P. v. Bluitt CA2/5 ( 2013 )

Filed 3/12/13 P. v. Bluitt CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B240225
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. YA080766)
v.
JERRY AUGUSTA BLUITT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C.
Taylor, Judge. Affirmed as modified.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________
The jury convicted defendant and appellant Jerry Augusta Bluitt in count 1 of oral
copulation/sexual penetration with a child under 10 years old (Pen. Code, § 288.7,
subd. (b))1 and in count 2 of committing a lewd act upon a child (§ 288, subd. (a)). The
trial court sentenced defendant to 15 years to life on count 1 and a concurrent 8-year term
on count 2.
On appeal, defendant contends the trial court abused its discretion in admitting
evidence of prior sexual offenses, expert testimony concerning Child Sexual Abuse
Accommodation Syndrome, and transcripts of “jail calls.” He also argues that admission
of this evidence violated his constitutional rights to equal protection, due process, and a
fair trial. Finally, he contends the trial court erred when it failed to stay his sentence in
count 2 pursuant to California Penal Code section 654, a claim properly conceded by the
Attorney General.
We modify the judgment to stay the sentence in count 2, and in all other respects
the judgment is affirmed.
FACTS
I. Prosecution
A. The Incident and Investigation
On December 29, 2010, D.D.‟s mother, Latrice W., dropped her off at her
grandmother Yvonne B‟s house before going to work. Latrice W. was not aware that
defendant, who had a prior conviction for sexual battery (§ 243.4) and annoying or
molesting a child under the age of 18 (§ 243.4), was at the house. Defendant is D.D.‟s
uncle on her father‟s side of the family. At the time of the incident, D.D. was 10 years
old.
1 All statutory references are to the Penal Code, unless otherwise indicated.
2
Yvonne B. (who is defendant‟s mother) was not feeling well, so she told D.D. to
go into the living room to watch TV. D.D. went to the bathroom and noticed that
defendant was at the house. Defendant told her he had movies they could watch, so she
went into his room. They talked about the Bible and watched a movie. Defendant had
snacks in his room, and he allowed D.D. to have hot chocolate.
Yvonne B. was suffering from back pain and was taking Vicodin three times a
day. She took Vicodin at around 11:00 a.m. and went to bed to rest, where she stayed for
most of the day.
Around the time that she took the Vicodin, Yvonne B. asked defendant to run
some errands for her. Defendant and D.D. went out together. Defendant bought D.D.
candy at her request.
When they returned, defendant took a lottery ticket he had purchased to Yvonne
B. Then he and D.D. went back into his room to watch another movie, but the disc was
not working. Instead, they talked about the movie Blood Diamond. D.D. said the movie
was bad because “they were shooting African people, and they was smoking.” Defendant
asked D.D. if she smoked. She answered that she did not. Defendant lit a cigarette and
put it in D.D.‟s mouth. She coughed and threw it to the ground.
Defendant told D.D. to come over to where he was sitting on the bed. Defendant
did not respond when she asked why. He told her to pull down her pants. D.D. was
shocked that her uncle would say this to her, and she asked him why he wanted her to do
it. He did not answer. After D.D. complied, defendant licked the inside of her “private
part[s].” D.D. pulled up her pants and asked defendant why he had done that to her.
Defendant told her not to tell her parents because he would get into trouble. He told her
that he did the same thing to his girlfriends. D.D. was disgusted.
Yvonne B. came into defendant‟s room and asked if they wanted hamburgers.
D.D. and defendant said they did, so she gave defendant her credit card to buy them. As
defendant was leaving, D.D. went into the bathroom, brushed her teeth, and wiped
herself, because her mouth tasted like cigarettes and she felt “icky.”
3
D.D. walked into her grandmother‟s room, and Yvonne B. asked her why she was
brushing her teeth. She asked twice because D.D. did not respond the first time.
Eventually, D.D. said that she did not really want to say. Yvonne B. asked her what she
meant and D.D. said she did not want to get “him” into trouble. Yvonne B. asked her
what she was talking about, and D.D. just repeated that she did not want to get “him” in
trouble.
