People v. Oliva CA4/1

Filed 7/12/22 P. v. Oliva CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078611
Plaintiff and Respondent,
v. (Super. Ct. No. SCN388238)
DANIEL JAMES OLIVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Affirmed as modified and remanded with
instructions.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, A. Natasha Cortina, Assistant Attorney General, Arlene A.
Sevidal, Andrew S. Mestman and Collette C. Cavalier, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Daniel James Oliva of 18 counts of sexual abuse
against three children (Jane Doe 1, Jane Doe 2, and Jane Doe 3), and one
count of physical abuse against another child (John Doe).1 On appeal, Oliva
contends the trial court prejudicially erred when it admitted expert testimony
on the behavior of child victims of sexual abuse. He further contends the
court gave a jury instruction that likely caused the jury to convict him based
on acts of sexual abuse he committed outside the territorial jurisdiction of the
superior court.
We reject Oliva’s challenges to the verdict. However, we shall vacate
any portion of the $154 criminal justice administration fee imposed pursuant
to now-repealed Government Code section 29550.1 that remains unpaid as of
July 1, 2021. We remand the matter to the trial court with directions to
correct the entry of an erroneous fee amount on the abstract of judgment and
to reflect the vacatur. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Offenses
In an amended information, Oliva was charged with 21 felony counts
for his repeated sexual abuse of Jane 1, Jane 2, and Jane 3, and physical
abuse of John:
1 We subsequently refer to Jane Doe 1, Jane Doe 2, Jane Doe 3 and John
Doe as Jane 1, Jane 2, Jane 3, and John, respectively.
2
Counts 1 and 2: oral copulation with a child 10 years old or younger,
committed against Jane 1 between July 4, 2007 and July 4, 2009 (Pen. Code,2
§ 288.7, subd. (b));
Counts 3 and 4: forcible lewd act on a child under 14, committed
against Jane 1 between September 9, 2010 and July 4, 2013 by placing her
mouth onto his “crotch area” (§ 288, subd. (b)(1));
Counts 5 and 6: forcible lewd act on a child under 14, committed
against Jane 1 between July 4, 2012 and July 4, 2013 by placing her “crotch
onto [his] crotch area” (§ 288, subd. (b)(1));
Counts 7 and 8: forcible oral copulation, committed against Jane 1
between July 4, 2013 and July 4, 2017 (former § 288a, subd. (c)(2)(A), now
§ 287, subd. (c)(2)(A));
Counts 9 and 10: forcible rape, committed against Jane 1 between July
4, 2013 and July 4, 2017 (§ 261, subd. (a)(2));
Counts 11 and 12: forcible lewd act on a child under 14, committed
against Jane 2 between October 31, 2012 and October 31, 2015 by placing her
mouth onto his “crotch area” (§ 288, subd. (b)(1));
Counts 13 and 14: forcible rape, committed against Jane 2 between
October 31, 2012 and October 31, 2017 (§ 261, subd. (a)(2));
Counts 15 and 16: forcible oral copulation, committed against Jane 2
between October 31, 2015 and October 31, 2017 (former § 288a, subd.
(c)(2)(A), now § 287, subd. (c)(2)(A));
Counts 17 and 18: oral copulation with a child 10 years old or younger,
committed against Jane 3 between December 10, 2012 and December 10,
2015 (§ 288.7, subd. (b));
2 Further unspecified statutory references are to the Penal Code.
3
Counts 19 and 20: forcible lewd act on a child under 14, committed
against Jane 3 between December 10, 2012 and December 10, 2015 by
placing her mouth onto his “crotch area” (§ 288, subd. (b)(1)); and
Count 21: felony child abuse against John (§ 273a, subd. (a)).
Counts 1 through 6, 11, 12, and 17 through 20 were further alleged to
involve substantial sexual conduct. (§ 1203.066, subd. (a)(8).) Counts 3
through 16, 19 and 20 were alleged to involve multiple victims. (§ 667.61,
subds. (b), (c), & (e).) In the commission of count 21, Oliva was alleged to
have personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 1192.7,
subd. (c)(8).) Before trial, counts 1 and 2 were dismissed on the prosecutor’s
motion.
Oliva was tried by a jury, jointly with his codefendant, Lorie Lovella
Welch, the mother of the four victims. After deliberating for three days,3 the
jury found Oliva guilty on counts 3 through 21 and found true all of the
corresponding enhancement allegations.4 The trial court sentenced Oliva to
a total prison term of 240 years to life, consecutive to five years.5
3 After the original jury deliberated for two days, a juror was excused for
misconduct and was replaced with an alternate juror. The newly-configured
jury was instructed to start deliberations over from the beginning. The
verdict was reached approximately three days later.
4 Welch was charged in the amended information with four counts of
felony child abuse (§ 273a, subd. (a); counts 22 through 25), one for each
child, based on allegations she permitted each of the children to be placed in
a situation where his or her person and health was endangered. The jury
convicted Welch as charged. She was sentenced to a total term of six years in
prison. She is not a party to this appeal.
5 The sentence consisted of consecutive 15-year-to-life terms on counts 3
through 18, plus five years on count 21 (lower term of two years for child
4
II.
The Trial
The People presented testimony from Jane 1, Jane 2, Jane 3, and John,
and family friends to whom the victims made their disclosures, among
others.6 Oliva testified in his defense. Welch did not testify.
A. Prosecution Case
Welch met Oliva, an active-duty Marine, in 2005 when she was
pregnant with Jane 3. Welch and Oliva were married in 2006 and moved
into base housing at Camp Pendleton along with baby Jane 3.
At the time, Jane 1, Jane 2, and John were living at their paternal
grandmother’s house along with a number of relatives, including their father.
The three children were removed from father’s care and Mother was awarded
custody. So in 2007 or 2008, Jane 1, Jane 2, and John went to live with their
mother, Oliva, and Jane 3, at Camp Pendleton. Jane 1 was eight years old
(born in 1999), Jane 2 was six years old (born in 2001), and John was three
years old (born in 2004), approximately.
In 2010, the family moved to Jacksonville, North Carolina. In March
2012, Oliva left the military for medical reasons and the family moved back
to California. They lived in a house in Oceanside. Jane 1, Jane 2, Jane 3,
and John lived in the Oceanside house with Welch and Oliva until late 2017,
abuse, increased by three years for the great bodily injury enhancement).
The court stayed punishment on counts 19 and 20 under section 654.
6 The People also called an expert to testify about common myths or
misperceptions regarding child sexual abuse and child sexual abuse victims.
We summarize his testimony in our discussion of Oliva’s claim of error
related to the expert’s testimony at Discussion, Section I.A., post.
5
shortly before the sexual and physical abuse were reported to law
enforcement.
1. Jane 1 (counts 3 through 10)
At the time of trial, Jane 1 was 20 years old. She testified she had been
sexually abused by Oliva for approximately 10 years, from the time she was
eight years old until shortly after she turned 18.
The first time Oliva sexually abused Jane 1, she was around eight
years old and the family was living in base housing at Camp Pendleton.
Oliva grabbed her wrist and pulled her into a bathroom. There, he
blindfolded her and shoved something in her mouth. She did not know what
it was, but she “knew it didn’t belong there.” She could not breathe, and she
felt a gagging sensation in the back of her throat. She was very afraid.
The next sexual assault happened in Texas, as the family was driving
across the country to North Carolina. Oliva was driving a U-Haul truck, with
Jane 1 as his passenger, and the rest of the family was in a vehicle driven by
Welch. Oliva pulled Jane 1’s head down towards his groin. His zipper was
down, and his pants were unbuttoned. She was able to see because “[l]ights
were flashing from the other cars that passed by.” It was the first time she
had seen “a private part on a boy.” His penis entered her mouth, and she felt
the same gagging sensation she felt when he blindfolded her in the bathroom.
She was very afraid. The assault ended when he ejaculated in her mouth.
The sexual abuse continued in North Carolina. On multiple occasions,
Oliva forced Jane 1 to orally copulate him. He pulled Jane 1 into a bedroom,
placed her on her knees by the bed, and put his penis in her mouth. She did
not say anything, because she was afraid of Oliva and she did not want to be
hurt.
6
When Jane 1 was around 11 years old, Oliva had full sexual intercourse
with her. He pulled her into a room, removed her clothes, and penetrated her
vagina with his penis. It was painful for her, and she wanted it to stop. She
did not tell her siblings or her mother about it because she did not want the
family to be torn apart. Part of her was hoping it was a bad dream.
