People v. Garcia CA4/2

Filed 6/8/23 P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078422
v. (Super. Ct. No. RIF2004247)
ADRIAN GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr.
Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora
S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury convicted defendant and appellant Adrian Garcia of four counts of
engaging in oral copulation or sexual penetration with a child 10 years of age or younger
(Pen. Code, § 288.7, subd. (b); counts 1-4). The trial court sentenced defendant to 15
years to life in state prison on each count, with counts 2 and 4 to run concurrent, for an
aggregate sentence of 30 years to life. On appeal, defendant contends his trial counsel
was ineffective for failing to object to the psychologist’s expert testimony that children
do not lie about child molestation, requiring reversal of his convictions. We reject this
contention and affirm the judgment.
II.
FACTUAL BACKGROUND
Jane Doe’s paternal grandmother was married to defendant. Jane, who was born
in June 2008, considered defendant to be her grandfather. Around Mother’s Day 2019,
when Jane was 11 years old, Jane told her maternal grandmother that defendant had
touched her inappropriately. Jane’s grandmother called Jane’s parents, and Jane told her
mother what defendant had done to her. Jane’s mother reported the information to child
protective services.
On April 29, 2020, when she was still 11 years old, Jane Doe attended a forensic
interview during which she explained the events that occurred with her step-grandfather
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defendant. From age seven to age 11, Jane visited her paternal grandmother and
defendant at their house in Riverside during summer vacations. While visiting her
paternal grandparents, defendant molested Jane numerous times from the time she was
age seven, eight or nine years of age until she was age 11. Jane recounted several
incidents in detail.
Specifically, one night when Jane was eight or nine years old, she was sleeping
between her grandmother and defendant and woke up to find defendant pulling her to the
edge of the bed by her calves around 5:00 a.m. or 6:00 a.m. Defendant was squatting
next to the edge of the bed as he pulled Jane, who was laying on her back, towards him.
Defendant then pulled off her Jane’s shorts and underwear and pushed her nightgown up
towards her stomach. Defendant rubbed her vagina with his two fingers, which made her
vagina feel “tingly.” Defendant then penetrated her vagina with two fingers and moved it
up and down inside of her. Jane explained that her vagina felt uncomfortable when
defendant penetrated her with his fingers. After he penetrated her with his fingers,
defendant licked Jane’s vagina with his tongue until he was done or had to go to work.
Jane noted that defendant moved his tongue all round her vagina, which made her feel
“wet” and like she had to go to the bathroom. When defendant was done, he put Jane’s
clothes back on and moved her back to the middle of the bed. He would then take a
shower, get dressed and leave. During the incident, Jane’s paternal grandmother
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A video of the forensic interview was played for the jury at the time of trial.
The transcript of the interview was admitted into evidence as People’s exhibit No. 1A.
At the time of trial, Jane was 13 years old.
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remained asleep in the bed. Jane believed defendant’s conduct was wrong, but she did
not say anything because she thought she would get hurt.
Jane recalled another instance that occurred in defendant’s living room when she
was nine or 10 years old. Jane explained that she fell asleep on her blow-up bed on the
living room floor and woke up to defendant carrying her to the couch. Defendant laid her
down on the couch and positioned her head on the arm rest. He put one of her legs on the
top of the back rest and the other leg hanging off the couch. Defendant removed her
pants and underwear and rubbed her vagina with his fingers. He then penetrated Jane’s
vagina with his fingers and licked her vagina with his tongue. Another incident occurred
at Jane’s apartment in Las Vegas when she was nine years old and defendant stuck his
hand inside her shirt while her parents and sister were also at the apartment. Specifically,
Jane explained that defendant came up behind her, reached down her shirt, touched her
bellybutton area, and hovered his hand in her torso area. When Jane moved to turn
around, defendant quickly removed his arm.
