People v. Palencia CA2/8

Filed 10/8/20 P. v. Palencia CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B298539
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470570)
v.
RUDY R. PALENCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as
modified.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury found Rudy Palencia guilty of sexually assaulting
his stepdaughter and his niece. The girls were children when he
abused them. On appeal, he challenges the admission of expert
testimony about how children may behave after someone sexually
abuses them. We correct Palencia’s custody credits and
otherwise affirm.
Undesignated statutory citations are to the Penal Code.
I
The two victims are cousins. We refer to them by their
initials to protect their privacy. (Cal. Rules of Court, rule
8.90(b)(4).) The first victim, M.R., called Palencia her stepfather.
At trial, Palencia’s counsel referred to M.R. as Palencia’s
“stepdaughter.” Palencia testified he and M.R.’s mother lived
together for 10 years and they were engaged but never married.
The other victim, G.D., called Palencia her uncle.
The prosecution asked the trial court to admit expert
testimony about “Childhood Sexual Abuse Accommodation
Syndrome.” The prosecution said the testimony would help the
jury understand “the typical, but seemingly puzzling, behavior of
a child that has been sexually abused.” One example of this
behavior is delayed reporting.
The court ruled on several issues before jury selection. As
to the expert testimony, Palencia said, “I would object, for the
record.” The court overruled the objection and explained, “I do
believe this is an area of law that is beyond normal knowledge of
a jury, and it’s ripe for an expert to come in and explain.”
Witness testimony lasted two days. The prosecution
offered five witnesses: M.R., G.D., two guardians of G.D., and the
expert. Palencia also testified.
We summarize the pertinent testimony.
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M.R. was 17 years old when she testified. She recounted
abuse that spanned from when she was 10 years old until she
was 16 years old. Palencia touched her inappropriately more
than 10 times. She recounted specific instances.
When she was in fifth grade and 10 or 11 years old,
Palencia picked her up from school in his van. He stopped the
van near a freeway. He grabbed her breast. Palencia wore jeans
that he had unzipped. He put her hand on his exposed penis and
he ejaculated.
The prosecution asked M.R., “Was there ever a time that he
did anything inappropriate to you while you were in your bed
when you were 12 years old?” M.R. answered, “Well, not 12 years
old.” She described an incident where she woke up and Palencia
was on top of her. She said that happened only once, when she
was 11 years old. Later during direct examination, M.R. said she
remembered telling a detective about an incident when she was
asleep when she was 12 years old. She said the night of the
incident she had taken medicine because she had been sick.
“[E]verything looked very blurry” and Palencia “looked like a
shadow to me.”
The prosecution also asked, “When you were about 13, did
anything ever happen with the defendant that seemed
inappropriate to you?” M.R. said, “Thirteen, no.” She then said
she once was showering, Palencia opened the shower curtain, and
she pushed it back closed. Palencia did not do or say anything
else. The prosecution asked if she remembered telling a detective
Palencia touched her vagina after he pulled back the curtain.
M.R. said “I did say the curtain thing, but I didn’t remember the
vagina part.” She also explained she has been going to therapy,
“so I [have] kind of been trying to leave that behind.”
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On another occasion when she was 12 years old, Palencia
was in a truck with M.R. He covered the front windows and
locked the door. Palencia pushed M.R.’s head toward his penis.
She pulled back and he continued forcing her head toward his
penis for a few seconds before he eventually let her go.
Another time, when she was about 13 years old and at
home, Palencia forced her head to his penis and he put his penis
in her mouth.
Palencia showed her his penis multiple times. He would
sometimes come out of the shower, open his towel to expose his
naked body to her, and smile.
When she was 16 years old, she was wearing a towel after
getting out of the shower when Palencia pulled at her towel and
he touched her buttocks.
M.R. spoke about the abuse in 2018. She was 16 years old,
and she first told G.D., her cousin.
M.R. explained she did not tell about the abuse earlier in
part because family relied on Palencia for economic stability: he
paid the family’s bills. M.R. feared her mother, who had given
birth during the period of abuse, could not support the family by
herself.
Palencia offered a theory M.R. invented the allegations of
abuse to “get even with him” for taking away her cell phone. He
asked whether M.R. was “making this up?” She said no. As to
whether she harbored resentment about her phone, the 17 year
old reflected she had used the phone poorly in the past. She said
“I thank him” for taking it away.
Palencia also asked M.R. about her relationship with G.D.
M.R. agreed she and G.D. were “pretty good friends” and they
had been friends their whole lives. They talked on the phone and
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went to the park together. Their homes are not far from one
another.