Yvonne B. asked her what she was talking about again. She responded that
defendant let her smoke a cigarette. Yvonne B. asked if she was sure, and she said yes.
D.D. then revealed that defendant had licked her “privates.” Yvonne B. again asked if
she was sure, and she said yes. D.D. had not told her grandmother what happened until
defendant left because she was afraid.
Yvonne B. called defendant and repeated what D.D. had told her. Defendant
responded that he did not know why D.D. would say such things. Yvonne B. told
defendant to come home immediately. She then called D.D.‟s mother and the police.
Defendant returned to the house a few minutes later and asked D.D. why she told
her grandmother what she did and said “you know I didn‟t do that.” D.D. responded,
“yes, you did,” and repeated what she had told her grandmother.
Latrice W. drove to Yvonne B.‟s apartment as soon as she spoke with her on the
phone. She confronted defendant and took D.D. home. Defendant said he was going to
the police station.
D.D. was taken to the Gardena Police Department, where she was interviewed by
Officer Evans. Afterwards, D.D.‟s mother took her to the hospital, where she was
examined by Nurse Hare, a member of SART. D.D. told Nurse Hare that defendant
licked her twice, yelled at her to pull her pants down, and put a cigarette in her mouth.
D.D. reported that she had urinated and wiped herself twice since the incident, but that
she had not showered.
Nurse Hare did a comprehensive medical examination of D.D., used a black light
to scan her body, and took swabs from her cheek, vulva, and vestibule. D.D.‟s exam was
normal, with no indications of trauma or trace evidence on her body. Nurse Hare
4
testified that in her opinion the absence of DNA evidence was consistent with D.D.‟s
account of the incident, taking into account that D.D. had urinated and wiped herself
twice.
Defendant was arrested by Gardena Police Detective Daniel Guzzo on the day of
the incident. Detective Guzzo recovered two packs of Newport cigarettes from him.
Defendant provided an oral reference sample. A DNA analyst compared the sample to
the vaginal swabs taken from D.D. and did not find a DNA match.
B. Expert Testimony
Dr. Jayme Bernfield, a clinical psychologist who worked with victims of sexual
and physical abuse, testified about Child Sexual Abuse Accommodation Syndrome
(CSAAS). Dr. Bernfield explained that CSAAS is a five-part model, which explains the
dynamics of sexual abuse and victims‟ coping mechanisms. The goal of CSAAS is to
help parents understand their child‟s reaction to sexual abuse from the child‟s
perspective. Children often fail to disclose abuse, which can be confusing to their
parents. The five parts of CSAAS are secrecy, helplessness, accommodation, delayed
disclosure, and retraction. Secrecy describes the circumstances of the abuse, which
occurs when the victim and the abuser are alone, without witnesses. Helplessness
explains why a child complies with an adult abuser. Children are helpless both because
of their inferior size compared to adults and because they have been taught to do what
they are told. A child who has a close relationship with an adult will feel powerless to
prevent sexual abuse. Accommodation describes the mechanisms children use to tolerate
the situation even though they do not like what is happening to them. Delayed disclosure
is typical, although this may be counterintuitive to people who have not suffered abuse.
Many children never disclose that they have been abused, or only disclose it gradually.
Victims often maintain secrecy into adulthood. Retraction occurs where the victim lacks
support or suffers negative consequences after disclosing sexual abuse. If the abuse
occurs over a significant period of time, victims are more likely to blame themselves.
5
C. Prior Sexual Offenses
C.E. testified that defendant had abused her as a child. C.E. is defendant‟s second
cousin.2 Defendant lived with C.E.‟s family as an “in-house babysitter” when C.E. was
seven years old. He took care of C.E. and her two sisters at night when their mother and
stepfather were at work. He slept on the couch at C.E.‟s house and also stayed with the
mother of his children some nights.
On the nights that defendant took care of C.E. and her sisters, he took C.E. out of
the room she shared with her sisters and put her on the couch where he slept. He would
remove her clothing, orally copulate her, digitally penetrate her, and attempt to kiss her
on the mouth. C.E. was terrified the first time he abused her. When defendant digitally
penetrated C.E., it hurt because he had long fingernails. On one occasion, he rubbed his
penis on her vagina. When C.E. opened her eyes he would tell her to go back to sleep or
say that she was dreaming. The abuse went on for a couple of years and occurred on a
regular basis.
