People v. Perez-Mora CA4/3

Filed 5/17/22 P. v. Perez-Mora 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059349
v. (Super. Ct. No. 16NF2169)
JUAN JOSE PEREZ-MORA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Juan Jose Perez-Mora appeals from the judgment after a jury convicted him
of two counts of continuous sexual abuse of a child under the age of 14 years, based on
evidence he molested two young girls, B.R. (count 1) and A.R. (count 2). The trial court
imposed consecutive terms of 15 years to life on each count under Penal Code section
667.61 (“One Strike law”) based on the jury’s true findings on multiple victim
allegations.1 On appeal, Perez-Mora contends: (1) the trial court abused its discretion by
excluding evidence of B.R.’s mental illness; (2) his trial counsel rendered ineffective
assistance by failing to object to improper testimony by the prosecution’s expert on child
sexual abuse accommodation syndrome (CSAAS) concerning the statistical rates of
fabricated child sexual abuse claims; (3) the cumulative effect of these errors deprived
him of a fair trial; (4) his life sentence under the One Strike law violated ex post facto
guarantees; and (5) he was entitled to presentence conduct credits. We conclude the
expert’s testimony concerning the statistics on fabricated claims of child sexual abuse
was inadmissible, but the error was harmless. Finding no other errors, we affirm.
FACTS
I. General Background
B.R. and her younger sister A.R. were related to Perez-Mora by marriage.
The girls had one older brother, G.R., and two younger brothers. B.R., A.R., and their
older brother went to elementary school near Perez-Mora’s home. The children were
often at his house and sometimes spent the night there.
In 2013, the children’s mother separated from their father and she took
them to a shelter because they had no place else to live. When they left the shelter, they
moved into the Perez-Mora family home and stayed there for a few months.
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
2
II. Perez-Mora Sexually Abuses B.R.
Perez-Mora sexually abused B.R. from the time she was six years old until
she was 15. The first incident occurred when B.R. was alone with him in his bedroom.
Perez-Mora played a pornographic movie. B.R. fell asleep. When she woke up, Perez-
Mora was standing next to the bed and masturbating. He forced her hand onto his penis
but let go of it when she would not do what he wanted. During this incident, he groped
her breasts and her vaginal area over her clothes.
When she was seven or eight years old, Perez-Mora told her that he needed
to show her something and took her into the closet. He closed the door and pulled down
his pants, exposing his erect penis. He told her to touch it. When she refused, he grabbed
her hand and put it on his penis. He let her go when she continued to resist.
Sometimes when B.R. and her sister spent the night at Perez-Mora’s house,
they would sleep in the master bedroom with Perez-Mora and his wife. B.R. would sleep
on the floor. She would wake up to find Perez-Mora laying behind her with his erect
penis pressed against her. He would stop when she moved and he realized she was
awake.
If B.R. was alone watching television or on the computer, Perez-Mora
would walk up behind her, put his hand down her shirt, and grope her breasts. On one
occasion, he kissed her and tried to put his tongue in her mouth.
When B.R. was six to 10 years old, she and her sister would shower
together when they were staying at Perez-Mora’s house. While they were showering, he
would come into the bathroom and act like he was helping them shower and dry off. But
he inappropriately touched them while drying them.
Once when B.R. was seven or eight years old, Perez-Mora placed her on his
bed after she showered. He put lotion on her and digitally penetrated her. On another
occasion, B.R. was sitting on the bed wrapped in a towel when Perez-Mora pulled her to
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the edge of the bed, pulled down his pants, and placed his penis on her vaginal area but
did not penetrate her.
Perez-Mora attempted to digitally penetrate B.R. when she was 11 years
old. He grabbed her and put his hand down her pants. She said “no” louder and louder,
hoping her siblings, who were in a nearby room, would hear her. Perez-Mora eventually
let her go.
During 10 years of abuse, Perez-Mora had B.R. masturbate him four times,
touched her vaginal area three times, touched her breasts under her clothes about four or
five times, and touched her breasts and vaginal area over her clothes about 20 times.
When B.R. was 15 years old and her family was staying in the shelter, she
told a counselor someone in her family was abusing her. But when a police officer asked
her about it, she denied being abused because Perez-Mora and his family were helping
her family and staying at his house was the best option for her family.
After leaving the shelter, B.R.’s family stayed at Perez-Mora’s house.
B.R. and A.R. slept on an L-shaped couch in the living room. One night, Perez-Mora
came in and groped B.R.’s breasts. When she shifted, he went over to A.R., pretended to
cover her up, and groped A.R.’s buttocks. That night, B.R. told her brother she saw
Perez-Mora touching A.R. Her brother did not know what to do about B.R.’s revelation,
so he went to their cousins, Perez-Mora’s adult children. B.R. told them Perez-Mora was
molesting her. Her cousins told her and A.R. to switch rooms with their brothers but did
not tell anyone about B.R.’s allegation. B.R. did not want to tell her mother about the
abuse because her mother was already going through a lot and B.R. did not want to add to
her mother’s problems. Perez-Mora was helping the family by giving them a place to
stay and B.R. did not want to lose that.
III. Perez-Mora Sexually Abuses A.R.
Perez-Mora began abusing A.R. when she was between the ages of seven
and nine. Like he did with B.R., Perez-Mora played a pornographic movie when A.R.
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was alone with him in his bedroom. While the movie was playing, Perez-Mora tried
touching A.R.’s breasts and vaginal area over her clothes, but she pushed him away.
Referring to the movie, he told her that they could do that when she was ready. He
repeatedly did this, and after a few months, he progressed to sucking on her breasts and
making her touch his penis.
When A.R. was nine or 10 years old, Perez-Mora followed her into the
bathroom, forced her hand onto his exposed penis, and tried to make her masturbate him.
She resisted, and he stopped when his daughter called out looking for him.