Palencia ended his cross-examination with this question:
“But [before 2018] you never mentioned anything to [G.D.] about
what was going on . . . [¶] . . . with Rudy Palencia?”
M.R. explained she had not told G.D. earlier because G.D.
was “still living her life as a child.” M.R. did not want to burden
her younger cousin with information about the abuse.
G.D. was 15 years old when she testified. She said when
she was 14 years old, she was sitting alone in Palencia’s van
outside another family member’s house. Palencia touched her
breast, grabbed her neck, and kissed her lips. Palencia told her
he could buy her “everything.” After that, G.D. saw him touching
his penis over his pants. A family member approached the van
and Palencia told G.D., “Don’t say anything.” Palencia traced a
heart on the window of the van.
That day, G.D. told M.R. what had happened. For the first
time, M.R. revealed Palencia had been abusing her, too. Then
they told other family members and the police.
Over Palencia’s objection, Dr. Jayme Jones, a clinical
psychologist, testified as an expert. The expert had 30 years of
experience and had treated hundreds of child sexual abuse
victims.
The expert did not interview M.R. or G.D., did not prepare
a report for the case, and did not read or review reports
associated with the case.
The expert discussed “Child Sexual Abuse Accommodation
Syndrome,” which she explained is not a diagnosis. Rather, this
syndrome is a “model that helps us understand the behavior of
children who have been sexually abused.” The prosecution asked
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whether the expert used the model to determine whether a child
had been sexually abused. The expert responded “no” and
explained “[t]hat’s not its intent, and it doesn’t work in that
manner.”
The syndrome or model addresses certain common
misconceptions. One of the five parts of the model is “delayed
disclosure,” which addresses the misconception a child would
immediately disclose abuse.
The expert offered statistics about children’s disclosure of
abuse. More than half of children never disclose the abuse.
Within the first year of abuse, about 10 to 15 percent of children
disclose. Between one and five years, an additional 25 to 30
percent of children disclose. Between five and 10 years, about 1
to 3 percent of children disclose. Children report only a “very
small percentage” of cases to law enforcement.
The expert explained the model “helps put the reasons”
children do not disclose abuse “into a context.” Children may not
report abuse for a number of reasons. Children are most likely to
speak if someone asks whether they experienced abuse, but “most
people are never asked.” Children may not say anything because
they do not want to upset their caregivers. If children know their
abusers before the abuse, there may be positive aspects of that
relationship the children do not want to lose. Children may be
scared to get their abusers in trouble. Children may worry
people will not believe them.
The expert answered some questions about whether certain
behaviors connected to the model are common among child abuse
victims.
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Palencia testified after the prosecution’s expert. Palencia
was 33 years old during trial. He denied M.R.’s and G.D.’s
allegations.
The court gave the jury an instruction about how to use the
expert’s testimony. The instruction explained the testimony “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 [M.R.’s] and [G.D.’s] conduct was not
inconsistent with the conduct of someone who has been molested,
and in evaluating the believability of [their] testimony.”
The jury deliberated approximately an hour and a half on
one day and about two and a half hours on a second day.
On April 29, 2019, the jury returned its verdict. It
convicted Palencia on six of eight counts. As to the allegations
involving M.R., the jury found him guilty of two counts of a lewd
act against a person under 14 years old (§ 288, subd. (a)) (counts
1 and 2), one count of oral copulation of a person under 16 years
old (§ 287, subd. (b)(2), former § 288a, subd. (b)(2)) (count 5), and
one count of sexual battery (§ 243.4, subd. (e)(1)) (count 6). As to
the allegations involving G.D., the jury found Palencia guilty of
two counts of a lewd act against a child at least 10 years younger
than Palencia (§ 288, subd. (c)(1)) (counts 7 and 8).
The jury found Palencia not guilty of two counts of a lewd
act upon M.R. (§ 288, subd. (a)). The verdict forms for these
counts specified the dates of the conduct. One count alleged
conduct when M.R. was 12 years old (count 3) and the other
alleged conduct when she was 13 years old (count 4). According
to the prosecution’s closing argument, count 3 was the allegation
M.R. woke up and Palencia was on top of her and count 4 was the
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allegation Palencia touched M.R.’s vagina when she was in the
shower.
As to count 3, M.R. initially testified about an incident in
her bed when she was 11 years old but she said there was not a
time Palencia did anything inappropriate to her in bed when she
was 12 years old. As to count 4, M.R. testified Palencia opened
the shower curtain and did not touch her.