After the family moved back to Oceanside in March 2012, Oliva
continued to abuse Jane 1. When she was 13 years old and in the seventh
grade, he made her orally copulate him more than once. He did this in her
mother’s bedroom when her mother and siblings were not home.
After the family returned to Oceanside, the sexual intercourse “became
more constant.” Oliva had sexual intercourse with her more than one time
when she was in the seventh grade. Oliva would wear a condom; he told her
the purpose of a condom was “to keep people from getting pregnant.”
The sexual abuse continued when Jane 1 was 14 years old and in the
eighth grade, and throughout her time in high school. She remembered one
instance of oral copulation when she was in eighth grade, and another when
she was in high school. However, “most of the time it was just penetration.”
Oliva had sexual intercourse with her approximately once every two months
while she was in high school. The intercourse happened in her mother’s
bedroom. It also happened in the bathroom, while Jane 1 was showering. As
a result, she “would rush in the shower” and “never felt safe in the shower
unless the door was locked.” Jane 1 was frequently afraid she was pregnant
and “always had the fear of having to become a young teen mom.”
Oliva also sexually abused Jane 1 outside the home. On several
occasions, he took her to a hotel room or to a secluded parking lot to have
sexual intercourse with her.
7
One time when Jane 1 was in high school, she was in the kitchen with
Jane 2. Oliva came in and “he told [Jane 1] what he was doing to [Jane 2],
and he told [Jane 2] what he was doing to [Jane 1].” Jane 1 denied that Oliva
ever had sexual intercourse with her and Jane 2 at the same time.
Jane 1 did not tell anyone about the sexual abuse. She was afraid of
what people would think of her and did not want to be abandoned. She had
learned from reality shows that “when someone comes out as being a victim
. . . they’re not forgiven” but instead were “a target of major bullying.” She
thought her mother would look down on her. And she was afraid of Oliva
because she believed he “was a man that could kill.”
In 2009 and 2010, when interviewed by Child Protective Services
workers, she said she was not being sexually abused. At the time, she was
living at Camp Pendleton, and Oliva was using the blindfold on her; she did
not know that what he was doing to her was abuse. Also, her mother had
told the children since their father lost custody, “after her, there would be no
one else to take [them] in” and they should “all stick together.” In May 2013,
when talking to a school counselor, she did not say she was being abused.
She was not comfortable with the school counselor, and she did not want her
family and siblings to be separated.
The last time Oliva had sexual contact with Jane 1 was in September
2017, when she was 18 years old and a senior in high school. Welch walked
into the bedroom while Oliva was having sexual intercourse with Jane 1.
Although Jane 1 did not know it at the time, Jane 2 had seen Oliva “take
[Jane 1] to the back room” and had sent a text message to Welch telling her
to come home. Upon seeing Oliva on the bed with Jane 1, Welch crossed her
arms and said “Really,” and Jane 1 rushed out of the room. Welch blamed
Jane 1 for Oliva’s behavior and called her a “whore.” Afterward, Jane 2
8
asked Jane 1 what had happened with their mother. Jane 2 cried, and Jane
1 consoled her.
Jane 1 hoped her mom “would make the right decision.” But Welch
decided to “give [Oliva] another chance.” Jane 1 felt her mother was choosing
him over her children.
2. Jane 2 (counts 11 through 16)
Jane 2 was 18 years old at the time of trial. Oliva sexually abused
Jane 2 starting when she was six or seven years old and the family was living
in base housing at Camp Pendleton, and continuing through the time they
were living in Oceanside.
Jane 2 did not have clear memories of the time the family was living at
Camp Pendleton. She recalled there was at least one occasion when she had
to touch Oliva’s private areas. On another occasion, when her mother was
not around, Oliva grabbed her buttocks over her clothes.
When Jane 2 was eight years old and the family was living in North
Carolina, Oliva forced her to orally copulate him. He took her to one of the
bathrooms. He “dropped his shorts” and told her to get on her knees. He was
“fairly aggressive.” And she was afraid of him because he was “a scary guy”
and she was a small child. He grabbed the back of her head or her neck and
pushed her head back and forth on his penis. Other similar incidents
happened in his bedroom or her bedroom. One time when Jane 2 was
wearing a bathing suit, Oliva called her into the living room. He removed her
swimsuit bottoms and made her “squat over him.” He tried to have
intercourse with her and kept going even though she was crying and
screaming for him to stop. Eventually he gave up. He took her outside to the
pool and acted is if nothing had happened. Jane 2 remembered that assault
“vividly.”
9
Oliva continued to sexually abuse Jane 2 after the family moved back
to Oceanside in March 2012, when Jane 2 was 10 years old and was
completing the fourth grade. He forced her to orally copulate him on more
than one occasion when she was between fourth and fifth grade, and on more
than one occasion when she was in sixth and seventh grade. These acts
generally occurred in Oliva’s bedroom. Oliva would grab her arm or tell her
to go, and she would obey out of fear. He would close the bedroom door, lock
it, and force her to orally copulate him.
When Jane 2 was in middle school, Oliva began having sexual
intercourse with her. She estimated there were more than five times when
he had sexual intercourse with her when she was alone with him in his
bedroom. She testified there were also five or six times when she and Jane 1
were in the same room and Oliva locked the door, closed the blinds and had
intercourse with both girls, holding them down so they could not get away.
She testified she had not discussed these incidents with Jane 1, explaining
they were “very uncomfortable to talk about” and “very uncomfortable and
difficult to . . . deal with.”
Sometimes Oliva would sexually abuse Jane 2 in his vehicle. Once
when she was in middle school, he drove her to a transit station and forced
her to orally copulate him. On another occasion when she was a freshman in
high school, he picked her up after band practice, took her to a Walmart
parking lot and made her perform oral sex on him. She described another
instance when Oliva was driving his vehicle, she was in the front seat, and
Jane 1 was in the back seat. Oliva put his arm up so that Jane 1 would not
see. He put lotion in Jane 2’s hand, grabbed her wrist and made her move
her hand up and down on his penis.
10
Jane 2 did not remember when the last touching occurred. More than
once, Oliva threatened to hurt or kill Jane 2 if she told anybody about the
abuse. Jane 2 believed him. He was “very aggressive,” and she believed his
threats. In her words, “anything he said he would do to me he would do to
me.”
Jane 2 told her mother about the sexual abuse when they were living in
North Carolina. Welch pointed a gun at Oliva and told him she would kill
him if he touched her children again. But Oliva denied he was abusing the
children, and Welch believed him.
After they moved back to California, Jane 2 would tell Welch the sexual
abuse was continuing. Welch accused Jane 2 of “just making stuff up” about
Oliva because she did not like him. Jane 2 did not tell anyone other than her
mother about the sexual abuse because she was embarrassed and “he had
said not to tell anybody and [she] was scared.”
When Jane 2 would see Oliva “take [Jane 1] to the back room,” she
would text and call their mother. Welch would get mad or ignore her texts
and calls. The time when Welch walked in on Oliva having sex with Jane 1,
Jane 2 had texted Welch to come home. Normally, when Welch came home,
Oliva “would quickly start opening up blinds and he would make [them] get
dressed . . . before she would come in.” This time, Welch turned her
motorcycle off up the street and rolled it down to the house without making
noise. Jane 2 walked with Welch to the bedroom. When Welch opened the
door and saw Oliva having sex with Jane 1, Jane 2 was relieved because she
thought the sexual abuse “was over.” Instead, Welch “saw it and she forgave
him.”
11
3. Jane 3 (counts 17 through 20)
Jane 3 was 14 years old when she testified at trial. Oliva sexually
abused her on more than one occasion. The first time happened in Oceanside
when she was seven to nine years old and in the second or third grade. Oliva
led her to his bedroom, had her sit on a chair, and put a blindfold over her
eyes. He told her to open her mouth. He stuck something inside her mouth
and told her not to bite. She could not see what it was and did not recall how
long it was in her mouth. He removed the thing from her mouth, took the
blindfold off, and told her to go to her room.
The same thing happened two weeks later, only this time the blindfold
was loose, and Jane 3 could see Oliva’s penis going into her mouth. Oliva did
this to her a third time when she was in the second or third grade. On this
occasion the blindfold was not loose and she could not see anything, but by
now she knew what he was sticking in her mouth and she was scared because
he was bigger than she was. At first while Jane 3 was testifying, she
remembered three times when Oliva put his penis in her mouth. After her
recollection was refreshed, she testified he had done this to her five times.