When A.R. was in the sixth grade, her family attended a party at Perez-
Mora’s house. A.R. was inside the house, while the others were outside. Perez-Mora
came up from behind her and grabbed her breasts. He did this on other occasions when
she was alone or no one was paying attention. Sometimes he would come up behind her,
put his hands around her waist, and press his penis against her. One time he lifted her
shirt and kissed her back.
When A.R. spent the night at Perez-Mora’s house, she would wake up to
find him touching her vaginal area or her breasts. One of the last incidents occurred
when she was sleeping on the couch. Perez-Mora touched her breasts and vagina. She
saw Perez-Mora near her sister and her sister woke up crying. Their cousins had them
change rooms.
In total, Perez-Mora touched A.R.’s breasts 100 times, touched her vaginal
area over her clothes 20 to 30 times, and had her masturbate him five times.
IV. Disclosure
In 2016, B.R. disclosed to A.R. that Perez-Mora had molested B.R. when
they were younger. A.R. confided in her sister that he had done the same things to her.
They told their mother about the abuse. A.R., who was in high school, informed one of
her teachers that a man she had been living with sexually abused her and her sister. The
teacher, a mandated reporter, reported A.R.’s disclosure.
5
V. Police Investigation
Orange County Sheriff’s Department Investigators Theresa Pereyra and
Investigator Edoardo Arredondo interviewed B.R. in May 2016, when she was 18 years
old. She described for them the numerous incidences of abuse Perez-Mora had
perpetrated upon her, as detailed above. B.R. told the investigators she had recently
learned Perez-Mora also molested A.R. multiple times. Although she saw Perez-Mora
grope A.R.’s buttocks in 2013, B.R. thought that was the only time.
After interviewing B.R., Pereyra and Arredondo interviewed A.R., who
was 14 years old at the time. A.R. described several acts of abuse Perez-Mora had
perpetrated upon her over the years.
A. Pretext Phone Call
A few months after law enforcement interviewed B.R., they had her make a
pretext phone call to Perez-Mora. In the call, B.R. said she wanted to talk to him about
him touching her when she was six years old and asked if he remembered touching her
breasts. He said he touched her one time when he was waking her up for school and he
told her to talk to her mother because “it wasn’t normal.” He denied B.R.’s accusations
of sexual abuse.
B. Police Interview
Perez-Mora was arrested minutes after the pretext phone call and
transported to the Orange County Sheriff’s Department, where he was interviewed by
Pereyra and Arredondo. In the interview, Perez-Mora repeatedly denied anything
inappropriate happening with the girls. He said his wife and daughter, not him, helped
the girls bathe and dress. And he claimed he was never home alone with the girls.
Talking about his statement during the pretext call that he touched B.R.’s
breast, Perez-Mora stated he accidentally touched her chest once when he went to wake
her up. He felt a hard bump by her chest and told her to tell her mother about it because
he thought it was abnormal and could be an infection.
6
VI. Charges
In a second amended information, Perez-Mora was charged with two
counts of continuous sexual abuse of a child under the age of 14 years (§ 288.5,
subd. (a).) Count 1 alleged continuous sexual abuse of B.R. on or about and between
February 16, 2003 and February 15, 2012, and count 2 alleged continuous sexual abuse
of A.R. on or about and between June 16, 2008 and June 12, 2015. As to both counts, it
was alleged under the One Strike law that Perez-Mora committed a designated offense
against more than one victim. (§ 667.61, subds. (b), (e)(4).)
VII. Trial
A. Prosecution Evidence
1. B.R.’s Testimony
B.R. was 22 years old at the time of trial. For the most part, her testimony
regarding the sexual abuse was consistent with her statement to the investigators in 2016.
However, at trial she testified the first time Perez-Mora abused her was the incident
where he took her into the closet, exposed his erect penis, told her to touch it, and put her
hand on it. She testified Perez-Mora twice made her watch pornographic movies with
him but she did not recall any inappropriate touching on these occasions.
In her testimony, B.R. described Perez-Mora inappropriately touching them
when they were showering at his house. She also described two incidents occurring
when she was between the ages of six and 10, where Perez-Mora digitally penetrated her
after she got out of the shower.
She testified that when she was seven or eight years old, Perez-Mora
touched her vaginal area with his penis on two occasions; she had only told investigators
about one incident. She testified that when she was nine years old or older, Perez-Mora
kissed her on the lips and asked if she wanted to be his girlfriend.
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2. A.R.’s Testimony
A.R. was 19 years old at the time of trial. For the most part, her testimony
regarding the sexual abuse was consistent with her statement to the investigators in 2016.
However, at trial she testified the first incident of abuse occurred in the middle of the
night when she woke up to find Perez-Mora touching her breasts and vaginal area. At the
time, she was sleeping in the bed with Perez-Mora’s wife and he was sleeping on the
floor next to the bed. A.R. confirmed her and her sister showered together at Perez-
Mora’s house when they were young, but A.R. did not remember Perez-Mora touching
B.R.’s chest in the shower.
3. Expert Testimony Concerning CSAAS
Dr. Martha Rogers, a clinical and forensic psychologist, received training
on the treatment of child molestation victims, taught classes on the subject, and published
articles about it. She had done “quite a bit of work on mistaken or fabricated
allegations.” Rogers explained CSAAS was developed by a doctor in 1983 based on his
clinical observations of sexually abused children. In the article, he sought to identify
some of the dynamics between these children and their abusers and described five
characteristics he thought were commonly seen in sexually abused children: (1) secrecy;
(2) helplessness; (3) entrapment; (4) delayed disclosure; and (5) retraction or recantation.
Rogers described each of the five characteristics and cautioned they should
not be used to determine whether abuse occurred. She indicated secrecy refers to the fact
the sexual abuse occurs when the abuser is alone with the child, and children tend to keep
the abuse a secret for various reasons. Helplessness has to do with the power differential
between the perpetrator and the child, especially if the abuser is a family member,
because the adult has certain controls over the child and the child is helpless to oppose
what is happening. Entrapment concerns a child’s inability to get out of an abusive
situation.