On May 30, 2019, the court sentenced Palencia to 12 years
and six months in state prison. The sentence was composed of
the following consecutive terms: the upper term of eight years for
count 1; two years for count 2; eight months each for counts 5, 7,
and 8; and six months for count 6.
II
The court did not abuse its discretion by allowing the
expert to testify.
Expert testimony about the common reactions of child
sexual abuse victims is not admissible to show a child has been
abused. (People v. McAlpin (1991) 53 Cal. 3d 1289, 1300
(McAlpin).) The testimony is admissible, however, to disabuse
jurors of common misconceptions they might entertain about how
children react to sexual abuse. (In re S.C. (2006) 138 Cal. App. 4th
396, 418.) The evidence may be used to rehabilitate a witness’s
credibility when the defendant suggests the child’s conduct, such
as delayed reporting, is inconsistent with the child’s testimony
alleging abuse. (McAlpin, supra, at p. 1300.)
We affirm the trial court’s decision to admit expert
testimony unless the defendant demonstrates a manifest abuse of
discretion. (McAlpin, supra, 53 Cal.3d at p. 1299.)
Palencia incorrectly says the evidence was not offered to
rehabilitate either child’s testimony. This indeed was one of its
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purposes, for Palencia’s cross-examination questioned M.R. about
her relationship with G.D. After establishing the girls’ close
relationship, Palencia ended his cross-examination by asking,
“[b]ut [before 2018] you never mentioned anything to [G.D.] about
what was going on . . . [¶] . . . with Rudy Palencia?” The
inference is plain: if the abuse were actual, M.R. would have
spoken sooner. Palencia indeed did use M.R.’s delayed disclosure
to challenge her credibility. The prosecution offered the expert in
part to answer this challenge.
Palencia acknowledges his trial counsel questioned M.R.
about her delay in reporting the abuse to G.D. He claims,
however, “[s]haring information with another child does not fall
within the purview of reporting misconduct to those who actually
have the ability and/or authority to effectively deal with said
misconduct.” If we understand this claim correctly, it asserts
delayed disclosures are significant only when the disclosure is to
an adult. This is not so: Palencia’s question sought to plant the
seed of doubt about delay, and that opened the door on the topic
the expert addressed. Whether Palencia framed his question as
referring to a child or an adult did not affect the corrosive nature
of the credibility attack Palencia had launched.
Palencia also contends the prosecution went beyond the
permissible scope of expert testimony by asking improper
hypothetical questions mirroring the facts of the case. He
challenges the following seven questions:
1) “So would it be uncommon for a child who has been
sexually abused by, say, a close family member to
remain quiet about that abuse for, say, as long as ten
years, even though the child sees the person who is
abusing him or her all the time?”
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2) “What about . . . acting in a rebellious manner
against family or friends? Has that been something
that you have observed in your practice?”
3) “[W]ould it be common for a victim -- child who is
being sexually abused to go through the motions in
everyday life as if everything is okay?”
4) “Within the delayed reporting -- the delayed
disclosure model, would you say that it is more
common than not that a report of child sexual abuse
is delayed until the child is, say, a teenager or even
an adult?”
5) “[W]ould it be common for a victim of child sexual
abuse to block or repress memories of the abuse?”
6) “Is it common for children who have been sexually
abused to forget, say, specific details about the
abuse?”
7) “Is it common for children who even see each other or
talk to each other often not to share details of sexual
abuse with the other child or friend with whom that
person has regular contact?”
Palencia forfeited these claims by failing to make a specific
objection in the trial court. (See People v. Demetrulias (2006)
39 Cal. 4th 1, 20 (Demetrulias) [requiring timely and specific
objection on the ground asserted on appeal].)
On the merits, Palencia’s claim fails as well. The expert’s
testimony was related to one of the model’s misconceptions and it
served to rehabilitate M.R. The expert identified unexpected
behaviors common among child sexual abuse victims. She then
explained why children may act in these seemingly unexpected
ways. Other evidence suggested M.R. delayed reporting her
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abuse. The misconceptions that can arise from delay in this
context was the main thing the expert discussed. Palencia’s
counsel questioned M.R. about her delay in disclosing to her
cousin. The trial court properly admitted this expert testimony
to counter common jury misconceptions about delays in reporting
abuse. (See McAlpin, supra, 53 Cal.3d at pp. 1300–1301.)
It was proper for the hypothetical questions to bear some
relationship to the facts of the case. (People v. Bowker (1988)
203 Cal. App. 3d 385, 393–394 [expert’s testimony must aim at a
specific myth or misconception suggested by the evidence].)
