People v. Morales CA2/6

Filed 3/20/23 P. v. Morales CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B318720
(Super. Ct. No. 2018033565)
Plaintiff and Respondent, (Ventura County)
v.
PEDRO ACEVEDO
MORALES,
Defendant and Appellant.
Pedro Acevedo Morales1 appeals from the judgment after
the jury convicted him of four counts of forcible lewd acts upon a
child under the age of 14 pursuant to Penal Code2 section 288,
subdivision (b)(1) (counts 1-4) and four counts of lewd acts upon a
There is a discrepancy in the record on whether
1
appellant’s legal name is Pedro Acevedo Morales or Pedro
Morales Acevedo. For the purposes of this opinion, we will refer
to appellant as Acevedo.
2 Further unspecified statutory references are to the Penal
Code.
child pursuant to section 288, subdivision (a) (counts 5-8). All
acts were alleged against L.H. The trial court sentenced Acevedo
to 20 years in state prison.
Acevedo contends (1) there was insufficient evidence the
offenses occurred between June 1, 2012 and September 30, 2012
and that L.H. was under the age of 14 at the time of the acts; (2)
the prosecutor committed misconduct during closing argument;
(3) the trial court abused its discretion in allowing expert
testimony on child sexual abuse accommodation syndrome
(CSAAS); and (4) the court erred in admitting evidence of L.H.’s
partial disclosure to her high school friend. We affirm.
FACTS AND PROCEDURAL HISTORY
Prosecution evidence
L.H. was born in November 1999. In the summer of 2012,
she was in junior high and lived in a house in Oxnard with her
parents and brothers. Acevedo and his uncle lived with L.H. and
her family during the summer of 2012. L.H. was on break from
school and was often at home alone with Acevedo and her siblings
while her parents were at work.
At the beginning of the summer, Acevedo and L.H. had
“pretty normal” interactions, but he soon began winking and
smirking at her and making uncomfortable comments. He would
also caress her back while talking to her. During the rest of the
summer, Acevedo sexually molested L.H. on at least eight of the
following instances:
1. Count 1
One evening, L.H. left her room to get water from the
kitchen. Acevedo grabbed L.H. from behind and “forcibly
press[ed] his penis” against her back. He fondled her breasts and
kissed her neck and ear. He led her towards the couch, laid on
top of her, lifted her shirt, and touched and kissed her breasts,
2
neck, face, and stomach. He unzipped her pants and touched her
vagina over her underwear. L.H. told him to stop, but he did not
stop. The incident lasted about ten minutes. She was scared.
When it was over, he told her not to tell her parents and that her
parents would not believe her.
2. Count 2
L.H. recalled an incident when Acevedo was sitting at the
dinner table when she walked past him. He said to her: “Hey,
come over here,” but she tried to walk away. He grabbed her by
the arm, pulled her close to him, and put her in between his legs
while he remained seated in his chair. He caressed her back and
butt, grabbed her waist, and made her sit on his lap facing away
from him so that her “butt was on his penis.” He then caressed
her thighs and legs, kissed her neck and ears, and touched her
over and under her shirt.
3. Count 3
L.H. testified there were three instances when Acevedo
“corner[ed]” her and kissed her body. He pushed her to the
corner of the living room near the bookshelves, kissed her neck,
and touched her vagina over her pants with one hand. He held
her with his other hand.
4. Count 4
L.H. said there were several instances when she sat next to
Acevedo on the living room couch, and he touched her thighs and
caressed them. L.H. said some instances occurred in August
when her junior high school was back in session, and she recalled
being in her school uniform when he touched her. On some
occasions, he would grab her hand and make her touch his penis
over his pants. He would “lead [her] hand to touch” his penis
until he had an erection. The touching would be “on and off,”
lasting around 30 minutes.
3
5. Count 5
L.H. testified that one day, Acevedo grabbed her by the
hands and held them behind her back. He then kissed her on her
face and neck and touched her vagina over her pants.
6. Count 6
L.H. recalled an instance when she was cleaning the living
room and Acevedo approached her from behind and “grind[ed]
himself” on top of her. He rubbed his penis on top of her back,
and she felt him getting an erection. He grabbed her with his
arms and hugged her as he did this. The incident lasted “a
couple of minutes.”
7. Count 7
L.H. said there were several occasions when Acevedo
touched her breasts while she sat on the couch. He touched her
both over and under her clothing.
8. Count 8
L.H. testified there were multiple occasions where Acevedo
“smack[ed] [her] butt.” She said he would “sneak up” on her
when there was no one else in the room.