At some point, defendant moved in with a woman named Raquel. C.E. met
Raquel and her daughter Jamila through defendant. When defendant began staying at
Raquel‟s house more frequently, C.E. asked Jamila if he touched her. Jamila answered,
“No.” After defendant moved in with Raquel, he only babysat for C.E. and her sisters a
few more times. He touched her and orally copulated her some of those times.
C.E. told her best friend and cousin what defendant had done to her around the
time of the abuse, when she was seven or eight years old. She did not disclose what
happened to anyone else until she told her grandmother and sisters in 2009, when she was
21 or 22 years old. C.E. told her mother what happened after defendant was put in jail in
connection with the present case.
2 C.E. is defendant‟s aunt‟s granddaughter.
6
M.T. also testified that defendant had abused her as a child. Defendant lived with
M.T. and her family when M.T. was approximately nine years old. M.T. was friends
with C.E.
Defendant‟s sexual abuse of M.T. began when she was nine years old. M.T.
leaned on defendant while they were watching TV one day. That night, defendant took
her out of bed and put her on the couch. He made her touch his chest with her hand, and
then used her hand to rub his penis. M.T. pulled her hand away. Defendant put his penis
next to her vagina. He asked her if she wanted him to stop and she said yes. He stopped,
but warned her not to tell anyone. Defendant said he thought M.T. liked him because she
had been leaning on him earlier. He told M.T. that he would give her a special doughnut
if she kept the incident secret. The next morning, he did give her the special doughnut.
M.T. told her mother what had happened after defendant stopped living with her
family. She had been afraid to tell her mother about the incident earlier because
defendant told her she would get into trouble if she did.
Jamila V. testified that defendant sexually abused her. Jamila was eight years old
and living with her Aunt Raquel.3 M.T. and Jamila‟s cousin T. were also living with
Raquel at the time. Jamila was friends with C.E.
Defendant babysat for Jamila and M.T. One night, when Raquel was at work,
defendant came into Jamila‟s room and got on top of her. Defendant tried to kiss Jamila
twice, but she pushed him away and kept her mouth closed. Defendant pulled her pants
down and rubbed his penis on the outside of Jamila‟s vagina. She told him to stop, but he
shushed her. At that moment, Raquel came home. Defendant told Jamila to put her
clothes on and not say anything. She did not tell anyone what happened because
defendant told her she would get in trouble if she did.
Defendant moved into Racquel‟s house a few weeks after the incident. He began
touching Jamila inappropriately about every other day, during the day and at night. On
3 Jamila was very close with her Aunt Raquel and referred to her as “mom,” which
is likely why C.E. testified that Jamila was Raquel‟s daughter.
7
one occasion, he got into the shower behind Jamila and touched her vagina. Another
time he put his penis inside her vagina, which hurt her. Defendant licked Jamila‟s vagina
and made her sit very close to him so that he could touch her. Jamila was afraid when he
touched her. Defendant gave Jamila special candies that he did not give to the other
children and let her sit on his lap and drive his car as long as she promised that she would
not tell anyone what he was doing to her.
Defendant moved away, but then returned to live in Raquel‟s house when Jamila
was about 12 years old. When defendant returned, the sexual abuse resumed. Defendant
gave her toys and told her not to tell anyone.
Although M.T. told Jamila what defendant had done to her, Jamila did not say
anything about the abuse she had suffered because she was afraid of what people would
think. Defendant had warned her that she would get in trouble if she told anyone, and she
believed him.
On April 14, 2003, defendant was convicted of sexual battery against Jamila
(§ 243.4) and annoying or molesting a child under 18 against M.T. (§ 647.6) in San
Joaquin County. Defendant had not been charged with any offense with respect to C.E.
at the time of the trial in this case.
