People v. Serrano CA1/3 ( 2024 )

Filed 9/19/24 P. v. Serrano CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A168138
v.
HENRY JOSUE SERRANO, (Alameda County
Super. Ct. No. 20CR012718)
Defendant and Appellant.
Henry Josue Serrano is serving a sentence of 90 years to life for five
counts of sex offenses committed against minors. On appeal, Serrano raises
several claims of error, all of which are unavailing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Anne Doe was born in 2002. When Anne was five or six years old, her
mother began dating Serrano; they married in 2008.
The Apartment Incidents
In May 2009, Anne (then aged seven), her mother, and Serrano moved
into a one-bedroom apartment. At that apartment, Serrano began sexually
assaulting Anne when she was approximately seven or eight years old.
During the first incident, Anne was washing her hands alone in the
bathroom when Serrano went into the bathroom wearing only underwear,
pressed his penis against her back, and rubbed against her. He then took his
1
penis out and began masturbating before turning Anne around to face him
and ejaculating on her shirt. Serrano told Anne not to tell her mother.
Anne nevertheless told her mother that Serrano rubbed against her in
his underwear, touched himself, and that she saw his penis. Anne’s mother
became upset and confused because Serrano was a leader in their church,
and they got into an argument. Anne’s mother and Serrano argued more
often but he remained in the apartment. Anne felt the acrimony was a result
of her reporting the incident to her mother. She became scared of Serrano
because he remained in the house even after she told her mother; she felt
that no matter what he did, he would still be there.
At the apartment, Anne sometimes slept in the living room and
sometimes slept on a mattress in her mother and Serrano’s room. One night,
Anne woke up with semen on her mouth and saw Serrano sitting at the edge
of the bed smirking. Thereafter, and almost every time that Anne slept in
the bedroom, she would wake up with semen already on her mouth or see
Serrano sitting at the edge of his bed masturbating before placing his semen
on her mouth. Serrano was quiet at night but told Anne during the day not
to tell her mother and that it was “ ‘just between us.’ ” The pattern continued
throughout the entire time they lived at the apartment.
After it had happened a couple of times, Anne told her mother. Anne’s
mother questioned Anne as to whether the substance could have been water;
this made Anne feel hopeless and that her mother did not believe her.
The Closet Incident
In August 2011, when Anne was nine years old, the family moved into a
house. Shortly after moving in, Anne, Serrano, and Serrano’s sister were in
separate rooms unpacking (Anne’s mother was not home). When Serrano
called for Anne from his and her mom’s bedroom, she went to the room.
2
Serrano directed Anne to the closet by putting his hands on her arms (though
not tightly) and guiding her to the closet as he told her to be quiet.
Serrano stood at the entrance of the closet with Anne inside. He
touched her breasts, first over her clothing and then with skin-to-skin
contact. Anne was scared but obeyed his command to stay quiet because she
did not feel like she had a choice. Serrano then took his penis out of his pants
and told Anne to touch it. She was confused, so he began masturbating and
indicated for her to do the same motion to his penis. She complied. At some
point, Anne stopped touching his penis and left the closet; he did not stop her
from leaving.
Anne told Serrano’s sister, who was in the back room of the house, that
Serrano had touched her body and made her touch his body.1 Serrano’s sister
said she would tell Anne’s mother; Anne’s mother never discussed it with
Anne.
The TV Incident
Anne had her own bedroom in the house. Other than the main door,
there were two other ways to enter her room. First, it was possible to climb
through the attic and down into the closet in Anne’s room. Second, there was
a back door in her room that Serrano had installed; Anne could not lock the
door from inside, and it was possible to access the back door through a crawl
space under the house. Anne noticed a pattern emerge: if her mother thought
Serrano was leaving, he would enter through the crawl space to the back
door; if it was known that he was in the house, he would enter through the
attic.
1 Serrano’s sister testified at trial that Anne did not disclose the closet
incident to her.
3
One evening when Anne was 10 years old, she was watching TV on her
bed when Serrano entered through the back door. Serrano stripped to his
underwear and got on top of Anne before proceeding to touch her vagina. He
also told her to touch his penis and she complied. Anne eventually got up
and Serrano left.2
After the TV incident, Serrano went into Anne’s room and touched her
vagina almost daily until she was 14 years old. Serrano also began telling
Anne that she would not see her mother or brother again if she told anyone,
and that no one would believe her. Anne became depressed and started self-
harming, including by cutting her wrists and thighs.
The iPad Incident
When Anne was 11 or 12 years old, Serrano entered her room one night
through the back door while she was using her iPad. Serrano brought
flavored lubricant with him and told her to smell and taste it. As had become
routine, Serrano began touching Anne’s body. He also showed her
pornography on his phone that was stepfather/stepdaughter themed.
