People v. Sosa CA2/7

Filed 11/13/13 P. v. Sosa CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B241234
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA079895)
v.
HEATH DEREK SOSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, David
Sotelo, Judge. Affirmed and remanded with directions regarding reassessment of fines,
fees and penalties.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
A jury convicted Heath Derek Sosa of two counts of continuous sexual abuse of a
child under the age of 14 years and one count of committing a lewd act on a child under
the age of 14 years and found true the special allegation of multiple victims. Witnesses at
trial included the victims, H.A. and her older sister, S.A., who were Sosa’s step-
daughters; their mother, T.S; and an expert who testified about child sexual abuse
accommodation syndrome (CSAAS). On appeal Sosa contends the trial court abused its
discretion in admitting the expert testimony because the victims’ credibility was not
challenged and erred in instructing the jury on CSAAS. Sosa further contends the court
erred in instructing the jury on adoptive admissions; the prosecutor committed
misconduct by vouching for the credibility of the witnesses during closing argument; the
30-year-to-life portion of his state prison sentence constitutes cruel or unusual
punishment; and the court erred in imposing certain fines and penalty assessments. We
affirm the judgment, but remand the matter for the trial court to determine and fully
describe the applicable fine and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
On February 4, 2011 Sosa was charged by information with one count of
continuous sexual abuse of H.A., a child under the age of 14 years (Pen. Code., § 288.5,
subd. (a)). Following accusations by S.A. six months later, Sosa was charged in a
separate case with one count of continuous sexual abuse of a child under the age of
14 years and one count of committing a lewd act on a child under the age of 14 years
(Pen. Code, § 288, subd. (a)). After the trial court granted the People’s motion for
joinder, an amended information was filed that combined the counts and specially alleged
there were multiple victims within the meaning of the “One Strike Law” (Pen. Code.,
§ 667.61, subds. (b), (e)). Sosa pleaded not guilty and denied the special allegation.
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2. Summary of the Evidence Presented at Trial
a. The People’s evidence
Sosa and T.S. met in 1997. Sosa had a two-month-old daughter, Kristen; and
T.S.’s daughters, H.A and S.A., were two years old and five years old respectively. After
dating T.S. for several months, Sosa, T.S., H.A. and S.A. moved into a home together;
Kristen lived with the family off and on over the years. In 2003 Sosa and T.S. got
married. T.S. considered their relationship “wonderful,” and she was very happy.
i. The sexual abuse of S.A.
S.A., 19 years old at the time of trial, testified she had grown to love Sosa and
considered him her father; all of her friends liked Sosa and thought he was a “pretty cool
guy.” Toward the end of fifth grade, when she was 11 years old, however, Sosa rubbed
her back and buttocks in a way that made her uncomfortable while she was watching
television in her parents’ bed. S.A. felt confused and embarrassed, but did not tell
anyone because she “didn’t really know what to say or how to say it.”
In the beginning of sixth grade Sosa, who generally left for work between
4:00 a.m. and 5:00 a.m., came into S.A.’s room around 4:30 a.m. and rubbed her breasts,
buttocks and vaginal area. He also penetrated her vagina with his fingers. She did not
say anything to Sosa because she was confused and did not want to believe it was
happening. S.A. testified she did not tell her mother because, “I liked my family, and I
didn’t really want to be responsible for breaking it up.” Sosa continued to come into her
room in the early morning and to touch her on average once an month throughout S.A.’s
sixth, seventh and eighth grade years. Sosa used his fingers to penetrate S.A’s vagina,
which hurt her, about half the time.
S.A. did not tell anyone about Sosa’s conduct during the years it occurred.
However, T.S. testified S.A. was crying one morning near the end of seventh grade and
told T.S. she had had an awful sexual dream about Sosa the night before. T.S. asked if
she was sure it was a dream because she was so upset, and S.A. assured her it was. T.S.
hugged S.A., telling her, “[I]f something ever happens for real like that, if it is not just a
dream or if you are trying to tell me something, you know that you can always come to
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me.” S.A. testified T.S.’s reaction caused her to realize T.S. would believe S.A. if she
told the truth, and S.A. did not want to be responsible for breaking up the family.
