People v. Taylor CA3 ( 2014 )

Filed 4/9/14 P. v. Taylor 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent, C070954
v. (Super. Ct. No. 10F04725)
CORNELIUS TAYLOR,
Defendant and Appellant.
A jury convicted defendant Cornelius Taylor1 of committing eight felony sex
offenses against T.M., comprised of four counts of oral copulation with a person under 18
years of age (Pen. Code, § 288a, subd. (b)(1)),2 and four counts of sexual penetration
with a person under 18 years of age (§ 289, subd. (h)). The trial court sentenced
defendant to serve an aggregate term of seven years and eight months in state prison.
1 Defendant’s name is listed here as it is in the abstract of judgment issued by the
trial court. However, as defendant stated on the stand, his name is Cornelius Taylor, Jr.
2 Undesignated statutory references are to the Penal Code.
1
On appeal, defendant contends (1) the trial court erred in disallowing the defense
from questioning the victim about being diagnosed with a sexually transmitted infection,
(2) the prosecutor committed misconduct by effectively asking jurors to put themselves
into the victim’s shoes in determining her credibility, (3) his due process rights were
violated by the admission of testimony about Child Sexual Abuse Accommodation
Syndrome (CSAAS), and (4) the trial court abused its discretion in imposing the upper
term sentence of three years for the base term, oral copulation with a minor.
We conclude the trial court properly precluded the defense from cross-examining
the victim about her sexually transmitted infection because the probative value was
speculative. The prosecutor did not engage in misconduct during closing argument, but
properly focused her discussion of T.M.’s credibility on evidence in the record. We
adhere to well-settled California law that CSAAS testimony is admissible, and conclude
defendant’s due process challenge attacks the evidentiary validity of CSAAS in a manner
that should have been presented first in the trial court. Finally, the trial court did not
abuse its discretion in finding the upper term sentence was warranted due to the victim’s
vulnerability and defendant’s abuse of his position of trust and confidence. Accordingly,
we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
T.M. grew up in south Sacramento in an abusive and unstable household where
drugs and guns were usually present. She never knew her father, and no one in the
family had a job. To escape stress at home, T.M. began going to church when she was 10
years old. When she turned 14, T.M. began spending weekends at the home of defendant
and his wife, J. T.M. explained that “for them to take me in and be willing to spend time
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with me was definitely a great feeling.” When T.M. was 15 years old, J. invited T.M. to
live with her and defendant after hearing about T.M.’s experiences at home. T.M. and
defendant developed a “father/daughter” relationship.
T.M.’s mother grew angry at T.M. one summer and refused to allow defendant
and J. to enroll T.M. for her sophomore year at school. T.M. eventually got her mother to
allow her to live with an aunt in Stockton and to attend school there. Nonetheless, T.M.
continued to stay with defendant and J. approximately every other weekend. Defendant’s
son, C. and his wife T. would pick T.M. up on their way to Sacramento from Fresno and
then drop her off on their way back home.
When T.M. turned 16, she moved back in with defendant and J. T.M. slept in the
bedroom adjacent to the master bedroom shared by defendant and J. T.M. had a “pretty
good” relationship with defendant, with whom she had gotten “really close.” T.M. was
more comfortable with defendant than with J. T.M.’s mother allowed T.M. to live with
defendant and J. during her junior year.
One day when T.M. was 16, defendant called her into his home office. When she
entered the office, defendant hugged her and kissed her on the lips. T.M. was taken
aback and thought defendant had meant to kiss her on the cheek instead. She “brushed it
off” and returned to the living room to watch television.
A few days later, T.M. awoke to defendant rubbing her thigh over her pajama
pants. Defendant pulled down her pants, inserted two fingers into her vagina, and moved
them in and out. Defendant then put his mouth and tongue on her clitoris and vaginal
area. Defendant did not say anything. T.M. was shocked and pretended to be asleep.
Eventually, defendant left the room.
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T.M. and defendant acted as if nothing unusual had happened. However, T.M. felt
ashamed and wondered what she had done to deserve such treatment. She did not tell
anyone because she did not expect anyone to believe her, and she did not “want to be
considered a home wrecker.”
