P. v. Zamora CA4/3

Filed 8/5/13 P. v. Zamora CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G046664
v. (Super. Ct. No. 09NF2399)
JUAN ANTONIO ZAMORA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
Juan Antonio Zamora appeals from a judgment after a jury convicted him
of four counts of committing a lewd act on a child under the age of 14 years and three
counts of sexual penetration with a child 10 years of age or younger. Zamora argues:
(1) insufficient evidence supports a finding of sexual penetration; (2) the trial court erred
in admitting portions of the investigating detective‟s testimony; (3) the court failed to
instruct the jury sua sponte on child sexual abuse accommodation syndrome (CSAAS);
(4) the court erred in instructing the jury on unanimity; (5) he received ineffective
assistance of counsel; and (6) there was cumulative error. We agree the court erred in
admitting one portion of the detective‟s testimony but conclude Zamora was not
prejudiced. None of his other contentions have merit, and we affirm the judgment.
FACTS
In 2008, four-year-old N.B. left Mexico and arrived in Santa Ana to live
with her mother (Mother). Mother and Zamora, who met while working at El Pollo
Loco, had been dating for two years. Mother and Zamora would often sleep at each
other‟s residence, and when they did, Mother, N.B., and Zamora would share the same
bed. During the first half of 2009, when N.B.‟s mother worked, Zamora would babysit
N.B.
One summer afternoon in 2009, five-year-old N.B. and her mother, who
were both clothed, were asleep on top of the covers of Zamora‟s bed while Zamora took a
shower. When Zamora finished his shower, he woke up Mother by leaning on her and
kissing her, but Mother was tired and closed her eyes. When Mother opened her eyes,
she saw Zamora use his hands to spread N.B.‟s legs. Zamora put his hand through one of
the leg holes of N.B.‟s shorts and rubbed her pubic area. Mother stood up and sobbingly
asked Zamora what he was doing. Zamora told her to be quiet and that she did not see
2
anything. Mother and N.B. left. Mother first took N.B. to the doctor and a few days later
to the La Habra Police Station, where she told an officer what had occurred. 1
A couple weeks later, social worker Maria Ochoa went to Mother‟s
residence and spoke with N.B. alone. Using a drawing, N.B. defined the body parts as
follows: breasts = “chichis”; vagina = “cositas” and “parte”; and buttocks = “pompis”.
N.B. initially denied anyone touched her inappropriately. She eventually disclosed
Zamora had touched her cositas. She stated Zamora used his finger to touch her cositas
and put his finger inside her cositas. Ochoa explained N.B. used the word “adentro,”
literally translated as “inside.” When Ochoa asked N.B. how many times Zamora had put
his finger inside her vagina, N.B. answered, “Many times.” Ochoa said she ended the
interview as required by protocol and arranged a interview with the Child Abuse Services
Team (CAST).
Two weeks later, Mother spoke with Detective Dean Capelletti. She
showed Capelletti her cellular telephone and text messages Zamora had sent to her;
Capelletti took photographs of the text messages. They read as follows: (1) “„I can‟t
stop thinking about you guys. Not one minute. Every day.‟”; (2) “„I‟d ask you for
forgiveness all my life if you would return to me[.]‟”; (3) “„Did you throw my stuff away
in the garbage?‟”; and (4) “ „I feel like I‟m dying little one.‟” After each of those text
messages, Zamora included the emoticon, “”. Mother told Capelletti what she had
observed Zamora doing to N.B.
1 The officer was unavailable to testify, and this evidence was introduced by
way of a stipulation.
3
Mother made a covert telephone call to Zamora while Capelletti listened.2
The following week, social worker Adrianna Ball of the Child Abuse Services Team
(CAST) interviewed five-year-old N.B.3 Capelletti and a prosecutor observed the
interview from behind a one-way mirror. Ball showed N.B. a drawing of a girl. Based
on the picture, N.B. again referred to breasts as “chichis”, the pubic region as “cosita”,
and buttocks as “pompis”. N.B. told Ball she came from Mexico when she was four
years old and Zamora began touching her three to five months after she arrived. N.B.
explained Zamora touched her “little part” with his hand on the outside and the inside
more than 10 times and that it hurt. Ball responded, “Outside and inside? Okay, . . .
okay.” She said Zamora told her that if she resisted or told anyone, he would abandon
her on the street. N.B. said Zamora touched her while they were in Zamora‟s bedroom, at
her house, and in the garage at her house.
The same day, Dr. Van Nguyen Greco, a member of the CAST medical
unit, examined N.B. Based on her observation of the CAST interview, Greco understood
N.B. complained she had been digitally penetrated in her vagina and she experienced
pain. Greco‟s examination of N.B. revealed no signs of injuries,4 which could be
explained by the fact there was no injury, the lapse of time, or the elasticity of the hymen.