S.A., who had become depressed and withdrawn in ninth grade, was prescribed
antidepressants. During that same year, Sosa stopped touching her. S.A. never suspected
Sosa was sexually abusing H.A., who was 11 years old when Sosa stopped sexually
abusing S.A. S.A. did not tell anyone Sosa had sexually abused her after H.A. first
disclosed her abuse because S.A. felt guilty she had not said anything that might have
prevented Sosa from sexually abusing H.A. and was afraid her sister and mother would
be angry with her. S.A. decided to reveal she had been sexually abused in August 2011
because her boyfriend, who elicited from her that she had been sexually abused too,
encouraged her to do so. T.S. testified S.A. told her, “Do you remember the dream that I
told you that I had? It wasn’t just a dream, and it happened to me too, many times.”
ii. The sexual abuse of H.A.; H.A. tells T.S.
H.A., 16 years old at the time of trial, testified she had had a good relationship
with Sosa while she was growing up, loved him and considered him to be her father.
When H.A. was 11 years old, she would occasionally sleep in bed between Sosa and T.S;
sometimes they would watch a movie together and fall asleep or sometimes she would go
to their bed because she was scared. One morning when she was in their bed, Sosa
touched H.A.’s breasts and vagina underneath her clothing. H.A. knew it was wrong but
was scared and confused and did not know what to do. For the next three years Sosa
continued to touch H.A. “a lot of times” in the same manner. Sometimes T.S. was
sleeping in the bed when it happened; other times she had awoken early for work or was
in H.A.’s room taking care of T.S. and Sosa’s infant son, C.S, who was born in 2008 and
shared a room with H.A. H.A. continued getting into her parents’ bed despite Sosa’s
conduct because she was afraid it would seem suspicious if she stopped and she did not
want her mother asking about it.
Sosa stopped touching H.A. when she was in ninth grade. The day after the last
incident H.A. told one of her friends, Hanna J., that Sosa had been touching her
inappropriately. Hanna testified H.A. was crying and said she did not want to tell her
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mother because she and Sosa were happy together, C.S. had just been born and H.A. did
1
not want to ruin their happiness. Hanna told H.A. she should do what she felt was right
because she did not know what to say. H.A. testified she told other friends as well
because she wanted their advice and knew her friends would keep it secret. One of those
friends, D.D., testified H.A. was conflicted about whether she should tell her mother:
“She didn’t want to like break up the family because her mom was really happy.” D.D.
advised H.A. to do whatever she wanted.
On September 10, 2010 H.A., who was then 15 years old and in 10th grade, was
having a “really bad day.” A friend gave her amphetamines to feel better, but they made
her feel worse; so she took three of her sister’s antidepressants. After school H.A was
waiting with Hanna for T.S. to pick them up. H.A. was feeling “jittery” and “couldn’t
stop talking.” She testified, “I was like I just want to tell my mom because I don’t . . .
want to live like this. Like I took these pills. I don’t know what’s going on with me. I
don’t want to do this anymore.” When T.S. picked up the girls, who had both been
crying, H.A. told her Sosa had been touching her inappropriately. After reassuring H.A.,
T.S. took her to the emergency room to make sure her physical health was not in danger
because she had taken the pills.
iii. The text messages
About the time T.S. picked up H.A. and Hanna, Sosa had begun trying to contact
T.S. by phone and text message. T.S. did not respond to Sosa. However, she sent a text
message to friends she and Sosa had planned to meet for dinner to tell them H.A. was
sick and they had to cancel. Sosa subsequently called the emergency room. Although
T.S. told him not to come to the hospital, he said he would and hung up. T.S.
immediately sent him a text message stating, “Don’t come, Heath. [H.A.] said that you
1 T.S. testified H.A. would come home and cry in her bed when she was in the ninth
grade. T.S. tried to comfort her and asked what was wrong, but H.A. would tell her,
“Mom, I’m sorry. This is one thing I just can’t talk about.” H.A. also became
disrespectful toward Sosa, which was out of character for her. Once when Sosa was
scolding H.A., T.S. told her she needed to respect Sosa. H.A. stood up, looked at Sosa
and said, “Do I? Do I need to respect you, Heath? Do I? ”
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have been touching her for years. Our whole world is gone forever. I cannot believe this.
Our family is done.”