8
Rogers addressed delayed and unconvincing disclosure, indicating it was
the most widely researched area of CSAAS. She explained delayed disclosures are very
common with children who have been sexually abused. In a child’s initial disclosure, the
child may reveal only a portion of what happened. How much a child discloses depends
on the child’s relationship with the person to whom the child is making the disclosure and
the person’s reaction.
Discussing retraction, Rogers stated research shows retraction may occur
when the abuser is a family member and the child becomes concerned about what the
disclosure will do to the family. A child’s desire not to breakup the family can cause the
child to recant or deny an abuse allegation. In some cases, the child will recant but later
restate the abuse allegation. Rogers testified studies about victims recanting or retracting
indicate rates of retraction are not as high as failure to disclose and recantation is more
common in familial abuse situations.
Rogers clarified CSAAS is not a tool to say whether abuse happened, but it
can be used to look at the conduct of someone who has been abused and understand why
they acted as they did. It cannot be used to diagnose or prove someone did something.
She also testified just because a child displays one or more of CSAAS’s five
characteristics does not mean the child was sexually abused. Rogers had not reviewed
any information about the case and knew nothing about the victims.
Rogers testified that in the studies she had examined, the rates of children
fabricating allegations of sexual abuse was “very low” and “[t]he biggest studies [gave] a
rate of five to ten percent of either young children where we say mistaken allegations
have occurred and a small percentage of fabricated cases.” She stated that in her own
experience, “fabricated cases were largely in family law court, rather than in a criminal
venue.”
9
B. Defense evidence
1. Perez-Mora’s Testimony
Perez-Mora testified in his own defense and denied all of B.R.’s and A.R.’s
allegations of inappropriate touching. During the time the alleged abuse occurred (from
2005 through 2013), he routinely worked 14 to 15 hours a day. When he had a day off,
he was never home alone with the girls.
2. Testimony of Perez-Mora’s Family and Friends
Perez-Mora’s wife, daughter, and son testified in his defense. All of them
lived in the house between 2005 and 2013, and none of them saw any inappropriate
interactions between Perez-Mora and the girls. Each confirmed Perez-Mora worked long
hours and was rarely home. None of them believed Perez-Mora was ever home alone
with the girls because someone in the family was always home when the girls were there.
Perez-Mora’s son and daughter denied anyone told them B.R. saw their father touch A.R.
inappropriately.
Perez-Mora’s adult daughter testified B.R. and A.R. only spent the night
between 2005 and 2010 if she was home because she was responsible for watching them.
She would help the girls with their baths or showers. Perez-Mora’s wife and daughter
never saw him interact with the girls while they were bathing or put lotion on them after
they got out.
Perez-Mora’s wife and daughter confirmed that when B.R. and A.R. were
young, the girls slept in the master bedroom with Perez-Mora and his wife, and the girls
usually on the floor. Sometimes they slept in the bed with Perez-Mora’s wife; when they
did, Perez-Mora slept on the floor. Perez-Mora’s wife was a light sleeper and got up
multiple times during the night to use the restroom; she never saw anything inappropriate
between Perez-Mora and the girls.
From time-to-time, extended family members lived in the house with
Perez-Mora and his immediate family. Two separate family members testified they lived
10
in the house, one for about three weeks and the other about three years, and they never
observed anything inappropriate between Perez-Mora and the girls.
Perez-Mora’s wife saw B.R. and A.R. interact as they were growing up.
B.R. bullied A.R., and it appeared A.R. was afraid of B.R. A woman who had been in a
relationship with the girls’ father for more than nine years testified she had seen B.R. lie
and manipulate her siblings.
3. Other Defense Evidence
In 2013, a shelter counselor conducted therapy sessions with B.R. During a
session, B.R. disclosed she was being sexually abused by a family member on her
father’s side, but she did not name the person. B.R. informed the counselor she told a
cousin about the abuse and her parents knew about it but did nothing.
In April 2013, Chino Police Officer Alexander Nobel interviewed B.R.
about her sexual abuse allegation. She told him she was not sexually assaulted.
Although B.R.’s denial contradicted the counselor’s report, Nobel believed B.R. Based
on her demeanor and their conversation, he concluded the allegation of sexual abuse was
unfounded.
VIII. Verdict and Sentencing
A jury found Perez-Mora guilty of both counts of continuous sexual abuse
and found true the multiple victim allegations. At sentencing, the court imposed
consecutive terms of 15 years to life on each count pursuant to the One Strike law, for a
total sentence of 30 years to life. The trial court gave Perez-Mora credit for presentence
time spent in custody but no conduct credits.
DISCUSSION
I. Exclusion of Evidence
Perez-Mora contends the trial court abused its discretion by excluding
evidence of B.R.’s mental illness. He asserts this evidence was relevant impeachment
11
evidence and its exclusion violated his federal constitutional rights to confrontation and
to present a complete defense. We review the court’s evidentiary ruling for an abuse of
discretion and finding none, we reject this contention.
A. Background
B.R. testified she told a therapist or social worker in 2013 she had been
molested by someone in her family, but she did not name her abuser. She was
subsequently interviewed by Nobel about the allegation and denied being abused. At
trial, B.R. gave two reasons why she denied being abused when she talked to Nobel.
One, her mother “was already under a lot of stress, being homeless, having no job, and
five kids to support” and B.R. did not want to add to this. Two, she believed if the police
found out Perez-Mora was abusing her, her family would be homeless because they could
not stay at the shelter much longer and his house was the only place they could stay.
On cross-examination, defense counsel asked B.R. if she was hearing
voices when she talked to Nobel, but the court sustained the prosecutor’s relevancy
objection. Defense counsel next asked B.R. if she told the officer she was hearing voices
and would act on those voices. The court again sustained the prosecution’s relevancy
objection. Then, defense counsel questioned B.R. if she made any statements to the
officer about her mental health issues. The prosecutor objected again, and the court
sustained the objection, rejecting the defense argument it went to “bias and motive.”
B.R. testified she lied when she told Nobel she was not being abused. When B.R.
completed her testimony, she was excused subject to recall.