Approximately every other day, defendant would enter T.M.’s room as soon as J.
closed the garage door to leave for work. Once inside T.M.’s room, defendant would
insert his fingers into her vagina and put his mouth and tongue on her vaginal area. This
happened so many times T.M. could not recall all the incidents. She tried her best to
block the molestations out of her mind. She testified this conduct occurred at least four
times before she turned 18.
T.M. also recalled an instance in which defendant entered her room, when J. woke
up and turned on the hallway lights. Defendant met J. at the threshold of T.M.’s
bedroom. J. asked what he was doing, and defendant replied he was putting money into
T.M.’s drawer.
Shortly before T.M. turned 18, defendant began to have sexual intercourse with
her after he digitally penetrated and orally copulated her. T.M. never said “no” to
defendant. She thought: “At this point, it had been going on for so long, I felt that, if this
is what he wanted, I should do this. After all, he was doing so much for me.”
Neither defendant nor T.M. used birth control during sexual intercourse, which
continued after she turned 18. Shortly after T.M. turned 18 and graduated from high
school, she discovered she was pregnant. Having blocked the instances of sexual
intercourse with defendant from her mind, she did not think she could have been
pregnant. Discussing her missed periods with T., T.M. initially thought she was just
suffering from stress. However, after she took a pregnancy test, she decided to terminate
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the pregnancy in order to join the Air Force. J. and T. pressed T.M. to reveal the father,
but T.M. remained silent in an effort to protect defendant. Finally, to deflect further
questions, T.M. made up a story about having sex with a boy at a party. J. told T.M. that
as soon as she had the abortion she would have to move out of the house.
T.M. had an abortion while living with C. and T. for a week or two. Sometime
thereafter, defendant convinced T.M. to move back in with him and J. and “do the right
thing, and go by [J.’s] rules.” Once T.M. returned, defendant resumed his frequent acts
of digitally penetrating her and performing oral sex on her. However, sexual intercourse
happened “only a couple of times.”
In January 2004, T.M. joined the Air Force. Twice when T.M. stayed at
defendant’s house while on leave, defendant digitally penetrated and orally copulated her.
During the last instance, T.M. was 21 and had hoped staying away for several years
would mean defendant would stop sexually abusing her. Afterward, T.M. vowed never
to return to defendant’s house. Nonetheless, T.M. maintained communications with
defendant because she considered him a father figure.
When T.M. was 19 and in the Air Force, she became pregnant by someone other
than defendant. She called defendant for advice on whether to get an abortion.
T.M. got married in 2008, approximately two years after meeting her husband.
She decided to confront defendant about her sexual abuse after she had trouble sleeping
and when the memories affected her marital relationship. Stationed in Hawaii at the time,
T.M. called defendant and “told him [she] was disgusted with him” and herself.
Defendant responded, “I’m sorry,” and told T.M. when she had children she should
“watch out for people like this.” Defendant said T.M.’s husband could call and talk to
him. T.M. felt relieved defendant was willing to help. A few minutes after the
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conversation ended, defendant called back and left a voice message T.M. saved. In that
message, which was played for the jury, defendant stated: “I just called to let you know I
am so sorry that I hurt you and I would do anything in the world to –- to make that up to
you. I do humbly apologize again, anything wrong that I’ve done to you. I ask -– I don’t
care if you don’t ever forgive me that’s -– that’s fine. But if there’s anything I can do to
(unintelligible) help, please don’t hesitate to call. And again, I’m very sorry for what I
did. Bye.”
T.M.’s difficulties in sleeping and with her husband worsened over the ensuing
months. In January 2009, she had an emotional breakdown at work. T.M. told her
supervisor about defendant’s sexual abuse. T.M. also called J. and told her about the
molestations. T.M. then reported the abuse to the Air Force Office of Special
Investigations. The Air Force turned the investigation over to the Sacramento Police
Department.
In 2010, T.M. traveled from her post in Hawaii to Sacramento to meet with a
police detective. While meeting with the detective, T.M. participated in a pretext call to
defendant. The call was recorded and played for the jury. During the call, T.M. stated
defendant’s sexual abuse still caused her pain. She also told him of the ridicule she
suffered when he got her pregnant at age 16. Defendant did not deny the accusations and
repeatedly apologized. At one point T.M. said, “[D]o you understand I was 16 when you
came into my room to start touching me and like for real. I don’t think you want to deal
with this. This is the reality of the situation. You stole my virginity, a grown man with a
16 year-old, for real?” To this, defendant replied: “Right – right.”