Serrano then removed Anne’s clothes and penetrated her vagina with his
fingers.3
After the iPad incident, Serrano continued to show her pornographic
videos with a stepfather/stepdaughter storyline. He also had Anne perform
oral sex on him almost every subsequent time that he went into her room,
2 Anne also testified that Serrano penetrated her with his fingers
during the TV incident, but the jury was unable to reach a verdict on the
related count of sex crime with a child by sexual penetration (count 3).
3 Anne testified that during the iPad incident, Serrano also had her
orally copulate him, had her masturbate him, and penetrated her vagina with
his penis, but the jury was not able to reach a verdict as to the related counts
of aggravated sexual assault by oral copulation (count 4), aggravated sexual
assault by rape (count 6), or forcible lewd act with masturbation (count 8).
4
lasting until the sexual abuse stopped when she was 14 or 15 years old. Once
she reached that age, she felt able to physically resist him.
Anne’s Disclosures
Anne disclosed Serrano’s abuse at various times throughout the
yearslong incidents to varying degrees. As noted above, Anne first told her
mother when it began but did not feel believed when she did so. When Anne
was eight or nine years old, she told the mother of one of her friends that
Serrano had touched her on her breasts and vagina. The friend’s mother told
Anne’s mother but did not follow up further.
When Anne was 10 years old, she told a therapist she had seen Serrano
walking around naked and touching himself; she did not disclose that he was
sexually abusing her because she was scared that she would be taken away
from her mother. Anne then spoke to a child welfare worker at child
protective services (CPS) but did not disclose any sexual abuse by Serrano
because she was scared. After investigating, the CPS worker concluded
Serrano had walked around naked but closed the investigation as
“ ‘unfounded.’ ” Anne had another interaction with CPS at age 12 after
reporting a physical altercation with Serrano, but did not disclose any sexual
abuse as it had not been taken seriously during previous disclosures. When
she was 14, Anne told a friend at school that Serrano had sexually abused
her.
Ultimately, when Anne was 15 years old, she told her mother in detail
about all the sexual abuse that had occurred. Anne’s mother broke down and
apologized. Serrano was no longer with Anne’s mother at that time but was
still living in a back room of the house, which made Anne feel uncomfortable.
Anne’s mother tried to get Serrano to move out; he left a few months later
after she obtained a restraining order against him.
5
In 2020, when Anne was 18 years old, she reported the abuse to police.
As a result, a felony complaint was filed alleging Serrano committed
continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5,
subd. (a)).4 Serrano was arrested in October 2020 and released on bail the
following month.
Assault of Zoe Doe
After his release on bail in November 2020, and until March 2021,
Serrano lived with his cousin and her two daughters. One of the daughters,
Zoe Doe, was eight years old when Serrano lived there.
Serrano twice made Zoe feel uncomfortable while he was living with
her. In the first instance, Serrano told Zoe to sit on his lap when they were
alone in the kitchen and she obliged. While Zoe was sitting on his lap, she
could feel Serrano’s body “bouncing” underneath her and he sounded as if he
was running or out of breath. Zoe felt Serrano’s “private part” on her “private
part” for about 10 minutes. She then got off his lap and left.
In the second instance, Zoe, her sister, and Serrano were sitting on the
couch together. Zoe and Serrano were under the same blanket and Zoe fell
asleep. She awoke to the feeling of Serrano’s hands on her butt underneath
her clothing while the two were still under the blanket. Zoe felt Serrano
squeeze her butt about two times. She felt uncomfortable and left.
Zoe later told her sister about these two instances, who told their
mother. Zoe’s mother discussed the matter with Zoe directly and made
Serrano move out.5
4 All further statutory references are to the Penal Code.
5 Zoe’s sister testified at trial that Serrano had showed her
pornographic videos on his phone, but the jury was unable to reach a verdict
on the related count of sending harmful material to a minor with sexual
intent (count 12).
6
Charges, Trial, and Sentencing
In 2023, a second amended information was filed charging Serrano
with 12 counts of child sex offenses based on the incidents involving Anne,
Zoe, and Zoe’s sister.6 The information also alleged numerous aggravating
factors; as relevant to this appeal, it alleged as to all counts that the victims
were particularly vulnerable (Cal. Rules of Court, Rule 4.421(a)(3)) and that
Serrano took advantage of a position of trust or confidence (Cal. Rules of
Court, Rule 4.421(a)(11)).
A jury trial took place in March 2023.