D. Jail Calls
Defendant made phone calls from jail that were introduced at trial. The first was
to Yvonne B., his mother, on January 28, 2011. Defendant told his mother that D.D.
twice testified that he “shoved a cigarette in her mouth,” pulled down her pants, and
licked her vagina. He accused D.D. of lying and then told his mother that D.D. had also
testified that he bought her candy and told her not to tell anyone what happened. He
accused D.D. of attempting to instigate inappropriate sexual interactions between them
and using “filthy” and “nasty” language, against his protests. Defendant swore that he
rebuffed D.D. and admonished her that she was being inappropriate, but that she
continued in her advances. D.D. told defendant that she wanted him to show her his
8
penis. She also pulled down her pants and told him to lick her vagina twice, making sure
that her grandmother did not detect her in between advances.
Yvonne B. told defendant that D.D. had come into her room earlier that day and
told her she loved him. She asked him if he was sure that D.D. asked to see his penis,
and he swore that she did. Yvonne B. asked why he had not told D.D. to leave the room.
Defendant explained that he was on the phone with a friend when she approached him.
Defendant reiterated that D.D. had accused him of telling her to pull her pants down
multiple times in the conversation.
The second phone call that was introduced was between defendant and K.B.,
C.E.‟s mother, on April 6, 2011. Defendant wanted to know how C.E. was going to
testify because the district attorney had told him she was another possible victim. K.B.
did not say whether she knew C.E. was testifying but offered defendant her address if he
wanted to write to her. Defendant said, “[K.B], I know I said I didn‟t did [sic] anything,
but this time I didn‟t do anything. [D.D.] made those advances and I shot her down.” He
told K.B. his version of events in detail, emphasizing that he told D.D. to stop her
behavior and that he threatened to tell her mother what she had done. He said that D.D.
was lying and told four different versions of the events to different people. He accused
D.D. of setting him up several times and stated that he had been “living [his] life straight”
for the last seven and a half years. He told K.B. that everything depended on what C.E.
was going to say on the witness stand, and that C.E. could really “put a dagger in [him].”
Defendant said he was trying to find out what C.E. would say. K.B. told him to take care
and the call ended.
II. Defense
A. Defendant’s Testimony
Defendant testified that he was reading the Bible in his room at his mother‟s house
when D.D. arrived on December 29, 2010. He came out of his room at some point and
9
noticed that D.D. was there. About 25 minutes later, D.D. knocked on his door and
defendant told her to come in. D.D. came into the room and was about to close the door,
but defendant told her to leave it open. She sat down on a chair next to the television,
and they talked about the Bible.
D.D. noticed a photo of defendant‟s baby and remarked that the baby was cute.
She then asked if he had heard about a 34-year-old man who molested a three-month-old
baby. Defendant said he had not heard about it.
Defendant went outside to smoke, and D.D. followed him. She asked why he
went outside and he explained that he did not want to smoke in front of her. They
watched a movie and talked about another movie called “Blood Diamond.” D.D. said she
liked the movie but that the children in it were bad because they were shooting and
smoking. D.D. asked defendant if cigarettes were bad for you and he said they were.
She picked up a burnt cigarette and twirled it in her fingers.
When the movie ended, Yvonne B. asked him to go to the store and the bank for
her. D.D. went to the store with defendant. Yvonne B. had told him to ask D.D. if she
wanted anything, and she asked for candy, so he bought some for her with his mother‟s
debit card.
When they got back to the apartment, defendant went into Yvonne B.‟s room, and
then returned to his own room and called his friend on the phone. D.D. also went to
defendant‟s room and was sitting in the chair next to the television. Yvonne B. asked
him to go out again to get food at McDonald‟s.
D.D. asked defendant if his kids dated and had sex at her age. He told her it was
not appropriate. She then leaned over and whispered that she wanted him to show her his
penis. Defendant said that she should watch her mouth and told her she was being
inappropriate. She responded that he probably would not molest her anyway. He said he
would not. Defendant did not tell D.D. to leave his room because he was distracted by
his phone conversation.
D.D. then got up, walked over to the bed, pulled her pants down, and told
defendant to “lick it.” Defendant told her to pull her pants up or he would get in trouble.
10
She pulled up her pants and left his room briefly, but then returned, pulled down her
pants, and told him to “lick it” again. Defendant said that if he licked her private parts he
would be molesting her. He told D.D. that he was going to tell her grandmother about
her behavior. D.D. pulled up her pants.
