was not relevant in this case, even
the slightest prejudicial impact of the testimony justified its exclusion under Evidence
Code section 352. He claims there was a high likelihood that the jury used CSAAS
evidence not as a tool with which to evaluate credibility but as a diagnostic tool to
conclude that, if the complaining witnesses behaved similar to the class of sexual abuse
victims described, they must have been abused. He further argues that presenting this
irrelevant and prejudicial evidence to the jury violated his right to due process. We
disagree.
We have already found Dr. Washington’s testimony was relevant to dispelling
common misconceptions about the reactions and behaviors of child abuse victims. As
we’ve also concluded, no reasonable juror could believe Dr. Washington’s testimony was
an attempt to prove defendant committed the charged offenses. “Evidence Code section
352 provides, in part, that ‘[t]he court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will . . .
21
create substantial danger of undue prejudice . . . .’ ‘ “In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ (People v. Karis (1988) 46 Cal.3d
612, 638.) It involves evidence that tends to ‘evoke an emotional bias against the
defendant . . . which has very little effect on the issues.’ (Ibid.)” (Munch, supra,
52 Cal.App.5th at pp. 474-475.) We do not find the CSAAS evidence in this case of a
nature to evoke an emotional response. While one could characterize the evidence as
damaging to defendant’s case, we do not find it to be prejudicial.
In addition, the jury was instructed to not use CSAAS evidence as a diagnostic
tool. Indeed, the pattern jury instruction, which was utilized in this case, explicitly
instructed the jury that CSAAS evidence was to be used when assessing the credibility of
the complaining child witnesses. (CALCRIM No. 1193.) We presume the jury followed
this instruction, and thus the instruction prevented the prejudice defendant describes.
(See People v. Smith (2007) 40 Cal.4th 483, 517 [“ ‘[t]he crucial assumption underlying
our constitutional system of trial by jury is that jurors generally understand and faithfully
follow instructions’ ”].)
Finally, contrary to defendant’s claim, the admission of CSAAS evidence did not
violate his right to due process. Generally, a trial court’s compliance with the rules of
evidence does not violate a defendant’s right to due process. (People v. Hall (1986)
41 Cal.3d 826, 834-835.) Further, other courts have rejected the claim that the admission
of CSAAS evidence violated due process. (See, e.g., Patino, supra, 26 Cal.App.4th at
pp. 1744-1745; People v. Lapenias, supra, 67 Cal.App.5th at p. 174 [same]; see also
Amaya v. Frauenheim (9th Cir. 2020) 823 Fed.Appx. 503, 505 [California court’s ruling
that the admission of CSAAS evidence did not violate federal due process was not
contrary to, or an unreasonable application of, clearly established federal law].)
5. The Nature of the Prosecutor’s Questions to Dr. Washington
Defendant argues the prosecutor committed misconduct when she posed fact-
specific questions that directly connected the expert witness testimony to the testimony of
22
the complaining witnesses. Defendant argues this violated the trial court’s order limiting
the CSAAS evidence to opinions regarding CSAAS concepts. Because this argument
relies heavily on the presumption that such evidence was improperly admitted—a
presumption we have rejected—this argument fails.