Jane remembered another instance when defendant placed her hand on where he
“goes pee” and moved her hand up and down rubbing his penis over his clothes. She
recalled losing feeling in her hand and being so scared that she became numb. The last
year that Jane visited her paternal grandmother and defendant’s home in Riverside, she
told her paternal grandmother that defendant had inappropriately touched her, but her
paternal grandmother did nothing about it.
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Jane’s mother recalled receiving two calls from Jane around her ninth birthday.
During the calls, Jane was upset, crying, and said that she wanted to come back home.
Jane’s grades started slipping the following school year, and Jane became distant and
angry at home with her parents and sister. Jane’s mother received emails from her
teacher saying that she was not focusing and not doing well on assignments. Jane’s
parents believed that she was going through a “tween” stage.
A sexual assault child abuse detective testified about the investigative process, the
commonality of late reporting by victims, and the lack of forensic evidence recovered in
the majority of cases. The detective did not have Jane undergo a forensic examination
because too much time had elapsed since the molestation incidents. The detective
attempted to contact Jane’s paternal grandmother because she was a potential witness, but
she refused to interview with the detective.
Dr. Veronica Thomas, a clinical and forensic psychologist, testified regarding
various subjects involving child sexual assault victims. She explained that sexual assault
victims usually know their abusers, abusers groom their victims, victims delay disclosure
of child sexual abuse when they know their abuser, victims often do not hate or disdain
their abusers because they know them, victims’ coping mechanisms, their inconsistencies
in reporting the events, and other behavior commonly exhibited by victims of child
sexual abuse. Dr. Thomas acknowledged that she did not interview Jane and knew
nothing about defendant’s case.
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Jane’s paternal grandmother testified in defendant’s defense. She stated that it
was impossible for defendant to molest Jane on the night Jane slept in their bed. She
recalled the night that Jane requested to sleep with her and defendant in their queen-size
bed because Jane was afraid was the only time that Jane slept with them. The paternal
grandmother explained that she did not get any sleep that night as she was in the middle
of Jane and defendant and it was very crowded in their bed. The paternal grandmother
denied that she was asleep the night when Jane slept in their bed. The paternal
grandmother also stated that Jane never told her that something inappropriate had
happened between Jane and defendant and that if Jane had said something, she would
have spoken to defendant and Jane’s parents about it. The paternal grandmother admitted
that defendant’s attorney instructed her not to talk to anyone about the allegations.
III.
DISCUSSION
Defendant argues that his trial counsel was ineffective for failing to object to the
forensic psychologist’s expert testimony that “children do not lie about being molested”
and that he was prejudiced by counsel’s omission. The People respond that defendant
mischaracterizes the psychologist’s expert testimony as the psychologist never stated
children do not lie about being molested and never vouched for Jane’s credibility, and
thus no objection was necessary. In the alternative, the People assert that any error was
harmless.
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A. Additional Background
Here, Dr. Thomas, a clinical and forensic licensed psychologist, testified regarding
child sexual abuse and victim behavior, including delayed disclosure by victims,
grooming, inconsistencies in victims’ recollection of sexual abuse, and general behaviors
of abusers and their victims. Dr. Thomas explained that it is a misconception that
children are often sexually abused by strangers when the most of the children are sexually
abused “in the context of a relationship,” such as by people they know, people they trust,
and those that they have an ongoing relationship. Further, it is common for victims to
delay reporting the abuse and the disclosure may occur incrementally based on the age of
the child and many psychological factors. Dr. Thomas indicated that generally, teenagers
report the abuse “soon thereafter or within a year” and “little kids may or may not report,
depending on the circumstances of the relationships involved.” Dr. Thomas also testified
about various coping behaviors utilized by children, such as by wanting to mostly watch
movies and TV and play video games, not eating or having bathroom issues, the child
becoming angry and defiant, changes in behavior, and depression.
Dr. Thomas does not conduct forensic interviews of child victim’s as they are
specialized and did not do so in this case. Dr. Thomas testified that she did not have any
knowledge regarding the facts or allegations in defendant’s case. She did not know Jane,
had never met her, and never interviewed her. She also did not view the video of the
forensic interview or review any of the reports in this case. Dr. Thomas explained that
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she did not “know anything about this case” and that her expert testimony was about
child sexual assault victims in general.