After leaving the emergency room T.S. and H.A stayed at a friend’s home for the
evening. (S.A. was out of town.) The next day, September 11, 2010, Sosa agreed to
leave the family home and let T.S. care for C.S. H.A. and T.S. returned, spending a night
in the home. However, the next morning H.A. told T.S. she could not stay at the home
any longer; they returned to the friend’s house. Also on that day Sosa sent T.S. a text
message regarding the arrangements for his visit with C.S.: “I am so sorry. Yes, I am at
grandma’s. . . . If you want [C.S.] back by a certain time, let me know. I will work
around your schedule. I am the one that should be punished. It is really hard knowing. I
want to see [C.S.] every day.” A few minutes later Sosa texted: “Thank you, I am so
ashamed. I know I scarred this family deep, and I will always be in pain forever.” The
next day he sent a text message stating in part, “[W]e need to try to figure all this out. I
know it is too soon, and I made a huge mistake, but we need to work on some of these
things.” Later he texted, “I want to see [C.S.] this week. You shouldn’t punish him for
my mistake.”
iv. Expert testimony about child sexual abuse accommodation
syndrome
Dr. Jayme Bernfeld, a clinical psychologist, testified CSAAS is a model used to
explain why children who have been sexually abused do not immediately disclose the
abuse or react as adults might expect they would. According to Dr. Bernfeld, “The
reality is that very few children who have been sexually abused say anything. And when
they do, it tends to be many years later, and disclosures tend to be very piecemeal . . . .”
Dr. Bernfeld described the five elements of the model—secrecy, helplessness,
accommodation, delayed disclosure and retraction. With respect to accommodation, Dr.
Bernfeld explained it was not unexpected for children to return to a situation in which
they have been sexually abused because they might not anticipate the abuse would
happen again and, “in order to keep the secret, the privacy, a child will continue to do the
same thing.”
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b. The defense evidence
Testifying on his own behalf, Sosa denied touching S.A. and H.A. in an
inappropriate way. He did not know the reason they had accused him of sexual abuse
and agreed it must have been difficult for them to testify at trial. His response to T.S.’s
first message accusing him of touching H.A. was an outright denial: “What are you
talking about? I would never do such a thing ever in my life.”
With respect to the text messages in which he apologized, said he was ashamed
and had deeply scarred the family, Sosa explained he was apologizing for wanting to see
C.S. on the weekends since T.S. worked all week and was ashamed of being accused; the
accusations, not any sexual abuse, had scarred the family. His references to having made
a mistake was the possibility he had inadvertently wrapped his arms around H.A.,
2
thinking it was T.S., while he was sleeping. He thought he should be punished because,
“. . . If I did something wrong to make [H.A.] feel that way, I felt bad for her being in
that—putting he in that position to where, if something was to happen where it happened,
I felt bad for that . . . .” Sosa also testified about a “pretext call” T.S. had made to him
that was arranged by a police detective. A recording of the call in which he denied
touching H.A. inappropriately was played for the jury.
Sosa’s employer, his employer’s wife and a coworker testified they had spent time
with Sosa and his family. They believed Sosa was honest and had never seen him act
inappropriately. Sosa’s daughter Kristen testified he had never touch her inappropriately
and she thought he was a “really good dad.”
2. The Jury Instructions
a. CSAAS
Prior to Dr. Bernfeld’s testimony the court instructed the jury with a modified
version of CALCRIM No. 1193: “You will hear testimony from Dr. Bernfeld regarding
. . . child sexual abuse accommodation syndrome. Dr. Bernfeld’s testimony about child
2 Sosa testified he had awakened on at least one occasion and suddenly realized his
arms were completely wrapped around H.A.
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sexual abuse accommodation syndrome is not evidence that the defendant committed any
of the crimes charged against him. You may consider this evidence only in deciding
whether or not [S.A. or H.A.’s] conduct was not inconsistent with the conduct of
someone who has been molested and in evaluating the believability of their testimony.”
Following the close of the evidence the jury was again instructed with a modified
version of CALCRIM No. 1193: “You have [heard] the testimony of Jayme
Bernfeld, Ph.D., regarding child sexual abuse accommodation syndrome. As I indicated
earlier, Dr. Bernfeld’s testimony about child sexual abuse accommodation syndrome was
permitted for a limited purpose, and it is not evidence that the defendant committed any
of the crimes charged against him. You may consider this evidence only in deciding
whether or not [S.A. or H.A.’s] conduct was not inconsistent with the conduct of
someone who has been molested and in evaluating the believability of their testimony.”
b. Adoptive and party admissions
The trial court indicated it intended to instruct the jury with CALCRIM No. 357
on adoptive admissions. Defense counsel objected, arguing the instruction was
inapplicable because there was no evidence of any out-of-court accusatory statements
Sosa had not denied. The court overruled the objection, explaining, “The jurors will be
instructed in the first instruction that it’s up to them to decide what instructions apply to
the case, and they’ll be reminded, of course, just because the court gives an instruction,
the court is not communicating anything regarding the facts. They will apply the
instructions to the facts as they find them.”