“ ‘When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent conviction a
denial of due process, the federal Constitution is violated. Prosecutorial misconduct that
falls short of rendering the trial fundamentally unfair may still constitute misconduct
under state law if it involves the use of deceptive or reprehensible methods to persuade
the trial court or the jury.’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1052; see
People v. Wright (2021) 12 Cal.5th 419, 443-444.) It is misconduct for a prosecutor to
“ ‘ “intentionally elicit inadmissible testimony.” ’ ” (People v. Smithey (1999) 20 Cal.4th
936, 960.) So, too, when the prosecutor negligently elicits inadmissible testimony
because there is no requirement that “a prosecutor must act with a culpable state of
mind.” (See People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, overruled on another
ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Contrary to defendant’s claim, the prosecutor did not violate the trial court’s order
that Dr. Washington’s testimony come within the established parameters of admissible
CSAAS evidence. We disagree that the prosecutor framed questions to Dr. Washington
similar to those criticized by the court in People v. Jeff (1988) 204 Cal.App.3d 309, 338-
339. In Jeff, the prosecutor called, as an expert witness, a licensed clinical social worker
who had interviewed the complaining witness at the prosecutor’s request. The
prosecutor’s purpose in calling the social worker, was to establish that the complaining
witness exhibited certain symptoms commonly found in child molest victims. (Id. at
p. 333.) Over defense objection, the prosecutor questioned the expert in substantial detail
regarding the expert’s interview and evaluation of the child witness, including some of
what the child said to the expert, what emotions she exhibited, and the fears she
23
expressed about defendant. (Id. at p. 335.) The prosecution then called another expert, a
psychologist, “ ‘to explain to the jury the nature of the symptoms commonly exhibited by
children suffering from post child molest traumatic stress syndrome.’ ” (Id. at pp. 333-
334.) The psychologist responded to hypothetical questions incorporating “the exact
same facts and details as told by” the child to the social worker. (Id. at p. 338.) The
psychologist explained that the child’s emotions, fears, and reactions were the same
symptoms exhibited by a child molest victim. (Ibid.) In noting that expert testimony
“offered to rebut the inference the alleged victim was being untruthful” would be
“permissible so long as it was limited to a discussion of victims as a class (e.g. children),
and does not extend to a discussion and diagnosis to the witness at hand” (id. at p. 337),
the Jeff court concluded the testimony of the two expert witnesses was improper and
prejudicial because it was not offered to rehabilitate a wavering or equivocal complaining
witness. Rather, “it told the jury that they should accept [the child]’s version of these
events as true, that she was a victim, molested over a three-year period by defendant,
because here is how typical child molest victims act and [the child] fits the mold
perfectly.” (Id. at p. 338.)
In contrast, Dr. Washington knew nothing about the complaining witnesses in this
case or the charges against defendant. The prosecutor’s questions were targeted at
exposing generally held misconceptions regarding the behavior of child abuse victims
that were relevant to rehabilitate the complaining witnesses. The delay in reporting
presented an issue as to the credibility of the complaining witnesses. Dr. Washington’s
testimony was thus relevant to explain that “such normally self-impeaching behavior is
not unusual for sexually abused children.” (Munch, supra, 52 Cal.App.5th at p. 475; see
McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) The prosecutor’s use of the testimony
went no further than that permissible use. At no time did the prosecutor assert that from
the expert’s testimony, the jurors could infer that the complaining witnesses were telling
the truth. It was up to the jury to decide whether Dr. Washington’s explanation of
24
delayed reporting applied to the witnesses’ circumstances. (See Patino, supra,
26 Cal.App.4th at pp. 1744-1745 [aspects of CSAAS are as consistent with false
testimony as with true testimony; CSAAS is probative and admissible if it is geared
toward the child’s credibility as opposed the defendant’s culpability].)
6. Defense Counsel Was Not Ineffective in Failing to Object to the CSAAS
Evidence.
Finally, we see no ineffective assistance in defense counsel’s failing to object to
the CSAAS evidence. First, we have concluded no impropriety in the admission or use
of the evidence. Nonetheless, “ ‘[I]n determining whether counsel’s performance was
deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively
show counsel’s deficiency involved a crucial issue and cannot be explained on the basis
of any knowledgeable choice of tactics. [Citation.] [¶] Our Supreme Court recently
reiterated the obligations of appellate courts in reviewing claims of ineffective assistance
of counsel: “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of professional
assistance.’ ” [Citation.] “[W]e accord great deference to counsel’s tactical decisions”
[citation], and we have explained that “courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the
context of the available facts.” [Citation.]’ ” [Citation.]’ [Citation.]” (People v. Loza
(2012) 207 Cal.App.4th 332, 351.)
“[D]eciding whether to object is inherently tactical, and the failure to object will
rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502;
see also People v. Boyette (2002) 29 Cal.4th 381, 433.) Here, the record shows that
defense counsel had good tactical reasons for not objecting to the prosecutor’s CSAAS
evidence. Because CSAAS evidence, as elicited at trial, was admissible, objecting to it
25
would have been futile. Counsel is not ineffective for failing to make frivolous or futile
motions. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
II
Juror Misconduct
Defendant argues that when Juror No. 5 complained of feeling bullied by another
juror, the trial court’s inquiry into the matter was insufficient to ensure the absence of
juror misconduct. We disagree.