Initially, Jane 3 did not tell anyone about the sexual abuse. After the
third or fourth time, she told her mother, because she felt scared. Her
mother was “gone a lot” and was often at work or “at a bar singing.” When
Jane 3 disclosed the abuse, they had just watched a movie together and Jane
3 felt it was the right time to tell her. Jane 3 told Welch that Oliva had put
his penis in her mouth. Welch then got a gun, pointed it at Oliva, and told
him, “Don’t touch my little girl.” Jane 3 believed the sexual abuse happened
at least one more time after that.
There were times when social workers from Child Protective Services
would ask Jane 3 if anyone in her household was “touching [her] in wrong
12
areas.” She would say no because she was afraid of losing her mom and her
siblings.
4. John (count 21)
John was 15 years old at the time of trial. Oliva physically abused him
from the time he was in elementary school in Oceanside and continuing
throughout middle school. John was terrified of Oliva but felt there was no
way of stopping the abuse because Oliva was “an ex-Marine” and was bigger,
stronger, and fitter than he was.
Oliva would punch John and “choke [John] out,” while claiming he was
trying to teach John to “be a man.” This happened in the presence of John’s
sisters, and occasionally his mother. Jane 2 testified that John “would try to
scream ‘help,’ but he couldn’t because he was being choked.” More than once,
Oliva choked John to unconsciousness. Jane 2 described that John “would
start turning red and trying to tuck his chin under [their] stepfather’s elbow,
but he would fail because he’s not strong enough. He would start turning
blue, and then his eyes would just roll back and close.”
Oliva once punched John in the chest, hurting him. On one occasion
when Oliva was trying to “roughhouse” with John, Oliva broke John’s right
arm. John recalled breaking his right arm another time while riding a
skateboard.
Another instance of physical abuse happened when John was sitting in
the kitchen with Welch. Oliva kicked him in the thigh, knocking him to the
floor. Oliva kept kicking him, hard, while he was on the floor. John
sustained bruises on his thigh from the kicking.
Once, as Oliva was trying to walk past John, Oliva threw him onto the
couch, which was full of sharp, L-shaped metal braces. John landed on the
metal braces and cut his back. Jane 3 testified the cut “look[ed] like someone
13
tried to cut open his back with a scalpel.” Susan and Aaron, friends of the
family whom the children called “Aunt” and “Uncle,” testified they saw the
scar on John’s back when the children were swimming. Susan was “shocked”
because it was a “huge gash” and did not look like it was healing properly.
5. Disclosure of Abuse
In December 2017, all four siblings spent most of their winter break
with Susan and Aaron at their home in Escondido. On December 30 or 31,
Jane 2 told Susan and Aaron that Oliva was sexually abusing her and her
sisters. One of the reasons Jane 2 decided to disclose the abuse to Susan and
Aaron was that she was upset at Oliva because she had learned Oliva was
cheating on Welch.
Susan talked to Jane 1 about what Jane 2 had revealed. Although it
upset Jane 1 to talk about the abuse, Susan hugged her and made her feel
safe, so she told Susan “everything.” Jane 1 was angry that her mom “didn’t
do anything.” She was also mad at herself that she “didn’t do anything” and
“didn’t stop it.” She testified, “right then and there I knew it had to stop.”
She wanted to protect her siblings. She felt that Susan “was listening” and
“was actually willing to help.” Aaron, who was present for the conversation,
testified Jane 1 “[v]ery solemnly confirmed” the sexual assaults and was
“misty-eyed” and “was looking [at them] straight in the eyes.”
Aaron and Susan thought law enforcement should be called and gave
the siblings the opportunity to decide whether to notify law enforcement
themselves. They decided to do so. As Jane 1 was then 18 years old and an
adult, she was the one who called 911. Before the police were summoned,
Susan called Welch and put Welch on speakerphone in the presence of the
two older sisters. Susan wanted to let Welch know what had been disclosed,
and planned to tell Welch she could stay with her if she needed help. But
14
Welch defended Oliva, yelled at her children, and said they were accusing
him of wrongdoing because they were “evil.”
The police arrived at Susan and Aaron’s home a short time later. The
police took the four siblings to the Oceanside police station. The three
youngest siblings were taken to a foster care facility. Jane 1 asked Aaron
and Susan if she could live with them, and they agreed. At the time of trial,
all four siblings were living with their grandmother and other family
members (but not their father or mother) at their grandmother’s home.
B. Defense Case
Oliva testified he joined the Marines in August 2004 shortly after he
turned 18. He met Welch the following year when she was pregnant with
Jane 3. They were married in 2006 and moved into base housing at Camp
Pendleton. They moved to North Carolina in 2010 after he was transferred
there, and returned to Oceanside in March 2012 after he was honorably
discharged.
Oliva testified he was innocent. He admitted he would wrestle with
Jane 1, Jane 2, and John, but only because they were getting bullied at school
and he was “trying to teach them skills.” He taught the children how to get
out of a chokehold, or how to block punches, while they wore headgear and
boxing gloves. They enjoyed the wrestling and boxing sessions most of the
time. When they were tired or did not want to participate, he would “try and
get them motivated because . . . you don’t always get to choose when a fight
happens.”
Oliva testified he never choked John. He tried to teach John to get out
of a chokehold. Sometimes John would hold his own breath and struggle
because “he didn’t want to do it.” Oliva denied throwing John onto the couch.
15
John received a puncture wound from being stabbed by a pencil in school.
John only broke his arm once, while riding a skateboard.
When the family drove across the country to North Carolina, it was
Welch who drove the U-Haul truck; Oliva did not drive it. Oliva explained
Welch had experience driving moving trucks, but he was not very comfortable
driving a moving truck.
In 2017, Welch discovered that Oliva had been unfaithful. The children
“kind of shunned [him]” when they found out. Oliva said the children’s
allegations were coming from “out of nowhere.” He thought the children were
“making this up” because they were upset at him for cheating on their
mother, they wanted him out of their lives, and they wanted to live at their
grandmother’s house. At one point, Jane 2 told him she did not like him, and
she was the leader of the siblings. And Jane 3 was “incredibly believable or
persuasive.” One time, after he heard her cursing at her sister, she denied
that she had done it.
Welch received a call from Susan, and Oliva overheard Welch say,
“ What are you talking about? That didn’t happen. ” After the call ended,
Welch left to go to Susan’s house. Welch called him later crying hysterically
and told him the children were in the back of police cars and they would not
let her speak to them. Oliva moved out of their home that day because he
“figured it was best for her and the family if [he] wasn’t there.” He had told
the detective he moved out because of the “stress of living with [Welch’s]
family” and because he and Welch “just kind of grew apart.”
In his closing argument, defense counsel told the jury that all four
victims had lied about being abused. They had “sprinkle[d] in some truth
with the lies” but their “[l]ate disclosure does not equal the truth.” Counsel
argued the siblings had a motive to lie because they were angry, wanted
16
sympathy, and wanted to live with Susan and Aaron, or somewhere other
than the home they shared with their mother and Oliva. They got together
and decided to lie about Oliva and came up with “provocative allegations to
be able to get where they wanted to go.” They would do anything to escape
poverty. (Oliva had testified the house where the family was living was very
small and in an unsafe neighborhood.) And the younger children had lied to
please Jane 2. Counsel argued there were inconsistencies in the siblings’
testimony about the way John had broken his arm, whether Jane 1 and Jane
2 had engaged in “threesomes” with Oliva, and the date they originally
disclosed Oliva’s abuse. Counsel argued the inconsistent statements
indicated they were lying about being abused. Oliva, in contrast, was a
credible witness. He had stayed in San Diego despite knowing he was being
investigated for sex abuse, which was the behavior of an innocent person.
DISCUSSION
I.
The Trial Court Did Not Prejudicially Err in Admitting
Expert Testimony About Child Sexual Abuse
A. Additional Background
Albert Killen-Harvey is a licensed clinical social worker whose
professional work is focused on child trauma. At the time of trial, he had
been employed by the Chadwick Center at Rady Children’s Hospital for over
20 years as a clinician, clinical supervisor, and coordinator of services. His
current position at the Chadwick Center involved training law enforcement
and medical professionals about child sexual abuse.
Killen-Harvey testified in general terms about common myths and
misconceptions about child sexual abuse and the victims of child sexual
17
abuse.7 He explained to the jury he had received no information about
Oliva’s case and did not meet with the alleged victims. His testimony was
based on research in the field and on his experience as a clinician. He told
the jury he was not “trying to make a case on one side or another.”