2 Based on our review of the record, it appears just a small portion of that
recording was played for the jury, about the first 10 pages of the 93-page transcript.
However, neither the compact disc nor the interview transcript were admitted into
evidence. As we explain below, however, Capelletti testified regarding various
statements Zamora made during the covert telephone call.
3 A DVD of the interview was played for the jury. The prosecutor‟s exhibit
No. 12A was transmitted to this court for our review. The interview was conducted in
Spanish.
4 Greco testified 96 percent of child sexual abuse cases have normal findings.
4
Greco could not confirm nor deny N.B. had been sexually abused, and her assessment
was consistent with N.B.‟s history of what transpired.
The following day, Capelletti interviewed Zamora.5 Capelletti advised
Zamora of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. When
Capelletti finally confronted Zamora with N.B.‟s accusations, Zamora eventually
admitted he was attracted to N.B. and felt ashamed, but he did not know where to go for
help. Zamora could not remember the first time he touched N.B., but he did feel guilty.
He admitted anything she wore aroused him and she “provoked” him. Zamora admitted
he touched N.B. more than five times but not more than 10 times. Zamora admitted he
touched her pubic region on the skin with his hand, but he denied he put his finger inside
her vagina. Zamora said he continued touching N.B. because she said it felt good and she
liked it. He denied threatening her.
Capelletti and another detective interviewed N.B. N.B. stated Zamora
touched her pubic region but denied he put his finger inside her vagina.
An amended information charged Zamora with four counts of committing a
lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a))6 (counts 1, 3,
5, and 7), and three counts of sexual penetration with a child 10 years of age or younger
(§ 288.7, subd. (b)) (counts 2, 4, and 6).
At trial, eight-year-old N.B. testified for the prosecution. When the
prosecutor inquired, N.B. agreed she referred to her breasts as “chichis”, buttocks as
“pompis”, and pubic region as “cosita”. N.B. testified Zamora used his hand and fingers
to touch her “front part” “many times” both at her house and Zamora‟s house. When the
prosecutor asked N.B. whether Zamora “touch[ed] the part where [she] would go pee[,]”
5 A DVD of the interview was played for the jury.
6 All further statutory references are to the Penal Code, unless otherwise
indicated.
5
N.B. replied, “Yes.” She said it hurt her. Near the end of direct examination, the
following colloquy occurred:
“[Prosecutor]: Would his hand be on your private part for a little while?
“[N.B.]: Yes.
“[Prosecutor]: And would it hurt while it was on your private part?”
“[N.B.]: Yes.
“[Prosecutor]: And was the part that hurt the part that you go pee?
“[N.B.]: Yes.”
Capelletti testified concerning the contents of the covert telephone call. He
stated that during the approximately 40-minute conversation, Zamora did not deny
Mother‟s accusations. Capelletti said Zamora stated he was “sick” and “he couldn‟t
control himself and that he needed help, but he didn‟t know where to get it.” Capelletti
stated Zamora repeatedly claimed he could not explain his conduct. He said Zamora
denied doing similar things on other occasions.
Capelletti testified he observed N.B.‟s CAST interview from behind a
one-way mirror and he took notes during the interview. The following colloquy
occurred:
“[Prosecutor]: Do you recall when you wrote your report regarding the
details of your observations from the CAST interview?
“[Capelletti]: I‟m sorry?
“[Prosecutor]: When did you write your report about the CAST interview?
“[Capelletti]: I believe I wrote it the next day.
“[Prosecutor]: And in writing your report, did you listen to the CAST
interview again or did you use your notes or did you have a clear memory as to the
central issues?
“[Capelletti]: I used my memory with some notes.
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“[Prosecutor]: And in your documentation of the CAST interview, did you
document [N.B.] stating Zamora‟s finger had penetrated her vagina on several occasions
causing pain?
“[Defense counsel]: I have an objection. Directly contradicts the court‟s
ruling yesterday. I guess it would be discovery.
“The court: [Prosecutor], when you say in your documentation, referring to
[Capelletti‟s] notes of the interview?
“[Prosecutor]: I‟m referring to [Capelletti‟s] police report page 28 of
People‟s discovery. I‟m sorry. If my phraseology in my last question was confusing, I
can re-ask it with that specific --
“The court: All right. You can ask again.
“[Prosecutor]: . . . Capelletti, in your written report of the CAST interview,
did you specifically document „[N.B.] said that Zamora‟s fingers had penetrated her
vagina on several occasions causing pain‟?
“[Defense counsel]: Objection. Also calls for an improper opinion, an
ultimate decision of fact -- I‟m sorry, a [sic] ultimate conclusion of law.
“The court: Overruled on those grounds. [¶] You may answer.
“[Capelletti]: I‟m sorry. You are asking if that‟s what I put in my report?
