People v. Brian Q. CA2/6

Filed 1/17/23 P. v. Brian Q. CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B312389
(Super. Ct. No. 2017027756)
Plaintiff and Respondent, (Ventura County)
v.
BRIAN Q.,
Defendant and Appellant.
Brian Q. appeals his conviction, by jury, of sodomy on a
child 10 years old or younger (Pen. Code, § 288.7, subd. (a))1 and
oral copulation with a child 10 years old or younger. (§ 288.7,
subd. (b).) The trial court sentenced him to a total term of 40
years to life in state prison, plus $3270 in fees and assessments.
(§§ 290.3, 1465.8; Gov. Code, § 70373.) Appellant contends the
trial court erred when it admitted the testimony of an expert
witness regarding child sexual abuse accommodation syndrome
All statutory references are to the Penal Code unless
1
otherwise stated.
(CSAAS), when it excluded a statement made by the victim to the
public defender’s investigator recanting the abuse allegations,
and when it failed to instruct the jury that it must unanimously
agree on the specific act constituting each offense. Appellant
further contends the cumulative impact of these errors requires
reversal and that he was erroneously denied conduct credits. We
order the abstract of judgment modified to award conduct credits
and, in all other respects, affirm.
Facts
The Initial Report. Appellant is 15 years older than his
sibling, O.Q.2 When O.Q. was five or six years old, appellant had
his own bedroom in the family home. O.Q. reported that
appellant would lure O.Q. into his bedroom, ostensibly to play
video games. Appellant would then make O.Q. perform oral sex
and would have anal sex with O.Q. According to O.Q., this
happened once or twice a week for several months, until
appellant joined the Army and moved out of the family home.
O.Q. remembered appellant coming back to the home about three
times after he joined the Army. Appellant forced O.Q. to perform
oral sex and anal sex on those occasions. Appellant did not
perform other sex acts on O.Q.
O.Q. reported the abuse to his parents in July 2017. They
took him to the police station the next day. O.Q. made an audio-
recorded statement to Simi Valley Police Officer Steven Latham.
2 Appellant and O.Q. have the same father but different
mothers. O.Q. was assigned female at birth. After the events at
issue here, O.Q. transitioned, adopted the name O.Q. and now
uses male (he/him) pronouns. During trial, the trial court and
counsel used the name O.Q. and male pronouns when referring to
the victim. We will continue that practice in this opinion.
2
Two days later, O.Q. gave a video statement to Det. Jeffrey
Quartararo. In his statement to Det. Quartararo, O.Q. said he
did not remember the first time appellant abused him nor could
O.Q. describe any specific incident with appellant. The abuse
always involved the same acts, according to O.Q. Appellant
would tell O.Q. to go into appellant’s bedroom to play video
games. Then, appellant would lock the door, make O.Q. perform
oral sex and then hold O.Q. down while appellant sodomized him.
O.Q. remembered one occasion on which his mother interrupted
the abuse by knocking on appellant’s locked bedroom door, to tell
O.Q. it was time to go to swimming lessons.
The Pretext Call. With assistance from Det. Quartararo,
O.Q. made a pretext call to appellant. During the call, O.Q.
asked appellant, “So remember when I was like five and you
lured me into your room and you’d make me suck your dick and
do anal sex?” Appellant replied, “Yeah.” O.Q. asked why
appellant abused him, and appellant replied, “I honestly can’t
really answer that and I, you know, am gonna continue to regret
it for the rest of my life.” Appellant agreed when O.Q. said the
abuse happened “once or twice a week for like months” and
continued when appellant was on leave from the military.
Appellant’s Statement to Police. Appellant was arrested
about four hours after the pretext call. He agreed to answer Det.
Quartararo’s questions and the interrogation was recorded on
video. Det. Quartararo told appellant that O.Q. had reported
that appellant would make him perform oral and anal sex.
Appellant replied, “That’s true.” He also agreed that the abuse
occurred once or twice a week for four to six months and
continued when he came home on leave from the Army.
3
As the interrogation was ending, Det. Quartararo offered to
relay an apology to O.Q. Appellant said he wanted O.Q. to know,
“I’m really sorry. I never should have . . . done those things to
you. I never should have forced that upon you.” Appellant said
he was “not a perfect person” and that he was “very truly sorry.”