T.M. inquired, “Was there anything that I did?” Defendant responded, “That is –-
that is the sickest thing –- there’s some underlying motive here and –- and I –- and I can’t
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figure it out and, um, I’m –- I’ve –- I’ve –- tried –- tried –- tried –- tried. I’ve cried tears
and tried to figure out what . . . motivated –- there -– there’s nothing I can give you. I
can’t –- you can’t -– whatever you said I did, I cannot take that back.” As the discussion
continued, defendant told T.M.: “Now this is what I want you to do, don’t ever tell
anybody. Don’t you ever tell anybody, and I’m begging you.”
CSAAS Testimony
The prosecution called Anthony Urquiza, Ph.D., a licensed psychologist to testify
as an expert on CSAAS. Dr. Urquiza explained CSAAS was first described in a
scholarly article written in 1983 to dispel misperceptions about childhood sexual abuse.
Dr. Urquiza noted he was not rendering an opinion about whether a particular child was
molested or whether a particular individual perpetrated an act of child molestation.
Dr. Urquiza stated CSAAS describes five categories of behaviors commonly
engaged in by victims of child sexual abuse: secrecy; helplessness; entrapment and
accommodation; delayed and unconvincing disclosure; and retraction. CSAAS is not a
diagnostic tool and does not predict that every victim of child sexual abuse will exhibit
all five categories of reactions. However, “[g]enerally, there is some type of
misperception or myth that accompanies each of those five parts of accommodation
syndrome.”
Dr. Urquiza opined that CSAAS descriptions applied even to a victim who was
first sexually molested at age 16. Dr. Urquiza also recounted research showing the closer
the relationship between the perpetrator and the victim, the longer the likely delay
between the abuse and the victim’s initial disclosure.
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Defense Evidence
Defendant’s son testified he and his wife slept next to T.M.’s bedroom for several
months in 2002 and 2003. He never heard any usual sounds from the bedroom in which
T.M. was sleeping. T.M. never appeared to be nervous around defendant or J.
Defendant’s son and his wife allowed T.M. to live at their house for two weeks when she
was pregnant, but kicked her out when she refused to name the father or do anything
other than watch television.
T. also testified she heard nothing unusual from T.M.’s bedroom during the
months she and defendant’s son slept in the adjacent bedroom at defendant’s house.
According to T., T.M. never named the person who made her pregnant. She only said it
“happened at a graduation party.”
J. testified she and defendant allowed T.M. to move in when T.M. expressed an
interest in living with them. J. liked T.M. but frowned on her “slothful and lazy”
behavior. J. confronted T.M. when she first appeared to be pregnant. When the home
pregnancy test turned out positive, J. asked T.M. how she planned to proceed. When
T.M. refused to reveal the father, J. kicked T.M. out of the house. Eventually, J. relented
and allowed T.M. to move back in.
J. once saw defendant at the door to T.M.’s bedroom and they had a conversation.
However, J. did not follow up by going inside and turning on the lights in T.M.’s
bedroom. In January 2009, T.M. made “vague” accusations about defendant, but J. “just
blew her off.”
Defendant testified on his own behalf. Defendant explained he has been a
certified pastor since 1987. He and J. allowed T.M. to move in with them, and he treated
her like a daughter. When T.M. became pregnant in high school, the family held a
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meeting during which they pressed her to reveal the father. When she refused, defendant
“picked her up” from the floor and “smacked her,” saying: “You’re going to be trifling
like your mother.” Defendant immediately let her go and knew he had been wrong to hit
her. Defendant told T.M. she did not need an abortion, and that he and J. would raise
the baby.
Defendant denied T.M. told him about her second pregnancy as she had testified.
However, he stated T.M. called him in September 2008 to accuse him of spreading gossip
about her pregnancy and abortion shortly after high school. During that call T.M. had not
accused him of molesting her. Defendant first learned of the accusations of molestation
in January 2009 –- after T.M. talked with J. Defendant told J. the accusations were
“a lie.”
On cross-examination, defendant denied ever having sexual contact with T.M.
Regarding the call from T.M. in September 2008, defendant denied telling her to keep her
children away from people like him. Instead, defendant had warned her to keep any
children she might have away from pedophiles. As to both the voicemail message
defendant left for T.M. and the pretext call, defendant explained his apologies all related
to his slapping of T.M. after she first became pregnant. Defendant acknowledged he had
not mentioned slapping during the recorded apology or pretext telephone call.