The jury was instructed with CALCRIM No. 357: “If you conclude that someone
made a statement outside of court that accused the defendant of the crime or tended to
connect the defendant with the commission of the crime and the defendant did not deny
it, you must decide whether or not each of the following is true: [¶] One, the statement
was made to the defendant or made in his presence. [¶] Two, the defendant heard and
understood the statement. [¶] Three, the defendant would, under all the circumstances,
naturally have denied the statement if he thought it was not true. [¶] And four, the
defendant could have denied it but did not. [¶] If you decide that all of these
8
requirements have been met, you may conclude that the defendant admitted the statement
was true. If you decide that any of these requirements has not been met, you must not
consider either the statement or the defendant’s response for any purpose.”
The jury was also instructed with CALCRIM No. 388: “You have heard evidence
that the defendant made oral or written statements before the trial. You must decide
whether the defendant made any of these statements, in whole or in part. If you decide
that the defendant made such statements, consider the statements, along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to
give the statements. [¶] Consider with caution any statement made by the defendant
tending to show his guilt unless the statement was written or otherwise recorded.”
3. The Jury’s Verdict and Sentencing
The jury found Sosa guilt of two counts of continuous sexual abuse of a child
under the age of 14 years and one count of committing a lewd act on a child under the
age of 14 years and found true the special circumstance of multiple victims. The court
sentenced Sosa to a state prison term of 32 years to life consisting of 15 years to life for
the continuous sexual abuse of H.A., plus a consecutive term of 15 years to life for the
continuous sexual abuse of S.A., plus two years (one-third the middle term) for
committing a lewd and lascivious act on S.A. In deciding to impose the sentences
consecutively, the court explained S.A. and H.A., “who were both at different times
under the age of 10 when the crimes began,” were “young” and “particularly vulnerable”
and that Sosa had taken “advantage of a position of trust and confidence as the father
figure of these two young girls.” The court also found the crimes were carried out in a
manner “which might indicate . . . planning and sophistication.” The court imposed
various fines and assessments.
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DISCUSSION
1. The Trial Court Properly Admitted Expert Testimony About CSAAS and
Correctly Instructed the Jury
a. Admission of the testimony
Expert testimony about CSAAS is properly admitted to describe and explain
common reactions of children to molestation. (People v. Bowker (1988) 203 Cal. App. 3d
385, 394.) Although it is predicated on the assumption sexual abuse has taken place, it is
inadmissible to prove a molestation has in fact occurred. (See ibid.; People v. Patino
(1994) 26 Cal. App. 4th 1737, 1744 (Patino) [“[i]t is unusual evidence in that it is expert
testimony designed to explain the state of mind of a complaining witness”].) Rather, it is
“admissible for the limited purpose of disabusing a jury of misconceptions it might hold
about how a child reacts to molestation.” (Patino, at p. 1744.) “For instance, where a
child delays a significant period of time before reporting an incident or pattern of abuse,
an expert could testify that such delayed reporting is not inconsistent with the secretive
environment often created by an abuse who occupies a position of trust.” (Bowker, at p.
394.)
Sosa contends the trial court abused its discretion in admitting Dr. Bernfeld’s
testimony about CSAAS because he did not challenge H.A. or S.A.’s credibility or put at
issue any delay in reporting the abuse. To be sure, many cases approve the use of
CSAAS expert testimony “to rehabilitate [a] witness’s credibility when the defendant
suggests that the child’s conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.” (People v. McAlpin (1991)
53 Cal. 3d 1289, 1300; accord, People v. Perez (2010) 182 Cal. App. 4th 231, 245.) But
permissible use of such testimony is not limited to rebutting a direct, specific challenge to
one of the model’s elements—secrecy, helplessness, accommodation, delayed disclosure
and retraction. “If it were a requirement of admissibility for the defense to identify and
focus on the paradoxical behavior, the defense would simply wait until closing argument
before accentuating the jurors’ misconceptions regarding the behavior. To eliminate the
potential for such results, the prosecution should be permitted to introduce properly
10
limited credibility evidence if the issue of a specific misconception is suggested by the
evidence.” (Patino, supra, 26 Cal.App.4th at p. 1745.)