Defendant got up and went to get his mother‟s debit card to go to McDonald‟s.
When he came back to his room, D.D. was crying. He asked her what was wrong, but
she did not want to tell him. He left for McDonald‟s.
Yvonne B. called him while he was driving to McDonald‟s and told him that D.D.
told her what he had done. He asked what she was talking about, and she said D.D. had
told her he made her smoke a cigarette and licked her vagina. Defendant was
incredulous. He went back to the apartment immediately.
When he got back to the apartment, defendant asked D.D. why she would say
those things. Latrice W. came to the apartment and got into a confrontation with
defendant. He denied any wrongdoing. Latrice W. took D.D. and left.
Defendant went directly to the police department. He told Detective Guzzo what
had happened. He voluntarily gave a DNA sample and offered to take a polygraph test.
He denied doing anything inappropriate to D.D. He told the detective that he had not told
his mother what D.D. said to him because she had a bad heart.
Defendant testified that he called K.B. from jail because the public defender told
him that C.E. was another alleged victim. He wanted to know what C.E. was accusing
him of, but K.B. did not know. Defendant said he made the comment about C.E. putting
a dagger in him because an accusation against him would be very bad for his case.
Defendant and his wife and two kids lived with C.E.‟s family for two or three months,
but he never babysat for her when he was there. He never touched C.E. sexually or said
anything inappropriate to her.
Defendant denied that he ever touched M.T. inappropriately. He admitted that he
rubbed Jamila‟s genital area on her 13th birthday when they were wrestling. He
explained that he was intoxicated when it happened, and that he had never touched Jamila
inappropriately other than during this one incident.
11
DISCUSSION
Evidence Admitted Under Evidence Code Sections 1101 and 1108
Defendant first argues that the trial court abused its discretion in admitting
evidence of prior sexual offenses committed against C.E., M.T., and Jamila pursuant to
Evidence Code sections 1101, subdivision (b), and 1108, because the evidence lacked
sufficient probative value and was unduly prejudicial. We find defendant‟s argument
unavailing.
Evidence Code section 1101, subdivision (b) permits the introduction of evidence
that “a person committed a crime, civil wrong or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident . . .) other than his or her disposition to commit such an act.”
Evidence Code section 1108, subdivision (a) provides that “[i]n a criminal action in
which the defendant is accused of a sexual offense, evidence of the defendant‟s
commission of another sexual offense or offenses is not made inadmissible by [Evidence
Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence code
s]ection 352.” In effect, Evidence Code section 1108 “assure[s] that the trier of fact [is]
made aware of the defendant‟s other sex offenses in evaluating the victim‟s and the
defendant‟s credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates
prior decisions . . . indicating that „propensity‟ evidence is per se unduly prejudicial to the
defense. [Citation.]” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
Because the trial court admitted the prior offense testimony under both Evidence
Code sections 1101, subdivision (b), and 1108, error exists only if the testimony is
inadmissible under both sections. (See People v. Branch (2001) 91 Cal.App.4th 274,
280-281 (Branch).) Here, both the current offense and the prior offenses qualify as
“sexual offenses” under Evidence Code section 1108, subdivision (d). We therefore
12
analyze whether the prior offense testimony was admissible under Evidence Code
section 352, to determine whether its admission was error.
Evidence Code “[s]ection 352 provides: „The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.‟ We review
a challenge to a trial court‟s choice to admit or exclude evidence under section 352 for
abuse of discretion. [Citation.] We will reverse only if the court‟s ruling was „arbitrary,
whimsical, or capricious as a matter of law. [Citation.]‟ [Citation.]” (Branch, supra, 91
Cal.App.4th at pp. 281-282.)
Defendant contends the uncharged offenses were dissimilar to the charged crimes
and were therefore not sufficiently probative to aid the jury in determining whether
defendant committed the charged acts. Although defendant acknowledges the offenses
all involved sexual abuse of children, he argues that the present case differs from the
others because the abuse took place during the daytime rather than at night and because
the victim was not alone with defendant and in his care, but rather in a small apartment
where her grandmother was in a room nearby and the doors were open.