When the interrogation concluded, Det. Quartararo
assisted appellant in calling his father, Cesar. During the
conversation, appellant said he abused O.Q. because he was “in
distress” and depressed. He described himself as “not a perfect
person” and “messed up in the head.” Appellant also called his
estranged wife. In that conversation, he once again admitted
that he sexually abused O.Q.
Cesar testified that O.Q.’s report of abuse and appellant’s
arrest had affected the entire family. Cesar was determined to
protect O.Q. but was also very angry and sad. His relationship
with O.Q.’s mother Teresa was “very rough.” In April 2019,
almost two years after O.Q. disclosed the abuse, Cesar was
depressed and had a panic attack that required his
hospitalization.
O.Q. Recants. In September 2019, about six months after
Cesar’s panic attack and two years after appellant’s arrest, O.Q.
told Cesar that nothing happened between him and appellant,
that he was sorry and he did not know how they could “fix these
things.” O.Q. explained that he made the accusations because he
wanted to keep Cesar and Teresa together and knew Cesar would
support him.
In December 2019, Cesar contacted the public defender’s
office about O.Q. having recanted. An investigator from the
public defender’s office came to the family home to interview O.Q.
4
in February 2020. The interview was tape recorded, but not
introduced into evidence at trial.
At trial, O.Q. denied that appellant had ever abused him.
O.Q. denied being locked in appellant’s room, held down on the
bed, or raped by appellant. Instead, O.Q. testified, his
relationship with appellant was “normal,” and they were playing
video games in his bedroom with the door open. O.Q. also denied
that either he or appellant were ever naked in the room.
O.Q. testified that the statements he made to his parents
and to the police were false. He explained he had several reasons
for falsely reporting that appellant abused him. O.Q. was jealous
of appellant’s relationship with their father. Before he reported
the abuse, O.Q. learned that appellant and his wife were
mistreating a dog they owned. O.Q. was also suffering from
depression and had been cutting himself. When O.Q. first
complained of depression, his parents took him to church
although they later arranged for him to get therapy. After he
reported the abuse, O.Q. got medication and additional therapy.
He believed the family got closer and that his parents started
trying harder to get along.
O.Q. testified that he was confused during the pretext call
when appellant said that he regretted forcing O.Q. to engage in
oral and anal sex. O.Q. maintained that he had never seen
appellant’s penis and had never engaged in oral or anal sex with
him.
Expert CSAAS Testimony. Forensic psychologist Dr. Jody
Ward testified as an expert witness on child sexual abuse
accommodation syndrome (CSAAS). CSAAS is a pattern of
behavior exhibited by many, but not all, people who have been
sexually abused. The syndrome is non-diagnostic and is used to
5
help adults understand why children do what they do in response
to sexual abuse. Many of those behaviors may seem
counterintuitive. While CSAAS describes common behaviors, it
cannot be used to determine the cause of those behaviors. Dr.
Ward explained that the syndrome “is not a diagnostic tool,
meaning that it cannot be used to prove or disprove whether
sexual abuse occurred.” The same behaviors could be caused by
other factors including dysfunctional family situations like
substance abuse.
Dr. Ward stated that she testifies “blind,” meaning that she
does not meet the alleged victim, read any police reports or learn
any facts concerning the case. “I come in [to court] to talk about
how child victims respond as a class. Not about any particular
child.”
CSAAS consists of five categories of behaviors: 1. secrecy; 2.
helplessness; 3. entrapment and accommodation; 4. delayed,
unconvincing disclosure; and 5. recantation or retraction. Dr.
Ward opined that it is common for children who have been
sexually abused to keep their abuse secret and to delay reporting
or disclosing the abuse for many years. “The research [h]as
shown that two-thirds of the people who have been sexually
abused with an ongoing relationship by somebody they know
well, two-thirds of those people will wait until adulthood to report
the abuse. . . . [¶] And when a child or an adult makes a
disclosure of sexual abuse, that person may not come out with
everything that occurred in the sexually abusive situation all at
once.”