The prosecution presented the testimony of several witnesses,
including Anne, Anne’s mother, Zoe, and Zoe’s mother, consistent with the
above factual summary. The prosecution further presented the testimony of
Dr. Blake Carmichael, an expert in child sexual abuse and child trauma, to
help understand misconceptions of, and responses to, child sexual abuse, but
he did not have any information about this specific case. This is generally
6 Counts 1 through 10 concerned Anne and alleged: continuous sexual
abuse of a child under the age of 14 (§ 288.5, subd. (a)) (count 1); forcible lewd
act upon a child under the age of 14 (§ 288, subd. (b)(1)) during the closet
incident (count 2); sex crime with a child 10 years of age or younger
(§ 288.7, subd. (b)) during the TV incident (count 3); aggravated sexual
assault on a child under the age of 14 by oral copulation (§ 269, subd. (a)(4))
during the iPad incident (count 4); aggravated sexual assault of a child under
the age of 14 by sexual penetration (§ 269, subd. (a)(5)) during the iPad
incident (count 5); aggravated sexual assault of a child under the age of 14 by
rape (§ 269, subd. (a)(1)) during the iPad incident (count 6); two counts of
forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1)) during
the iPad incident (counts 7 & 8); aggravated sexual assault of a child under
the age of 14 by oral copulation (§ 269, subd. (a)(4)) (count 9); and forcible
rape of a minor (§ 261, subd. (a)(2)) (count 10).
Count 11 concerned Zoe and alleged a lewd act upon a child under the
age of 14 (§ 288, subd. (a)). Count 12 concerned Zoe’s sister and alleged
sending harmful material to a minor with sexual intent (§ 288.2, subd. (a)(2)).
7
referred to as child sexual abuse accommodation syndrome (CSAAS)
evidence.7
The defense case sought to undercut Anne’s credibility. For example,
when cross-examining her, defense counsel asked multiple questions
concerning her delayed or partial disclosure of various instances of abuse by
Serrano. Defense counsel also questioned why Anne would not sleep in a
different location during the abuse at the apartment. And the defense
solicited testimony from Serrano’s sister that Anne did not disclose the closet
incident to her (contrary to Anne’s testimony).
The jury returned a guilty verdict on five counts: count 1, continuous
sexual abuse of a child (Anne) under the age of 14 (§ 288.5, subd. (a)); count 2,
forcible lewd act upon a child (Anne) under the age of 14 (§ 288, subd. (b)(1))
during the closet incident; count 5, aggravated sexual assault of a child
(Anne) under the age of 14 by sexual penetration (§ 269, subd. (a)(5)) during
the iPad incident; count 7, forcible lewd act upon a child (Anne) under the age
of 14 (§ 288, subd. (b)(1)) during the iPad incident; and count 11, lewd act
upon a child (Zoe) under the age of 14 (§ 288, subd. (a)). As to each of those
counts, the jury also found true that the victim was particularly vulnerable,
and that Serrano took advantage of a position of trust or confidence.
Count 9 had been dismissed on motion of the prosecution during trial.
The jury was unable to reach a verdict as to the remaining counts, and the
court declared a mistrial as to those counts.
7 Dr. Carmichael did not refer to CSAAS by name, in compliance with
the trial court’s pretrial ruling—over Serrano’s objection—that the
prosecution could admit testimony from a CSAAS expert, but the witness
could not use the word “syndrome” or refer to CSAAS by abbreviation or by
its full title. For ease of comprehension, we refer to Dr. Carmichael’s
testimony as CSAAS testimony or evidence throughout this opinion.
8
On May 26, 2023, the trial court sentenced Serrano to 90 years to life in
prison, consisting of 15 years to life on count 1; a concurrent term of 15 years
to life on count 5; and consecutive terms of 25 years to life each on counts 2,
7, and 11. Serrano appealed.
DISCUSSION
Serrano challenges his convictions and sentence on various grounds.
First, he raises multiple claims of error related to the CSAAS evidence at
trial. Second, he asserts the court erred by failing to instruct the jury on a
lesser included offense as to count 2. Third, he raises two claims related to
the aggravating factors noted above. Finally, he asserts cumulative
prejudicial error. Unpersuaded, we shall affirm.
I. CSAAS Evidence Claims Are Unavailing
Serrano raises three claims related to the CSAAS testimony at trial:
(1) Dr. Carmichael’s testimony exceeded the bounds of permissible CSAAS
testimony; (2) defense counsel was ineffective in failing to object to the
prosecution’s use of CSAAS testimony during closing arguments; and (3) the
jury instruction given by the court in relation to CSAAS evidence, CALCRIM
No. 1193, was an incorrect statement of the law.
CSAAS testimony has long been “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
testimony claiming molestation.” (People v. McAlpin (1991) 53 Cal.3d 1289,
1300 (McAlpin).) “ ‘Such expert testimony is needed to disabuse jurors of
commonly held misconceptions about child sexual abuse, and to explain the
emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (Id. at p. 1301.) “The testimony is pertinent and admissible if an
9
issue has been raised as to the victim’s credibility.” (People v. Patino (1994)
26 Cal.App.4th 1737, 1745 (Patino).)
However, CSAAS testimony “is not admissible to prove that the
complaining witness has in fact been sexually abused.” (McAlpin, supra, 53
Cal.3d at p. 1300.) And, as the line between impermissible and permissible
use of CSAAS testimony “is by no means a bright one, the better practice is to
limit the expert’s testimony to observations concerning the behavior of
abused children as a class and to avoid testimony which recites either the
facts of the case at trial or obviously similar facts.” (People v. Gilbert (1992) 5
Cal.App.4th 1372, 1383–1384, superseded on other grounds by CALJIC
No. 10.41.) We review a trial court’s decision to admit expert testimony for
abuse of discretion. (McAlpin, supra, 53 Cal.3d at p. 1299.)