Rebuttal Evidence
On rebuttal, T.M. testified that defendant never hit her.
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DISCUSSION
I
Exclusion of Evidence Regarding the Victim’s Sexually Transmitted Infection
Defendant contends the trial court denied him a fair trial by excluding “[e]vidence
that T.M. had been diagnosed with [human papilloma virus (HPV)] and that [defendant]
never had been diagnosed with a sexually transmitted disease.” We reject the contention.
A.
Motion to Introduce Evidence of the Victim’s HPV Infection
The defense sought to disprove that defendant had sexual contact with T.M. by
introducing evidence she had been diagnosed with HPV and defendant had not. To this
end, the defense filed a pretrial motion for a hearing pursuant to Evidence Code section
782 to determine the admissibility of an April 2009 memo in T.M.’s Air Force record. In
pertinent part, the memo stated: “[HPV] has been detected as part of a routine pap test.
This is a common (the most common) sexually transmitted disease.” Although the memo
mentioned that, in January 2009, T.M. had “one visit for mental health related concerns
from an alleged past sexual abuse,” it did not indicate when she was first diagnosed with
HPV. Although the defense asserted defendant had never been diagnosed with HPV, it
made no assertion defendant had ever been tested for such infection.
The People opposed the motion, pointing out the Centers for Disease Control and
Prevention reports most people who are infected with HPV have no observable symptoms
and do not know they are infected. The People also noted the molestations occurred
between January 2002 and May 2003 -– more than five years before the pertinent memo
was issued by the Air Force. Indeed, it was possible T.M.’s husband had transmitted
the infection.
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The trial court denied the motion, finding that “given the totality of evidence
supplied by the defense in its offer of proof, the Court finds that the offer of proof
remains insufficient to require a hearing under [Evidence Code] section 782(a)(3). The
argued basis for relevancy is too attenuated and does not constitute a sufficient basis to
move forward with a hearing.”
B.
Admissibility of Evidence Concerning a Victim’s Sexual Conduct or History
As the California Supreme Court has explained, “Evidence of the sexual conduct
of a complaining witness is admissible in a prosecution for a sex-related offense only
under very strict conditions.” (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).)
To this end, Evidence Code section 782 allows the admission of evidence concerning a
victim’s sexual conduct only when “(1) the defendant submits a written motion ‘stating
that the defense has an offer of proof of the relevancy of evidence of the sexual conduct
of the complaining witness proposed to be presented and its relevancy in attacking the
credibility of the complaining witness’ (id., § 782, subd. (a)(1)); (2) the motion is
accompanied by an affidavit, filed under seal, that contains the offer of proof (id.,
subd. (a)(2)); (3) ‘[i]f the court finds that the offer of proof is sufficient, the court shall
order a hearing out of the presence of the jury, if any, and at the hearing allow the
questioning of the complaining witness regarding the offer of proof made by the
defendant’ (id., subd. (a)(3)); and (4) if the court, following the hearing, finds that the
evidence is relevant under Evidence Code section 780 and is not inadmissible under
section 352, then it may make an order stating what evidence may be introduced by the
defendant and the nature of the questions to be permitted. (Id., § 782, subd. (a)(4).)”
(Fontana, at p. 362.)
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As the Fontana court noted, “The Legislature’s purpose in crafting these
limitations is manifest and represents a valid determination that victims of sex-related
offenses deserve heightened protection against surprise, harassment, and unnecessary
invasions of privacy. (People v. Rioz (1984) 161 Cal.App.3d 905, 916–917; accord,
Michigan v. Lucas (1991) 500 U.S. 145, 149–150.) By affording victims protection in
most instances, these provisions also encourage victims of sex-related offenses
to participate in legal proceedings against alleged offenders. (Letwin, ‘Unchaste
Character’: Ideology, and the California Rape Evidence Laws (1980) 54 So. Cal. L.Rev.
35, 40 (Letwin); accord, Advisory Com. Note to Fed. Rules Evid., rule 412, 28 U.S.C.)