With regard to recanting, Dr. Ward explained that
disclosing sexual abuse is often very disruptive for a child. In
addition to intrusive interviews and physical exams, the child’s
6
family life may be severely disrupted. The child victim may see
recanting as a way to put everything back the way it was before
their disclosure. Dr. Ward opined, “[I]t’s important to remember
whenever anybody is reporting . . . child sexual abuse, the point
is just to get the abuse to stop. The point is not to come into court
and testify and put somebody in jail and all the other stuff down
the road. That really doesn’t enter into a person’s mind. [¶] And
so once these things start happening, a child may wish that they
have never made the disclosure and recant that disclosure, take
it back or just back-pedal and say, oh, it wasn’t that bad or I don’t
remember and I don’t recall.”
Dr. Ward agreed that a “substantial minority” of children
who have “outwardly supportive famil[ies]” recant their reports of
sexual abuse. “The research shows that about – I call it a
substantial minority. The actual number is 22 – 22 percent in
one study of children who were abused by someone in their home.
Those children are more likely to recant sexual abuse than
children who are molested outside of their home or not by a
family member. And the thinking is – again, this is the idea that
children want to keep their family together and they feel a lot of
loyalty and love toward that parent and don’t want to see
someone so close to them suffer the consequences of reported
sexual abuse.”
On cross examination, Dr. Ward explained that the study
to which she referred was conducted within the last 10 years in
Los Angeles County and involved more than 100 subjects. It
found that 22 percent of the children studied recanted their
reports of sexual abuse. “The factor that was determinative of
their recantation was the abuse occurred in their immediate
family.”
7
Dr. Ward acknowledged that there are children who make
false reports of sexual abuse. No syndromes or checklists exist
that can determine whether a child has been abused, or whether
they are lying. One “dynamic in the family” that is associated
with false reporting “is a report that occurs within a divorce or
custody type of situation. In those types of situations, the rate of
false reporting is pretty high. It can be one-third to 50 percent
depending on the situation.”
Appellant’s Testimony. Appellant testified that as a child
he was physically abused by his father. The abuse ended when
appellant’s parents divorced. When appellant was 16 years old,
he confronted Cesar about the abuse. Cesar began to pay more
positive attention to appellant after that conversation.
In 2015, appellant came out as transgender.3 He began
receiving Estradiol shots and taking testosterone blocking pills in
May 2017. One side effect of the medication was that appellant
experienced mood swings, crying spells and periods of self-
harming.
Appellant testified that he was shocked by O.Q.’s
statements during the pretext call. At the time, appellant was
aware that O.Q. had been self-harming and was hospitalized for
mental health treatment. Appellant agreed with O.Q.’s
statements about oral and anal sex to be supportive and to stop
O.Q. from harming himself again. When he told O.Q. that he
would always regret what he had done, appellant was “mentally
and emotionally” remembering what he was going through before
he transitioned.
We refer to appellant using male pronouns (he/him)
3
because those pronouns were used by the trial court and counsel.
8
Appellant also explained that the statement he made to
Det. Quartararo was not true. When he apologized for what he
had done to O.Q., he was referring to the fact that he “wasn’t
there for [O.Q.].” Appellant told Quartararo that O.Q.’s
accusations were correct because, “I felt like I needed to protect
[O.Q.]” and because he “had a lot of weight on my shoulders that
I was going through with everything that I have been through, so
I just couldn’t . . . I couldn’t handle the situation properly. I
couldn’t really say what I really wanted to say and I just – it
almost felt like I was just on – running on mixed emotions.”
At the time of the pretext call, appellant testified, he was
aware that O.Q. was having mental health struggles and had
been hospitalized. He thought O.Q. might be suicidal, so he
wanted to agree with his statements. After the call was over,
appellant did not call their father or O.Q.’s mother, to talk about
O.Q.’s mental health. He took no additional steps to help O.Q.
Appellant believed that the medications he was taking to
assist his transition to female might have had an impact on his
own feelings of depression and anxiety. He did not, however, tell
Det. Quartararo about those medications. When appellant told
Det. Quartararo that he would be “forever remorseful about what
had happened,” he was referring to “[e]verything that happened
to me in my life,” and also the failure of his marriage.