“[Prosecutor]: Yes.
“[Capelletti]: Yes.
“[Prosecutor]: And in fact, that‟s exactly what you put.
“[Capelletti]: Yes.
“[Prosecutor]: And is that because that was your memory and your
impression from the interview?
“[Capelletti]: Yes.
“[Prosecutor]: Did you also document in your report „[N.B.] stating that
her vagina had been touched more than [10] times‟?
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“[Defense counsel]: Same objection. In addition, leading.
“[Capelletti]: Sustained as to leading.
“[Prosecutor]: In your report did you document how many times [N.B.]
stated she had been touched?
“[Defense counsel]: Same objection.
“The court: Can you state the objection again, counsel?
“[Defense counsel]: Objection is discovery and --
“The court: Overruled on those grounds.
“[Defense counsel]: -- And al- --
“The court: What else?
“[Defense counsel]: Violation of the court‟s order yesterday with regard to
the transcripts.
“The court: Overruled. [¶] You may answer.
“[Capelletti]: Yes.
“[Prosecutor]: Did you also document in your police report [N.B.‟s]
statement that it had happened at both Zamora‟s residence in his bedroom and also at her
residence . . . [Mother‟s] house?
“[Defense counsel]: Same objection. Hearsay, leading.
“The court: Sustained as to leading.”
After the prosecutor played the DVD of Capelletti‟s interview with Zamora
for the jury, the prosecutor continued his direct examination of Capelletti questioning him
about his interview strategies and his ultimate goal to obtain the truth.
The following colloquy occurred:
“[Prosecutor]: Your goal is to gather as much information as possible?
“[Capelletti]: Yeah. I just want the truth.
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“[Prosecutor]: And at the -- at the end of your conversation with . . .
Zamora, you said words to the extent that you hope that you have been successful in
treating him like a man. Do you recall making that statement?
“[Capelletti]: Yes.
“[Prosecutor]: And then making the statement that he treated you like a
man.
“[Capelletti]: Correct.
“[Prosecutor]: And I think you made [the] comment that there are some
people that could come in and lie to your face and that you didn‟t view . . . Zamora as
having done that.
“[Capelletti]: Correct.
“[Prosecutor]: Does that mean that you think . . . Zamora was completely
honest with you during the interview?
“[Defense counsel]: Objection. Calls for speculation, relevance.
“The court: Overruled.
“[Defense counsel]: Leading.
“The court: Overruled.
“[Capelletti]: I think -- I mean, I think he was as honest as could be. Do I
think there may be maybe some stuff he didn‟t tell me, I don‟t think it‟s been my
experience that there‟s never been anyone who has been 100 percent completely honest.
There are things that people keep close to the vest that they are too embarrassed to talk
about regardless of how comfortable I make them feel.”
Ochoa testified regarding her interview with N.B. as described above,
including that Zamora put his finger inside N.B.‟s vagina. On cross-examination, Ochoa
conceded she did not write in her report that N.B. said Zamora put his finger inside her
“cosita.” Ochoa also admitted she did not write in her report N.B. use the word “adentro”
to describe what Zamora did with his finger. On redirect examination, the prosecutor
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asked, “And what you wrote in your report was that [N.B.] stated that [Zamora] touched
her cosita referring to her vaginal area and that [N.B.] disclosed that [Zamora] had
touched her with his hands making skin-to-skin contact and digitally penetrating her
vagina?” Ochoa replied, “Yes.” The prosecutor asked Ochoa whether that is what N.B.
explained happened, and Ochoa again responded, “Yes.”
After both sides rested, the trial court and counsel discussed jury
instructions generally and specifically which unanimity instruction was proper. The
prosecutor stated that after reviewing CALCRIM Nos. 3500 and 3501‟s use notes, the
prosecutor believed the court should instruct the jury with CALCRIM No. 3501.
Defense counsel responded that he was in agreement with the trial judge that
CALCRIM No. 3500 was the proper instruction. After the court and the prosecutor
discussed the relevant use notes, the prosecutor maintained CALCRIM No. 3501 should
be given. Defense counsel repeated the court should instruct the jury with
CALCRIM No. 3500. The court stated: “Okay. Well, I have to concede that the drafters
of CALCRIM and their selection of use notes have succeeded in baffling me. I‟m of the
view that [CALCRIM No.] 3501 is an instruction that would appear, based on my reading
of the instruction as well as the use notes, that if it‟s a situation where it‟s a continuous
course of touching or continuous course of intercourse, where what appears to be in
dispute is how many times it happened and over what period. As best I read the
instruction, [CALCRIM No.] 3500 would apply to that scenario. As best I can read the
use notes it appears to the court that when there is not only a dispute as to the number of
times it occurred, but what occurred, that [CALCRIM No.] 3500 is the appropriate
instruction and that‟s the one I‟m going to give.”