Killen-Harvey explained that common myths about sex abuse include
the misconception that it only happens between a child and a stranger, or
that if somebody was harming a child, the “child would just invariably tell
somebody.” Another misconception is that children who are victimized are
alone and have no family connection. In reality, most children know their
offender. Children often are not able to walk away from their abuser, and so
abuse can occur over a long period of time. Children can also be groomed by
someone they love and trust to accept and become accustomed to abuse. If
they have a relationship with the abuser, they may value that relationship
over disclosing the abuse. Based on Killen-Harvey’s experience and
knowledge of the literature, it is “highly unusual” that abuse is a one-time
event. He could not remember a case in which the sexual assault or violation
happened only once.
Contrary to common assumptions, the majority of children do not
disclose abuse right away, and some never disclose they were abused. People
tend to disclose trauma incrementally rather than all at once. Children
sometimes falsely deny they were abused. Family support is a major factor
7 Killen-Harvey’s testimony was not explicitly about child sexual abuse
accommodation syndrome (CSAAS), but his opinions were consistent with
CSAAS research. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389 &
fn. 3 (Bowker) [first articulated in 1983, CSAAS has five stages⎯secrecy,
helplessness, entrapment and accommodation, delayed disclosure, and
retraction].)
18
that plays into a child’s decision to disclose. If a parent is dismissive when a
child reports abuse, the child becomes less likely to disclose again for fear of
being discounted. Children are less likely to disclose abuse to a stranger,
even if the stranger is a “helping professional.” There is no one way for a
child to react to abuse.
There is a misconception that an abused child will be able to recall
every detail of the abuse. In reality, children tend to recall core details of a
traumatic event and may not retain peripheral, or less significant, details,
especially when abuse is consistent over a long period of time. Law
enforcement personnel are trained not to ask questions repeatedly so as to
avoid confusing the child. Children who do disclose abuse may hold back
details out of shame, or to protect themselves from retribution or from their
own emotions about the trauma.
B. Oliva’s Claim of Error
Oliva challenges the admission of the following statements made by
Killen-Harvey in the course of his direct examination: (1) “the vast majority
of children actually know their offender, it is somebody they are in a
relationship with, whether that’s family or within their community”; (2) that
it is the “minority of cases in which a disclosure is made immediately”; (3)
that inconsistent statements are common; (4) that false denials of child abuse
are not “common,” but “not unusual,” and happen “on a frequent enough
basis”; and (5) “it is highly unusual that the situation or report that we’re
dealing with or circumstances we’re dealing with is a onetime event.”
Oliva argues this testimony amounted to “ ‘predictive conclusions’ ” and
was inadmissible under People v. Julian (2019) 34 Cal.App.5th 878 (Julian),
People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson), and People v. Lapenias
(2021) 67 Cal.App.5th 162 (Lapenias), and that the evidentiary error was
19
prejudicial. Julian and Wilson held it is an abuse of discretion for a court to
permit an expert on child sexual abuse to testify about the statistical
percentages of false allegations by child sexual abuse victims. (Julian, at
pp. 883–884 [expert testified there were “a ‘dozen studies’ that supported a
‘one to six percent’ false allegation rate”]; Wilson, at p. 568 [same expert and
same testimony].) Lapenias, relying on Julian and Wilson, held it was error
to admit expert testimony that it was “ ‘rare’ for children to make false
allegations of sexual abuse.” (Lapenias, at p. 179.)
We first reject the People’s contention that Oliva forfeited his challenge
by failing to interpose contemporaneous objections to Killen-Harvey’s
testimony, or by failing to present argument on each of Killen-Harvey’s
assertions in his motion in limine. Oliva moved to exclude statistical
probability testimony from Killen-Harvey under Julian and Wilson, and at
trial was granted a continuing objection to his “entire testimony” based on
the arguments and authorities in his motion in limine. Oliva “adequately
alerted the court to the basis of [his] objection” to Killen-Harvey’s testimony,
which was “sufficient to preserve the issue for review.” (People v. Stamps
(2016) 3 Cal.App.5th 988, 993, disapproved on another ground in People v.
Veamatahau (2020) 9 Cal.5th 16, 31, fn.4.)
We review Oliva’s claim of error for abuse of discretion: “the decision of
a trial court to admit expert testimony ‘will not be disturbed on appeal unless
a manifest abuse of discretion is shown.’ ” (People v. McAlpin (1991) 53
Cal.3d 1289, 1299 (McAlpin).) We conclude the testimony challenged by
Oliva is unlike the testimony held inadmissible in Julian, Wilson, and
Lapenias, and that the trial court did not abuse its discretion in admitting it.
We further conclude the admission of the testimony, even if erroneous, was
not prejudicial.
20
C. Analysis
Expert testimony to explain the behavior of child abuse victims, often
known as CSAAS evidence, has long been held admissible in California for
limited purposes: “[E]xpert testimony on the common reactions of child
molestation victims is not admissible to prove that the complaining witness
has in fact been sexually abused; it is admissible to rehabilitate such
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.” (McAlpin, supra, 53 Cal.3d at p. 1300; see
People v. Munch (2020) 52 Cal.App.5th 464, 468 [“CSAAS evidence has been
admitted by the courts of this state since the 1991 McAlpin decision.”].)
“ ‘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.’ ”
(McAlpin, at p. 1301.)
Even so, the admissibility of such evidence is subject to certain
recognized limits. Such evidence “is not admissible to prove that the
complaining witness has in fact been sexually abused.” (McAlpin, supra, 53
Cal.3d at p. 1300.) “ ‘The expert is not allowed to give an opinion on whether
a witness is telling the truth[.]’ ” (Julian, supra, 34 Cal.App.5th at p. 885.)
Nor may an expert present “ ‘predictive conclusions.’ ” (Julian, supra,
34 Cal.App.5th at p. 886, quoting Bowker, supra, 203 Cal.App.3d at p. 393.)
The expert may not give “ ‘general’ testimony describing the components of
the syndrome in such a way as to allow the jury to apply the syndrome to the
facts of the case and conclude the child was sexually abused.” (Bowker, at p.
393.) “It is one thing to say that child abuse victims often exhibit a certain
characteristic or that a particular behavior is not inconsistent with a child
21
having been molested. It is quite another to conclude that where a child
meets certain criteria, we can predict with a reasonable degree of certainty
that he or she has been abused. The former may be appropriate in some
circumstances; the latter⎯given the current state of scientific
knowledge⎯clearly is not.” (Ibid.) To ensure the jury does not misuse expert
testimony about CSAAS, “at a minimum the [CSAAS] evidence must be
targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence.”
(Id. at pp. 393–394.) The jury must also be instructed “that the expert’s
testimony is not intended and should not be used to determine whether the
victim’s molestation claim is true.” (Id. at p. 394.)
Here, Oliva argues portions of Killen-Harvey’s testimony were
inadmissible under Julian, Wilson, and Lapenias. In Julian, the
prosecution’s expert witness was permitted to testify the “ ‘range of false
allegations that are known to law enforcement or [Child Protective
Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8
percent of cases that appear to be false allegations.’ ” (Julian, supra, 34
Cal.App.5th at p. 883, italics omitted.) He was extensively examined about
the percentages of false allegations reported in various studies. (Id. at
pp. 883–884.) The Court of Appeal held it was error to admit this testimony.
(Id. at p. 885.) It observed that under People v. Collins (1968) 68 Cal.2d 319,
expert opinions on the statistical probability of guilt tend to “distract[ ]” the
jury from its “ ‘requisite function of weighing the evidence on the issue of
guilt.” (Julian, at p. 886, quoting Collins, at p. 327; see Collins, at pp. 325–
327 [prejudicially erroneous to permit a mathematics expert to testify, based
on assumed characteristics of the perpetrators, there was “but one chance in
12 million that defendants were innocent”].) It canvassed decisions from
other jurisdictions prohibiting the use of statistics to quantify the percentage
22
of children reporting sex abuse who are telling the truth. (Julian, at pp. 886–
887.) The court held the prosecution expert’s “92 to 99 percent [statistical]
probability evidence invited jurors to presume [the defendant] was guilty
based on statistical probabilities” and deprived the defendant of his right to a
fair trial. (Id. at p. 886.)
Wilson involved the admission of virtually identical testimony from the
same CSAAS expert in another child sex abuse case. At trial, the prosecutor
asked the expert about false allegations of sex abuse, and he testified about a
“ ‘classic’ ” study that found “ ‘about 4% of cases in which there was an
allegation that was determined to be false.’ ” (Wilson, supra, 33 Cal.App.5th
at p. 568.) The expert also testified “there were 12 to 15 other studies on the
subject, which found false allegations in between 1 and 6 percent of cases.”