L.H. disclosures and investigation
L.H. said Acevedo threatened her to dissuade her from
reporting these acts of molestation. He told her that nobody
would believe her because she was “a little girl and was not even
a woman” and that he would hurt her family. He also told her if
she ever told her parents, he would “report them to the police and
deport them.” L.H. did not tell her parents what happened
during the summer. She said she did not report to the police
earlier because she “still feel[s] like it was [her] fault” and
because she did not think people would believe her. She also said
it “hurt [her] to talk about it” and at that time she “couldn’t live
with the fact that somebody would get punished.”
4
While in high school, L.H. told her friend, K.R., about some
of the molestation that occurred in summer 2012. L.H. testified
she told K.R. that a man who used to live with her family “would
touch [her] inappropriately” and looked at her in a “strange way.”
She did not go into detail.
K.R. testified L.H. told her the man who rented a room in
her family’s house made her feel “very uncomfortable in the way
that he would look at her” and by “some things that he would say
to her.” K.R. said “when [L.H.] told me that, she started crying,
so I don’t think she finished telling me everything.”
L.H. graduated high school in summer 2017 and left for
college in August 2017. Acevedo contacted L.H. through
Facebook Messenger during her senior year in high school. They
continued communications “off and on” through her college years.
L.H. said she communicated with Acevedo because she was
scared he would talk to her parents and because she thought he
cared about her. At the time, L.H. “felt like [she] was the
problem” and blamed herself for seducing or provoking him.
In 2018, L.H. reported Acevedo to the Oxnard Police
Department. L.H. testified she decided to do so because she was
feeling conflicted, was taking classes about child development,
and was scared he might abuse other young girls or his own
daughter.
Before L.H. went to college, she became a recipient of the
Deferred Action for Childhood Arrivals (DACA) program, which
protected her from deportation. DACA was rescinded in
September 2017, and in January 2018, a Northern District of
California federal court issued a stay of the rescission. When
L.H. reported Acevedo to the police, she applied for a U-Visa,
which provides immigration relief for undocumented persons who
suffered substantial physical or mental abuse due to being a
5
victim of certain crimes in the United States.3 She asked the
investigating police officer for assistance with her U-Visa
application, and applied based on the allegations she made
against Acevedo.
L.H. agreed to help law enforcement by making a pretext
call to Acevedo. During the call, Acevedo made several
incriminating statements, including that he was afraid his wife
would hate him if she found out what he did to L.H. and that
“what happened wasn’t right” because she was “still a little girl.”
Nor did Acevedo deny L.H.’s references to the specific sex acts he
committed against her when she was a child.
CSAAS expert
Clinical psychologist Dr. Anthony Urquiza testified as an
expert in child sexual abuse. He did not know the parties or the
facts of the case. He testified about CSAAS, children’s common
responses to sexual abuse, and the misperceptions or myths
about child abuse. He testified that most children of abuse are
sexually abused by someone with whom they have an ongoing
relationship and there is a power imbalance between the
perpetrator and the victim.
Dr. Urquiza testified there are five stages of CSAAS: (1)
secrecy, (2) helplessness, (3) entrapment and accommodation, (4)
delayed and unconvincing disclosure, and (5) retraction and
recantation. With respect to the “secrecy” stage, Dr. Urquiza
explained that children often keep quiet about sexual abuse
because they are threatened or intimidated by their perpetrator.
At times, the perpetrator gives special attention to the victim in
exchange for a close relationship, and the victim “get[s] stuck into
this double life where they may like or . . . love the person who’s
3 See 8 U.S.C. § 1101, subd. (a)(15)(U).)
6
abusing them, but they don’t want a bad thing to happen to that
person.” With respect to the “delayed and unconvincing
disclosure” stage, Dr. Urquiza testified delay is “a very common
response to being sexually abused” and “one of the more common
characteristics . . . is that it may take months or years for them to
disclose from the very, very first time it happens to the first time
they’re able to tell anybody about what happened.” He also
testified the first disclosure “may not be a fully articulated, clear,
comprehensive description of what happened,” and if a child had
been abused several times, a child’s ability to describe certain
details or recite events in chronological order would be difficult.
Verdict and sentencing
The jury found Acevedo guilty of all eight counts of lewd
acts (§ 288, subds. (a) & (b)(1)) and found the special allegation of
substantial sexual conduct (§ 1203.066, subd. (a)(8)) on count 4
true. Acevedo was sentenced to 20 years in state prison
(consecutive 5 years for each counts 1-4 and concurrent 3 years
for each counts 5-8).