With these parameters in mind, we turn to Serrano’s CSAAS claims.
A. Dr. Carmichael’s Testimony Was Not Improper
Serrano contends Dr. Carmichael’s testimony went beyond the
permissible bounds of CSAAS testimony in two ways: (1) by closely tracking
the facts of this case; and (2) by discussing attributes of perpetrators of
sexual abuse rather than victims as a class. Serrano further asserts these
alleged errors rendered his trial fundamentally unfair, in violation of his
right to due process. We disagree.
Dr. Carmichael testified that he had not received any information
about this case, spoken about the facts with anyone, or reviewed any
documents related to the case. He typically testified for the purpose of
explaining myths and misconceptions about child victims of sexual abuse, but
he was not there to provide any opinion as to whether the allegations in this
case were true or false.
10
Dr. Carmichael explained there are five components to the common
misconceptions of child victimization: (1) secrecy; (2) helplessness;
(3) entrapment or accommodation; (4) delayed, unconvincing, or conflicted
disclosure; (5) and recanting or retraction.
When describing the development of a relationship between a
perpetrator and victim, Dr. Carmichael stated that a child may not recognize
when touch becomes inappropriate because a perpetrator may “groom” a child
by infusing inappropriate touch with otherwise common touch or
desensitizing a child to nakedness, among other ways. When the prosecution
asked if such conduct could influence a child’s willingness to disclose the
abuse, Dr. Carmichael testified it could delay disclosure because the child at
first believes it is normal behavior.
In response to the prosecution’s question as to whether there were
myths surrounding the idea that abuse could not occur when another adult
was present in the home, Dr. Carmichael testified that, contrary to what
would be “comforting” to think, abuse can occur “under the covers or a
blanket” when a parent is nearby.
When the prosecution asked if perpetrators in positions of authority in
a child’s life could include clergy or religious figures, Dr. Carmichael stated it
could, as those figures are viewed as having power or authority over the
child’s beliefs or redemption. He further explained a child’s willingness to
disclose abuse could be affected if the child feels the perpetrator is an
authority figure. Asked if a perpetrator’s relationship with the victim’s
guardian or caregiver could add to the element of secrecy, Dr. Carmichael
responded it could, for example, if the child felt that disclosing the abuse
would cause negative consequences for the child’s mother.
11
1. The Testimony Did Not Improperly Mirror This Case
We turn first to Serrano’s assertion that Dr. Carmichael’s testimony
was improper on the basis that it was related to the facts of this case. As an
initial matter, Serrano did not raise a specific and timely objection on this
basis in the trial court and therefore forfeited this objection to the CSAAS
testimony. (See People v. Partida (2005) 37 Cal.4th 428, 433–434.)
Even if it were not forfeited, the testimony did not improperly mirror
the facts of this case. The prosecution’s questions merely invited Dr.
Carmichael to opine on aspects of CSAAS relevant to misconceptions and
myths suggested by the evidence, in accordance with the requirements for
CSAAS testimony. (See People v. Bowker (1988) 203 Cal.App.3d 385, 393–
394 [to be admissible, CSAAS evidence must be “targeted to a specific ‘myth’
or ‘misconception’ suggested by the evidence”].) In the instances cited by
Serrano, the myths concerned delayed disclosure due to being desensitized to
nakedness; that abuse cannot occur when other adults are present; secrecy to
avoid negatively affecting the family; and an unwillingness to disclose when
the perpetrator is a religious authority figure. That Dr. Carmichael’s
testimony as to scenarios common among child victims also happened to
occur in this case does not make either the questioning or his testimony
improper.
Furthermore, as we discuss further below, the court correctly
instructed the jury that Dr. Carmichael’s testimony was not evidence that
Serrano committed any of the charged offenses, and it could only be used in
assessing the conduct and credibility of the victims, which further supports
the conclusion that Dr. Carmichael’s testimony did not exceed the bounds of
permissible CSAAS evidence. (See People v. Thomas (2023) 14 Cal.5th 327,
12
382 [“ ‘Jurors are presumed able to understand and correlate instructions
and are further presumed to have followed the court’s instructions.’ ”].)