A. Additional Background
The jury began deliberations on May 25, 2021. On May 28, 2021, the court
informed the parties that Juror No. 5 made a comment to the court’s bailiff, in which
Juror No. 5 “indicated to the bailiff that she feels bullied and . . . she’s, quote, ‘Just going
to let whatever they want to do to let it ride.’ End quote. [¶] The bailiff indicated to her
that she is to follow the instructions given by the Judge to vote whatever you thought . . .
and I was informed thereafter.” The court stated it intended to conduct an inquiry with
Juror No. 5 to ascertain whether that statement was true and to investigate the possibility
of juror misconduct. The court planned to “ask questions as to whether she has been able
to deliberate with the others and exchange her ideas with other jurors and them
exchanging their ideas with her.” At that point, the court explained, the goal was to
collect information and not to direct Juror No. 5 in any particular way. After the
discussion with Juror No. 5, the parties would discuss the next steps. The parties agreed
with this procedure.
When the court examined Juror No. 5, the juror confirmed her statement to the
bailiff. The juror explained that “at times when [she] had expressed what [her] particular
stance was or viewpoint was on something at one point in time . . . [her] character was
assaulted,” and the juror was told by another juror that she “lacked commonsense.” The
next day, the juror came back to the deliberation room and told the other jurors that when
she expressed her viewpoints, someone attacked her character and said she did not have
26
common sense. The juror told the others she thought this was unfair; other jurors know
nothing about her and it was inappropriate to attack her character when the purpose of
deliberations was to express differences of opinion.
The following colloquy then took place between the court and Juror No. 5:
THE COURT: “[I]n terms of the deliberations . . . [h]ave you felt that you have
had the opportunity to share your ideas and your views with the other members of the
jury?
“JUROR NO. 5: Um, the opportunity was there, but it was the repercussions that
concerned me that came after.
“THE COURT: Yes. . . . what I’m asking is to check to make sure that you have
been able to deliberate and discuss the case with the other jurors including your views
about the case. Have you been able to do that?
“JUROR NO. 5: Yes.
“THE COURT: Okay. Have the other members of the jury been able to do the
same with you? Have you been able to hear their discussions and consider their
discussions and ideas about the case?
“JUROR NO. 5: Yes.
“THE COURT: Okay. In terms of the exchange of ideas and discussions about the
case, have you found that there has been anything that has prevented you or anyone from
being able to engage in that discussion in deliberation?
“JUROR NO. 5: Um, yes and no.
“THE COURT: Go ahead.
“JUROR NO. 5: I will say no in that the other jurors continue to express, you
know, whatever their views were, and me expressing views . . . along the lines of what
theirs were in addition to other sentiments was not received well . . . . What I mean is
information that was presented by both sides; the People and the defense.”
27
When asked to explain, Juror No. 5 stated that if she had not “echo[ed]” the
sentiments of the other jurors, she was “cut off.” She told the court, “I got the impression
that if I did not go along with what the majority was saying it was not okay with the
group.” She continued by stating, “The concern I had was the bullying and the
intimidation, like I said, and being attacked because of something that was expressed that
was not in the favor of the majority of what everyone else felt. That’s the concern I had.”
Juror No. 5 also mentioned that her status as a mother had been challenged.
Juror No. 5 also explained that when the results of a secret ballot were tallied, the
same juror who made the comment about Juror No. 5 lacking common sense, “jumped up
and expressed that -- felt that they couldn’t proceed with the deliberation . . . because
whoever responded that way had to be prejudice[d]. They were biased.” Although the
vote was anonymous, Juror No. 5 felt that comment was directed at her.
The following additional colloquy then ensued:
“THE COURT: Okay. And . . . at least as of this morning . . . you were just going
to let whatever they want to do to let it ride. Is that what you mean? Does that relate to
what you just told me here?
“JUROR NO. 5: It does. Yes.
“THE COURT: Okay. So are you feeling that your view or your vote on the case
will be something other than how you truly feel about how the vote should be, or am I
reading that wrong?
“JUROR NO. 5: Um, it would be certain aspects of it if I could say that. Certain
aspects of it.
“THE COURT: Okay.· So you are considering voting in a way that you don’t
agree with. Is that what you mean in some ways?
“JUROR NO. 5: Um, I want to say in certain aspects and when I say by that -- can
-- I just want to say counts.”
28
The juror clarified that when she said she was going to “let it ride,” this meant that
she was considering voting the opposite of how she felt about the case on certain counts.
Juror No. 5 also stated, “And let me be very clear on me saying -- expressing my views.
It was not necessarily my views. It was how I understood evidence that was presented.