After the interrogation was over, Det. Quartararo helped
appellant call Cesar. During that telephone call, appellant
admitted he had sexually assaulted O.Q. He explained that he
falsely admitted to the sex offenses because he “wanted to hear
his reaction if he had actually thought of me any less ‘cause of my
type of relationship when I was younger with him.” Appellant
then had a telephone call with his estranged wife in which he
9
also admitted to having committed sex offenses against O.Q. He
made this false statement to his wife because, “psychologically, I
wasn’t in my right mind to begin with.”
The Judgment. The jury convicted appellant of one count
of sodomy with a child 10 years of age or younger (§ 288.7, subd.
(a)) and one count of oral copulation with a child 10 years of age
or younger. (§ 288.7, subd. (b).) The prosecution dismissed one
count of continuous sexual abuse. (§ 288.5, subd. (a).)
Contentions
Appellant contends Dr. Ward’s testimony was irrelevant
and inflammatory because she offered an improper opinion on his
guilt. He contends the trial court erred when it instructed the
jury in terms of CALCRIM No. 1193 because the instruction
allowed the jury to use Dr. Ward’s CSAAS testimony as evidence
of appellant’s guilt and because the instruction reduced the
prosecution’s burden of proof. Appellant further contends the
trial court erred when it excluded O.Q.’s statement recanting his
abuse allegations. He contends the statement was admissible as
a prior consistent statement (Evid. Code, §§ 791, 1236) and that
its exclusion violated Evidence Code section 356. Appellant
contends the trial court erred when it failed to instruct the jury
that they must unanimously agree on the act constituting each
charged offense. Finally, appellant contends cumulative error
requires reversal and that he was erroneously denied all conduct
credits. We direct the abstract of judgment modified to award
conduct credits and, in all other respects, affirm.
Discussion
CSAAS Testimony. “Trial courts may admit CSAAS
evidence to disabuse jurors of five commonly held ‘myths’ or
misconceptions about child sexual abuse. [Citation.] While
10
CSAAS evidence is not relevant to prove the alleged sexual abuse
occurred, it is well established in California law that CSAAS
evidence is relevant for the limited purpose of evaluating the
credibility of an alleged child victim of sexual abuse.” (People v.
Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias).) CSAAS
evidence may not be used “as a predictor of child abuse.” (People
v. Bowker (1988) 203 Cal.App.3d 385, 393.) Nor may the
components of the syndrome be described in a way that allows
“‘the jury to apply the syndrome to the facts of the case and
conclude the child was sexually abused.’” (People v. Julian (2019)
34 Cal.App.5th 878, 885, quoting Bowker, supra, at p. 393.) It is
improper for an expert witness to offer an opinion on the
statistical probability of the defendant’s guilt or the likelihood
that a complaining witness’ testimony is truthful. (Lapenias,
supra, at p. 176; People v. Wilson (2019) 33 Cal.App.5th 559, 571.)
Appellant contends Dr. Ward ran afoul of these principles
when she testified that one study found 22 percent of children
who disclose sexual abuse by a person who lives in their home
later recant that claim. We disagree. Dr. Ward cited the
statistic, but was also careful to explain that CSAAS cannot be
used to determine whether a child has, in fact, been abused.
CSAAS is instead a non-diagnostic description of a pattern of
behaviors that is common among children who have been
sexually abused. The behaviors described by the syndrome could
also be caused by other factors, including other types of
dysfunctional family situations. Dr. Ward acknowledged children
respond “to sexual abuse in as many different ways as there are
children.” While recanting a report of abuse is one component of
the syndrome, “recantation disclosure, late disclosure [cannot] be
used to determine whether or not sexual abuse occurred.” Dr.
11
Ward insisted, “None of this stuff is diagnostic,” and that there is
no “psychological way to determine whether or not someone is
telling the truth” when they report abuse or retract a report.
Dr. Ward cited the statistic regarding recanting to
illustrate the point that recanting is one behavior demonstrated
by children who report sexual abuse. Nothing in her testimony
suggested the statistic could be used to determine whether any
specific report of sexual abuse was true or false. The trial court
did not err in admitting the testimony.
Appellant contends, without evidentiary support, that
CSAAS testimony has become irrelevant because the
misconceptions addressed by the syndrome are no longer widely
accepted by the general public. First, the contention has been
forfeited because appellant did not raise it in the trial court.