During closing argument, defense counsel conceded Zamora was guilty of
counts 1, 3, 5, and 7. Counsel asserted what was in dispute were counts 2, 4, and 6, and
whether there was sexual penetration.
10
The jury convicted Zamora of all the offenses. After the trial court denied
Zamora‟s motion for new trial, the court sentenced him to 15 years to life on count 2 and
a consecutive term of six years on count 1 for a total prison term of 21 years. The court
imposed concurrent sentences on counts 4 and 6, and stayed the sentences on counts 3, 5,
and 7 pursuant to section 654.
DISCUSSION
I. Sufficiency of the Evidence-Penetration
Zamora argues there was insufficient evidence of penetration. Not so.
“The standard of review for a sufficiency of the evidence claim is well
established. We review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the
judgment the existence of every fact that could reasonably be deduced from the evidence.
[Citation.] We ask whether, after viewing the evidence in the light most favorable to the
judgment, any rational trier of fact could have found the allegations to be true beyond a
reasonable doubt. [Citation.] Unless it is clearly demonstrated that „upon no hypothesis
whatever is there sufficient substantial evidence to support [the verdict of the jury],‟ we
will not reverse. [Citation.]” (People v. Huynh (2012) 212 Cal.App.4th 285, 304.)
Section 289, subdivision (k)(1), states, “„Sexual penetration‟ is the act of
causing the penetration, however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant‟s or another person‟s genital or anal
opening for the purpose of sexual arousal, gratification, or abuse by any foreign object,
substance, instrument, or device, or by any unknown object.” A finger is a foreign
object. (§ 289, subd. (k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717.)
11
It is well established under the law that penetration, however slight, “„of the
[victim‟s] external genital organs is sufficient to constitute sexual penetration and to
complete the crime of rape even if the rapist does not thereafter succeed in penetrating
into the vagina.‟” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366 (Quintana),
quoting People v. Karsai (1982) 131 Cal.App.3d 224, 232 [penetration of external genital
organs such as labia majora and labia minora sufficient], overruled on other grounds in
People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) Thus, penetration of no more than the
lips of the vagina is sufficient to constitute rape. (People v. Esposti (1947)
82 Cal.App.2d 76, 78.) Penetration may be proved by circumstantial evidence. (People
v. Minkowski (1962) 204 Cal.App.2d 832, 837.)
Here, Zamora does not dispute that he touched N.B. inappropriately. The
only issue is whether he sexually penetrated her. Based on the entire record before us, we
conclude there was sufficient evidence for the jury to reasonably conclude sexual
penetration occurred. Ochoa, the social worker who first interviewed N.B., testified N.B.
told her that Zamora put his finger “adentro” her “cositas” many times. Evidence
established adentro means inside and cosita means vagina. The jury watched a DVD of
N.B.‟s interview with CAST social worker Ball. N.B. told Ball that Zamora touched her
cosita more than 10 times. Ball asked N.B., in Spanish, “But how? Look. If this is your
little part, . . . did he touch you outside of your little part, or inside where the peepee
comes out?” N.B. replied, “De afuera, o si donde *** adentro.” This is translated as,
“Outside, or yes, where *** inside.” This evidence was sufficient for the jury to
conclude sexual penetration occurred, i.e., that Zamora put his finger inside N.B.‟s
genital organs on numerous occasions.
Zamora attempts to undermine the jury‟s verdicts by highlighting the
alleged problems with Ochoa‟s and Ball‟s testimony, and the fact N.B. subsequently told
Capelletti that Zamora only touched the outside of her pubic area. Zamora complains
Ochoa‟s investigation was tainted from the outset because the report she received was
12
erroneous and Ochoa failed to record pertinent details in her report. Zamora also
complains that during the CAST interview, N.B.‟s statements Zamora sexually penetrated
her were too speculative and she likely misunderstood the terms “outside” and “inside” as
it relates to female genitalia. Finally, Zamora notes the evidence was in such a state of
equipoise that the prosecutor asked Capelletti to conduct a follow up interview, that
during the interview, N.B. stated Zamora touched the “outside” of her pubic area, and
there was no physical evidence confirming penetration.
We remind Zamora the resolution of conflicts and inconsistencies in
testimony, even those within the testimony of the same witness, are to be resolved by the
jury. (People v. Koontz (1959) 171 Cal.App.2d 633, 634.) Although N.B. did not tell the
male Capelletti that Zamora put his finger “adentro” her “cosita,” she did tell two female
social workers he did. And we do not find it convincing the six-year-old N.B. could not
state with precision that Zamora put his finger inside her as far as the hymen but not into
the vagina. Zamora‟s reliance on Quintana, supra, 89 Cal.App.4th 1362, where the
medical evidence established defendant‟s finger penetrated as far as the hymen, is
misplaced as that case does not establish insufficiency of the evidence here. The jury
heard evidence N.B. said Zamora put his finger inside her vagina multiple times and it
hurt. This was sufficient evidence to support Zamora‟s convictions for counts 2, 4, and 6.