In ruling the prior offense testimony admissible, the trial court discussed the
similarities between the charged and uncharged offenses: “[T]hese are all minor girls
and, essentially, in a position of trust with the defendant. They were essentially alone at
the time. It appears that two of these current alleged victims and the C.E. person even
appears to be a relative, which is similar to the situation here. So it‟s not even all with
strangers or nonrelatives. [¶] The type of conduct is essentially the same. There may not
always be penetration, but it seems to be the same types of acts and the same type of
conduct. [¶] . . . [¶] . . . Again, I think they are all very similar. I don‟t think they are
dissimilar at all. [¶] Day versus night, really, that‟s not what I find most telling. It
seems to be the opportunity and the same type of conduct of being alone with a minor.
[¶] . . . [¶] . . . Well, [D.D.‟s] essentially alone with [defendant]. . . . [All of the victims]
13
are separated from people that are likely to help them. And if [D.D.‟s] grandmother was
in another place or out of sight, these are the same types of things.”
We find no error in the trial court‟s analysis. The evidence of defendant‟s prior
offenses was highly probative to establish his propensity to commit the crimes and to
establish a common scheme or plan with respect to all of his victims. It was also relevant
to the determination of both defendant and D.D.‟s credibility. Moreover, the trial court
did not abuse its discretion in determining that none of the factors the court must consider
when deciding whether the probative value of evidence is outweighed by its prejudicial
nature militated in favor of defendant.
Whether evidence of uncharged offenses is admitted under Evidence Code
sections 1101, subdivision (b), or 1108, in judging its admissibility under Evidence Code
section 352, we balance its probative value “against four factors: (1) the inflammatory
nature of the uncharged conduct; (2) the possibility of confusion of issues; (3)
remoteness in time of the uncharged offenses; and (4) the amount of time involved in
introducing and refuting the evidence of uncharged offenses.” (Branch, supra, 91
Cal.App.4th at p. 282.)
The trial court noted the prior offense testimony was inflammatory but found that
it was not so inflammatory as to outweigh its probative value because of the high degree
of similarity between the cases. Defendant attempts to analogize this case to People v.
Harris (1998) 60 Cal.App.4th 727 (Harris), in which the Court of Appeal reversed the
trial court‟s ruling admitting evidence of a prior offense on the basis that the defendant‟s
prior crimes were “inflammatory in the extreme.” (Id. at p. 738.) As the appellate court
described the charged incidents in Harris, “at worst defendant licked and fondled an
incapacitated woman and a former sexual partner, both of whom were thereafter on
speaking terms with him.” (Ibid.) In the uncharged incident, “[the defendant] entered
[the victim‟s apartment] at night while she was sleeping, beat her unconscious and used a
sharp instrument to rip through the muscles from her vagina to her rectum, then stabbed
her in the chest with an ice pick, leaving a portion of the pick inside her. Police found
her beaten unconscious on the floor, bleeding heavily from the vaginal area and bleeding
14
from the mouth and nose. Defendant was found hiding nearby with „blood on his hands,
blood on his clothes, blood on his thighs, blood on his penis.‟ When arrested he had a
key ring on a finger and one of the keys fit the victim‟s apartment door.” (Id. at p. 733.)
In stark contrast to this case, the crimes in Harris were markedly dissimilar, and the
horrific nature of the prior offense was significantly greater than the crimes charged.
This case is more closely analogous to Branch, in which the defendant was found guilty
of committing a lewd and lascivious act upon a child under the age of 14 and using a
foreign object to penetrate the genital opening of a child under the age of 14 who was
more than 10 years younger than the perpetrator. (Branch, supra, 91 Cal.App. at p. 274.)
Branch held the trial court did not abuse its discretion in admitting testimony the
defendant had abused another child victim despite the fact that “[the defendant] engaged
in a wider variety of sexual offenses over a longer period of time with [the previous
victim, because] the nature of the offenses was very similar . . . .” (Id. at p. 283.)
Similarly, we hold that the trial court did not abuse its discretion in determining the prior
offense testimony was not impermissibly inflammatory here.