DISCUSSION
Sufficiency of evidence
Acevedo argues the evidence was insufficient to establish
the offenses occurred between June 1, 2012, and September 30,
2012 (summer 2012). He points to evidence showing the
discrepancy in L.H.’s age. The Attorney General argues the date
of offense is immaterial because it was not an element of the
crime, nor did the defense raise an alibi or statute of limitations
defense where the date of the offense was relevant. We agree
with the Attorney General.
“The precise time at which the offense was committed need
not be stated in the accusatory pleading, but it may be alleged to
have been committed at any time before the finding or filing
7
thereof, except where the time is a material ingredient in the
offense.” (§ 955.) “ ‘The law is clear that, when it is charged that
an offense was committed “on or about” a named date, the exact
date need not be proved unless the time “is a material ingredient
in the offense” [citation], and the evidence is not insufficient
merely because it shows that the offense was committed on
another date.’ [Citations.]” (People v. Garcia (2016) 247
Cal.App.4th 1013, 1022.)
People v. Peyton (2009) 176 Cal.App.4th 642 is instructive.
There, the defendant argued there was insufficient evidence he
sexually abused the victim as charged because the information
alleged each offense occurred “ ‘on or about October 1, 2005.’ ”
(Id. at p. 660.) The evidence at trial, however, showed the crimes
occurred in the fall of 2004 when the defendant was living with
the victim, and the evidence “clearly showed” the defendant had
moved out of the victim’s home before October 2005. (Ibid.) The
Court of Appeal rejected the defendant’s claim, reasoning the
October 2005 date was “not material to any of the charged
offenses. Nor has defendant shown he was prejudiced by the
variance between the October 1, 2005 date” as set forth in the
information and the evidence at trial that the offenses occurred a
year earlier. (Id. at pp. 660-661.) The prosecution was not
required to show the crimes took place on or about October 2005,
“but only ‘reasonably close to [that day].’ ” (Id. at p. 660.)
Whether the offenses occurred in the summer of 2012 or
2013 was not a “material ingredient” in the alleged offenses.
(§ 955). Nor has Acevedo shown how the discrepancy of the date
range prejudiced him. In any event, substantial evidence
supports a finding the offenses occurred in the summer of 2012.
In reviewing a claim of sufficiency of evidence, we determine
whether a rational trier of fact could find the defendant guilty
8
beyond a reasonable doubt. We view the evidence in the light
most favorable to the prevailing party and presume in support of
the judgment every fact the trier could reasonably deduce from
the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).)
The testimony of a single witness is sufficient to support a
conviction. (People v. Scott (1978) 21 Cal.3d 284, 296.)
L.H. testified the offenses occurred during the summer of
2012 when Acevedo was living with her family. Moreover, she
testified he lived with her family through the “early semester [of]
junior high,” and one incident occurred after she had returned to
junior high school from summer break. Since L.H. entered high
school after the summer of 2013, her testimony that the abuse
continued through the early semester of junior high school was
consistent with the offenses occurring between June and
September 2012.
In arguing there was insufficient evidence, Acevedo points
to conflicting evidence: L.H. testified several times that she was
13 years old at the time of the offenses; that she was 13 years old
throughout the investigation; and that her youngest brother was
“small” at the time of the offenses, even though he was born in
October 2013. Acevedo also points to the prosecution attempting
to amend the information after the close of evidence to reflect
that the offense occurred a year later (between June 1, 2013 and
September 30, 2013). Despite these discrepancies, our review on
appeal is substantial evidence, which requires us to construe the
evidence in a light favorable to the prevailing party—not the
other way around. (Jones, supra, 51 Cal.3d at p. 314.) That some
evidence could have supported a contrary finding does not
warrant reversal. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Moreover, the jury was aware of the discrepancies between
the alleged dates of the offenses and the testimony regarding
9
L.H.’s age. The jury was instructed that it “must decide what the
facts are” and that it alone must “decide what the facts are . . .
based only on the evidence that has been presented to you.” The
court also instructed that the prosecution must prove the crimes
“happened within the timeframe given of June 1, 2012 through
September 30, 2012.” We presume the jury followed the
instructions. (People v. Chhoun (2021) 11 Cal.5th 1, 30
(Chhoun).) It is the “exclusive province” of the jury to determine
“the truth or falsity of the facts” upon which its determination
depends. (Jones, supra, 51 Cal.3d 294, 314.) “Thus, if the verdict
is supported by substantial evidence, we must accord due
deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder.” (Ibid.) We
conclude the evidence was sufficient to prove the offenses
occurred between June and September of 2012.