(Ibid.) The Wilson court, relying on decisions of other states, federal courts,
and military courts, held the numerical evidence provided by the expert was
inadmissible. (Id. at pp. 568–570.) The expert’s testimony “had the effect of
telling the jury there was at least a 94 percent chance that any given child
who claimed to have been sexually abused was telling the truth” and
suggested to the jury there was an “overwhelming likelihood [the victims’]
testimony was truthful.” (Id. at p. 570.) “[T]his invaded the province of the
jury in assessing a complaining witness’s credibility.” (Id. at p. 568.)
In Lapenias, Division Three of the Fourth Appellate District, applying
Julian and Wilson, held testimony from a CSAAS expert “that it is ‘rare’ for
children to make false allegations of sexual abuse” was inadmissible.
(Lapenias, supra, 67 Cal.App.5th at p. 179.) This “testimony—by implication
and by inference—violated the general rule that an expert may not give an
opinion as to whether another witness is telling the truth or the defendant is
guilty.” (Ibid.) It went beyond the limited purpose of CSAAS testimony “to
23
explain the typical behaviors of sexually abused children, such as delayed
reporting” and “ ‘ “addressed whether children who claimed to be sexually
assaulted lie.” ’ ” (Ibid.) The court rejected the People’s claim that Julian
and Wilson were distinguishable, reasoning there was “ ‘no meaningful
distinction between giving a statistic that indicates that false allegations are
rare and stating that children rarely make false allegations without explicitly
quantifying the word “rare.” ’ ” (Lapenias, at pp. 179–180.)
We disagree that the challenged portions of Killen-Harvey’s testimony
fall within the principles articulated in Julian, Wilson, or Lapenias. In
Julian and Wilson, the expert provided quantitative data about the low
percentages of false allegations of sexual abuse, effectively conveying to the
jury that extremely high percentages of children—between 92 and 99 percent
(Julian) or 94 and 99 percent (Wilson)—who report sexual abuse are telling
the truth. Here, Killen-Harvey did not present data from which the jury
could infer an overwhelming percentage of child accusers tell the truth. And
although in Lapenias, the court found Julian and Wilson applied even though
the challenged testimony was qualitative, not quantitative (the expert said “it
is ‘rare’ for children to make false allegations of sexual abuse” (Lapenias,
supra, 67 Cal.App.5th at p. 179)), here, the testimony Oliva challenges did
not address the frequency of false allegations of sexual abuse. Killen-
Harvey’s testimony is distinguishable from the testimony found inadmissible
in Julian, Wilson, and Lapenias.
To the extent Oliva is effectively asking us to extend Julian, Wilson,
and Lapenias and find they render Killen-Harvey’s testimony inadmissible
even though he did not testify about the low prevalence of false allegations of
sex abuse, we decline to do so. Oliva contends Killen-Harvey’s descriptions of
patterns of behavior in sexually abused children improperly bolstered the
24
victim witnesses’ credibility and thereby invaded the province of the jury.
But the very purpose of expert testimony about the behavior of child sex
abuse victims is to assist the jury in evaluating the credibility of the
complaining witnesses. (McAlpin, supra, 53 Cal.3d at pp. 1302–1304.)
Most of the testimony Oliva challenges fell within the scope of expert
testimony that has been deemed admissible in McAlpin and other cases.
Killen-Harvey’s testimony that “the vast majority of children actually know
their offender” and the offender “is somebody they are in a relationship with”
was offered in response to the prosecutor’s question whether there exists a
typical profile that society has a tendency to picture when thinking of a child
molester. Killen-Harvey explained, based on his experience training
professionals about sex abuse, that “we still have in our culture” the idea that
a child molester is a “stranger,” and then, in the testimony Oliva challenges,
sought to counter this misconception. Testimony on this topic was held
admissible in McAlpin. (See McAlpin, supra, 53 Cal.3d at pp. 1302–1303 [one
of the popular notions that requires correction is that “ ‘[t]he layperson
imagines the child offender’ ” to fit particular stereotypes, including that the
offender is “ ‘a stranger’ ”].)
The same is true of Killen-Harvey’s testimony about immediate
disclosure of sex abuse, and inconsistent statements and false denials from
abuse victims. These topics have been held by other courts to be within the
scope of permissible expert testimony about CSAAS. (See, e.g., People v.
Sanchez (1989) 208 Cal.App.3d 721, 734 [“delayed conflicted disclosure” is a
symptom and characteristic of CSAAS], cited with approval in McAlpin,
supra, 53 Cal.3d at p. 1301, fn. 4; People v. Stark (1989) 213 Cal.App.3d 107,
117 [CSAAS expert testimony admissible to explain “concealment” by the
alleged victim and “any conflict” in the alleged victim’s testimony], cited with
25
approval in McAlpin, at p. 1301, fn. 4; People v. Housley, 6 Cal.App.4th 947,
954–956 [expert testimony that “victims commonly and falsely recant their
stories of abuse” admissible to explain victim’s recantation].) Although
Killen-Harvey did not expressly identify a syndrome, his testimony was about
the behavior, in general, of children who have been sexually abused, such
that the case law regarding the admissibility of CSAAS evidence applies.
(See footnote 7, ante.)
And while Killen-Harvey used qualitative phrases to describe these
patterns of behavior (e.g., that “the vast majority of children” know their
abuser; it is “the minority of cases” in which disclosure is immediate; false
denials are not “common . . . but not unusual”; and that victims have a
“limited capacity” to tell the same story “every single time”), his use of these
phrases merely served to inform the jury of the extent to which the behavior
he was describing was typical of sexually abused children. (See Lapenias,
supra, 67 Cal.App.5th at p. 179 [acknowledging the purpose of CSAAS
testimony is “to explain the typical behaviors of sexually abused children”].)
This testimony did not suggest there was an “overwhelming likelihood” Jane
1, Jane 2, or Jane 3 were truthful (Wilson, supra, 33 Cal.App.5th at p. 570),
did not appear to vouch for their credibility (Lapenias, at p. 180), and did not
effectively tell the jury that a child who meets the described criteria has been
abused (Bowker, supra, 203 Cal.App.3d at p. 393).
Killen-Harvey’s testimony that it “is highly unusual that the situation
or report that we’re dealing with . . . is a onetime event” is not a topic of
testimony specifically authorized by the case law of which we are aware.
Even so, it did not violate the principles cited by Oliva. This testimony did
not describe the infrequency of false allegations of abuse or suggest it was
overwhelmingly likely Jane 1, Jane 2, and Jane 3 were truthful witnesses.
26
(Cf. Julian, supra, 34 Cal.App.5th at p. 886; Wilson, supra, 33 Cal.App.5th at
p. 570; Lapenias, supra, 67 Cal.App.5th at p. 179.) Nor did it amount to a
predictive conclusion. A predictive conclusion has been described as
“ ‘general’ testimony describing the components of the syndrome in such a
way as to allow the jury to apply the syndrome to the facts of the case and
conclude the child was sexually abused”—or, stated slightly differently, is
testimony “that where a child meets certain criteria, we can predict with a
reasonable degree of certainty that he or she has been abused.” (Bowker,
supra, 203 Cal.App.3d at p. 393.) Here, no party claimed any of the children
were abused just once. Jane 1, Jane 2, and Jane 3 testified to a pattern of
multiple sexual assaults over varying periods of time. Oliva denied there had
been any abuse at all. The jury could not apply Killen-Harvey’s testimony
about a “onetime event” to the facts of this case and conclude the sisters were
sexually abused.
For all of these reasons, Oliva’s contention that Killen-Harvey’s
testimony was inadmissible under principles articulated in Julian, Wilson,
and Lapenias lacks merit. He fails to establish that the trial court’s
evidentiary ruling constituted an abuse of discretion. But even if we were to
conclude the court erred in admitting the challenged testimony, we would not
find the error prejudicial.
Oliva argues the admission of Killen-Harvey’s testimony violated his
federal constitutional rights to due process, a fair trial, and to a conviction
based on properly admitted evidence, such that we must assess the harm
resulting from the error under the test set forth in Chapman v. California
(1967) 386 U.S. 18 (Chapman). That contention has already been rejected.
In Wilson, the defendant also argued the erroneous admission of statistical
evidence violated his federal constitutional rights and advocated that the
27
prejudicial effect of the error had to be evaluated under Chapman. (Wilson,
supra, 33 Cal.App.5th at p. 571.) The Court of Appeal disagreed: “In similar
situations, . . . our high court has applied instead the standard of People v.