II. Capelletti’s Testimony
Zamora contends the trial court erred in admitting two portions of
Capelletti‟s testimony. We will address each in turn.
A. Impugning Zamora’s Credibility
Zamora claims Capelletti‟s testimony concerning Zamora‟s honesty was
improper opinion testimony. The Attorney General responds Zamora forfeited appellate
review of this issue, and Capelletti was not offering his opinion. We conclude defense
counsel‟s objection Capelletti‟s opinion on Zamora‟s credibility was speculative
13
preserved this issue for appellate review. As we explain below, we conclude the trial
court erroneously admitted the testimony but Zamora was not prejudiced.
“„If a witness is not testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as is permitted by law, including but not limited to
an opinion that is: [¶] „(a) Rationally based on the perception of the witness; and
[¶] „(b) Helpful to a clear understanding of his testimony.‟ (Evid. Code, § 800.)
[¶] (4) „Lay opinion about the veracity of particular statements by another is inadmissible
on that issue. As the Court of Appeal recently explained [citation], the reasons are
several. With limited exception, the fact finder, not the witnesses, must draw the ultimate
inferences from the evidence. Qualified experts may express opinions on issues beyond
common understanding (Evid. Code, §§ 702, 801, 805), but lay views on veracity do not
meet the standards for admission of expert testimony. A lay witness is occasionally
permitted to express an ultimate opinion based on his perception, but only where “helpful
to a clear understanding of his testimony” [citations], i.e., where the concrete
observations on which the opinion is based cannot otherwise be conveyed. [Citations.]‟
[Citation.]” (People v. Smith (1989) 214 Cal.App.3d 904, 914-915.)
People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill), is instructive. In that
case, defendant was charged with committing a sexual offense against his niece. The
prosecutor asked one of the investigating officers whether he had formed an opinion as to
whether the victim was telling the truth, and what was that opinion. (Id. at p. 38.) The
officer testified that in his opinion, the victim was truthful, and explained that as a result
of his dealings with many children he could usually determine with a high degree of
accuracy whether their statements were true. The trial court overruled the defense‟s
objection to this testimony saying, “this officer has had . . . seven years of experience,
and has written . . . a thousand or more reports, . . . and I think [in] the course of that he
would be normally expected to judge whether a person, in his opinion, is telling the truth
or not.” (Ibid.) The court also allowed another police officer who had also interviewed
14
the victim to express an opinion the victim was telling the truth when she reported her
uncle had molested her. (Ibid.) The court held the veracity of those who report crimes to
the police is not a proper subject of expert testimony; and, even if it were, the fact the
officers had taken numerous reports during their careers would not qualify them as
experts in judging truthfulness. (Id. at p. 39.) The court held, “Both these officers were
able to describe their interviews with the girl in concrete detail and their opinions or
conclusions as to her truthfulness were not „helpful to a clear understanding of [their]
testimony.‟ [Citation.] [¶] We also conclude that this opinion testimony was
inadmissible because it was not relevant. [Citation.] . . . [¶] . . . [T]hese officers neither
knew the child, nor knew her reputation for truthfulness. [Citation.] Instead, their
conclusions that she was telling the truth were based on their own self-proclaimed
expertise in assessing victim veracity, but the record is devoid of any evidence to
establish their qualifications in this regard.” (Id. at p. 40.)
Here, contrary to the Attorney General‟s contention otherwise, the
prosecutor did seek Capelletti‟s opinion on Zamora‟s credibility, although not couched in
the typical form of question typically used to obtain an opinion. The prosecutor asked
Capelletti, “Does that mean that you think . . . Zamora was completely honest with you
during the interview?” The prosecutor certainly wished to elicit Capelletti‟s opinion on
whether Zamora was being honest during the interview, and the Attorney General‟s claim
the prosecutor “appears to have been aimed at allowing . . . Capelletti to explain that his
words to [Zamora] did not reflect a credibility assessment[]” is unpersuasive.
With respect to whether this was the proper subject of expert testimony, we
conclude it was not. Like in Sergill, there is nothing in the record to support the
conclusion Capelletti‟s experience investigating crimes and interviewing reporters of
crimes qualifies him as an expert in judging truthfulness, and a defendant‟s veracity is not
the proper subject of expert opinion. (Sergill, supra, 138 Cal.App.3d at p. 39; Evid.