Before testimony resumed the next day, defense counsel filed a motion in
limine to permit the questioning of B.R. about statements she made to Nobel when he
was investigating her sexual abuse allegation. In the motion, defense counsel made the
following offer of proof, as relevant here: (1) When talking to Nobel, B.R. denied telling
“her therapist that ‘someone’ was trying to touch her” and said “‘something’” was; and
(2) She said she heard voices and sometimes acted on what the voices told her. Defense
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counsel argued B.R.’s denial of being sexually abused and the inference “that voices in
her head caused her to make these allegations” were relevant to her credibility and
impeachment and therefore the evidence was admissible under Evidence Code
section 780. Defense counsel asserted B.R. “offered the statements about hearing voices
and acting on what the voices say as an explanation for making the accusation of sexual
assault . . . .”
At a hearing on the motion, defense counsel stated he wanted to recall B.R.
and question her about her statement to Nobel that she heard voices and sometimes acts
on them. Defense counsel asserted the evidence was relevant to show why B.R. recanted
the 2013 allegation and to rebut the CSAAS expert’s testimony explaining why children
recant abuse allegations. The prosecutor argued any statements B.R. made about mental
health issues and hearing voices were irrelevant and should be excluded under Evidence
Code section 352. The prosecutor also objected to the meaning the defense placed on
B.R.’s statements. The prosecutor argued Nobel’s report did not indicate B.R. said she
made the sexual abuse report because she heard voices or that voices told her to do so.
Although the court was unconvinced the evidence was relevant, it agreed to review a
copy of the police report before making a final ruling.
Once the prosecution rested, the court addressed the matter again. After
further argument, the parties agreed an Evidence Code section 402 hearing would be
beneficial.
The court conducted the hearing the next day. Nobel testified he had no
independent memory of his conversation with B.R. and was relying on his report. When
he talked to B.R., she told him she was not sexually assaulted. She also said she heard
voices, saw things, and acted upon them. Nobel was unable to verify defense counsel’s
assertion the voices caused her to make the abuse allegation, and Nobel was unsure the
context in which B.R. made the statement about hearing voices.
13
After Nobel’s testimony at the hearing, defense counsel repeated his
argument B.R.’s statements were relevant to her credibility. Defense counsel asserted the
evidence B.R. heard voices that influenced her actions provided an alternative theory to
the prosecution’s CSAAS expert’s testimony regarding recanting. The court responded
the defense theory was “all speculation.” The court ruled the defense could use Nobel’s
testimony to show B.R. denied being sexually molested when asked about it in 2013. But
the court excluded “[a]nything about voices” because any suggestion they affected her in
reporting the abuse was unsupported speculation.
B. Applicable Law
Evidence bearing on a witness’s credibility is generally relevant and
admissible. (Evid. Code, §§ 210, 350.) Evidence Code section 780 addresses evidence
the trier of fact may consider in evaluating a witness’s credibility. It states that in
determining the credibility of a witness, the trier of fact may consider “any matter that
has any tendency in reason to prove or disprove the truthfulness of [the witness’s]
testimony at the hearing, including” the extent of the witness’s “capacity to perceive, to
recollect, or to communicate any matter about which [she] testifies” (Evid. Code, § 780,
subd. (c)), or her “opportunity to perceive any matter about which [she] testifies” (id.,
subd. (d)). (People v. Herring (1993) 20 Cal.App.4th 1066, 1072 (Herring).)
Evidence a witness has a mental health issue may be relevant to the
witness’s credibility but is not automatically admissible. (People v. Anderson (2001)
25 Cal.4th 543, 579.) Our Supreme Court has explained, “‘[t]he mental illness or
emotional instability of a witness can be relevant on the issue of credibility, and a witness
may be cross-examined on that subject, if such illness affects the witness’s ability to
perceive, recall or describe the events in question.’ [Citation.]” (People v. Samuels
(2005) 36 Cal.4th 96, 116 (Samuels).) But a trial court may properly exclude evidence of
a witness’s mental illness if there is no showing it affects her powers of perception,
communication, memory, or recollection. (Herring, supra, 20 Cal.App.4th at p. 1072.)
14
Even if a court finds evidence of a witness’s mental health relevant, the
evidence may nonetheless be excluded under Evidence Code section 352 “if the court
determines its prejudicial impact substantially outweighs any probative value.
[Citation.]” (People v. Duff (2014) 58 Cal.4th 527, 558.) “We afford trial courts wide
discretion in assessing whether in a given case a particular piece of evidence is relevant
and whether it is more prejudicial than probative. [Citations.]” (Ibid.) A trial court’s
admissibility determination will not be reversed on appeal unless the defendant
demonstrates “the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice . . . .’
[Citations.]” (People v. Hartsch (2010) 49 Cal.4th 472, 497; Evid. Code, § 354.)
C. Analysis
We discern no abuse of the trial court’s discretion. The court permitted the
defense to present evidence (1) B.R. told Nobel she was not sexually assaulted; (2) her
therapist’s report otherwise was not true; and (3) Nobel concluded B.R.’s allegations of
sexual abuse were unfounded. The court’s exclusion of evidence B.R. heard voices and
acted upon them was not arbitrary, capricious, or patently absurd.
As he did in the trial court, Perez-Mora contends B.R. told Nobel she was
recanting her abuse allegation because she heard voices and acted upon them. We agree
with the trial court this theory is not supported by the evidence and is speculative. No
correlation was established between B.R.’s 2013 sexual abuse allegation, her recanting of
this allegation, and her self-reported behavior of hearing voices and acting upon them.
The “exclusion of evidence that produces only speculative inferences is not an abuse of
discretion. [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 684.)