Palencia’s reliance on People v. Jeff (1988) 204 Cal. App. 3d
309 is misplaced. Jeff held expert testimony cannot be based on
“the exact same facts and details” as those in the allegations
against the defendant, because that would tell “the jury that they
should accept” the victim’s version of events. (Id. at p. 338.)
Unlike the Jeff case, however, here neither the prosecution’s
questions nor the expert’s responses tracked the victims’
testimony so closely that they told the jury to believe the
allegations. To the contrary, the expert did not purport to know
or opine about the case at hand. She also explained the model is
not a diagnostic tool.
The trial court took steps to ensure the testimony was not
used for an improper purpose. The court instructed the jury the
expert testimony was not evidence against Palencia. The jury
could use the testimony only to help assess M.R.’s and G.D.’s
conduct and to assess the believability of their testimony. We
presume juries obey instructions. (People v. Sanchez (2001) 26
Cal. 4th 834, 852.)
Palencia says the prosecution never identified the
misconception the expert’s testimony was designed to rebut. The
11
prosecution correctly responds it did not need expressly to state
on the record the evidence inconsistent with the finding of abuse.
(People v. Patino (1994) 26 Cal. App. 4th 1737, 1744.) It was
sufficient Palencia placed M.R.’s credibility in issue due to her
delayed reporting. (Id. at p. 1744–1745.) The California
Supreme Court favorably applied this reasoning from Patino in
People v. Riggs (2008) 44 Cal. 4th 248, 293.
Contrary to Palencia’s contentions, the expert’s testimony
was relevant. Palencia incorrectly claims the expert’s testimony
was irrelevant because M.R. had offered reasons to explain her
delayed disclosure. But a child may be reluctant to talk about
abuse for many different reasons. Different jurors may find some
reasons more persuasive than others. For example, M.R. said she
endured sexual abuse because Palencia paid the family’s bills. A
juror might think no amount of financial support could make a
child endure sexual abuse. The expert provided more, and
relevant, testimony about why children might be slow to reveal
abuse.
Palencia says the expert’s testimony about rates of
disclosure would have prompted the jurors to believe M.R. “on the
basis of statistical probability.” Palencia forfeited this claim.
(Demetrulias, supra, 39 Cal.4th at p. 20.) The claim is also
incorrect.
If anything, the expert’s statistics showed the disclosure
was anomalous. The expert said only about 1 to 3 percent of
children disclose between five and 10 years after abuse begins.
According to these figures, M.R.’s disclosure, which came about
five to six years after she said the abuse began, put her in a
category where disclosure was atypical. Additionally, M.R. and
G.D. were part of the “very small percentage” of children who
12
report abuse to law enforcement at all. The statistics tended to
show the victims’ actions were improbable.
Palencia challenges the use of statistics by citing People v.
Julian (2019) 34 Cal. App. 5th 878, 883–884, a case in which the
expert testified about a statistical rate of false accusations. The
expert in Julian said that rate was between 1 and 8 percent. (Id.
at p. 883.) The court reasoned these statistics invited the jury to
presume there was a 92 to 99 percent chance the defendant was
guilty. (Id. at p. 886.) There was no testimony like that here.
III
Palencia says he earned three more custody credits than
the court awarded. The prosecution agrees. We modify these
credits accordingly. A criminal defendant is entitled to credit for
each day he spends in presentence custody, including the dates of
arrest and sentencing. (People v. Rajanayagam (2012) 211
Cal. App. 4th 42, 48; see § 2900.5, subd. (a).) Palencia was
arrested on August 15, 2018. The court pronounced his sentence
on May 30, 2019. The court credited him with 287 days of actual
credit but Palencia is entitled to 289 days. The court credited
him with 42 days of conduct credit but he is entitled to 43 days.
(§§ 4019, subd. (b); 2933.1, subd. (a) [anyone convicted of a felony
listed in § 667.5, subd. (c) “shall accrue no more than 15 percent
of worktime credit.”].) Thus, the judgment must be modified to
reflect 289 days of actual credit and 43 days of conduct credit, for
a total of 332 days of presentence custody credits.
DISPOSITION
The judgment is modified to award Palencia 289 days of
actual credit and 43 days of conduct credit, for a total of 332 days
of presentence custody credits. We direct the trial court to
prepare an amended abstract of judgment to reflect the corrected
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presentence custody credits and to forward a certified copy to the
Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J.
STRATTON, J.
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