On cross-examination of Dr. Thomas, defendant’s trial counsel attempted to have
the expert testify about child abuse allegations based on false memories of the child and
false memories created by others. The expert defined false memories as “the capacity to
believe somebody else’s encouragement about something that didn’t happen.” Prior to
Dr. Thomas defining a false memory, the following colloquy occurred between defense
counsel and Dr. Thomas:
“[DEFENSE COUNSEL] Q. . . . if a child is asked over and over again to retell
something that’s happened to them, something that may start as a false memory, I mean
they believe that, and they’ve been asked to say it over and over again. Does that child
really believe that that’s true? Does that question make sense?
“A. Yes. Although you’re asking about a false memory, something that never
happened, something that you and your mom are talking about a picture. Well, yes. And
in child sex abuse, there is no picture. It’s just a talk, a disclosure, or not a disclosure. So
they sort of don’t go together, if you understand.
“Q. They don’t. Because in a - - I mean I’m assuming in a child sexual abuse in a
false memory, it could be a disclosure that’s to something that isn’t true; is that correct?
A. Yes. That would make it a lie though. And that’s pretty unusual for this kind
of an allegation.”
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Dr. Thomas explained that false memories start when “there’s a suggestion from
somebody, usually an adult that something has happened to the child . And the child has
no recollection of it, but can be increasingly encouraged to believe certain things with
education and pressure and suggestions, even though it may not have been the right time,
the right year, the right day or anything.” The expert further testified that although
everyone lies, people do not lie about big things, such as “starting a fire or being
molested or hurting somebody else” because “that’s pretty audacious, and that’s going to
be difficult to uphold and sustain.”
On redirect-examination, Dr. Thomas explained the reason why it would be
difficult to “uphold and sustain” being molested because “the onus is upon the child to
explain details of their experience. And those details are usually where there is no sexual
abuse, are exotic and weird.” Further, children do not recall explicit descriptive details
about an incident of sexual abuse that occurred to them if it were a false memory.
Defense counsel did not object to any of the above expert testimony.
B. Governing Law
“‘In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating . . . that counsel’s performance was deficient because it “fell
below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] . . . If a defendant meets the burden . . . , he or she also must show
that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
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different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966
(Lopez).)
Our Supreme Court has “often observed” that “whether or not to object to
evidence at trial is largely a tactical question for counsel, and a case in which the mere
failure to object would rise to such a level as to implicate one’s state and federal
constitutional right to the effective assistance of counsel would be an unusual one.
[Citation.] An attorney may well have a reasonable tactical reason for declining to
object, and ‘“[i]f the record on appeal sheds no light on why counsel acted or failed to act
in the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation.”’ [Citation.]” (People v. Seumanu (2015)
61 Cal.4th 1293, 1312-1313 (Seumanu).)
A possible tactical reason for counsel to refrain from objecting may be counsel’s
“desire[] not to highlight the evidence by making an objection. ‘[T]he decision whether
to object, move to strike, or seek admonition regarding [undesired] testimony is highly
tactical, and depends upon counsel’s evaluation of the gravity of the problem and whether
objection or other responses would serve only to highlight the undesirable testimony.’
[Citation.]” (Seumanu, supra, 61 Cal.4th at p. 1313.)
In this case, defendant contends that the testimony by Dr. Thomas that children do
not lie about being molested vouched for Jane’s credibility. Defendant cites to People v.
Julian (2019) 34 Cal.App.5th 878 (Julian), People v. Wilson (2019) 33 Cal.App.5th 55910
(Wilson) and People v. Lapenias (2021) 67 Cal.App.5th 162 (Lapenias) in support of his
argument that testimony regarding children rarely lie about being molested is improper
and that his trial counsel should have objected to the testimony, especially the redirect
testimony.