Code, § 720, subd. (a).) As to whether this was the proper subject of lay opinion, again
15
we conclude it was not. Again like in Sergill, the record includes no evidence Capelletti
knew Zamora or knew his reputation for truthfulness. (Sergill, supra, 138 Cal.App.3d at
p. 40.) Capelletti‟s opinion Zamora had not been “100 percent completely honest[]” was
based on his experience but the record is void of any evidence establishing his expertise
in this matter.
Having concluded the trial court erred in admitting Capelletti‟s opinion
testimony as to Zamora‟s truthfulness, we must now examine the entire record to
determine whether it was reasonably probable Zamora would have received a better result
absent the erroneously admitted evidence. (Sergill, supra, 138 Cal.App.3d at p. 41.) We
conclude any error was harmless because as we explain above there was sufficient
evidence supporting the sexual penetration finding.
Although N.B. during trial and during her interview with Capelletti stated
Zamora touched the outside of her pubic area, she told two female social workers Zamora
put his finger insider her vagina more than 10 times and it hurt. Additionally, Capelletti‟s
improper opinion testimony was an exceedingly minor factor in the trial. The jury
watched a DVD of Capelletti‟s interview with Zamora and the trial court instructed the
jury they “alone must judge the credibility or believability of the witnesses.”
(CALCRIM No. 226, “Witnesses.”) Finally, Zamora‟s credibility was damaged beyond
repair. During his interview with Capelletti, Zamora admitted he touched five-year-old
N.B. and attempted to rationalize his conduct by stating she said it felt good and she liked
it. Thus, Zamora was not prejudiced by the admission of Capelletti‟s testimony Zamora
was not completely honest.
B. Vouching for N.B.’s Credibility
Zamora also claims Capelletti‟s testimony regarding what N.B. stated
during her CAST interview was improper because the prosecutor‟s questions were
leading and Capelletti‟s lay opinion testimony was hearsay, and alternatively his defense
counsel was ineffective because counsel did not object to the testimony on those grounds.
16
The Attorney General again argues Zamora forfeited appellate review of this issue
because he did not object on the proper grounds, and the prosecutor‟s questions were not
leading and a hearsay exception applied. We agree Zamora forfeited appellate review of
this issue because defense counsel did not object on the grounds the prosecutor was
leading Capelletti or his testimony was hearsay. (People v. Crandell (1988) 46 Cal.3d
833, 879, fn. 14 [objection must be timely and proper], overruled on other grounds in
People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Castaneda (1975)
52 Cal.App.3d 334, 339 [defense counsel failed to object on specific grounds raised on
appeal].) Instead, defense counsel objected on the grounds it was a discovery violation
and improper opinion on an ultimate conclusion of law. It was not until later in response
to other questions not concerning sexual penetration did defense counsel interject leading
and hearsay objections. Thus, Capelletti‟s claims the prosecutor‟s questions were leading
and Capelletti‟s testimony was hearsay are forfeited.
To the extent Zamora contends Capelletti offered an improper opinion, we
disagree. The prosecutor asked Capelletti whether “in [his] written report of the CAST
interview, did [he] specifically document „[N.B.] said that Zamora‟s fingers had
penetrated her vagina on several occasions causing pain‟?” Capelletti replied he did
write that in his report. There are various objections defense counsel could have made to
this foundational question, including that the question was compound and those now
advanced on appeal.
Because we have concluded Zamora forfeited appellate review of the issue
Capelletti essentially bolstered N.B.‟s testimony because defense counsel did not object
on the proper grounds, we must now address his claim counsel provided ineffective
assistance of counsel.
“In order to establish a violation of the right to effective assistance of
counsel, a defendant must show that counsel‟s performance was inadequate when
measured against the standard of a reasonably competent attorney, and that counsel‟s
17
performance prejudiced defendant‟s case in such a manner that his representation „so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.‟ [Citations.] Moreover, „a court need not
determine whether counsel‟s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.‟ [Citation.] Prejudice is
shown when there is a „reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.‟ [Citations.] If
defendant fails to show that he was prejudiced by counsel‟s performance, we may reject
his ineffective assistance claim without determining whether counsel‟s performance was
inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
Here, there is not a reasonable probability that but for defense counsel‟s
failure to object on the now complained of grounds the result of the proceeding would
have been different. As we explain above, there was sufficient evidence for the jury to
reasonably conclude Zamora committed counts 2, 4, and 6. N.B. told Ochoa and Ball
Zamora put his finger inside her vagina over 10 times and it hurt. The jury could
properly rely on this evidence alone to convict Zamora of the counts 2, 4, and 6. The
admission of Capelletti‟s testimony he wrote in his report N.B. told Ball Zamora put his
finger inside her vagina was not prejudicial. Thus, defense counsel did not provide
ineffective assistance of counsel.
III. Limiting Instruction
Zamora argues the trial court failed to instruct the jury sua sponte with
CALCRIM No. 1193, “Testimony on Child Sexual Abuse Accommodation Syndrome.”
We disagree.