Accordingly, our courts have properly exercised the discretion afforded by Evidence
Code section 782 ‘narrowly’ (People v. Chandler (1997) 56 Cal.App.4th 703, 708), and
we emphasize that ‘[g]reat care must be taken to insure that this exception to the general
rule barring evidence of a complaining witness' prior sexual conduct . . . does not
impermissibly encroach upon the rule itself and become a “back door” for admitting
otherwise inadmissible evidence.’ (People v. Rioz, supra, 161 Cal.App.3d at pp. 918–
919.)” (Fontana, supra, 49 Cal.4th at pp. 362-363.)
Moreover, under the Evidence Code, “[n]o evidence is admissible except relevant
evidence.” (Evid. Code, § 350.) As the California Supreme Court has noted,
“ ‘speculation is not evidence.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 735, quoting
People v. Berryman (1993) 6 Cal.4th 1048, 1081.) Thus, “ ‘exclusion of evidence that
produces only speculative inferences is not an abuse of discretion.’ ” (People v. Daniels
(2009) 176 Cal.App.4th 304, 320, quoting People v. Cornwell (2005) 37 Cal.4th 50, 81.)
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C.
The Evidence Sought to be Admitted Was Speculative
The defense sought to use evidence of T.M.’s HPV infection in a manner that was
speculative and therefore not relevant or admissible. Defendant’s assertion he had never
been diagnosed with HPV did not mean he was free from infection. Defendant could
have transmitted the HPV infection to T.M. by his sexual abuse and still believed he was
free of the virus because he never developed symptoms. As the People’s motion notes,
most persons infected with HPV remain unaware of their infection or that they are
transmitting the virus to their sexual partners. Even if defendant had shown himself
to be free from HPV infection, it is possible T.M. contracted the infection from her
husband or some other source during the more than five years after the last molestation
and the date of the Air Force memo. Consequently, the defense sought to introduce the
fact of T.M.’s infection to invite the speculation defendant’s seeming lack of infection
meant he had no sexual contact with her at any time. However, as the California
Supreme Court has held, “evidence leading only to speculative inferences is irrelevant.”
(People v. Kraft (2000) 23 Cal.4th 978, 1035.)
Defendant acknowledges the Air Force memo does not indicate when T.M. was
first diagnosed with the HPV infection. However, he suggests T.M. could easily have
been asked about when she was first diagnosed with the virus. We reject the suggestion.
Under Evidence Code section 782, the sexual conduct and history of a victim are not
fodder for this type of exercise in speculation. As this court has previously noted, “The
purpose of an Evidence Code section 782 hearing is to establish the truth and probative
value of the offer of proof, not to allow a fishing expedition based on sketchy and
unconfirmed allegations.” (People v. Mestas (2013) 217 Cal.App.4th 1509, 1518.) Even
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aside from the possibility of defendant’s own latent infection, speculation as to the timing
of T.M.’s diagnosis does not render the fact of her infection nonspeculative for purposes
of disproving sexual abuse by defendant. The trial court correctly precluded the defense
from introducing evidence of T.M.’s infection in hopes of having the jury speculate
defendant’s lack of apparent infection meant he also lacked guilt as to the charged
sex offenses.
II
Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct by effectively inviting
jurors to put themselves into the victim’s shoes in determining her credibility. The
Attorney General counters that defendant forfeited the claim by failing to make a timely
objection to the alleged prosecutorial misconduct on the grounds defendant now advances
on appeal. The Attorney General also notes defense counsel did not ask the trial court to
admonish the jury. We conclude the issue has been preserved for review, but defendant’s
argument is not persuasive.
A.
The Prosecutor’s Closing Argument
As the California Supreme Court has explained, “ ‘a prosecutor commits
reversible misconduct if he or she makes use of “deceptive or reprehensible methods”
when attempting to persuade either the trial court or the jury, and it is reasonably
probable that without such misconduct, an outcome more favorable to the defendant
would have resulted.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 679, quoting People v.
Riggs (2008) 44 Cal.4th 248, 298.) Under the federal constitution, prosecutorial
misconduct results if “the challenged action ‘ “so infected the trial with unfairness as to
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make the resulting conviction a denial of due process.” ’ (Darden v. Wainwright (1986)
477 U.S. 168, 181, 91 L.Ed.2d 144.)” (People v. Riggs, at p. 298.) However, “ ‘ “[a]
defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion —- and on the same ground -— the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the impropriety. [Citation.]” ’ ”
(Ibid. at p. 298, quoting People v. Stanley (2006) 39 Cal.4th 913, 952.)