Watson (1956) 46 Cal.2d 818, 836 [(Watson)], under which we reverse only if
it is reasonably probable the defendant would have reached a more favorable
result in the absence of the error.” (Ibid., citing People v. Bledsoe (1984) 36
Cal.3d 236, 251–252.) We, like the Wilson court, will evaluate the prejudice
flowing from the allegedly evidentiary error under the Watson standard.
Applying the Watson standard, we conclude any error flowing from
admission of the challenged testimony was not prejudicial. Killen-Harvey
made clear he had no information about the case and had not met the alleged
victims. He told the jury his purpose in appearing as a witness was “not . . .
to be the juror or to be siding on either side of the case.” The testimony Oliva
challenges amounted to brief assertions within a direct examination that
encompassed 33 pages of the trial transcript, unlike Julian, in which the jury
was “bombarded” with expert testimony about statistical studies. (Julian,
supra, 34 Cal.App.5th at p. 888.) All of the victims testified, as did Oliva, and
the jury had the opportunity to evaluate their credibility as witnesses.
Most of the testimony Oliva challenges on appeal was not relied on by
the prosecutor in closing argument. The prosecutor did refer to Killen-
Harvey’s statement that false denials are not uncommon, but she did so just
once, and only briefly. The court instructed the jury with a modified version
of CALCRIM No. 1193 that told the jury: “Albert Killen-Harvey’s testimony
about child sexual abuse is not evidence that the defendant committed any of
the crimes charged against him.” And, “You may consider this evidence only
in deciding whether or not the conduct of [Jane 1, Jane 2, and Jane 3] was
not inconsistent with the conduct of someone who has been molested, and in
28
evaluating the believability of their testimony.” The jury was also instructed
they were the sole judges of “the credibility or believability of the witnesses”
(CALCRIM No. 226) and they were not required to accept expert opinions
(CALCRIM No. 332). “We presume the jurors understood and followed the
instructions.” (Lapenias, supra, 67 Cal.App.5th at p. 180.)
Oliva points out that the jury sought a readback of Jane 1 and Jane 2’s
testimony about “ ‘threesomes.’ ” He asserts their testimony on this topic was
conflicting and argues this supports a finding Killen-Harvey’s opinions were
prejudicial. Not so. In response to the readback request, the trial court
ordered the entire testimony of Jane 1 and Jane 2 to be read to the jury. The
jury did not seek a readback of Killen-Harvey’s testimony. Though there
were inconsistencies in the testimony of Jane 1 and Jane 2, in the main, their
accounts of Oliva’s pattern of sexual abuse were mutually corroborative, and
they were also corroborated by other witnesses. Jane 1 and Jane 2 described
similar patterns of abuse escalating from forced oral copulation to regular
sexual penetration at the family home and in vehicles that Oliva drove to
remote parking lots. Jane 2 testified she saw Oliva take Jane 1 into his
bedroom. Jane 1 and Jane 3 described similar experiences of being
blindfolded by Oliva for forcible oral copulation. Aaron described the
appearance and emotionality of Jane 1 and Jane 2 when they disclosed the
abuse, allowing the jury to assess whether they were truthful in relating
their experiences. Welch’s behavior following the disclosure, as reported by
Aaron and Susan, was consistent with Jane 1 and Jane 2’s testimony that
Welch did not protect them from Oliva or take their complaints seriously.
On this record, we have no difficulty concluding it is not reasonably
probable Oliva would have reached a more favorable result absent the alleged
29
error in admitting the challenged portions of Killen-Harvey’s testimony.
(Watson, supra, 46 Cal.2d at p. 836.)
II.
Oliva’s Jurisdictional Challenge to His Conviction on Counts 3 and 4 Fails
A. Oliva’s Contentions
Oliva contends his conviction on counts 3 and 4 must be vacated
because the verdicts on these counts “likely” included acts over which the
trial court had no territorial jurisdiction.8 Counts 3 and 4 charged Oliva
with forcible lewd acts against Jane 1 when she was under the age of 14
years, between September 9, 2010 and July 4, 2013. (§ 288, subd. (b)(1).)
These acts were described as sexual contact involving Oliva forcing Jane 1’s
mouth onto his penis. Count 3 specified the offense conduct involved placing
Jane 1’s “mouth onto D’s crotch area [first time].” Count 4 alleged the offense
was committed by placing Jane 1’s “mouth onto D’s crotch area [last time].”
The amended information alleged the charged offenses were committed in
San Diego County. The jury was instructed pursuant to CALCRIM No. 3501
on unanimity based on generic testimony of abuse.9 The jury returned
8 Oliva only challenges his convictions on counts 3 and 4. He does not
contend the jury’s verdicts on the other counts likely relied on acts outside
the territorial jurisdiction of the court.
9 “Defendant Daniel Oliva is charged with forcible lewd act upon child;
forcible oral copulation; forcible rape; and oral copulation with child 10 years
old or younger sometime during the period of July 4, 2007 to October 31,
2017. . . .
“The People have presented evidence of more than one act to prove that
the defendant[ ] committed these offenses. You must not find the defendant
guilty unless:
30
verdicts of guilty on counts 3 and 4, finding the underlying acts occurred “on
or about and between September 9, 2010 and July 4, 2013.”
On appeal, Oliva argues the convictions on counts 3 and 4 must be
vacated because the jury’s verdicts “likely included acts over which the trial
court had no jurisdiction.” (Capitalization omitted.) Oliva’s arguments in
support of his position are somewhat difficult to characterize. He asserts the
time span alleged in counts 3 and 4 of the amended information covers a
period of time (September 2010 through March 2012) when it is undisputed
Jane 1 did not reside in California. He further asserts the trial court did not
have territorial jurisdiction over the acts of oral copulation committed during
that period, and the jury “necessarily had no authority to find [him] guilty of
acts which occurred outside the State’s territorial jurisdiction.” He spends a
considerable portion of his brief arguing that the three statutes that extend
California’s territorial jurisdiction to extraterritorial acts (sections 27, 778
and 778a) do not apply to the incidents of oral copulation that occurred in
Texas and North Carolina. He contends it is “highly likely” the jury’s
verdicts “included those acts.”
He then argues that the prosecutor’s closing argument and CALCRIM
No. 3501 on unanimity “did not cure the error.” (Italics omitted.) He claims
the prosecutor’s statement that counts 3 and 4 related to “ ‘the [oral
“1. You all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which
act he committed for each offense;
“OR
“2. You all agree that the People have proved that the defendant
committed all the acts alleged to have occurred during this time
period and have proved that the defendant committed at least the
number of offenses charged.”
31
copulations] that [Jane 1] described when she was under the age of 14’ ”
implied the oral copulations committed in Texas and North Carolina were
included in the charges. He argues the unanimity instruction, which covered
the period July 4, 2007 to October 31, 2017, “effectively told the jury it could
consider [oral copulations] which occurred outside California,” and that “[t]he
verdicts specifically state the jury found appellant guilty based on acts
occurring ‘on or about and between September 9, 2010 and July 4, 2013.’ ”
He contends the jury “easily could have relied on the Texas act as the basis
for one verdict” because Jane 1 described it in detail, and the jury “likely”
found the specificity persuasive. He concludes “it cannot be said there is
substantial evidence from which to conclude the verdicts on counts 3 and 4 do
not include acts . . . over which the trial court had no jurisdiction.”
As we explain, Oliva’s contentions lack merit.
B. Analysis
“Territorial jurisdiction establishes the court’s authority to try the
defendant[.]” (People v. Betts (2005) 34 Cal.4th 1039, 1050 (Betts).) In
California, territorial jurisdiction over criminal acts is defined by statute.
(Fortner v. Superior Court (2013) 217 Cal.App.4th 1360, 1364 (Fortner).)
“The general rule of territorial jurisdiction over felonies is . . . stated in
section 777: ‘except as otherwise provided by law the jurisdiction of every
public offense is in any competent court within the jurisdictional territory of
which it is committed.’ ” (Price v. Superior Court (2001) 25 Cal.4th 1046,
1055.) Section 27 “generally permits the punishment of a defendant under
California law for any crime committed ‘in whole or in part’ in the state.”
32
(Betts, at p. 1047; § 27, subd. (a)(1).10) Under section 778, California has
jurisdiction over crimes commenced outside the state but consummated
within it.11 Under section 778a, subdivision (a),12 “California has territorial
jurisdiction over an offense if the defendant, with the requisite intent, does a
preparatory act in California that is more than a de minimis act toward the
eventual completion of the offense.” (Betts, at p. 1047.)