(People v. Morales (2020) 10 Cal.5th 76, 98.) Had the contention
been preserved we would reject it because the record does not
affirmatively demonstrate the trial court abused its discretion in
admitting the testimony. (Christ v. Schwartz (2016) 2
Cal.App.5th 440, 446-447; Burton v. Sanner (2012) 207
Cal.App.4th 12, 22-23.) The record contains no support for
appellant’s claim that the elements of CSAAS testimony are so
well known by the general public as to make expert testimony on
the subject unnecessary.
Instructional Error. Consistent with CALCRIM No. 1193,
the trial court instructed the jury that Dr. Ward’s “testimony
about child sexual abuse accommodation syndrome is not
evidence that the defendant committed any of the crimes charged
against him or any conduct or crimes of which he was not
charged. [¶] You may consider this evidence only in deciding
whether or not [O.Q.’s] conduct was not inconsistent with the
12
conduct of someone who has been molested, and in evaluating the
believability of his testimony.” Appellant contends the trial court
erred because the instruction allows the jury to consider CSAAS
evidence in evaluating the believability of O.Q.’s testimony.
We rejected this contention in People v. Gonzales (2017) 16
Cal.App.5th 494, a case involving CSAAS testimony also given by
Dr. Ward. There, we concluded that, “A reasonable juror would
understand CALCRIM No. 1193 to mean that the jury can use
[Dr.] Ward’s testimony to conclude that [the complaining
witness’] behavior does not mean she lied when she said she was
abused. The jury also would understand it cannot use Ward’s
testimony to conclude [the complaining witness] was, in fact,
molested. The CSAAS evidence simply neutralizes the victim’s
apparently self-impeaching behavior. Thus, under CALCRIM
No. 1193, a juror who believes Ward’s testimony will find both
that [the complaining witness’] apparently self-impeaching
behavior does not affect her believability one way or the other,
and that the CSAAS evidence does not show she had been
molested. There is no conflict in the instruction.” (Id. at p. 504.)
We further concluded, “CALCRIM No. 1193 was proper and did
not violate due process.” (Ibid.; see also, Lapenias, supra, 67
Cal.App.5th at p. 175 [agreeing with Gonzales that, “the
instruction does not: (a) improperly allow an alleged minor victim
of sexual abuse to corroborate her own testimony; (b) violate due
process; or (c) misapply the burden of proof”].)
The same reasoning applies here. A reasonable juror would
understand CALCRIM No. 1193 to mean that O.Q.’s behavior, for
example, his delayed disclosure and his retraction of the initial
report of abuse, does not mean his initial report was a lie, nor
13
does it mean that he was, in fact, abused. The trial court did not
err in instructing the jury in terms of CALCRIM No. 1193.
O.Q.’s Statement to Defense Investigator. O.Q. gave his
original statement to police in July 2017. O.Q. recanted this
report to his father, Cesar, in September 2019. About five
months later, in February 2020, O.Q. gave a recorded statement
to an investigator from the public defender’s office in which he
also recanted his original statement, maintaining that it was
untrue and that he had never been abused by appellant. O.Q.’s
trial testimony was consistent with his statement to the
investigator. The trial court excluded the audio recording of that
statement as hearsay.
Appellant contends the trial court erred because the
recording was admissible as a prior consistent statement under
Evidence Code sections 1236 and 791. He contends the audio
recording was also admissible to provide the jury with his
complete statement, after the prosecution used portions of it to
imply that his retraction was untrue. (Evid. Code, § 356.)
Appellant further contends excluding the statement was federal
constitutional error because it impaired his right to present a
complete defense.
Evidence Code section 1236 provides that evidence of a
witness’ prior statement “is not made inadmissible by the
hearsay rule if the statement is consistent with his testimony at
the hearing and is offered in compliance with Section 791.”
(Ibid.) Section 791 provides that evidence of a prior consistent
statement is inadmissible to support a witness’ credibility unless
“it is offered after: (a) Evidence of a statement made by him that
is inconsistent with any part of his testimony at the hearing has
been admitted for the purpose of attacking his credibility, and the
14
statement was made before the alleged inconsistent statement; or
(b) An express or implied charge has been made that his
testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made
before the bias, motive for fabrication or other improper motive is
alleged to have arisen.” (Id., subds. (a), (b).)