18
There are five stages to CSAAS: secrecy, helplessness, entrapment and
accommodation, delayed disclosure, and retraction. (People v. Bowker (1988) 203
Cal.App.3d 385, 389 (Bowker); In re Amber B. (1987) 191 Cal.App.3d 682, 690, fn. 3.)
“It is beyond dispute that CSAAS testimony is inadmissible to prove that a
molestation actually occurred. . . . [¶] Although inadmissible to prove that a molestation
occurred, CSAAS testimony has been held admissible for the limited purpose of
disabusing a jury of misconceptions it might hold about how a child reacts to a
molestation. [Citations.] [¶] Identifying a „myth‟ or „misconception‟ has not been
interpreted as requiring the prosecution to expressly state on the record the evidence
which is inconsistent with the finding of molestation. It is sufficient if the victim‟s
credibility is placed in issue due to the paradoxical behavior, including a delay in
reporting a molestation. [Citations.]” (People v. Patino (1994) 26 Cal.App.4th 1737,
1744-1745.)
There is a split of authority in California whether a trial court has a sua
sponte duty to instruct the jury on CSAAS testimony.7 (People v. Housley (1992)
6 Cal.App.4th 947, 958-959 (Housley) [sua sponte instruction required]; Bowker, supra,
203 Cal.App.3d at p. 394 [same]; People v. Stark (1989) 213 Cal.App.3d 107, 116
[instruction necessary only upon request]; People v. Sanchez (1989) 208 Cal.App.3d 721,
735-736 [same], overruled on other grounds in People v. Jones (1990) 51 Cal.3d 294,
7 CALCRIM No. 1193 provides: “You have heard testimony from
__________ regarding child sexual abuse accommodation
syndrome. [¶] __________‟s testimony about child sexual
abuse accommodation syndrome is not evidence that the defendant committed any of the
crimes charged against (him/her). [¶] You may consider this evidence only in deciding
whether or not __________‟s conduct was not
inconsistent with the conduct of someone who has been molested, and in evaluating the
believability of (his/her) testimony.”
19
307; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588 [same], overruled on other
grounds in People v. Scott (1994) 9 Cal.4th 331, 348.)
We need not decide whether a trial court has a sua sponte duty to instruct
the jury on CSAAS because here Greco did not testify concerning CSAAS. We have
reviewed Greco‟s testimony. She did not testify concerning CSAAS generally or
CSAAS‟s five stages of secrecy, helplessness, entrapment and accommodation, delayed
disclosure, and retraction. Thus, the court did not have a sua sponte duty to instruct the
jury with CALCRIM No. 1193.
Zamora cites to the prosecutor‟s question concerning journal articles aimed
at dispelling “certain myths . . . regarding female anatomy or . . . sexual penetration.” He
also cites to her testimony regarding studies on sexual penetration and the resulting
medical findings. Zamora argues this testimony is analogous to CSAAS testimony. We
disagree. CSAAS concerns behaviors that have been commonly observed in children
who have experienced sexual abuse. Greco testified regarding the physical injuries
resulting from sexual abuse. Based on the record before us, we conclude the trial court
did not have a sua sponte duty to instruct the jury with CALCRIM No. 1193 where the
expert witness did not testify concerning the psychological symptoms of CSAAS but
instead only generally concerning the physical injuries a female may sustain when she is
sexually abused.
In any event, any error in failing to provide such an instruction was
harmless. (Housley, supra, 6 Cal.App.4th at p. 959 [applying standard under People v.
Watson (1956) 46 Cal.2d 818, 836].) In addition to sufficient evidence of penetration as
we describe above more fully, Greco‟s testimony was not particularly relevant, a point
Zamora concedes.
Finally, because Greco did not testify concerning CSAAS and the trial
court did not have a sua sponte duty to instruct the jury with CALCRIM No. 1193, we
conclude defense counsel was not deficient for failing to request the instruction.
20
Moreover, it is not reasonably probable Zamora would have received a better result as the
evidence was sufficient to support counts 2, 4, and 6, and Greco‟s testimony was as
Zamora puts it, “only tangentially relevant.”
IV. Unanimity Instruction
The parties have changed their positions since trial. At trial, the prosecutor
argued the trial court should instruct the jury on unanimity with CALCRIM No. 3501.
Zamora contended the court should instruct the jury with CALCRIM No. 3500 and he
never requested the court also instruct the jury with CALCRIM No. 3501.
The trial court instructed the jury with CALCRIM No. 3500.8
On appeal, Zamora now complains the court erred when it instructed the
jury with CALCRIM No. 3500 and instead should have instructed the jury with
CALCRIM No. 3501. The Attorney General argues the court properly instructed the jury
with CALCRIM No. 3500 but assuming it was error, Zamora was not prejudiced.