If a superior court lacks territorial jurisdiction over an offense, it “has
no authority to act in the matter and cannot enter judgment either in favor of
or against the defendant.” (Betts, supra, 34 Cal.4th at p. 1050.) However,
“the absence of territorial jurisdiction does not signify the defendant is not
culpable.” (Ibid.) “Thus, if it appears, after a jury has been empaneled, that
a court is without jurisdiction to try the defendant, the court is directed by
statute to discharge the jury and the defendant [citations], not to enter
judgment in the defendant’s favor.” (Ibid.)
10 “All persons who commit, in whole or in part, any crime within this
state” are “liable to punishment under the laws of this state.” (§ 27, subd.
(a)(1).)
11 “When the commission of a public offense, commenced without the
State, is consummated within its boundaries by a defendant, himself outside
the State, through the intervention of an innocent or guilty agent or any
other means proceeding directly from said defendant, he is liable to
punishment therefor in this State in any competent court within the
jurisdictional territory of which the offense is consummated.” (§ 778.)
12 “Whenever a person, with intent to commit a crime, does any act within
this state in execution or part execution of that intent, which culminates in
the commission of a crime, either within or without this state, the person is
punishable for that crime in this state in the same manner as if the crime
had been committed entirely within this state.” (§ 778a, subd. (a).)
33
Several matters relevant to our consideration of Oliva’s claim are not in
dispute. The parties agree the date range in counts 3 and 4 of the amended
information (“[o]n or about and between September 9, 2010 and July 4,
2013”) charging Oliva with forcible lewd act on a child under 14 encompassed
a period when Jane 1 and Oliva were living outside California (2010 until
March 2012) and a period when they were living in California (March 2012 to
July 4, 2013). At all times alleged in counts 3 and 4, Jane 1 was under 14
years old. The parties also agree Jane 1 testified to multiple acts of forcible
oral copulation in Texas, including the sexual assault in the U-Haul truck,
and North Carolina between 2010 and March 2012.13 She also testified after
the family returned to Oceanside in March 2012, Oliva continued to put his
penis in her mouth, and that this occurred more than once when she was in
seventh grade and 13 years old, between March 2012 and July 4, 2013. The
parties also agree that sections 27, subdivision (a)(1), 778, and 778a,
subdivision (a), did not confer the superior court with jurisdiction over any
acts of forcible oral copulation committed in Texas and North Carolina.
Where the parties diverge is in describing the procedural point at
which the alleged jurisdictional error occurred. Questions of territorial
jurisdiction are decided by the trial court, not the jury. (Betts, supra, 34
Cal.4th at p. 1054 [no right to jury trial on factual questions that establish
jurisdiction].) “ ‘[A] challenge to a court’s fundamental subject matter
13 Evidence of these uncharged crimes was admitted pursuant to
Evidence Code section 1108, over the defense objection they were subject to
exclusion under Evidence Code section 352 and would violate his federal and
state constitutional rights of due process, fair trial, confrontation, cross-
examination, and presentation of evidence. The jury was instructed under
CALCRIM No. 1191A on the use of evidence of uncharged sex offenses. Oliva
does not challenge the admission of this evidence.
34
jurisdiction strikes at the very foundation of the court’s authority and
therefore should be determined pretrial by the court as a matter of law.” (Id.
at p. 1051, italics added.) “The existence of territorial jurisdiction may [also]
be ‘decided by the trial court on a motion for entry of a judgment of acquittal
pursuant to section 1118.1.’ ” (People v. Joseph (2021) 63 Cal.App.5th 1058,
1068, quoting Betts, at p. 1048.)
Oliva does not clearly specify when he contends the alleged error was
committed. He contends the trial court “could not pronounce judgment” on
acts occurring in Texas or North Carolina, and “the jury’s verdict” could not
be based on such acts. As the People point out, however, jurisdiction is a
question to be addressed by the trial court. Oliva concedes the trial court was
not presented with a motion or objection that counts 3 and 4 of the amended
information encompassed conduct outside its territorial jurisdiction.14 At
the same time, he cites Fortner, supra, 217 Cal.App.4th at page 1364, for the
proposition that our review is for substantial evidence. In Fortner, the
defendant sought writ relief after the superior court overruled his demurrer
and denied his motion to dismiss offenses committed in Hawaii on
jurisdictional grounds. (Id. at pp. 1362–1363.) The appellate court
“defer[red] to the superior court’s factual findings” but ultimately concluded
14 The amended information originally included counts 1 and 2 charging
Oliva with oral copulation with a child 10 years old or younger, committed
against Jane 1 at Camp Pendleton between July 4, 2007 and July 4, 2009.
Before the jury was empaneled, the court granted the prosecutor’s unopposed
motion to dismiss these counts for lack of territorial jurisdiction on the
ground Camp Pendleton is a federal enclave subject to exclusive federal
criminal jurisdiction. Neither the prosecution nor the defense moved to
amend the date range alleged in counts 3 and 4 and no objection was raised
that counts 3 and 4 encompassed acts occurring outside San Diego County.
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there was no evidence to support them. (Id. at pp. 1363–1367; cf. Betts,
supra, 34 Cal.4th at p. 1055 [“We will uphold a trial court’s determination on
factual issues if supported by substantial evidence and review its legal
determinations independently.”].)
Here, unlike Fortner, no pretrial or posttrial jurisdictional challenge
was filed, and consequently there are no factual findings, express or implied,
to review for substantial evidence. Moreover, although Oliva advocates for
substantial evidence review, his asserted lack of substantial evidence
arguments focus in large part on the CALCRIM No. 3501 unanimity
instruction, which is not evidence. His arguments are less like substantial
evidence arguments and more like the arguments parties generally advance
to establish the prejudice of an alleged error.
The People contend Oliva’s appellate challenge more nearly resembles
a claim that the CALCRIM No. 3501 unanimity instruction, which told the
jury Oliva was charged with offenses committed between July 4, 2007 to
October 31, 2017, likely misled the jurors to convict him based on acts of
forced oral copulation that occurred outside California. We agree with this
interpretation of Oliva’s appellate challenge. It fits the procedural posture of
this case: no party alerted the trial court to the overbreadth in the date
range alleged in counts 3 and 4 of the amended information; the case
proceeded to trial; and the jury rendered a verdict of guilty on counts 3 and 4.
It also fits the thrust of Oliva’s arguments: he contends neither the verdict
nor the resulting judgment could rest on extraterritorial acts; he relies on the
date range in the unanimity instruction and, correspondingly, in the verdict
form, to support his position the jury based its verdict on forcible oral
copulations that occurred outside California. Moreover, although Oliva filed
36
a reply brief on appeal, he did not dispute the People’s characterization of his
position.
We agree with the People that Oliva’s appellate challenge is properly
construed as a challenge to the unanimity instruction. However, we disagree
with the People’s contention this challenge has been forfeited. “A claim of
fundamental jurisdictional defect is not subject to forfeiture or waiver.”
(People v. Hoyt (2020) 8 Cal.5th 892, 911.) “We are therefore obligated to
address the claim.” (Ibid.) Pursuant to Betts, an appellate court reviews the
factual issues pertinent to territorial jurisdiction for substantial evidence and
reviews the relevant legal issues independently. (Betts, supra, 34 Cal.4th at
p. 1055; see People v. Posey (2004) 32 Cal.4th 193, 218 [independent standard
of review applies when assessing alleged error in a jury instruction].)
Here, the unanimity instruction stated, in relevant part: “Defendant
Daniel Oliva is charged with forcible lewd act upon child; forcible oral
copulation; forcible rape; and oral copulation with child 10 years old or
younger sometime during the period of July 4, 2007 to October 31, 2017.”
(Italics added.) The question is whether this date range was susceptible to
the interpretation that Oliva was criminally liable for acts of forcible oral
copulation outside the territorial jurisdiction of the superior court. As we
have noted, the parties do not dispute the acts of forcible oral copulation
described by Jane 1 as having occurred in Texas and North Carolina were
committed between 2010 and March 2012. And the People concede the
relevant jurisdictional statutes did not give the superior court jurisdiction
over these offenses. We agree. No evidence was presented that any part of
the Texas or North Carolina incidents, including consummation of the
offenses or formation of the intent to commit the offenses, was committed in
California. (Cf. §§ 27, subd. (a)(1), 778, 778a, subd. (a).) Thus, the date range
37
in the instruction was overbroad, because it encompassed dates when Oliva
committed acts of forcible oral copulation that were not within the territorial
jurisdiction of the superior court.