2. The Testimony Did Not Erroneously Focus on
Perpetrators
Serrano further contends Dr. Carmichael’s testimony in the above cited
instances—in addition to his discussion of grooming, whether the child knows
the perpetrator, and the role of the perpetrator in the family—erroneously
commented on perpetrators rather than victims as a class.8
At trial, Serrano objected to Dr. Carmichael’s testimony on the basis
that it improperly focused on the conduct of perpetrators, including when he
discussed “grooming,” rather than the conduct of victims. While
acknowledging the line between the two was not “easily defined,” the court
ruled the testimony was not improper, as it was “almost impossible to discuss
the potential behavior of victims of sexual assault without discussing the
behaviors of their perpetrators.” The court found Dr. Carmichael’s testimony
sought to dispel certain myths about the behavior of sexual assault victims,
which necessarily required referencing how those victims react to conduct by
perpetrators. The court also concluded the testimony as to grooming sought
to dispel the myth that a child was not sexually assaulted by explaining how
a victim “can be desensitized to certain behavior in some gradual way as a
phenomenon that could only be accomplished by someone known to them who
has regular access to them,” and properly focused on how children react to
that “increasingly invasive conduct.”
The trial court did not abuse its discretion in admitting the challenged
testimony after Anne’s credibility was called into question by the defense.
8 Serrano also points to testimony about “the gender of the
perpetrator,” but the record does not show Dr. Carmichael reached that topic.
13
(See Patino, supra, 26 Cal.App.4th at p. 1745 [CSAAS testimony is pertinent
and admissible when issue raised as to victim’s credibility].) To the extent
Dr. Carmichael testified as to the behavior of perpetrators, grooming, and the
relationship between a victim and perpetrator, it served as context to help
explain how a child victim might react to such behavior. In particular, he
explained that these factors could discourage disclosure because the child
believes the behavior is normal or fears negative repercussions from
reporting abuse by a family member or authority figure. This was properly
limited to “observations concerning the behavior of abused children as a
class” and therefore did not exceed the bounds of permissible CSAAS
testimony. (See People v. Gilbert, supra, 5 Cal.App.4th at p. 1384.)
As there was no error in admitting the challenged CSAAS testimony
after the defense placed Anne’s credibility at issue, and the testimony was
properly limited, we reject Serrano’s assertion that it rendered his trial
fundamentally unfair. (See Patino, supra, 26 Cal.App.4th at p. 1747
[“Appellant has 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 . . . .”].)
B. The Record on Appeal Does Not Show Defense Counsel Was
Ineffective in Failing to Object to the Prosecution’s Use of
CSAAS Testimony During Closing Arguments
Serrano avers defense counsel provided ineffective assistance by failing
to object to the prosecution’s use of CSAAS testimony during closing
arguments, which he asserts improperly used the testimony as evidence that
Anne was telling the truth on the basis that she exhibited behaviors
associated with CSAAS. He further asserts the claim can be reviewed based
14
on the appellate record alone as there is no satisfactory reason for counsel’s
failure to object.9
During the prosecution’s closing argument, it repeatedly referenced Dr.
Carmichael’s testimony as to responses of child victims to sexual abuse in
ways that were relevant to the evidence at trial showing how the victims in
this case reacted to being abused. For example, the prosecution cited Dr.
Carmichael’s testimony regarding a child victim’s unwillingness to disclose
the abuse due to the fear of negative consequences, helplessness, self-blame,
or the perpetrator’s role as an authority figure.
In the defense’s closing argument, counsel asserted that the
prosecution had relied on Dr. Carmichael’s testimony to try to “fill . . . holes”
in the prosecution’s case: “I counted . . . 25 times maybe during the [closing]
argument . . . when the prosecutor said, ‘as Dr. Carmichael said’, ‘Dr.
Carmichael’s testimony explains this.’ Every time there’s a problem it’s like
Dr. Carmichael was the calvary coming in and filling in all the problems they
have with their case.”
When challenging a conviction based on ineffective assistance, a
defendant must show both that counsel’s performance was deficient by falling
below an objective standard of reasonableness under prevailing professional
norms and resulting prejudice. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
9 We note that defense counsel objected to one instance in which the
prosecution referenced Dr. Carmichael’s testimony, and the trial court
sustained the objection and instructed the jury as to the proper limits of the
testimony. However, Serrano does not raise an independent claim of
prosecutorial misconduct and instead bases his argument solely on defense
counsel’s failure to object to 13 other instances when the prosecution
referenced Dr. Carmichael’s testimony. Accordingly, we do not address
whether the prosecution committed misconduct, nor the Attorney General’s
assertion that Serrano forfeited that claim.
15
When reviewing claims of ineffective assistance, we defer to counsel’s
reasonable tactical decisions and presume counsel acted within the wide
range of reasonable professional assistance. (Ibid.)
“[E]xcept in those rare instances where there is no conceivable tactical
purpose for counsel’s actions, claims of ineffective assistance of counsel
should be raised on habeas corpus, not on direct appeal. [Citation.] This is
particularly true where, as here, the alleged incompetence stems from
counsel’s failure to object. ‘[D]eciding whether to object is inherently tactical,
and the failure to object will rarely establish ineffective assistance.’ ” (People
v. Lopez (2008) 42 Cal.4th 960, 972 (Lopez).)