In Julian, supra, 34 Cal.App.5th 878, the appellate court determined that statistical
evidence presented by the prosecution’s expert witness went beyond the permissible
scope of the child sexual abuse accommodation syndrome (CSAAS) evidence and that
defense counsel provided ineffective assistance by not objecting to it. (Id. at p. 880.)
The expert made more than 10 statements referring to the small percentage or rarity of
false reports of abuse based on various studies or articles. (Id. at pp. 883-885.) The
statistics included testimony that false allegations of sexual abuse by children “‘don’t
happen very often,’” and that “‘[t]he range of false allegations that are known to law
enforcement or [Child Protective Services] . . . is about as low as one percent of cases to
a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.’” (Id. at pp.
883, 885, italics omitted.) The appellate court found that the expert’s “92 to 99 percent
probability evidence invited jurors to presume [the defendant] was guilty based on
statistical probabilities, and not decide the evidence properly introduced in the case.” (Id.
at p. 886.) In determining that the defendant’s trial counsel rendered ineffective
assistance of counsel, the appellate court found that there was “no justification for
counsel’s failure to object to [the expert’s] statistical evidence on false allegations. It was
inadmissible and it improperly suggested [the defendant] was guilty based on statistical
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probabilities that were irrelevant to this case.” (Id. at p. 888.) Further, the evidence was
“highly prejudicial” because there was a “credibility dispute between [the victim’s]
testimony and [the defendant’s]” and “[i]t was a heavily contested case with strong
defense evidence.” (Ibid.) The court stated, however, that statistical evidence “may not
be prejudicial where it occurs in a slight passing reference by the expert. But here the
jury was bombarded with it.” (Ibid.)
In Wilson, supra, 33 Cal.App.5th 559, the appellate court concluded that expert
testimony that only a small percentage of child sexual abuse allegations are false should
not have been admitted, but that the error was harmless. (Id. at pp. 561, 572.) The
expert’s testimony included statements that false allegations occurred “‘very infrequently
or rarely’” and that studies showed false allegations in one to six percent of cases. (Id. at
p. 568.) The appellate court concluded that the testimony “had the effect of telling the
jury there was at least a 94 percent chance that any given child who claimed to have been
sexually abused was telling the truth.” (Id. at p. 570.) The appellate court found that “the
practical result was to suggest to the jury that there was an overwhelming likelihood [the
victims’] testimony was truthful,” which “invaded the province of the jury.” (Ibid.) The
appellate court ultimately concluded that the error in admitting the evidence was harmless
under People v. Watson (1956) 46 Cal.2d 818. (Wilson, supra, at pp. 571-572.) Among
other reasons, the appellate court explained that the expert’s testimony on the statistical
evidence was “brief”; the defense rebutted the evidence; the prosecutor did not mention
the statistical evidence in argument; the jury was instructed that it was the sole judge of
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the facts and of witness credibility; and the victims testified extensively and the jurors
could assess their credibility. (Id. at p. 572.)
In Lapenias, supra, 67 Cal.App.5th 162, the appellate court determined that the
trial court erred in allowing the CSAAS expert to testify that it is “‘rare’” for children to
make up a story that abuse occurred, but that the error was harmless. (Id. at p. 166; see
also id. at pp. 177, 180.) The Court of Appeal determined that the testimony “went
considerably beyond the limited purpose of CSAAS evidence (to explain the typical
behaviors of sexually abused children, such as delayed reporting)” and —“by implication
and by inference—violated the general rule that an expert may not give an opinion as to
whether another witness is telling the truth or the defendant is guilty.” (Id. at p. 179.)
The appellate court found that there was “‘no meaningful distinction between giving a
statistic that indicates that false allegations are rare and stating that children rarely make
false allegations without explicitly quantifying the word “rare.” The problem with both
assertions is that [the] expert is vouching for the veracity of the’ alleged victims.” (Id. at
pp. 179-180.) The Court of Appeal nevertheless concluded the error harmless. (Id. at p.