So it was me interpreting what my understanding was of what was presented, what I
heard, or what I observed or saw. So it was never my personal viewpoint. It was simply
sticking to what was presented.” Juror No. 5 also admitted that at the start of
deliberations, she made an inappropriate joke involving the visualization of the offenses
alleged. Nobody objected at the time of the joke, but when Juror No. 5 objected to being
disrespected, the same person who told her she lacked common sense, objected to the
joke and Juror No. 5 said she apologized.
After the court excused Juror No. 5 from the courtroom, the defense requested that
the court talk to the foreperson5 regarding the allegations of bullying by Juror No. 5. The
court denied the request for further inquiry, finding that no further inquiry was necessary
because even if the information conveyed by Juror No. 5 was true, it would not rise to the
level of juror misconduct or otherwise necessitate further inquiry of other jurors. The
court noted, “She described various aspects of the deliberative process which the Court
understands includes disagreement and includes her expressing her views that were
sometimes met with immediate retorts and in . . . Juror No. 5[‘s] . . . words cut her off.
So I’m aware of that report from her. [¶] However, the Court’s view given everything I
heard this morning, there is no indication of juror misconduct as to other jurors aside
from . . . Juror No. 5 . . . . And again, I’m considering those comments as if they were
true, and in themselves or even collectively they do not rise to the level of misconduct of
other jurors. [¶] So therefore, I do not find that a further inquiry of other jurors is
5 The parties agreed the foreperson could not be the same person who made the
comments to Juror No. 5.
29
necessary in this case in that no further inquiry of the foreperson is necessary in this case
as well.” In support of its ruling, the trial court cited People v. Keenan (1988) 46 Cal.3d
478, People v. Orchard (1971) 17 Cal.App.3d 568, and People v. Engelman (2002)
28 Cal.4th 436.
As for Juror No. 5, both defense counsel and the prosecutor agreed that Juror
No. 5 should be dismissed. The prosecutor noted that even if there had not been
misconduct, there was a potential for misconduct in that Juror No. 5 had indicated she
was willing to give in and vote in a manner contrary to her belief. Thereafter, the court
dismissed Juror No. 5 and swore in Alternate Juror No. 1. The court instructed the jury
that it must not consider the substitution of jurors for any purpose, and it must begin
deliberations anew after it seated the alternate juror.
B. Analysis
“An accused has a constitutional right to a trial by an impartial jury. [Citations.]
An impartial jury is one in which no member has been improperly influenced [citations]
and every member is ‘ “capable and willing to decide the case solely on the evidence
before it.” ’ ” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) If at any time, upon
good cause shown to the court a juror is found to be unable to perform his or her duty, the
court may order the juror to be discharged. (§ 1089.)
In general, the “court must conduct a sufficient inquiry to determine facts alleged
as juror misconduct ‘whenever the court is put on notice that good cause to discharge a
juror may exist.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 547; see People v.
Martinez (2010) 47 Cal.4th 911, 942.) Not every incident warrants investigation,
however. (People v. Cleveland (2001) 25 Cal.4th 466, 478.) The decision whether, and
to what extent, investigation into possible juror bias is required “ ‘rests within the sound
discretion of the trial court.’ ” (Ibid.; see People v. Maury (2003) 30 Cal.4th 342, 434.)
If substantial evidence exists to support the trial court’s exercise of its discretion, the
30
court’s action will be upheld on appeal. (Maury, at p. 434.) Here, defendant has not
shown the trial court abused its discretion.
First, we note that Juror No. 5 was discharged because she told the court she was
prepared to vote contrary to her beliefs; she was essentially unable to deliberate. This
justified her discharge. (See People v. Thompson, supra, 49 Cal.4th at p. 138 [trial-
related and non-trial-related stress can provide good cause for discharging a juror when it
results in inability to deliberate].) Thus, contrary to defendant’s claim, it was not
established Juror No. 5 was actually bullied, just that she felt attacked. Regardless of the
cause of the perceived hostility, substantial evidence supports the conclusion that any
misconduct was limited to Juror No. 5, and therefore no additional investigation was
necessary. The colloquy between the court and Juror No. 5 demonstrates that Juror No. 5
was the only one who was having difficulty in the deliberation process. Other jurors
were able to present their positions and ideas and, as such, the trial court had insufficient
information upon which to conclude that good cause existed to discharge any other juror.