Here, the prosecutor argued T.M. was a credible witness whose testimony was
confirmed by defendant’s failure to deny her allegations of sexual abuse during the
pretext call. The prosecutor then rhetorically asked, “why would [T.M.] do this if it
didn’t happen.” To illustrate her point, the prosecutor related a story told by her
colleague about attending a prosecutor’s conference that addressed the topic of sexual
assault victim testimony. As the conference was about to recess, the instructor
announced that after lunch attendees would describe the details of their last sexual
experience to the class. At this point in the closing argument, the defense objected
as follows:
“[Defense counsel]: Your Honor, I’m going to object on the basis of relevancy.
This is not proper argument.
“THE COURT: Overruled. Go ahead.”
The prosecutor continued with the story and noted that attendees suddenly realized
how embarrassing it can be to talk about sexual experiences in front of an audience. The
prosecutor continued:
“So why would [T.M.] go through this if it were not true.
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“Why would she tell her husband this is what happened to me with the guy I called
my dad. Why would she call and confront the defendant’s wife after so many years had
passed, and tell her that.
“Why would she break down in tears at work in Hawaii and tell it to her
supervisor. Why would she then let herself be interviewed by a special agent with the
Air Force, and sign a statement on an Air Force document affirming that it’s true and
correct that that happened.
“Why would she travel to Sacramento to meet with an SPD detective to do a
phone call, and say all . . . those things on the phone call if it wasn’t true.
“Why would she fly from Ohio to testify here to talk about this embarrassing thing
in front of you, people she has never met, this thing that for so many years she felt was
her fault, and was between her and God, and be subject to cross-examination by a trained
and experienced defense attorney, if that hadn’t happened.
“For what. Has there been any explanation from any of the defense witnesses.
The people who knew her well. Has anyone come in and said she is crazy, she is trying
to extort something.
“Nothing. Nothing, whatsoever. For a slap. For putting business out on the
street. Use your common sense, and you will know that that does not make sense.”
As the Attorney General notes, the defense objected to the prosecutor’s argument
on grounds of relevance. However, defense counsel further stated: “This is not proper
argument.” This latter part of defense counsel’s objection might relate to the relevance
objection, or it might relate to defendant’s current argument that “[i]t is improper for the
prosecutor to appeal to the passion and prejudice of the jury in closing argument.” Based
on the ambiguity, we give defendant the benefit of the doubt as to the exact nature of
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defense counsel’s objection and consider the issue on the merits. (People v. Young
(2005) 34 Cal.4th 1149, 1225.) We also decline to declare a forfeiture for failure to
request that the jury be admonished because the defense objection was immediately
overruled by the trial court, which then directed the prosecutor to continue with her
argument. (People v. Pitts (1990) 223 Cal.App.3d 606, 692.)
B.
The People’s Argument Was Proper
The prosecutor did not engage in misconduct during closing argument. Contrary
to defendant’s assertion, the prosecutor did not invite the jury to “put themselves into
[T.M.]’s shoes.” Instead, the prosecutor used the story of a colleague to illustrate the
embarrassment inherent in talking about sexual experiences in front of an audience. This
story was not inflammatory.
Rather than inviting jurors to imagine themselves in T.M.’s place, the prosecutor
asked rhetorical questions about T.M.’s motive to testify that were based on the evidence
in the record. Thus, the prosecutor pointed out T.M. had voluntarily engaged in difficult
and embarrassing discussions with her husband, her supervisor, and members of the law
enforcement community that she could have avoided by remaining silent. And, the
prosecution noted T.M. had no motive to make up lies about defendant’s sexual abuse. In
so arguing, the prosecutor urged the jury to conclude spreading rumors about T.M. or a
single slap did not seem sufficient to motivate T.M. to report the sexual abuse, reveal
such intimate and embarrassing details during the investigation, and testify at trial. A
prosecutor does not engage in improper argument by relying on facts in the record to urge
the jury to find a particular witness credible. (People v. Medina (1995) 11 Cal.4th 694,
757.)
17
In People v. Farnam (2002) 28 Cal.4th 107, the California Supreme Court rejected
an assertion of improper closing argument by the prosecution because, “[r]ead in context,
the challenged comments urged the jury to credit the witnesses’ testimony based on
matters within the record.” (Id. at p. 170.) Here too, the prosecutor relied on the
evidence to suggest T.M. was a credible witness. In short, we conclude the prosecutor’s
discussion of T.M.’s credibility was proper.