The next question is whether this error in the instruction was
prejudicial. Oliva does not identify a standard for assessing harmlessness.
The People argue any error in the instruction was harmless under Watson or
Chapman. We will apply the Chapman standard, under which “[t]he
reviewing court must reverse the conviction unless, after examining the
entire cause, including the evidence, and considering all relevant
circumstances, it determines the error was harmless beyond a reasonable
doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 13 (Aledamat).)
Chapman is the test that applies when appellate courts consider the
harmlessness of alternative-theory instructional error⎯that is, instructing
the jury on two theories of guilt, one valid and one invalid⎯where one of the
alternate theories violates the federal constitution. (See Aledamat, supra, 8
Cal.5th at pp. 9–13; Betts, supra, 34 Cal.4th at p. 1046 [discussing
constitutional limits of state court exercise of jurisdiction in criminal
matters].) The overbreadth in the unanimity instruction here is an
analogous form of instructional error because it permitted the jury to reach a
verdict on grounds that were legally permissible (i.e., based on offenses
within the territorial jurisdiction of the superior court) and legally
impermissible (i.e., based on offenses outside the court’s territorial
jurisdiction). The Chapman standard for determining harmless error is
“more stringent” than the Watson standard. (See People v. Nicolas (2017) 8
Cal.App.5th 1165, 1179.) If the overbreadth in the instruction was harmless
beyond a reasonable doubt, it was necessarily harmless under Watson.
38
Applying the Chapman standard here, we conclude the instructional
error was harmless beyond a reasonable doubt. We agree with Oliva that to
the extent the date range in the unanimity instruction was overly broad such
that it encompassed acts of forcible oral copulation committed in Texas and
North Carolina as well as acts of forcible oral copulation committed after the
family returned to California, the language of the general verdicts on counts
3 and 4 did not cure the error. The verdicts on counts 3 and 4 stated the jury
found Oliva guilty of violating section 288, subdivision (b)(1), “on or about
and between September 9, 2010 and July 4, 2013, as charged in [Count
Three/Count Four] of the Amended Information.” As Oliva has urged, this
date range, like the date range in the unanimity instruction, included the
period when Jane 1 and Oliva were in Texas and North Carolina, as well as
the period after they returned to California when Jane 1 was still under 14.
But other circumstances support the conclusion the instructional error
was harmless. The prosecutor told the jury all charges against Oliva were
based on conduct committed in Oceanside. (See Aledamat, supra, 8 Cal.5th
at p. 14 [considering arguments of counsel in assessing harmlessness of
instructional error].) In walking the jury through the evidence supporting
counts 3 and 4, the prosecutor repeatedly emphasized the acts of forcible oral
copulation that were committed in Oceanside. The prosecutor told the jury
the evidence supporting Oliva’s conviction on these counts was Jane 1’s
testimony about “[o]ral sex, [oral copulation], more than once in the seventh
grade” and told the jury “she said it was more than one time, at least in the
seventh grade.” The prosecutor repeatedly told the jury that Jane 1 was 13
years old at the time of the first charged act (i.e., count 3). Referring to the
section 288, subdivision (b)(1), requirement that the victim must be under 14,
the prosecutor stated, “in the seventh grade, [Jane 1] would have been 13
39
years old. . . . And when she says more than once in the seventh grade, she
was under 14. [¶] Because of that, members of the jury, . . . we know that
counts 3 and 4 have been met.” The jury was repeatedly made aware of the
prosecutor’s factual basis for counts 3 and 4.
The evidence in the record, coupled with the jury’s verdicts, further
support a finding of harmless error. At trial, Jane 1 testified she was
sexually abused by Oliva for 10 years, and that the abuse consisted of forcible
oral copulation and sexual intercourse. She testified she was forced to orally
copulate Oliva in Texas and North Carolina, and that Oliva continued to
force her to orally copulate him after March 2012 when the family settled in
Oceanside, on multiple occasions when she was under 14 years old and when
she was over 14 years old. She also testified that Oliva started vaginally
penetrating her in North Carolina, and continued these acts after March
2012 in California. Oliva denied having any sexual contact at all with
Jane 1. The jury’s verdicts finding Oliva guilty on all charged counts
involving Jane 1 reveal it believed Jane 1’s testimony about the sexual
contacts and disbelieved Oliva.
Further still, the jury returned guilty verdicts on counts 7 and 8 (oral
copulation by force, fear or threats; former § 288a, subd. (c)(2)(A), now § 287,
subd. (c)(2)(A)). In doing so, the jury found Oliva committed acts of forcible
oral copulation against Jane 1 between July 4, 2013 and July 4, 2017, a time
frame when Jane 1 was 14 years old or older, and the family was living in
Oceanside. It is not possible, on this record, for a reasonable jury to find
Oliva committed acts of forcible oral copulation against Jane 1 in Texas and
North Carolina, but not in Oceanside before she turned 14. Stated
differently, “ ‘[n]o reasonable jury that made all of these findings could have
failed to find’ ” Oliva committed more than one act of forcible oral copulation
40
against Jane 1 in Oceanside when she was under 14. (See Aledamat, supra, 8
Cal.5th at p. 15.)
The error was harmless beyond a reasonable doubt.
III.
The Portion of the Criminal Justice Administration Fee That Remained
Unpaid as of July 1, 2021 Shall Be Vacated
At the sentencing hearing, the trial court ordered Oliva to pay a
criminal justice administration fee of $154 pursuant to now-repealed
Government Code section 29550.1. The abstract of judgment incorrectly
reflects a $300 criminal justice administration fee.
Pursuant to Assembly Bill No. 1869, as of July 1, 2021, the statutory
provision pursuant to which Oliva was ordered to pay the $154 criminal
justice administration fee was repealed and newly-enacted Government Code
section 6111 became effective. (Assem. Bill No. 1869 (2019–2020 Reg. Sess.)
§ 11; see People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950 (Lopez-Vinck).)
Under Government Code section 6111, subdivision (a), “On and after July 1,
2021, the unpaid balance of any court-imposed costs pursuant to Section
27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2,
and 29550.3, as those sections read on June 30, 2021, is unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be
vacated.”
Although Oliva is not entitled to vacatur of the entire $154 criminal
justice administration fee, as he contends, he is entitled to the vacatur of that
portion of the criminal justice administration fee imposed pursuant to former
Government Code section 29550.1 that remains unpaid as of July 1, 2021,
and to the modification of his judgment consistent with such vacatur. (Lopez-
Vinck, supra, 68 Cal.App.5th at p. 953.) However, because we must remand
41
with instructions to the trial court to correct the abstract of judgment because
it does not reflect the judgment as it was pronounced (it reflects a $300
criminal justice administration fee, whereas the judgment as orally
pronounced reflected a $154 criminal justice administration fee), we shall
also instruct the court to correct the abstract of judgment to reflect vacatur of
any balance of the $154 fee that remained unpaid as of July 1, 2021.15
DISPOSITION
The portion of the $154 criminal justice administration fee imposed by
the court pursuant to Government Code former section 29550.1 that
remained unpaid as of July 1, 2021, is vacated. As modified, the judgment is
affirmed.
The matter is remanded to the trial court with directions to correct the
abstract of judgment to reflect that the amount of the criminal justice fee
originally imposed was $154, and to reflect the vacatur of any balance of the
$154 fee that remained unpaid as of July 1, 2021. The court shall forward a
15 In reviewing the abstract of judgment, we noted additional apparent
errors. On the one hand, section 1 of the abstract of judgment (starting at
page 1, and continuing on the attachment) reflects imposition of consecutive
sentences on counts 3 through 18. On the other hand, section 6(a) of the
abstract of judgment reflects consecutive sentences on counts 3 through 17
(not 18). And section 16 of the abstract reflects that the terms on counts 3
through 17 (not 18) are consecutive to the term on count 21. At the
sentencing hearing, the court ruled that “separate consecutive terms are
required” on counts 3 through 18 and 21. The trial court’s oral
pronouncement of judgment controls over the abstract of judgment. (People
v. Mitchell (2001) 26 Cal.4th 181, 185–188.) “Courts may correct clerical
errors at any time[.]” (Id. at p. 185.) Upon remand, if necessary, the court
may, and indeed should, correct the noted discrepancies in the abstract of
judgment to ensure it accurately reflects the sentence imposed. (See ibid. [“It
is, of course, important that courts correct errors and omissions in abstracts
of judgment.”].)
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copy of the corrected abstract of judgment to the Department of Corrections
and Rehabilitation.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
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