Indeed, courts have cautioned, “a trial court’s inquiry into possible grounds for
discharge of a deliberating juror should be as limited in scope as possible, to avoid
intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should
focus upon the conduct of the jurors, rather than upon the content of the deliberations.”
(People v. Cleveland, supra, 25 Cal.4th at p. 485.) “During deliberations, expressions of
‘frustration, temper, and strong conviction’ may be anticipated but, in the interest of free
expression in the jury room, such expressions normally should not draw the court into
intrusive inquiries.” (People v. Engelman, supra, 28 Cal.4th at p. 446, citing People v.
Keenan, supra, 46 Cal.3d at p. 541.)
People v. Thompson, supra, 49 Cal.4th 79, provides further guidance. In that
death penalty case, a juror requested to be excused during penalty phase deliberations,
claiming she was incapable of deliberating further. The juror told the trial court that she
could not make a decision in the penalty phase because she felt “ ‘pressured’ ” to come to
31
certain conclusions at the guilt and penalty phases. (Id. at pp. 135-136.) The court
discharged the juror. On appeal, the California Supreme Court rejected defendant’s
contentions the trial court abused its discretion because it did not adequately investigate
misconduct by the other jurors before discharging the juror and that it should have
questioned other jurors to determine whether they were impermissibly pressuring jurors
to give up their lingering doubt about defendant’s guilt. The court concluded that
because the source of the tension was the deliberations themselves, the trial court
properly exercised its discretion in refraining from questioning other jurors, which would
have threatened intrusion into the process. (Id. at p. 137.) Here, too, the ostensible
source of the tension reported by Juror No. 5 was the deliberations themselves, and the
trial court acted within its discretion in not examining the other jurors, doing so would
have threatened to intrude on the deliberation process. Defendant’s contention that the
other jurors may have also felt threatened is speculative; the trial court’s questioning of
Juror No. 5 revealed no such suggestion.
We find substantial evidence supports the trial court’s decision to refrain from
further investigation into juror behavior.
III
Hammon Review of Education Records
When Y.D. accused her father of sexually abusing her, she did not disclose any
allegations against defendant. Prior to trial, defendant requested an in camera review of
Y.D.’s educational records pursuant to Evidence Code section 782, arguing this was
relevant to her credibility regarding past sexual conduct. The trial court reviewed the
documents and found nothing relevant triggering a duty to disclose otherwise confidential
records. On appeal, the parties agree that it would be appropriate for us to review those
documents as well.
In People v. Hammon (1997) 15 Cal.4th 1117, 1128, the California Supreme Court
declined to “extend the defendant’s Sixth Amendment rights of confrontation and cross-
32
examination to authorize pretrial disclosure of privileged information.” However, the
court also recognized that “[w]hen a defendant proposes to impeach a critical prosecution
witness with questions that call for privileged information, the trial court may be called
upon . . . to balance the defendant's need for cross-examination and the state policies the
privilege is intended to serve. [Citation.]” (Id. at p. 1127.)
We have reviewed the education records pertaining to Y.D. After reviewing the
records, we conclude that the trial court did not err in ruling that there was no information
in the records that could have been used to impeach Y.D. or to support the defense
theory. The education records did not include any information relevant to the issues at
trial. We find no error.
IV
Sentencing
Defendant argues we must remand the matter to permit the trial court to reconsider
the upper term sentences in light of recent statutory changes that apply to him
retroactively. The People agree that the recent amendments apply retroactively to
defendant, and that resentencing is required. We agree Senate Bill No. 567 “ ‘applies
retroactively in this case as an ameliorative change in the law applicable to all nonfinal
convictions on appeal.’ ” (People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109; see also
In re Estrada (1965) 63 Cal.2d 740, 744-746.) We also agree defendant is entitled to the
benefits of the amendments.
A. Additional Background
At sentencing, the trial court considered the triad sentencing options in place at the
time of the offenses to be three, six, or eight years.6 The trial court found the following
6 This was at defendant’s request with no objection by the prosecution. Effective
September 9, 2010, the statute was amended to increase the triad to five, eight, ten for
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circumstances in aggravation: (1) defendant took advantage of a position of trust to
commit the offense (Cal. Rules of Court, rule 4.421(a)(11)) and (2) the crimes involved
acts disclosing a high degree of cruelty and callousness (Cal. Rules of Court, rule
4.421(a)(1)). Based on these factors, the court sentenced defendant to upper term
sentences of eight years on count two (§ 288, subd. (b)) and eight years on count three
(§ 288, subd. (b)). For the remaining counts, the trial court sentenced defendant to terms
of two years (one-third the midterm of six years) on counts one, and five through eleven.