Perez-Mora presented no evidence B.R.’s mental health issues, assuming
she actually had any, affected her perceptions, understanding, memory, or ability to recall
or communicate. He simply failed to establish the necessary link between any mental
health issues B.R. may have suffered from in 2013 and (1) her ability to perceive the
15
events that occurred when she was younger or (2) her ability to accurately recall or
describe those events at trial in 2020. (Samuels, supra, 36 Cal.4th at p. 116.) Thus, we
conclude the trial court did not abuse its discretion by excluding evidence of B.R.’s
statements to Nobel suggesting she had mental health issues in 2013.
II. Ineffective Assistance of Counsel
Perez-Mora contends his trial counsel rendered ineffective assistance by
“failing to object and request an admonition when the prosecution presented improper
opinion testimony on the credibility of the complainants.” (Boldface & capitalization
omitted.) Specifically, he is referring to a portion of Rogers’s testimony concerning the
statistical rates of fabricated child sexual abuse claims. We agree trial counsel should
have objected to this testimony but conclude counsel’s deficient performance was not
prejudicial.
A. Background
The prosecution presented Rogers as an expert on CSAAS, and on direct
examination, she discussed its five components, which included retraction and
recantation. Rogers testified she had done “quite a bit of work on mistaken or fabricated
allegations.”
On cross-examination, defense counsel asked Rogers to discuss her
experience with fabricated abuse allegations. Rogers stated the research indicated the
vast majority of mistaken abuse allegations were in children five years old and younger
and the majority of fabricated incidents occurred with older children, particularly
adolescents, and usually occurred because there was something in the child’s
environment the child wanted to change or prevent from being changed. Defense counsel
asked whether a child’s mental health issues would affect the child’s ability to recall or
desire to fabricate. Rogers answered mental health issues could affect the child’s ability
to recall but the fabrication usually had to do with “situational variables in the child’s
life” and not mental illness.
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On redirect, the prosecutor returned to the issue of fabrication and asked
Rogers “[w]hat are the rates, in the studies you’ve examined on child fabrication, as to
what amount of children fabricate allegations of sexual abuse?” Rogers responded: “It’s
very low. The biggest studies give a rate of five to ten percent of either young children
where we say mistaken allegations have occurred and a small percentage of fabricated
cases. In my own experience, fabricated cases were largely in family law court, rather
than in a criminal venue.” The prosecutor inquired whether “that five to ten percent”
included “custody battle[s] or some sort of splitting of the family unit,” and Rogers
responded affirmatively. Defense counsel did not object to this portion of Rogers’s
testimony.
B. Applicable Law
To prevail on a claim of ineffective assistance of counsel, a defendant must
show (1) his counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and (2) the deficient performance was prejudicial.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland); People v.
Ledesma (1987) 43 Cal.3d 171, 216.) To establish prejudice, “[i]t is not enough ‘to show
that the errors had some conceivable effect on the outcome of the proceeding.’
[Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 104.) “The defendant must show
that 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.” (Strickland, supra, 466
U.S. at p. 694.)
A review of recent case authority reveals trial counsel’s failure to object to
Rogers’s testimony concerning the statistical rates of fabricated child sexual abuse claims
constituted deficient performance. Prior to Perez-Mora’s trial, two Courts of Appeal held
expert testimony that purports to quantify the prevalence of false allegations of child
sexual abuse is irrelevant and more prejudicial than probative—People v. Wilson (2019)
17
33 Cal.App.5th 559 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian).
While this appeal was pending, we similarly concluded in People v. Lapenias (2021)
67 Cal.App.5th 162 (Lapenias) the admission of expert testimony that it was “rare” for
children to make false allegations of sexual abuse was error but harmless. (Id. at p. 166.)
In Julian, the prosecution’s CSAAS expert testified, “false allegations of
sexual abuse by children ‘don’t happen very often.’ ‘The 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.’” (Julian, supra, 34 Cal.App.5th at p. 885.) After reviewing cases from
other jurisdictions, the Court of Appeal concluded the expert’s statistical evidence on
false allegations was inadmissible CSAAS evidence. (Id. at pp. 886, 887.) The Julian
court discussed the dangers of an expert offering “‘predictive conclusions,’” stating
“[w]here expert opinions on the statistical probability of guilt are admitted, the jury may
be ‘distracted’ from its ‘requisite function of weighing the evidence on the issue of guilt,’
and may rely instead on this ‘irrelevant’ evidence. [Citation.]” (Id. at p. 886.)
Addressing the situation before it, the Court of Appeal indicated the jury had to decide
between the credibility of one of the victims and defendant but the expert’s “92 to 99
percent probability evidence invited jurors to presume [defendant] was guilty based on
statistical probabilities, and not decide the evidence properly introduced in the case.
[Citation.]” (Ibid.) The Julian court found defense counsel was ineffective for failing to
object to the expert’s improper statistical testimony concerning false allegations. (Id. at
pp. 887-888.)
In Wilson, the same expert who testified in Julian testified false allegations
of child sexual abuse “occur ‘very infrequently or rarely,’ most often during a child
custody dispute.” (Wilson, supra, 33 Cal.App.5th at p. 568.) The expert continued:
“‘There are a number of studies that talk about the pressures put on children to make a
false allegation.’” (Ibid.) He then “referred to a ‘classic’ Canadian study that found
18
‘about 4% of cases in which there was an allegation that was determined to be false,’
remarking that ‘[w]hat was notable [about the study] was that in none of those cases was
it a child who made the allegation that was false, it was somebody else,’ such as a parent
disputing custody.” (Ibid.) On cross-examination, the expert testified there were
multiple studies on the subject, “which found false allegations in between 1 and 6 percent
of cases.” (Ibid.) On appeal, defendant asserted the statistical evidence “improperly
amounted to testimony that 96 percent (or between 94 and 99 percent) of children
accusing a person of child molestation were telling the truth” and this evidence “invaded
the province of the jury in assessing a complaining witness’s credibility.” (Ibid.)