III
Admissibility of Evidence Regarding CSAAS
Defendant contends the admission of Dr. Urquiza’s testimony about CSAAS
violated his federal constitutional right to due process. We disagree.
A.
Scope of Review
The defense moved to exclude CSAAS testimony on grounds it violated Evidence
Code section 352, was not relevant, and was not based on “scientific support.”
Defendant did not urge exclusion of the evidence on federal due process grounds but only
on state law grounds. Ordinarily, an objection based on state law does not preserve a
claim based on the United States Constitution. (People v. Lewis (2006) 39 Cal.4th 970,
1028 & fn. 19.) A defendant’s objection must apprise the trial court of the pertinent
evidentiary analysis it should undertake to determine admissibility. Nonetheless, we
conclude that “defendant may make a very narrow due process argument on appeal. He
[or she] may argue that the asserted error in admitting the evidence over his [or her]
Evidence Code section 352 objection had the additional legal consequence of violating
due process.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
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However, defendant may not argue on appeal that CSAAS constitutes “junk
science” based on his discussion of articles and treatises published in the psychology
field. Defendant seeks to prove facts on appeal by making arguments that fall within the
fact-finding expertise of the trial court. Defendant’s arguments about “junk science”
should first have been addressed in the trial court before raising them on appeal. (People
v. Reilly (1987) 196 Cal.App.3d 1127, 1135, quoting People v. Brown (1985) 40 Cal.3d
512, 533.) Consequently, we limit our review to defendant’s due process argument
insofar as it focuses on the trial court’s refusal to exclude CSAAS evidence under
Evidence Code section 352 rendered the trial unfair within the meaning of the federal
due process clause.
B.
Due Process
CSAAS evidence has repeatedly and uniformly been held to be admissible in
California for the limited purpose of dispelling misconceptions lay jurors may have about
of how childhood victims of sexual abuse typically react. (See, e.g., People v. Brown
(2004) 33 Cal.4th 892, 905-907; People v. Wells (2004) 118 Cal.App.4th 179, 188;
People v. Housley (1992) 6 Cal.App.4th 947, 955; People v. Archer (1989) 215
Cal.App.3d 197, 205, fn. 2; People v. Bowker (1988) 203 Cal.App.3d 385, 392-394.)
This court noted, in In re S.C. (2006) 138 Cal.App.4th 396, that “it has long been held
that in a judicial proceeding presenting 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.” (Id. at p. 418 [collecting authority].)
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Defendant urges us to hold CSAAS evidence is inadmissible based on the out-of-
state decisions of Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830, State v. Bolin
(Tenn. 1996) 922 S.W.2d 870, Bussey v. Com. (Ky. 1985) 697 S.W.2d 139, Lantrip v.
Com. (Ky. 1986) 713 S.W.2d 816, and Sanderson v. Com. (Ky. 2009) 291 S.W.3d 610.
Defendant’s argument, however, fails to acknowledge other out-of-state jurisdictions
have held CSAAS-type evidence to be admissible. (E.g., State v. Batangan (Hawaii
1990) 799 P.2d 48, 51-52; Matter of Nicole V. (N.Y. 1987) 71 N.Y.2d 112, 120-121;
State v. Lindsey (Ariz. 1986) 720 P.2d 73, 74-75; Allison v. State (Ga. App. 1986) 179
Ga. App. 303, 308; State v. Brotherton (Iowa 1986) 384 N.W.2d 375, 378; State v. Pettit
(Or. App. 1984) 675 P.2d 183, 185; State v. Myers (Minn. 1984) 359 N.W.2d 604, 609-
610; Smith v. State (Nev. 1984) 100 Nev. 570, 572.) When appellate counsel advance
arguments based on extra-jurisdictional surveys of reported decisions, it behooves them
to disclose both favorable and unfavorable decisions. (Rules Prof. Conduct, rule 5-
200(B) [counsel obligated to avoid misleading the court regarding the facts or law].)
More importantly, as defendant acknowledges, a similar due process challenge to
CSAAS testimony was rejected in People v. Patino (1994) 26 Cal.App.4th 1737. The
Patino court rejected a claim that defendant’s “right to due process was violated by the
introduction of CSAAS testimony. The United States Supreme Court has held the
admission of relevant evidence of the battered child syndrome does not violate the
due process clause of the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S.