As our Supreme Court explained in People v. Dalton (2019)
7 Cal.5th 166, 234, “Evidence Code section 791 does not require a
witness to be free from all possible bias at the time of her prior
consistent statement. Rather, ‘a prior consistent statement is
admissible if it was made before the existence of any one or more
of the biases or motives that, according to the opposing party’s
express or implied charge, may have influenced the witness’s
testimony.’ [Citations.]” We review the trial court’s decision to
exclude the statement for abuse of discretion and find none.
(People v. Waidla (2000) 22 Cal.4th 690, 725.)
Appellant contends the entire recorded statement should
have been admitted as a prior consistent statement because O.Q.
gave the statement to the investigator before his motive to
fabricate arose. But the record does not support that contention.
O.Q. and Cesar testified that their family life became very
difficult after O.Q. disclosed the abuse. Cesar’s marriage to
O.Q.’s mother suffered and he experienced a lot of sadness and
stress. In April 2019, Cesar had a panic attack that required his
hospitalization. O.Q. recanted to Cesar in September 2019.
Cesar testified that O.Q. seemed happier after he recanted. The
rest of the family was also relieved and happier.
“A prior consistent statement logically bolsters a witness’s
credibility whenever it predates any motive to lie, not just when
it predates all possible motives.” (People v. Hillhouse (2002) 27
15
Cal.4th 469, 492.) Here, however, there is no evidence of a
motive to lie that arose after O.Q. retracted his initial report of
abuse. If, as respondent suggests, O.Q. could have been motived
to lie by a desire to spare his family the stress, emotional
upheaval and embarrassment of a trial, that motive predated his
retraction. There is no evidence showing that a new or different
motive arose between the time O.Q. gave his statement to the
investigator and the time he testified at trial. Under these
circumstances, the trial court did not abuse its discretion when it
excluded the recorded statement.
Appellant contends the entire recording was admissible
under Evidence Code section 356, because the prosecutor used
portions of the recorded statement to impeach O.Q’s testimony at
trial. Evidence Code section 356 “provides that if part of an act,
conversation, declaration, or writing is placed in evidence, the
adverse party may inquire into ‘the whole on the same subject.’
(Italics added.) The purpose of this section is to prevent the use
of selected aspects of a conversation, act, declaration, or writing,
so as to create a misleading impression on the subjects addressed.
[Citation.] Thus, if a party’s oral admissions have been
introduced in evidence, he may show other portions of the same
interview or conversation, even if they are self-serving, which
‘have some bearing upon, or connection with, the admission . . . in
evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92,
156.)
Appellant did not raise Evidence Code section 356 as a
basis for admitting the full recorded statement. The contention
that it was admissible on that basis has, therefore, been forfeited.
(People v. Smith (2003) 30 Cal.4th 581, 629-630.) Had the
contention not been forfeited, we would reject it because any
16
error in excluding the recording was harmless. (People v. Boyette
(2002) 29 Cal.4th 381, 427-428.)
First, O.Q. was questioned extensively, by both parties, on
the content of his retraction. The jury learned the substance of
O.Q.’s retraction and many of the details he provided in the
statement, even though it did not have the audio recording or
transcript. Second, Cesar corroborated O.Q.’s trial testimony and
was questioned by both parties about the September 2019
conversation in which O.Q. first recanted. The recording and
transcript of O.Q.’s February 2020 statement would have been
duplicative of this testimony.
Finally, any error in excluding the recording and transcript
was harmless because the evidence of appellant’s guilt was
overwhelming. Appellant unequivocally admitted that he forced
O.Q. to perform oral and anal sex in the pretext call with O.Q., in
his recorded interrogation with Det. Quartararo and in
subsequent conversations with Cesar and with his wife. It is not
reasonably probable that the jury would have rejected appellant’s
own words because it heard a recording of O.Q.’s retraction
rather than his testimony on the same subject.