As in Patino, in the instant case “[i]t would be natural for the jury to wonder why
the molestation was not immediately reported if it had really occurred” or why H.A.
would repeatedly return to Sosa and T.S.’s bed for several years if she was being
molested. (Patino, supra, 26 Cal.App.4th at p. 1745.) Moreover, contrary to Sosa’s
contention, he did challenge S.A. and H.A.’s credibility beyond that implicit in denying
he had inappropriately touched them. (See ibid. [“testimony is pertinent and admissible
if an issue has been raised as to the victim’s credibility”].) For example, Sosa’s counsel
asked S.A. about other conduct engaged in by Sosa that S.A. had promptly complained
about to her mother—Sosa would slap S.A. on the buttocks when she walked by or come
into the bathroom when she was in the shower. Sosa’s counsel did not ask why S.A. had
complained about that objectionable conduct and not the alleged molestation, but the
implied challenge to her credibility was clear. In a similar line of questioning of H.A.
during re-cross examination, defense counsel asked:
“Q: When he did stuff you didn’t like, did you ever tell him you didn’t like it?
“A: What do you mean?
[¶] . . . [¶]
“Q: [D]id he ever tickle you when you’d tell him to stop?
“A: Yeah.
“Q: [T]he first time that you were ever[] touched that you felt it was inappropriate
and made you feel uncomfortable, did you say anything to him like, ‘Knock it off. What
the heck are you doing?’
“A: No, because it was not the same as tickling. There was a very big difference.
“Q: And you didn’t feel you could tell him to knock it off?
“A: No, because—
11
3
“[Sosa’s Counsel]: I have no further questions.”
Sosa argues H.A. and S.A.’s testimony explaining their reluctance to report the
abuse was so concise and reasonable that there was no need for expert testimony to
explain the delay. The fact a lay witness may be articulate and persuasive explaining his
or her own personal experience is not a ground for excluding expert testimony related to
that subject if it “is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Sosa cites no evidence the
public has become so well informed about child molestation that expert testimony about
CSAAS is no longer necessary.
b. The jury instruction
Sosa contends it was error to instruct the jury it could consider Dr. Bernfeld’s
testimony in evaluating the credibility of H.A. and S.A.’s testimony. He argues the jury
should have only been instructed it could consider that testimony in deciding whether
H.A. or S.A.’s conduct was consistent with the conduct of someone who has been
molested. Sosa argues the “believability” language in modified CALCRIM No. 1193, as
given in this case, invited the jury to consider CSAAS testimony as evidence that he had
committed the charged crimes—an impermissible use that is also in conflict with the
preceding sentence in the instruction that the testimony is “not evidence that the
defendant committed” any of the charged crimes. (See People v. Housley (1992)
6 Cal. App. 4th 947, 958 [expert testimony on CSAAS “may be unusually susceptible of
being misunderstood and misapplied by a jury, perhaps because the expert is commonly
asked to offer an opinion on whether the victim’s behavior was typical of abuse victims,
an issue closely related to the ultimate question of whether abuse actually occurred”];
People v. Bowker, supra, 203 Cal.App.3d at p. 394 [“[b]eyond the tailoring of the
evidence itself, the jury must be instructed simply and directly that the expert’s testimony
3 Notwithstanding counsel’s attempt to cut off H.A.’s answer, the court instructed
her to complete it. H.A. explained, “Because it was just like a different kind of feeling.
It wasn’t—like it wasn’t normal.”
12
is not intended and should not be used to determine whether the victim’s molestation
claim is true”].)
4
Sosa’s argument is wholly without merit. As discussed, CSAAS testimony is
admissible if an issue is raised as to the victim’s credibility, as Sosa did in the instant
case. Consistent with this limited admissibility, CALCRIM No. 1193 instructs the jury it
may use the evidence to assesses the “believability”—that is, the credibility—of the
witness. The danger the jury might misconstrue CSAAS testimony as “corroboration for
the victim’s claims” described by the Housley court is minimized by “impos[ing] upon
the courts a duty to render a sua sponte instruction limiting the use of such evidence”
including an admonition the testimony is not evidence the defendant committed the
charged crimes. (People v. Housley, supra, 6 Cal.App.4th at p. 959; People v. Bowker,
supra, 203 Cal.App.3d at p. 394.) There is simply no reasonable likelihood the jury
misunderstood the instruction and interpreted the expert testimony as indicating the
charged abuse had actually occurred.