62, [68-70].) Battered child syndrome evidence is analogous to CSAAS evidence.
(People v. Bowker, supra, 203 Cal.App.3d at pp. 393–394.) For this reason, there can be
little doubt the due process dimensions of both types of evidence is similar if not
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identical. Therefore, introduction of CSAAS testimony does not by itself deny appellant
due process.” (Patino, at p. 1747.) We agree.
Moreover, as the Patino court concluded, “the essence of a due process violation
is a denial of a criminal defendant’s right to a fair trial. (See People v. Bell (1989) 49
Cal.3d 502, 534.)” (Patino, supra, 26 Cal.App.4th at p. 1747.) Thus, Patino rejected the
due process challenge because the defendant in that case “failed to demonstrate how his
fundamental right to a fair trial was violated by the introduction of CSAAS testimony to
rehabilitate [the victim’s] testimony after a rigorous defense cross-examination calling
into question the victim’s credibility.” (Id. at p. 1747.) The same result is compelled
here, where defense counsel cross-examined both T.M. and Dr. Urquiza at length. The
defense also vigorously argued the evidence suggested T.M.’s testimony was
untrustworthy. Accordingly, we reject defendant’s argument that the admission of
CSAAS evidence requires reversal.
IV
Imposition of the Upper Term Sentence
Defendant contends the trial court erred in imposing the upper term sentence for
the base term because the record does not support the findings T.M. was particularly
vulnerable and defendant took advantage of his position of trust and confidence. We
reject the contention.
“A trial court has broad discretion in making sentencing choices. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) Nevertheless, a trial court is required to state its
reasons for any sentencing choice (e.g., imposition of an upper term) on the record at the
time of sentencing. (§ 1170, subd. (c)); People v. Garcia (1995) 32 Cal.App.4th 1756,
1769.) One aggravating factor is sufficient to support the imposition of an upper term.
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(People v. Davis (1995) 10 Cal.4th 463, 552; People v. Castellano (1983) 140
Cal.App.3d 608, 614–615.)” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.)
Here, the People filed a sentencing brief that argued the upper term was
appropriate due to T.M.’s vulnerability, the crimes were carried out with planning, and
defendant abused his position of trust. The defense also filed a sentencing brief to
argue for a grant of probation, or, alternatively, to impose the lower term. In so arguing,
defendant disputed T.M. had been particularly vulnerable or that she actually placed her
trust in defendant.
The trial court selected the upper term of three years, explaining: “The Court has
selected this term in considering all of the circumstances in this case, considering the
aggravating circumstances in this case substantially outweighing the mitigating
circumstances presented. The Court has also considered that the victim in this matter was
particularly vulnerable at the time these crimes were committed and that the defendant
took advantage of a position of trust and of confidence to commit these crimes.”
The two findings used to impose the upper term centered on defendant’s betrayal
of a position of trust and moral authority he claimed as pastor and T.M.’s father figure.
To occupy a position of trust, it is not necessary to be a parent, teacher, police officer, or
religious figure. Instead, the defendant need only be “a person in whom [the victim]
reposed trust and confidence.” (People v. Franklin (1994) 25 Cal.App.4th 328, 338.)
Here, defendant did claim a special authority –- both as a father figure and as a pastor –-
and his abuse of the trust T.M. placed in him caused her long-lasting harm. As T.M.
testified, she delayed reporting the sexual molestations because she was sure no one
would take her word over that of defendant. Defendant’s authority over T.M. was so
extraordinary she did not reveal defendant was the father of her unborn child –- even
22
though she was kicked out of the house for keeping silent. Moreover, defendant’s abuse
of trust caused T.M. to suffer sleeplessness, emotional distress, and marital difficulties
even years after the abuse ended.
The record amply demonstrates defendant’s repeated molestations of T.M. while
in a position of trust caused her deep emotional and psychological scars far beyond the
physical conduct described by the offenses for which defendant was convicted. The trial
court did not err in selecting the upper term for the base term.3
DISPOSITION
The judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
HULL , J.
3 Our conclusion that the record supports the trial court’s sentencing decision as to
the base term obviates the need to consider defendant’s contention he received ineffective
assistance of counsel in the event this issue had not been preserved for appeal.
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