The Wilson court reviewed authority from sister states, federal, and military
courts before concluding the weight of this authority held expert testimony concerning
the rate of false allegations of child sexual abuse was inadmissible, and the Wilson court
found the reasoning of these cases compelling. (Wilson, supra, 33 Cal.App.5th at
pp. 568-570.) Addressing the facts before it, the Court of Appeal indicated the expert’s
“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. And,
although [the expert’s] testimony on this point was not expressly directed to [either of
defendant’s victims], the practical result was to suggest to the jury that there was an
overwhelming likelihood their testimony was truthful. In so doing, this testimony
invaded the province of the jury, whose responsibility it is to ‘draw the ultimate
inferences from the evidence.’ [Citations.]” (Id. at p. 570.) Explaining its concerns
about the evidence, the Wilson court stated: “Even assuming one could determine that
only 1 to 6 percent of sexual abuse allegations are false, that fact would not be helpful to
the jury because it tells the jury nothing about whether this particular allegation is false.
Are [the victims] in the 4 percent or in the 96 percent? The jury must evaluate their
testimony, together with all the other evidence, to decide this question, and it should do
so without statistical evidence placing a thumb on the scale for guilt. [Citations.]” (Id. at
19
p. 571.) The Court of Appeal concluded the trial court abused its discretion by admitting
the expert’s statistical evidence testimony because it was irrelevant and more prejudicial
than probative. (Ibid.)
We found the reasoning in Julian and Wilson persuasive when we
addressed similar facts in Lapenias, supra, 67 Cal.App.5th at pages 178 to 179. In
Lapenias, a juror submitted a written question asking whether it was common for
children to make up a false allegation of abuse. The trial court permitted the
prosecution’s CSAAS expert to respond it was “‘rare for kids to make a false claim of
sexual abuse.’” (Id. at p. 177.) We held this testimony by the expert was inadmissible
and the trial court erred by failing to sustain the defense objection to it. (Id. at p. 179.)
Explaining our reasoning, we stated: “Although [the expert] knew nothing about [the
victim] and the facts of this case, his testimony—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. [Citation.] Further, applying Julian
and Wilson, we find [the expert’s] answer went considerably beyond the limited purpose
of CSAAS evidence (to explain the typical behaviors of sexually abused children, such as
delayed reporting). Rather, the juror’s question—and [the expert’s] response—
‘“addressed whether children who claimed to be sexually assaulted lie. [The] testimony
did not aid, but supplanted, the jury in its decision on whether”’ [the victim’s] testimony
was credible. [Citation.]” (Ibid.)
Based on the analyses in Julian, Wilson, and Lapenias, we conclude
Rogers’s testimony concerning the statistics on false claims of child sexual abuse was
inadmissible. Because the decisions in Julian and Wilson were published prior to Perez-
Mora’s trial in 2020, we conclude trial counsel’s failure to object to this inadmissible
evidence constituted deficient performance.
Next, we address whether counsel’s deficient performance was prejudicial.
In Julian, the Court of Appeal found the admission of the statistical information was
20
prejudicial because the jury was “bombarded with it.” (Julian, supra, 34 Cal.App.5th at
p. 888.) However, in Wilson, supra, 33 Cal.App.5th at page 572, the Court of Appeal
found the evidence harmless, as did we in Lapenias, supra, 67 Cal.App.5th at page 180.
Perez-Mora contends his case is indistinguishable from Julian and therefore we must find
the error prejudicial. The Attorney General argues the error was harmless because it is
not reasonably probable Perez-Mora would have enjoyed a more favorable outcome in
the absence of the error. We agree with the Attorney General.
Rogers’s testimony concerning the statistics on false allegations of child
sexual abuse was brief. This is in contrast to the situation in Julian, where “the jury was
bombarded with it.” (Julian, supra, 34 Cal.App.5th at p. 888.)
During their closing arguments, both counsel discussed Rogers’s testimony
concerning false allegations. However, we find the prosecutor’s argument somewhat
troubling. The prosecutor argued to the jury: “[Rogers] said the rates of false allegations
of child sexual abuse are very low. And of the ones that are false, most of them are
because they are super young children who don’t understand what’s going on,
misunderstand an act. [¶] The only times there are false allegations is when two parents
are going through a divorce and one kid makes up an allegation against the parent during
that custody battle. There’s no custody battle here.” The prosecutor’s statement that
false allegations only occur during custody battles misrepresented Rogers’s testimony.
Although concerning, we conclude the prosecutor’s argument does not weigh in favor of
prejudicial error. In the overall context of the prosecutor’s argument, this reference to the
evidence on false allegations of child sexual abuse was brief. And, the court instructed
the jury nothing the attorneys say during closing arguments is evidence. (CALCRIM No.
222.)
Moreover, the court instructed the jury on consideration of CSAAS
evidence and expert testimony. Regarding the CSAAS testimony, the court read
CALCRIM No. 1193, which stated: “[Rogers’s] testimony about child sexual abuse
21
accommodation syndrome is not evidence that the defendant committed any of the crimes
charged against him.” (CALCRIM No. 1193.) The jurors were also instructed they were
not bound by the expert’s opinion (CALCRIM No. 332), and they were the sole judges of
the “credibility or believability of the witnesses” (CALCRIM No. 226). “We presume
the jurors understood and followed the instructions. [Citations.]” (Lapenias, supra,
67 Cal.App.5th at p. 180.)
Further, the evidence of Perez-Mora’s guilt was overwhelming. Both B.R.
and A.R. described similar acts of abuse beginning when they were around six or seven
years old and continuing for years. In 2013, B.R. told her older brother G.R. she had
seen Perez-Mora inappropriately touch A.R., a fact G.R. corroborated. G.R. also testified
one night when he was pretending to be asleep, he saw Perez-Mora massage A.R.’s back.
Although there were some discrepancies between the girls’ initial statements to law
enforcement in 2016 and their trial testimony, there were no serious inconsistencies.
Thus, we reject Perez-Mora’s claim of ineffective assistance of counsel as
we conclude it is not reasonably probable he would have enjoyed a more favorable result
if his counsel had objected to the improper testimony concerning the statistics on
fabricated allegations of child sexual abuse. (Strickland, supra, 466 U.S. at pp. 693-694.)