2. The Trial Court Properly Instructed the Jury on Adoptive Admissions
A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal. 4th 686, 745), that is, “‘“‘those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004)
32 Cal. 4th 73, 115.) However, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal. 4th 1116, 1129.) “In assessing a claim of instructional error, ‘we must view
a challenged portion “in the context of the instructions as a whole and the trial record” to
4 We review claims of instructional error de novo to determine whether the
instruction accurately stated the law. (People v. Cole (2004) 33 Cal. 4th 1158, 1210;
People v. Alvarez (1996) 14 Cal. 4th 155, 217-218.) When the instruction is challenged as
ambiguous and subject to an erroneous interpretation by the jury, we examine the record
to determine whether there is a reasonable likelihood the jury understood the instruction
in the manner asserted by the defendant. (People v. Cross (2008) 45 Cal. 4th 58, 67-68;
People v. Clair (1992) 2 Cal. 4th 629, 663.)
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determine “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski
(2006) 37 Cal. 4th 774, 831; see Guiton, at p. 1130 [error in giving instruction that has no
application to facts reviewed under harmless error standard in People v. Watson (1956)
46 Cal. 2d 818].) Sosa contends the evidence did not support giving the instruction on
adoptive admissions because there was no clear indication which out-of-court accusatory
statements he purportedly adopted by failing to deny them.
Generally, “[a] statement by someone other than the defendant is admissible as an
adoptive admission if the defendant ‘with knowledge of the content thereof, has by words
or other conduct manifested his adoption [of] or his belief in its truth.’ [Citations.] [¶]
In determining whether a statement is admissible as an adoptive admission, a trial court
must first decide whether there is evidence sufficient to sustain a finding that: (a) the
defendant heard and understood the statement under circumstances that normally would
call for a response; and (b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis (2005) 36 Cal. 4th 510, 535.)
Most of Sosa’s incriminating text messages are more aptly characterized as party
admissions, rather than adoptive admissions, admissible under Evidence Code
section 1220. They were direct statements by Sosa that he was ashamed, had made a
huge mistake and scarred the family deeply and was the one who should be punished. As
discussed, the jury was properly instructed with CALCRIM No. 388 regarding the use of
those statements. At least one text message, however, presented “sufficient evidence of
an adoptive admission”; thus, whether Sosa’s “conduct actually constituted an adoptive
admission [became] a question for the jury to decide.” (People v. Edelbacher (1989)
47 Cal. 3d 983, 1011.) After a conversation between T.S. and Kristen, T.S. texted Sosa,
“Why are you allowing your family to blame me, [Kristen’s mother], and our children?
You need to tell them what you did, Heath.” She immediately texted him again, “It
should come from you. They don’t need to hear this from somebody else.” Sosa
responded, “I know that, I really do. We just want to know how they are doing.” By
14
failing to deny he had done anything blameworthy, the jury reasonably could have found
Sosa adopted T.S.’s statement clearly implying he had molested H.A.
Even if we were to accept Sosa’s contention the instruction was not supported by
the evidence, however, there is no reasonable likelihood the jury applied it in a manner
that violated his rights. By its express terms CALCRIM No. 357 applied only if the jury
concluded Sosa had failed to deny an accusation of criminal misconduct made directly to
him or in his presence. If any of the requirements for an adoptive admission were not
satisfied, the jury was instructed not to consider the statement or Sosa’s response “for any
purpose.” In addition, the trial court instructed the jury, “[S]ome of these instructions
may not apply, depending on your finding about the facts of the case. Do not assume
that, just because I give a particular instruction, that I am suggesting anything at all about
the facts.” There is no reason to believe CALCRIM No. 357 had any impact on the
findings of guilt if the jury concluded the evidence did not support a finding of adoptive
admission. An instruction correctly stating a principle of law but not applicable to the
facts of the case is usually harmless, having little or no effect “other than to add to the
bulk of the charge.” (People v. Sanchez (1947) 30 Cal. 2d 560, 573.)