We conclude it is not appropriate to reach the merits of Serrano’s
ineffective assistance claim on direct appeal because, even assuming,
arguendo, the prosecution misused Dr. Carmichael’s testimony, this is not
one of “those rare instances where there is no conceivable tactical purpose for
counsel’s” failure to object. (See Lopez, supra, 42 Cal.4th at p. 972.) Rather,
as the Attorney General points out, defense counsel could have had tactical
reasons for not objecting to the prosecution’s use of Dr. Carmichael’s
testimony. For instance, defense counsel could have made a tactical choice
not to object so that he could argue in his own closing argument—as he did—
that the prosecution’s case was full of holes that could only be filled by
relying on Dr. Carmichael’s testimony. Defense counsel could have also
decided not to object to avoid calling extra attention to Dr. Carmichael’s
testimony.
In light of these conceivable tactical reasons for defense counsel to not
object, and the lack of any affirmative explanation in the record as to why
counsel failed to do so, Serrano’s ineffective assistance claim should be raised,
16
if at all, on habeas corpus and not on direct appeal. (See Lopez, supra, 42
Cal.4th at p. 972.)
C. The Court Did Not Err in Instructing the Jury with
CALCRIM No. 1193
Serrano next contends the trial court erred by instructing the jury with
CALCRIM No. 1193. He asserts the instruction as given contained
ambiguous language that allowed the jury to misuse the CSAAS evidence to
determine whether the claims of sexual abuse were true. We find no error in
the jury instruction.10
“We review a claim of instructional error de novo. [Citation.] The
challenged instruction is considered ‘in the context of the instructions as a
whole and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible manner.’ ”
(People v. Rivera (2019) 7 Cal.5th 306, 326.)
The court instructed the jury pursuant to CALCRIM No. 1193
regarding Dr. Carmichael’s testimony as follows:
You have heard testimony from Dr. Blake Carmichael. His
testimony is not evidence that the defendant committed any of the
crimes charged against him or any conduct or crimes with which
he was not charged.
You may consider this evidence only in deciding whether or not
[the victims’] conduct was not inconsistent with the conduct of
10 In an apparent acknowledgement that he did not object to the
CALCRIM No. 1193 instruction below, Serrano asserts he did not forfeit this
claim as the alleged error affected his substantial rights. (§ 1259.) Here,
“[w]e need not decide whether forfeiture applies . . . because the trial court
did not err in giving CALCRIM No. 1193.” (People v. Ramirez (2023) 98
Cal.App.5th 175, 219 (Ramirez).)
17
someone who has been a victim of a sexual offense, and in
evaluating the believability of their testimony.11
Serrano asserts the second paragraph creates ambiguity and
allows a jury to apply CSAAS evidence as circumstantial evidence of
guilt, pointing to its use of a double negative (i.e., “not inconsistent
with”). As an initial matter, and as Serrano concedes, numerous
courts have concluded this version of CALCRIM No. 1193 does not
result in a misuse of CSAAS evidence. (See, e.g., Ramirez, supra, 98
Cal.App.5th at p. 220 [instruction correctly informs the jury of the
permissible and impermissible uses of CSAAS testimony]; People v.
Lapenias (2021) 67 Cal.App.5th 162, 175–176 [instruction accurately
instructs the jury on the law as to proper use and limitations of
CSAAS evidence].) We agree with those courts.12
Further, and contrary to Serrano’s contention, the use of a double
negative does not create a reasonable likelihood that the jury misread the
instruction by “invit[ing] the jury to . . . make their own armchair diagnosis of
whether the symptoms of CSAAS prove the witness was abused.” Rather, in
the sentence preceding the challenged portion of CALCRIM No. 1193, the
court explicitly instructed the jury that Dr. Carmichael’s testimony could not
be used for that purpose. The court also instructed the jury to consider
11 CALCRIM No. 1193 was revised in September 2022, but the trial
court provided the previous version of the instruction, modified from that
version only to remove references to CSAAS by name.
12 We likewise readily dispose of Serrano’s assertion that CALCRIM
No. 1193 violates due process by lessening the prosecution’s burden of proof.
(See Ramirez, supra, 98 Cal.App.5th at pp. 219–220 [instruction does not
violate due process]; People v. Gonzales (2017) 16 Cal.App.5th 494, 504
[instruction does not lighten prosecution’s burden of proof or violate due
process].)
18
evidence that had been admitted for a limited purpose “only for that purpose
and for no other.” And, as previously noted, we presume the jury was able to
understand and correlate instructions and followed the instructions given.
(People v. Thomas, supra, 14 Cal.5th at p. 382.)
Given the court’s advisement that the jury was not to consider the
CSAAS testimony for any improper purpose, we conclude there is not a
reasonable likelihood the jury applied CALCRIM No. 1193 in an
impermissible manner. (See People v. Rivera, supra, 7 Cal.5th at p. 326.)