III. Cumulative Prejudice
Perez-Mora contends the cumulative prejudice of the exclusion of the
defense evidence concerning B.R.’s mental illness and the admission of the improper
expert testimony concerning rates of false claims of child sexual abuse deprived him of
his constitutional rights to a fair trial. We disagree.
“In theory, the aggregate prejudice from several different errors occurring
at trial could require reversal even if no single error was prejudicial by itself.” (In re
Reno (2012) 55 Cal.4th 428, 483.) As we have only found one error and concluded it
was harmless, the theory of cumulative prejudice does not apply.
22
IV. Ex Post Facto
The prosecution charged Perez-Mora with the continuous sexual abuse
(§ 288.5) of B.R. on or about and between February 16, 2003 and February 15, 2012
(count 1), and the continuous sexual abuse of A.R. on or about and between June 16,
2008 and June 12, 2015 (count 2). After the jury convicted Perez-Mora of both counts
and found true multiple victim enhancements (§ 667.61, subd. (e)(4)), the court imposed
indeterminate sentences of 15 years to life on each count under the One Strike law.
Perez-Mora contends his indeterminate sentences under the One Strike law
violate the ex post facto clauses of the federal and state Constitutions because section
288.5 was not included in the One Strike law until September 2006 and it cannot be
determined whether the jury relied on at least one act occurring after this date in
convicting him of count 1.2 While we conclude the jury should have been instructed to
determine whether one of the acts of continuous sexual abuse in count 1 occurred after
the 2006 amendment to the One Strike law, we conclude the error was harmless, and
therefore, there was no violation of the state and federal ex post facto clauses.
A. Constitutional Prohibition Against Ex Post Facto Laws
Both the United States Constitution and the California Constitution prohibit
ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) “Under both
Constitutions, ‘[l]egislatures may not retroactively alter the definition of crimes or
increase the punishment for criminal acts.’ [Citations.]” (People v. Valenti (2016)
243 Cal.App.4th 1140, 1173 (Valenti).) We interpret the California Constitution’s ex
post facto clause “no differently than its federal counterpart. [Citations.]” (People v.
Snook (1997) 16 Cal.4th 1210, 1220.)
2
Perez-Mora does not contend there is an ex post facto violation as to count
2, as all of the acts of abuse involving A.R. occurred after the September 2006
amendment to the One Strike law.
23
B. Application of Ex Post Facto Principles to Sections 288.5 and 667.61
Section 288.5 punishes a continuous course of conduct. Subdivision (a) of
section 288.5 provides: “Any person who either resides in the same home with the minor
child or has recurring access to the child, who over a period of time, not less than three
months in duration, engages in three or more acts of substantial sexual conduct with a
child under the age of 14 years at the time of the commission of the offense, as defined in
subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct,
as defined in Section 288, with a child under the age of 14 years at the time of the
commission of the offense is guilty of the offense of continuous sexual abuse of a child
and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16
years.”
The ex post facto issue here is the amendment to the One Strike law in
September 2006 to include a conviction for continuous sexual abuse of a child. “Enacted
in 1994, California’s One Strike law, section 667.61, requires indeterminate life
sentences for enumerated sex offenses committed under certain aggravating
circumstances. [Citation.] Effective September 20, 2006, the One Strike law was
amended to apply to defendants convicted of continuous sexual abuse of a child
(§ 288.5). [Citation.] However, before 2006, section 288.5 was not a One Strike offense.
[Citations.] The indeterminate life sentences now prescribed by section 667.61 greatly
exceed the determinate sentences of 6, 12, or 16 years previously available for violations
of section 288.5. Thus, the ex post facto clause prohibits sentencing defendants under the
One Strike law for section 288.5 violations committed before September 20, 2006.
[Citation.]” (Valenti, supra, 243 Cal.App.4th at p. 1174, fn. omitted.)
In People v. Grant (1999) 20 Cal.4th 150 (Grant), our Supreme Court
considered whether a conviction for continuous sexual abuse violated constitutional
provisions prohibiting ex post facto laws when the conviction was based on sexual abuse
that began before the enactment of section 288.5 and continued after its effective date (id.
24
at p. 153), calling this a “‘straddle’ offense” (id. at p. 159). The California Supreme
Court explained: “In general, application of a law is retroactive only if it attaches new
legal consequences to, or increases a party’s liability for, an event, transaction, or conduct
that was completed before the law’s effective date. [Citations.] Thus, the critical
question for determining retroactivity usually is whether the last act or event necessary to
trigger application of the statute occurred before or after the statute’s effective date.
[Citations.]” (Id. at p. 157.) The Grant court concluded section 288.5 constitutionally
could be applied to “continuing sexual abuse of a child that began before, but continued
after, the statute’s enactment . . . .” (Id. at p. 159.) The Supreme Court found on point
People v. Palacios (1997) 56 Cal.App.4th 252 and quoting from it stated: “‘A
continuous course of conduct offense cannot logically be “completed” until the last
requisite act is performed. Where an offense is of a continuing nature, and the conduct
continues after the enactment of a statute, that statute may be applied without violating
the ex post facto prohibition.’ [Citation.]” (Grant, supra, 20 Cal.4th at p. 159.)
It logically follows from Grant that a defendant may be sentenced under a
statutory amendment increasing the punishment associated with a crime based on conduct
that occurred before and continued after the amendment’s effective date, without
violating provisions in the state and federal Constitutions prohibiting ex post facto laws.
(Valenti, supra, 243 Cal.App.4th at p. 1176.)
C. Analysis
The issue before us is whether Perez-Mora’s indeterminate sentences under
the One Strike law violate constitutional provisions prohibiting ex post facto laws when
his conviction in count 1 was based on sexual abuse that began before and continued after
the One Strike law’s amendment in 2006. Our analysis is guided by Grant, supra, 20
Cal.4th 150 and Valenti, supra, 243 Cal.App.4th 1140.