3. There Was No Prosecutorial Misconduct
“‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution only when it comprises a pattern of conduct so “egregious that it infects the
trial with such unfairness as to make the conviction a denial of due process.”’”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.”’”’” (People v. Navarette (2003) 30 Cal. 4th 458, 506; accord, People v. Morales
(2001) 25 Cal. 4th 34, 44.)
15
Sosa contends the prosecutor committed misconduct because she stated several
5
times during closing argument S.A., H.A. and other witnesses were telling the truth. For
example, when arguing it was not reasonable H.A. and S.A. were mistaken about the
abuse, the prosecutor described all of the adverse consequences the girls had experienced
as a result of the accusations and said, “Why? Because they finally had to come to terms
with the truth, the awful truth of what the defendant had been doing to them, and they
couldn’t lie any longer.” After explaining the testimony of a single witness was
sufficient to prove a fact, the prosecutor said, “And I submit to you ladies and gentleman,
that those little girls, S.A. and H.A., sat up there and told to you, in explicit detail what
the defendant did to them. And there has been no evidence presented of why they would
do it for any reason other than it was the horrible truth.” When discussing S.A.’s
disclosure of the abuse to her boyfriend, the prosecutor argued, “Her crying when he
confronted her, ‘He did it to you, too, didn’t he?’ Her crying and breaking down was all
the answer that [the boyfriend] needed. He knew the truth.”
“A ‘prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office
behind a witness by offering the impression that she has taken steps to assure a witness’s
truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding
the apparent honesty or reliability of prosecution witnesses are based on the “facts of
[the] record and the inferences reasonably drawn therefrom, rather than any purported
personal knowledge or belief,” her comments cannot be characterized as improper
5 Sosa’s counsel did not object to the prosecutor’s allegedly improper comments,
nor did he request an admonition or curative instruction. Accordingly, this argument is
forfeited on appeal. (People v. Jones (2003) 29 Cal. 4th 1229, 1262.) Moreover, contrary
to Sosa’s assertion, the purported misconduct was not so egregious that a timely objection
would have been futile or ineffective to cure any purported harm. (People v. Dykes
(2009) 46 Cal. 4th 731, 757.) We nonetheless consider and reject Sosa’s claim on the
merits because, as an alternative to his claim of prosecutorial misconduct, Sosa urges us
to hold his counsel’s failure to object to the prosecutor’s statements constituted
ineffective assistance of counsel.
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vouching.’ [Citations.] Misconduct arises only if, in arguing the veracity of a witness,
the prosecutor implies she has evidence about which the jury is unaware.” (People v.
Fernandez (2013) 216 Cal. App. 4th 540, 561; see People v. Linton (2013) 56 Cal. 4th
1146, 1207 [“Impermissible vouching occurs when ‘prosecutors [seek] to bolster their
case “by invoking their personal prestige, reputation, or depth of experience, or the
prestige or reputation of their office, in support of it.” [Citation.] Similarly, it is
misconduct “to suggest that evidence available to the government, but not before the jury,
corroborates the testimony of a witness.”’”].)
In the instant case the prosecutor did not invoke the reputation of the District
Attorney’s office, or her own prestige, to bolster the credibility of the witnesses or
suggest she knew they were truthful based on evidence outside of the record. The
prosecutor was merely arguing the evidence supported the inference the witnesses were
telling the truth. Indeed, even Sosa testified he knew H.A. was an honest child and did
not know why either girl would lie. The prosecutor’s argument fell well within the
permissible range of “comment[s] upon the credibility of witnesses based on facts
contained in the record, and any reasonable inference that may be drawn from them . . . .”
(People v. Martinez (2010) 47 Cal. 4th 911, 958.)
4. The Sentence Does Not Violate California’s Prohibition Against Cruel or
Unusual Punishment
To prevail on his claim his sentence constitutes cruel or unusual punishment in
violation of the California Constitution, Sosa must overcome a “considerable burden”
(People v. Wingo (1975) 14 Cal. 3d 169, 174) by demonstrating the punishment is so
disproportionate to the crime for which it was imposed it “shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal. 3d 410, 424;
see People v. Dillon (1983) 34 Cal. 3d 441, 478.) The Lynch Court identified three
factors for the reviewing court to consider in assessing this constitutional claim: (1) the
nature of the offense and the offender; (2) how the punishment compares with
punishments for more serious crimes in the jurisdiction; and (3) how the punishment
compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-
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427.) “Successful challenges” to a sentence as cruel or unusual punishment under
California law “are extremely rare.” (People v. Perez (2013) 214 Cal. App. 4th 49, 60
[finding constitutional 30-year-to-life sentence for 16-year old convicted of one count of
sexual penetration with a foreign object of nine-year-old and one count of committing
forcible lewd act on eight-year-old during single event].)