II. The Failure to Instruct the Jury on a Lesser Included Offense for
Count 2 Was Not Prejudicial
Serrano contends the trial court erred in failing to instruct the jury on
the lesser included offense of lewd act on a child (§ 288, subd. (a)) with regard
to count 2, forcible lewd act upon a child (§ 288, subd. (b)(1)), relating to the
closet incident. (See People v. Ward (1986) 188 Cal.App.3d 459, 472 [section
288, subdivision (a), is a lesser or necessarily included offense of section 288,
subdivision (b)].) He further asserts there is a reasonable probability he
would have been convicted of the lesser offense had the jury been so
instructed. We find no prejudicial error occurred.
A trial court has a sua sponte duty to instruct the jury on lesser
included offenses when there is “ ‘substantial evidence’ ” from which a
rational jury could conclude that the defendant committed the lesser offense,
but not the greater offense. (People v. DePriest (2007) 42 Cal.4th 1, 50; see
People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), disapproved of
on other grounds by People v. Schuller (2023) 15 Cal.5th 237.)
Generally, and as relevant here, the failure to instruct on lesser
included offenses in a noncapital case is an error of state law and is therefore
“not subject to reversal unless an examination of the entire record establishes
19
a reasonable probability that the error affected the outcome.” (Breverman,
supra, 19 Cal.4th at p. 165; see People v. Schuller, supra, 15 Cal.5th at
p. 260.) We may “consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected
the result.” (Breverman, supra, 19 Cal.4th at p. 177.)
The only additional element a jury is required to find to convict a
defendant of forcible lewd act upon a child (§ 288, subd. (b)(1)), as opposed to
nonforcible lewd act on a child (§ 288, subd. (a)), is that, “[i]n committing the
act, the defendant used force, violence, duress, menace, or fear of immediate
and unlawful bodily injury to the child or someone else.” (Compare
CALCRIM No. 1111 with CALCRIM No. 1110.) The prosecution’s theory of
the case as to count 2 was that this additional element was satisfied
primarily because Serrano used “duress” during the closet incident.13
To evaluate duress, we consider “[t]he totality of the circumstances
includ[ing] the victim’s age, her relationship to the perpetrator, threats to
harm the victim, physically controlling the victim when the victim attempts
to resist, warnings to the victim that revealing the molestation would result
in jeopardizing the family, and the relative physical vulnerability of the
child.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072.) “When the
13 The trial court instructed the jury pursuant to CALCRIM No. 1111:
“Duress means the use of a direct or implied threat of force, violence, danger,
hardship, or retribution sufficient to cause a reasonable person to do or
submit to something that he or she would not otherwise do or submit to.
When deciding whether the act was accomplished by duress, consider all the
circumstances, including the age of the child and her relationship to the
defendant.”
20
victim is young and is molested by her father in the family home, duress will
be present in all but the rarest cases.” (Id. at pp. 1072–1073.)
Here, there is no reasonable probability that the jury would have
convicted Serrano of only the lesser included offense of lewd act on a child, as
the evidence showing Serrano used duress in the commission of the closet
incident was so relatively strong, and the evidence that he did not use duress
was so comparatively weak. (See Breverman, supra, 19 Cal.4th at p. 177.)
At trial, Anne testified that Serrano “directed” her to the closet by
putting his hands on her arms and guiding her to the closet while telling her
to be quiet. Anne did not feel like she had a choice but to go to the closet.
Once she was inside, Serrano stood in front of the entrance to the closet and
proceeded to touch her breasts before telling her to touch his penis. Anne
stated she was scared and felt she did not have a choice but to follow his
command to stay quiet, explaining: “[Serrano] was bigger than me, heavier
than me, and based on what had happened before, I kind of already pictured
what the outcome would be if I did speak up, if I didn’t stay quiet. So I felt
like it was just best for me to stay quiet in the moment.” She also testified
Serrano felt like an authority figure to her at that time.
The totality of the circumstances strongly support the jury’s finding
that Serrano used duress in committing count 2, including Anne’s age at the
time (nine years old); her relationship to Serrano as his stepdaughter who
viewed him as an authority figure; her relative physical vulnerability given
that he was heavier and bigger than her; and her understanding from past
experience that disclosing the abuse would result in Serrano and her mother
fighting more, thereby jeopardizing the family. (See People v. Thomas, supra,15 Cal.App.5th at p. 1072.)
21
Comparatively, there was little evidence supporting a finding that the
offense was committed without duress. Serrano points only to Anne’s
testimony that he did not tightly grab her when directing her to the closet
and that he did not use force to stop her from leaving the closet after the
sexual abuse occurred. We therefore readily conclude that—even assuming,
arguendo, the court should have instructed the jury as to the lesser included
offense—there is no reasonable probability the outcome would have been
different. (See Breverman, supra, 19 Cal.4th at p. 177.) Accordingly, reversal
as to count 2 is not warranted. (See id. at p. 165.)
III. Claims Relating to the Aggravating Factors Are Without Merit
Serrano raises two challenges related to the aggravating factors found
true by the jury. First, he asserts there was insufficient evidence to show the
victims were particularly vulnerable. Second, he contends resentencing as to
count 11 (lewd act upon Zoe) is warranted because the jury instructions
improperly allowed the jury to use the same facts used to establish the
element of duress in some counts to also find two aggravating factors true.