Citing to California Rules of Court, rule 4.425(a)(1), the court found the crimes involved
separate acts of violence or threats of violence justifying consecutive terms.
B. Analysis
While defendant’s appeal was pending, section 1170 was amended by Senate Bill
No. 567 (2021-2022 Reg. Sess.; Stats. 2021, ch. 731, § 1.3.) As amended, section 1170,
subdivision (b) permits imposition of an upper term sentence “only when there are
circumstances in aggravation of the crime that justify” the upper term and only if “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, subd. (b)(2).) However, “the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) Additionally, as
relevant here, section 1170, subdivision (b)(6) provides: “[U]nless the court finds that
the aggravating circumstances outweigh the mitigating circumstances [and] that
imposition of the lower term would be contrary to the interests of justice, the court shall
order imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological, physical,
violations of section 288, subdivision (b) but it remained at three, six, eight years for
violations of subdivision (a). (Stats. 2010, ch. 219, § 7.)
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or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence. [¶] (B) The person is a youth, or was a youth as defined under subdivision (b)
of Section 1016.7 at the time of the commission of the offense” and the defendant’s youth
“was a contributing factor in the commission of the offense.” (§ 1170, subd. (b)(6),
effective Jan. 1, 2022; see also § 1016.7, subd. (b) [“A ‘youth’ for purposes of this
section includes any person under 26 years of age on the date the offense was
committed”].)7 We note section 1170, subdivision (b)(6)(B) does not require imposition
of the lower term in every case in which the defendant was under age 26 at the time the
crime was committed. Rather, this provision establishes a presumption of the lower term
if the defendant’s youth was “a contributing factor” in his or her commission of the crime
“unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the interests of
justice . . . .” (§ 1170, subd. (b)(6).)
In this case, the parties agree the court relied solely upon factors that were not
admitted by defendant, proven through certified records of conviction, or found true
beyond a reasonable doubt by a jury. (§ 1170, subd. (b).) As such, consideration of these
factors was improper under the newly amended statute. (See, e.g., People v. Zabelle,
supra, 80 Cal.App.5th at pp. 1109-1111.)
In addition, defendant was under the age of 26 at the time he committed some, if
not all, of the offenses, was sentenced without the benefit of this amendment, and the
record does not otherwise demonstrate that defendant’s youth was considered in
imposing the sentence. Because a court that is unaware of the scope of its discretion
necessarily abuses that discretion (People v. Carmony (2004) 33 Cal.4th 367, 378), the
trial court’s ruling is an abuse of discretion and defendant is entitled to an opportunity to
7 Section 1016.7 was added by Assembly Bill No. 124 (2021-2022 Reg. Sess.; Stats.
2021, ch. 695, § 4).
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ask the court to exercise its discretion within the full range of possible sentences in
mind.8
Accordingly, we agree the amended law under section 1170, subdivision (b)
requires defendant’s sentences be vacated. We further conclude that remand to the trial
court is necessary for it to apply the newly amended law, including all applicable
provisions of section 1170 amended through Senate Bill No. 567, in the first instance and
decide whether defendant is entitled to the lower term.9 (See People v. Flores (2022)
73 Cal.App.5th 1032, 1039.)
8 In light of this conclusion, we need not decide defendant’s claim that the trial court
based its decision to impose the upper term on underlying facts that were not proven in a
statutorily permissible manner.
9 We note there are discrepancies between the oral pronouncement of judgment and the
abstract of judgment where the court imposed victim restitution, fines, penalties and
assessments but they do not appear on the abstract. In addition, the days listed under
credit for actual days appear have been switched with the number of days awarded for
conduct credit. For counts three and five through eleven, the date of offense is
incorrectly listed as 2021. For counts one and five through eleven, the offense is
incorrectly listed as “oral copulation” instead of “lewd and lascivious act.” Because
defendant is entitled to a new sentencing hearing after which a new abstract will be
generated, we need not substantively address these errors.
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DISPOSITION
We reverse the sentences and remand the matter to the trial court so that it may
resentence defendant consistent with amended Penal Code section 1170. The judgment is
otherwise affirmed.
/s/
EARL, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
BOULWARE EURIE, J.
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