Sosa contends the 30-year-to-life portion of his sentence is cruel or unusual
6
punishment because the sexual abuse of H.A. and S.A. was “at the mild end of cases.”
Sosa argues there was no intercourse or oral copulation, but “gentle touching of the
breasts and vaginal area” and only S.A. reported vaginal penetration; even then, there was
no evidence of the infliction of any injury or pain. He further argues prior to these
incidents he showed no proclivity toward sexual abuse of any nature, was a hard working
man who always supported his family, the family spent happy times together and a
psychiatric report found him to be a suitable candidate for probation with a low range of
risk of sexual and violent recidivism.
Whether “gentle” or not, Sosa sexually abused S.A. and H.A. on repeated
occasions over the course of three years each. He began abusing each child when she
was 10 years old. Moreover, contrary to Sosa’s contention, there was evidence of pain:
S.A. testified half the time Sosa abused her included vaginal penetration, which hurt. The
damage to this family was undeniable. A happy family in which Sosa was loved as a
father prior to the incidents was destroyed; S.A. became so depressed she began taking
antidepressants in high school, and H.A. had to be enrolled in an independent study
program because she was having such a difficult time in high school. As S.A. had feared,
H.A. became angry with her when she found out S.A. had been abused but failed to say
anything; and the two girls became estranged for some time. The extended duration of
Sosa’s unlawful conduct and the profound legacy of pain and destruction his actions
caused amply justify his sentence.
6 Sosa does not challenge the calculation of his sentence or the imposition of
consecutive terms on any ground other than the constitutional prohibition of cruel or
unusual punishment.
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5. The Domestic Violence Fund Fine Must Be Stricken and the Matter Remanded
for Determination of Applicable Assessments
During sentencing the court ordered Sosa to pay a domestic violence fund fine of
$200 pursuant to Penal Code section 1203.097, a restitution fine of $250, a parole
revocation fine of $250 (stayed), a “sex offender fine of $300 pursuant to [Penal Code
section] 290.3, plus penalty assessments” and “a criminal conviction facilities assessment
fee as to each count.” The minute order from the May 11, 2011 sentencing hearing
reflected an undefined fine of $250, a restitution fine of $250, a parole restitution
[revocation] fine in the same amount (stayed), a state penalty fund assessment of $600, a
$400 domestic violence fund fine, and separate $30 criminal conviction assessments and
$40 court operations assessments for each of the three convictions on which Sosa was
convicted. A $300 sex offender fine was added nunc pro tunc by minute order dated May
16, 2011. The abstract of judgment recorded that Sosa was to pay a $400 domestic
violence fund fine and does not accurately reflect the other fines, fees and penalties
assessed by the court.
Sosa argues, the People concede, and we agree, the domestic violence fund fine
(whether $200 or $400) must be stricken because it is applicable only to defendants
placed on probation. (Pen. Code, § 1203.97, subd. (a).) Sosa was properly denied
probation and sentenced to prison; the fine is thus improper.
Sosa further argues the other fines, penalties and assessments ordered by the court
are not sufficiently identified so their propriety may be evaluated. The People agree a
remand is necessary for the court to designate the source of the $250 fine and to specify
the amount and statutory basis of each fine and assessment. Accordingly, we remand the
matter to the trial court to fulfill its obligation to clearly set forth all fines, penalties and
fees in its minute order and to correct the abstract of judgment to accurately reflect that
order. (See People v. High (2004) 119 Cal. App. 4th 1192, 1200.) With the exception of
the domestic violence fund fine, which is stricken, Sosa will have the opportunity at that
time to argue about the propriety of the various fines and assessments.
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DISPOSTION
The judgment is affirmed except as to the imposition of fine, penalties, fees and
assessments, as to which the matter is remanded for further proceedings not inconsistent
with this opinion.
PERLUSS, P. J.
We concur:
WOODS, J.
SEGAL, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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