Because Zamora agreed the trial court should instruct the jury with
CALCRIM No. 3500, and never requested the trial court also instruct the jury with
8 The trial court instructed the jury with CALCRIM No. 3500, “Unanimity,”
as follows: “The defendant is charged with [l]ewd [a]ct [u]pon a [c]hild [u]nder 14 and
[s]exual [p]enetration with a [c]hild 10 [y]ears or [y]ounger in [c]ounts 2-7 sometime
during the period of January 1, 2009[,] to July 10, 2009. [¶] The People have presented
evidence of more than one act to prove that the defendant committed this offense. You
must not find the defendant guilty unless 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.”
21
CALCRIM No. 3501,9 Zamora has forfeited this claim. “„“A party may not complain on
appeal that an instruction correct in law and responsive to the evidence was too general
or incomplete unless the party has requested appropriate clarifying or amplifying
language.”‟ (People v. Hill (1992) 3 Cal.4th 959, 997, italics added, overruled on other
grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Assuming it was error for the trial court to instruct the jury with
CALCRIM No. 3500 instead of CALCRIM No. 3501, we conclude any error was
harmless beyond a reasonable doubt. (People v. Matute (2002) 103 Cal.App.4th 1437,
1449 [noting split of authority as to proper standard of review].)
During closing argument, the prosecutor explained all the offenses occurred
between January 1 and July 10 when N.B. was five years old. The prosecutor argued:
“Now, as to the grouping of the counts. And there‟s a couple of different ways of
looking at these events, but especial [sic] we‟re looking at four separate events. The
event on July 11th and then as to counts 2 through 7, there‟s a first incident, there‟s a
subsequent incident and there‟s a last incident during that time frame. That‟s one way of
grouping it.” A little later, the prosecutor added, “And then as to the different types of
crime, and I will speak to the specific type of evidence, but just in terms of out shorthand,
the [section] 288[.7][, subdivision] (b), that is the sexual penetration charge. The
[section] 288[, subdivision] (a) is the lewd touching. Whenever someone sexually
penetrates someone they also touched them in a lewd way. There is no way to sexually
9 CALCRIM No. 3501, “Unanimity: When Generic Testimony of Offense
Presented,” states: “The defendant is charged with __________ [in Count[s] _____] sometime during the period of __________ to
__________. [¶] The People have presented evidence of more than one act to prove that
the defendant committed (this/these) offense[s]. You must not find the defendant guilty
unless: [¶] 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/she) 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].”
22
penetrate a person without also committing the offense of a lewd act. Before he
penetrates her he touches her. . . . So that is how our charges break up. Four distinct
events.”
Based on the prosecutor‟s arguments, the number of offenses charged
against Zamora and the period of time at issue were clearly explained to the jury. As to
counts 2 through 7, the prosecutor explained there was a first incident, a subsequent
incident, and a last incident during the time frame in question. The prosecutor asserted
that as to each of those three incidents, Zamora touched N.B. inappropriately and
sexually penetrated her. The prosecutor explained to the jury the evidence supporting
each of the offenses. Additionally, the trial court instructed the jury with
CALCRIM No. 3515, “Multiple Counts: Separate Offenses,” as follows: “Each of the
counts charged in this case is a separate crime. You must consider each count separately
and return a special verdict for each one.” We reject Zamora‟s claim the jury concluded
he committed one offense and based on the language in CALCRIM No. 3500, convicted
him of all the offenses. Thus, we are certain beyond any reasonable doubt the jury
understood it had to decide whether Zamora committed three counts of lewd touching
and three separate counts of sexual penetration on three separate occasions.
V. Ineffective Assistance of Counsel
Zamora claims defense counsel provided deficient performance because he
did not properly object to Capelletti‟s testimony, and counsel did not request the trial
court instruct the jury with CALCRIM No. 1193. This claim requires no further
discussion because we have either addressed the merits of his claim (Capelletti‟s
testimony concerning Zamora‟s credibility), concluded Zamora was not prejudiced by
counsel‟s failure to properly object (Capelletti‟s testimony regarding what N.B. stated),
or addressed both the merits of his claim and his ineffective assistance of counsel claim
(the appropriateness of CALCRIM No. 1193). In conclusion, it was not reasonably
probable Zamora would have received a better result had defense counsel made the
23
proper objection or requested the trial court instruct the jury with CALCRIM No. 1193
because there was sufficient evidence of Zamora‟s guilt on counts 2, 4, and 6 in the form
of N.B.‟s complaints to social workers that Zamora put his finger inside her vagina and it
hurt.
VI. Cumulative Error
Zamora contends the cumulative effect of the errors requires reversal. We
have concluded there was one evidentiary error but Zamora was not prejudiced. Thus,
his claim has no merit
DISPOSITION
The judgment is affirmed.
O‟LEARY, P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
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