Serrano is incorrect on both bases.
A. Substantial Evidence Supports the Vulnerable Victim
Aggravating Factors
Serrano argues the evidence was insufficient to prove Anne and Zoe
were particularly vulnerable victims, as there was no evidence that his
conduct was distinctly worse than an ordinary commission of the offenses.
He asserts that, to make that determination, the prosecution needed to
present evidence of what would constitute an average commission of the
crime. This claim is without merit.14
14 As we conclude there was no error on this basis, we do not reach
Serrano’s assertion that the alleged error prejudiced him at sentencing.
22
“The standard of appellate review for determining the sufficiency of the
evidence is settled. ‘ “On appeal we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” ’ ” (People v. Wilson (2008) 44 Cal.4th 758, 806.) We
presume every fact in support of the judgment the jury could have reasonably
deduced from the evidence. (Ibid.)
For purposes of the particularly vulnerable victim factor,
“ ‘ “[p]articularly . . . means in a special or unusual degree, to an extent
greater than in other cases,” ’ ” and “ ‘ “[v]ulnerability means defenseless,
unguarded, unprotected, accessible, assailable, one who is susceptible to the
defendant’s criminal act.” ’ ” (People v. DeHoyos (2013) 57 Cal.4th 79, 154
(DeHoyos).) A victim can be deemed particularly vulnerable “ ‘for reasons not
based solely on age, including the victim’s relationship with the defendant.’ ”
(Ibid.)
Presuming every fact in support of the jury’s findings, we conclude
that—even without the introduction of evidence of an average commission of
the offenses—a reasonable jury could have found that Anne and Zoe were
unprotected, accessible, and susceptible to Serrano’s acts to a special and
unusual degree. (See DeHoyos, supra, 57 Cal.4th at p. 154; People v. Wilson,
supra, 44 Cal.4th at p. 806.)
The evidence showed that Serrano, her stepfather, abused Anne
beginning when she was seven or eight years old; that Serrano installed a
door to her bedroom at the house that she could not lock; and that he
regularly abused her after entering her room by accessing the crawl space or
the attic. Zoe was eight years old when she was sexually assaulted by
23
Serrano, her mother’s cousin who was living with her at the time. Even
considering that the offenses require conduct with victims under the age of
14, Anne and Zoe were particularly young, nowhere near 14, when they were
abused by Serrano. Further, they each lived with Serrano, a family member
whom their mothers trusted, at the time of the abuse. On this record, there
was substantial evidence supporting the jury’s findings that Anne and Zoe
were vulnerable victims. (See DeHoyos, supra, 57 Cal.4th at p. 154; see also
People v. Garcia (1985) 166 Cal.App.3d 1056, 1070 [victim’s extreme youth
coupled with close relationship to the defendant supports finding of
vulnerability].)
B. Resentencing on Count 11 Is Not Warranted
Serrano avers resentencing on count 11 (lewd act upon Zoe) is required
on the basis that the jury instructions on two aggravating factors (vulnerable
victims and taking advantage of a position of trust) improperly permitted the
jury to use same facts to establish the aggravating factors and the element of
duress in counts 2 and 7 (forcible lewd acts upon Anne) and count 5
(aggravated sexual assault upon Anne). He asserts the court “may have” set
the sentence for count 11 to run concurrent to the other sentences, rather
than consecutive, without the presence of these aggravating factors. We are
not persuaded.
As an initial matter, Serrano does not assert that the jury improperly
used the same facts to find the aggravating factors as any element of count
11, which is the sole count on which he argues the aggravating factors
affected the sentence.
In any event, the record does not support his contention that, absent
those two aggravating factors, the court may have imposed a concurrent
sentence on count 11. Instead, when the court imposed the sentence on count
24
11, it explained its reasoning as to imposing a consecutive sentence as
follows:
And finally we have Count Eleven which . . . requires a term
of 25 to life. I think here there is no requirement or even arguable
requirement that the Court is required to impose this sentence
consecutively. However, in light of the fact that it is a separate
victim clearly separate occasion then the Court is finding that it
will impose that sentence consecutively to the term already
established.
Hence, the record clearly demonstrates that the court’s decision
to impose the consecutive sentence on count 11 was not based on the
presence of any aggravating factors, but rather on the fact that count
11 involved a separate victim (Zoe) and occurred on a separate occasion
from the counts involving Anne. Remand for resentencing on count 11
is not warranted on this basis.
IV. There Was No Cumulative Prejudicial Error
Finally, Serrano contends the cumulative effect of the above alleged
errors prejudiced him, requiring reversal. As we have rejected all of
Serrano’s claims, we reject this contention as well. (See People v. Bolin
(1998) 18 Cal.4th 297, 335.)
DISPOSITION
The judgment is affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A168138/People v. Serrano
26