Defendant has put forth no evidence to support a finding that the jury was
confused with respect to the issues, so that factor also does not weigh in his favor. With
respect to remoteness of time, we agree with the trial court that a gap of 12 years is not
considerably remote. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Ing
(1967) 65 Cal.2d 603, 612.) Finally, the prior offenses testimony comprised only a
quarter of the trial transcript in the prosecution‟s case and was not an undue consumption
of time. (See, e.g., People v. Frazier (2001) 89 Cal.App.4th 30, 42 [uncharged offense
that comprised 27 percent of the total trial transcript did not consume an unreasonable
amount of time].) For all of these reasons, we hold the trial court was within its
discretion in admitting the prior offenses testimony under Evidence Code sections 1101,
subdivision (b), and 1108.
Defendant also contends the CSAAS evidence should not have been admitted
because D.D. did not delay in disclosing the incident. The Attorney General argues the
evidence was admissible to explain D.D.‟s reaction to the molestation as it occurred and
15
to explain C.E.‟s delayed disclosure of her abuse. California courts have long held that
expert testimony regarding CSAAS is “admissible solely for the purpose of showing that
the victim‟s reactions as demonstrated by the evidence are not inconsistent with having
been molested.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker), italics
omitted.)
Such evidence is routinely presented to rebut the myths that a child would
immediately disclose abuse and would not recant his or her story after disclosure, and to
rehabilitate a child victim when their behavior contradicts normal expectations. (Bowker,
supra, 203 Cal.App.3d at pp. 394-395.) We need not address whether the reasons
proffered by the Attorney General are permissible bases for the introduction of CSAAS
evidence, because any error in the admission of such expert testimony was harmless.
(People v. Watson (1956) 46 Cal.2d 818, 836; Bowker, supra, at p. 395 [court‟s failure to
limit expert‟s CSAAS testimony was harmless error].) The evidence of defendant‟s guilt
was overwhelming. D.D. testified defendant molested her and described the abuse in
detail. Although defendant denied that anything inappropriate had occurred, the events
and circumstances she described were incredibly similar to those in all three prior
offenses in which defendant also denied wrongdoing. Given the evidence, “[w]e cannot
conclude . . . it is reasonably probable a verdict more favorable to [defendant] would have
resulted” had the trial court limited Dr. Bernfield‟s testimony. (Bowker, supra, at p. 395.)
Defendant additionally argues that the jail calls should not have been admitted
because they only went to the likelihood that C.E. had also been abused. However,
defendant specifically does not assert that admission of the jail calls constitutes a separate
ground for reversal. Accordingly, defendant has waived the argument on appeal, as the
Attorney General contends. Regardless, even if the admission of the jail calls was error,
it was harmless for the reasons discussed above.
Finally, defendant asserts Evidence Code section 1108 inherently denies due
process of law and a fair trial and violates his equal protection rights under the
Constitution. We are bound by our Supreme Court‟s rulings on these issues and therefore
reject his arguments. (Falsetta, supra, 21 Cal.4th at pp. 915, 918 [rejecting due process
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challenge to Evidence Code section 1108 and noting with approval rejection of equal
protection challenge in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185]; Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Stay of Sentence in Count 2
Defendant contends, and the Attorney General concedes, that count 1, oral
copulation/sexual penetration with a child under 10 years old (§ 288.7, subd. (b)), and
count 2, a lewd act upon a child (§ 288, subd. (a)), involve the same course of conduct
against the same victim. Section 654 bars double punishment, including concurrent
sentences, for a course of conduct constituting one indivisible transaction with one
criminal objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217; Neal v. State
of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa
(2012) 54 Cal.4th 331, 344.) Thus, the imposition of sentence on count 1 requires that
the sentence on count 2 be stayed. (E.g., People v. Deloza (1998) 18 Cal.4th 585, 591-
592.)
We accept the Attorney General‟s concession and modify the judgment to stay
imposition of sentence on count 2 pursuant to section 654.
DISPOSITION
The judgment is modified to stay the sentence on count 2 pursuant to section 654.
The clerk of the court is directed to prepare an amended abstract of judgment and to
forward a certified copy to the Department of Corrections and Rehabilitation. As so
modified, the judgment is affirmed.
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KRIEGLER, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
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