Acevedo also contends his convictions must be reversed
because there was insufficient evidence L.H. was younger than
14 years old at the time the offenses occurred. This contention
lacks merit. The offenses occurred in the summer of 2012 when
L.H. was in junior high school and under the age of 14. L.H.’s
mother also testified the family lived in the Oxnard house, where
the abuse occurred, from 2011 to 2013. L.H. would have turned
14 in November of 2013. And although there was some
conflicting testimony regarding L.H.’s exact age at the time of the
acts, L.H. consistently maintained she was younger than 14 years
old (i.e., she testified she was 13 years old at the time of the
offenses). There is substantial evidence L.H. was under the age
of 14 when Acevedo molested her.
Prosecutor’s statements during closing argument
During closing argument, the prosecutor made the
following statements to the jury: “When you talk about
10
reasonable doubt, you have to have an abiding conviction that the
charge is true, right. So when you go in the back, you deliberate,
you fill out your form, you go on your way for the holidays, can
you go to sleep at night that it was right?”
Acevedo argues the statements amounted to prosecutorial
misconduct which could not be remedied by a curative
instruction. The Attorney General contends Acevedo forfeited his
claim because he did not object at trial. We agree the claim is
forfeited. (People v. Powell (2018) 6 Cal.5th 136, 171.) “ ‘To
preserve such a claim for appeal, “a criminal defendant must
make a timely and specific objection and ask the trial court to
admonish the jury to disregard impropriety.” ’ [Citation.] The
lack of a timely objection and request for admonition will be
excused only if either would have been futile or if an admonition
would not have cured the harm.” (Ibid.) We agree with the
Attorney General that Acevedo should have timely objected and
requested a curative instruction.
But even if he had objected, Acevedo’s contention lacks
merit. The jury was properly instructed that its verdict must be
based on the evidence, the prosecution must prove Acevedo’s guilt
beyond a reasonable doubt, and proof beyond a reasonable doubt
meant “proof that leaves you with an abiding conviction that the
charge is true.” The court also instructed that if an attorney’s
comments on the law conflict with the court’s instructions, then
the jury must follow the court’s instructions. We presume the
jury followed the instructions. (Chhoun, supra, 11 Cal.5th at p.
30.)
Expert testimony
Acevedo argues the trial court abused its discretion when it
allowed expert testimony on CSAAS because such testimony was
unnecessary as “there were straightforward explanations for why
11
[L.H.] did not report the abuse at or near the time that it
occurred.” He asserts the delay in reporting was “easily
understood and explained by [L.H.]’s testimony that defendant
threatened to have her parents deported if she reported the
abuse.”
Evidence Code section 801, subdivision (a) permits expert
opinion related “to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact.” A “ ‘jury need not be wholly ignorant of the subject matter
of the opinion in order to justify its admission.’ ” (People v.
McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) Expert opinion
testimony is properly excluded only when it “ ‘add[s] nothing at
all to the jury’s common fund of information, i.e., when “the
subject of inquiry is one of such common knowledge that
[persons] of ordinary education could reach a conclusion as
intelligently as the witness.” ’ [Citation.]” We review a trial
court’s admission of expert testimony for abuse of discretion.
(Ibid.)
Expert testimony on CSAAS may be admissible to dispel
misconceptions about child sexual abuse and to explain common
stress reactions of child victims, including a child’s failure or
delay in reporting abuse. (McAlpin, supra, 53 Cal.3d at pp. 1300-
1301; People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch).)
The expert testimony is not admissible to prove a child has in fact
been sexually abused, but it “is admissible to rehabilitate such
witness’s credibility when the defendant suggests that the child’s
conduct after the incident—e.g., a delay in reporting—is
inconsistent with [their] testimony claiming molestation.”
(McAlpin, supra, at p. 1300.)
There was no abuse of discretion here. The CSAAS
evidence was properly admitted to assist the jury to understand
12
L.H.’s behaviors and reaction to the abuse, including her delay in
reporting. L.H. testified there were multiple reasons she did not
disclose the abuse at an earlier time. She testified Acevedo
threatened to deport her parents, but in addition, she said she
blamed herself, she thought no one would believe her, it hurt to
talk about the abuse, and she “couldn’t live with the fact that
somebody would get punished.” L.H. also testified that she
continued to communicate with Acevedo while she was in college
because she was scared he would tell her parents and she
thought he cared about her. The CSAAS evidence was relevant
to explain that a child abuse victim often fails to disclose or
delays disclosure for a variety of reasons, such as feeling
threatened or intimated by their perpetrator, or feeling conflicted
because “they don’t want a bad thing to happen to that person.”