180 [applying Watson test].) The appellate court reasoned that the expert’s testimony
was “brief” as were the references to the testimony by both counsel during argument;
there was persuasive corroborative evidence of the defendant’s guilt; and the jury was
instructed regarding the limited purpose of CSAAS evidence, that they were not bound
by an expert’s opinion, and that they were the sole judge of witness credibility. (Id. at p.
180.)
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In this case, assuming that an objection would have been sustained to Dr.
Thomas’s testimony that children do not lie about being molested (and that the testimony
would have been stricken), we find that a plausible reason exists for trial counsel’s failure
to object. The testimony was limited to two sentences on cross-examination and one
sentence on redirect examination. Given the brevity of the testimony about children
rarely lying about being molested and the context in which the testimony was made, i.e.,
children’s recollections to report details of the abuse in false memory circumstances,
defendant’s trial counsel may well have determined that an objection (accompanied by a
motion to strike) would serve only to highlight the brief testimony that the jurors might
otherwise not give much attention to. (See Seumanu, supra, 61 Cal.4th at p. 1313.)
Indeed, defendant concedes “it would be understandable for trial counsel not to object to
Dr. Thomas’s initial testimony on cross-examination that children do not lie for fear that
the objection ‘would serve only to highlight the undesirable testimony.’” This case is
therefore distinguishable from Julian, where the “jury was bombarded with” more than
10 statements by the prosecution’s expert about the rarity of false reports of abuse and the
appellate court found “no justification for counsel’s failure to object.” (Julian, supra, 34
Cal.App.5th at pp. 888, 883-885; see also id., at p. 888 [the “evidence may not be
prejudicial where it occurs in a slight passing reference by the expert”].) Instead, this
case is analogous to Wilson and to Lapenias, where the expert’s testimony was “brief.”
(Wilson, supra, 33 Cal.App.5th at p. 572; Lapenias, supra, 67 Cal.App.5th at p. 180.)
Accordingly, “[t]here being a plausible reason why counsel did not object, we cannot
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conclude on this record that counsel’s inaction lacked a reasonable tactical basis.”
(Seumanu, supra, at p. 1313.)
To the extent defendant’s trial counsel erred in failing to object to the challenged
testimony, we determine that defendant fails to demonstrate counsel’s purported
deficiency resulted in prejudice. (See Lopez, supra, 42 Cal.4th at p. 966.) Dr. Thomas’s
challenged testimony was “brief” (Lapenias, supra, 67 Cal.App.5th at p. 180; Wilson,
supra, 33 Cal.App.5th at p. 572), and the jury was not “bombarded” on this point during
Dr. Thomas’s testimony or during argument by counsel. (Julian, supra, 34 Cal.App.5th
at p. 888; see Lapenias, supra, at p. 180.) Further, the jury was instructed regarding the
limited purpose of Dr. Thomas’s testimony and that it was “‘not evidence that the
defendant committed any of the crimes charged against him,’” as well as instructed that
they were not bound by an expert’s opinion and that they were the sole judge of witness
credibility. (Lapenias, supra, at pp. 175, 180; see CALCRIM Nos. 1193, 332, 226.)
Jurors are ordinarily presumed to understand and follow the instructions given. (People
v. Yeoman (2003) 31 Cal.4th 93, 139.)
Moreover, Dr. Thomas made it clear that she had never met Jane and had not
viewed the forensic interview or read the reports. She further testified that she did not
know anything about the case and that her testimony was about victims of child sexual
assault as a “class in general” and “disclosure patterns of victims.” Dr. Thomas was not
vouching for the veracity of Jane’s testimony or bolstering her testimony because she
knew nothing about the specific allegations. Rather, it was Jane’s detail accounts from
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her forensic interview and the consistency in her testimony that bolstered her credibility.
On this record, defendant fails to establish “‘a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”’” (Lopez, supra, 42 Cal.4th at p. 966.)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
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