For the same reasons, we reject appellant’s contention that
excluding the recording deprived him of the ability to present a
complete defense. (See, e.g., Michigan v. Lucas (1991) 500 U.S.
145, 149; Crane v. Kentucky (1986) 476 U.S. 683, 690.) Appellant
contends the recorded statement would have raised reasonable
doubt on the truthfulness of O.Q.’s initial report of abuse. But
the jury heard the substance of O.Q.’s statement to the defense
investigator, Cesar’s corroboration of it and O.Q.’s trial testimony
maintaining that no abuse occurred. It also heard appellant’s
trial testimony in which he offered implausible and varying
17
explanations for his confession’s. Appellant’s ability to present a
defense was not impeded by exclusion of the recorded statement.
Unanimity Instruction. Appellant contends the trial court
prejudicially erred by failing to instruct the jury that it had to
unanimously agree on the specific act that constituted each
offense. We conclude there was no error because appellant
offered the same defense to each alleged sexual assault and
offered the jury no reasonable basis for distinguishing among
them. (People v. Covarrubias (2016) 1 Cal.5th 838, 880
(Covarrubias).)
A jury verdict in a criminal case must be unanimous.
(People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[W]hen the
evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must
require the jury to agree on the same criminal act.” (Ibid.)
Where the evidence indicates that jurors might disagree as to the
specific act committed by the defendant, a unanimity instruction
must be given. “But when there is no reasonable likelihood of
juror disagreement as to particular acts, and the only question is
whether or not the defendant in fact committed all of them, the
jury should be given a modified unanimity instruction which, in
addition to allowing a conviction if the jurors unanimously agree
on specific acts, also allows a conviction if the jury unanimously
agrees the defendant committed all the acts described by the
victim.” (People v. Jones (1990) 51 Cal.3d 294, 322; see also
People v. Davis (2005) 36 Cal.4th 510, 562 (Davis) [unanimity
instruction not required where defendant offered same to defense
to multiple charges “so no juror could have believed defendant
committed one act but disbelieved that he committed the other”].)
18
In his interview with Det. Quartararo, O.Q. described the
sexual assaults in general terms. He said that the assaults
occurred once or twice a week over about six months, in
appellant’s bedroom at the family home. The assaults involved
only oral and anal sex. O.Q. could not remember the first
assault, or any other specific assault, nor could he describe any
details that would distinguish one assault from another. O.Q.’s
recantation was similarly general: he testified that no assaults
occurred. Appellant offered the same blanket denial. He testified
that he never had any sexual contact with O.Q. This left the jury
with a stark choice. It either believed O.Q.’s original statement
and found that appellant had oral sex and anal sex with O.Q. on
at least one occasion, or it believed the recantation and found no
such activity took place. The evidence supplied no reasonable
basis for distinguishing one sexual assault from another. Under
these circumstances, a unanimity instruction was not required.
(Covarrubias, supra, 1 Cal.5th at pp. 870-880; Davis, supra, 36
Cal.4th at p. 562.)
Cumulative Error. Appellant contends the cumulative
effect of the trial court’s errors requires reversal. Because we
have no prejudicial error, there is no error to accumulate. (People
v. Myles (2012) 53 Cal.4th 1181, 1225.)
Conduct Credits. Appellant contends the trial court
erroneously declined to award him conduct credits for the time he
spent in custody prior to sentencing. He is correct. A defendant
sentenced to state prison is entitled to both custody credit for the
actual period of confinement prior to sentencing, and conduct
credit for good behavior during the period of confinement prior to
commencement of sentence. (§ 4019; People v. Brewer (2011) 192
Cal.App.4th 457, 461.) Section 2933.1, subdivision (c) provides
19
that conduct credits “shall not exceed 15 percent of the actual
period of confinement” prior to sentencing where a person is
convicted of a felony punishable by life in prison. Appellant is
entitled to conduct credits as provided in section 2933.1. We
remand the matter to award the proper conduct credits and
amend the abstract of judgment accordingly.
Disposition
The matter is remanded with directions to the trial court to
determine the custody credit to which appellant is entitled and to
prepare and forward to the Department of corrections an
amended abstract of judgment reflecting those credits. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
20
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Analee J. Brodie, Deputy Attorney
General, for Plaintiff and Respondent.