Acevedo also argues the admission of CSAAS testimony
was cumulative, would confuse the jury, and was unduly
prejudicial pursuant to Evidence Code section 352. His argument
lacks merit.
A court may exclude evidence if its “probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.) The probative value
of Dr. Urquiza’s testimony outweighed any prejudice. The
testimony was probative to explain reasons for L.H.’s delayed
disclosure. It was especially relevant because of the defense’s
argument that the timing of L.H.’s reporting, over five years after
the abuse occurred, was suspicious given her precarious
immigration status and efforts to obtain a U-Visa.
Dr. Urquiza’s testimony was not unduly prejudicial because
he limited his testimony to general CSAAS and child sexual
13
abuse concepts without reference to any specific allegations in
this case. He also testified that he did not know the parties or
the facts of this case. (Munch, supra, 52 Cal.App.5th at p. 475.)
Moreover, the trial court instructed the jurors that the CSAAS
testimony was “ ‘not evidence in any way that the defendant
committed any of the crimes charged against him’ ” and that the
limited purpose of the evidence was to assist the jury “in deciding
whether or not an alleged victim’s conduct was not inconsistent
with the conduct of someone who has been molested, and in
evaluating the believability of her testimony.” We presume the
jury followed the instructions. (Ibid.; Chhoun, supra, 11 Cal.5th
at p. 30.)
Evidence of L.H.’s disclosure to K.R.
Acevedo contends the trial court erred when it admitted
K.R.’s testimony regarding L.H.’s disclosure under the “fresh
complaint” doctrine. There was no error.
Under the fresh complaint doctrine, “proof of an
extrajudicial complaint, made by the victim of a sexual offense,
disclosing the alleged assault, may be admissible for a limited,
nonhearsay purpose—namely, to establish the fact of, and the
circumstances surrounding, the victim’s disclosure of the assault
to others—whenever the fact that the disclosure was made and
the circumstances under which it was made are relevant to the
trier of fact’s determination as to whether the offense occurred.”
(People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).)
“Evidence admitted pursuant to this doctrine may be considered
by the trier of fact for the purpose of corroborating the victim’s
testimony, but not to prove the occurrence of the crime. (People v.
Ramirez (2006) 143 Cal.App.4th 1512, 1522.) We review for
abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
724.)
14
The trial court did not abuse its discretion in admitting
K.R.’s testimony under the fresh complaint doctrine. “[W]hen the
victim of an alleged sexual offense did not make a prompt
complaint but instead disclosed the alleged incident only some
time later, evidence of the fact and circumstances surrounding
the delayed complaint also may be relevant to the jury’s
evaluation of the likelihood that the offense did or did not occur.”
(Brown, supra, 8 Cal.4th at p. 761.) Here, the fact that L.H.
made a partial disclosure to K.R. was relevant because it
corroborated L.H.’s testimony and refuted the defense’s argument
that she lied about the abuse to secure her immigration status.
Acevedo argues K.R.’s testimony should have been excluded
because L.H.’s disclosure “do[es] not allege a sexual assault, they
were not made near in time to the alleged assaults, nor do they
identify defendant.” We are not persuaded. L.H. testified she
told K.R. that a man who used to live with her family “would
touch [her] inappropriately.” The fact that L.H. did not specify
the sexual assault or defendant’s identity does not render the
statement inadmissible. The limited purpose of such evidence
under the fresh complaint doctrine is to establish the fact of, and
the circumstances surrounding, the victim’s disclosure to another
person, and not to prove the alleged sexual act occurred. (Brown,
supra, 8 Cal.4th at pp. 749-750.) Thus, it is the fact that L.H.
disclosed to her friend and not the specificity of her disclosure
that is relevant.
And contrary to Acevedo’s argument, the court did not
abuse its discretion in not excluding K.R.’s testimony pursuant to
Evidence Code section 352. This evidence was relevant to L.H.’s
credibility, which was challenged by the defense’s argument that
she reported for the purpose of obtaining her U-Visa. The
evidence was also probative to explain the delay in disclosing to
15
law enforcement. The risk of undue prejudice or misleading the
jury was minimal because K.R.’s statements were brief and did
not describe any sexual abuse in detail.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
16
Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Law Offices of Scott H. Bentley and Scott H. Bentley for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.