In Grant, the trial court instructed the jury it could only convict defendant
of continuous sexual abuse if it “found that one of the required minimum of three acts of
25
molestation occurred after section 288.5’s effective date.” (Grant, supra, 20 Cal.4th at
pp. 157-158.) The Supreme Court explained, “defendant could be convicted only if the
course of conduct constituting the offense of continuous sexual abuse was completed
after the new law became effective.” (Id. at p. 159.)
Unlike the situation in Grant, our jury was not instructed it had to find at
least one act of abuse occurred after the 2006 amendment to the One Strike law. Thus,
this is where we part company with Grant and turn to Valenti, supra, 243
Cal.App.4th 1140.
In Valenti, like here, defendant contended his indeterminate sentences
under the One Strike law violated the ex post facto clause because the continuous sexual
abuse began before the 2006 amendment to the One Strike law and the jury was not
instructed it must find least one act of abuse occurred after the amendment. (Valenti,
supra, 243 Cal.App.4th at pp. 1175-1176.) The Valenti court concluded this was error
because “[u]nder Apprendi,[3] Blakely,[4] and Alleyne,[5] any fact that increases a
defendant’s minimum or maximum sentence is an element of the offense that must be
submitted to the jury. [Citation.]” (Id. at p. 1176.) The Court of Appeal indicated
defendant was only eligible for One Strike sentencing if the continuous sexual abuse of
the victims continued beyond the effective date of the 2006 amendment, otherwise
defendant’s indeterminate sentence violated the ex post facto clause. (Ibid.) The Valenti
court explained: “Because the date of the last act of sexual abuse increased defendant’s
mandatory minimum and maximum sentences, the date was an element of each charged
crime. The court’s failure to instruct that at least one instance of sexual abuse had to
occur on or after September 20, 2006, therefore, is federal constitutional error
comparable to the omission of an element . . . .” (Ibid.)
3
Apprendi v. New Jersey (2000) 530 U.S. 4664
Blakely v. Washington (2004) 542 U.S. 2965
Alleyne v. United States (2013) 570 U.S. 9926
Here, as in Valenti, Perez-Mora was only eligible for One Strike sentencing
if the continuous sexual abuse of B.R. continued beyond September 2006, when section
288.5 was added to the One Strike law. Thus, the jury should have been instructed to
determine whether one of the acts of molestation Perez-Mora perpetrated on B.R.
occurred after September 2006. The failure to instruct the jury on this element of the
multiple victim allegation for count 1 was federal constitutional error.
Federal constitutional errors are assessed under Chapman v. California,
supra, 386 U.S. at page 24. (Valenti, supra, 243 Cal.App.4th at p. 1165.) “Under
Chapman, we must reverse unless the People ‘prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.’ [Citation.] Where the
trial court fails to instruct on an element of the charged offense, however, the People
must make a more substantial showing. That showing is governed by Neder v. United
States (1999) 527 U.S. 1, 17-19 (Neder), and by” People v. Mil (2012) 53 Cal.4th 400(Mil), the California Supreme Court’s decision interpreting Neder. (Valenti, supra,
243 Cal.App.4th at pp. 1165-1166.)
In Mil, the California Supreme Court stated: “Neder instructs us to
‘conduct a thorough examination of the record. If, at the end of that examination, the
court cannot conclude beyond a reasonable doubt that the jury verdict would have been
the same absent the error—for example, where the defendant contested the omitted
element and raised evidence sufficient to support a contrary finding—it should not find
the error harmless.’ [Citation.] On the other hand, instructional error is harmless ‘where
a reviewing court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence.’ [Citations.]” (Mil, supra,
53 Cal.4th at p. 417.) In assessing prejudice from instructional error, “[o]ur task . . . is to
determine ‘whether the record contains evidence that could rationally lead to a contrary
finding with respect to the omitted element.’ [Citations.]” (Ibid.) In other words, “the
failure to instruct on an element of the offense is harmless if the People prove beyond a
27
reasonable doubt that no substantial evidence supports a contrary finding on the omitted
element. [Citations.]” (Valenti, supra, 243 Cal.App.4th at pp. 1176-1177, citing Mil,
supra, 53 Cal.4th at pp. 417-419.)
In analyzing the prejudice from the instructional error here, our task is to
determine whether any rational fact finder could have concluded Perez-Mora did not
abuse B.R. after September 20, 2006. (See Mil, supra, 53 Cal.4th at p. 418 [“our task in
analyzing the prejudice from the instructional error is whether any rational fact finder
could have come to the opposite conclusion”].) Because a rational fact finder could not,
we conclude the error is harmless beyond a reasonable doubt.
B.R. testified Perez-Mora began molesting her when she was six years old,
which would have been between February 2003 to February 2004, and the abuse
continued until she was over the age of 14, which would have been in February 2013. As
discussed above, the pertinent amendment to section 667.61 took effect in September
2006, when B.R. was eight years old. B.R. described several acts of sexual abuse that
could have occurred before and after the 2006 amendment. More than 10 times when she
was between the ages of six and 11, Perez-Mora would lay behind her on the bedroom
floor, grope her breasts, and push his erect penis against her buttocks. About 20 times
when she was between the ages of six and 10, Perez-Mora came into the bathroom while
B.R. was showering and touched her breasts. When she was between the ages of six and
11, Perez-Mora touched B.R.’s vaginal area both over and under her clothes eight times
total.
But B.R. also testified to specific incidents that occurred after September
2006. When she was nine years old or older, Perez-Mora kissed her on the lips and asked
if she wanted to be his girlfriend. B.R. also testified about an incident that occurred when
she was 11 years old. During that incident, Perez-Mora grabbed her from behind, put one
arm around her chest, and with his other hand reached down her pants and inside her
underwear.
28
Although Perez-Mora denied touching B.R. inappropriately, he did not
contest the dates of the abuse. Perez-Mora presented a general denial of the abuse, but he
did not contest the omitted element that at least one act of abuse occurred after September
2006. We see no rational way the jury could have concluded Perez-Mora committed only
the acts of abuse occurring prior to September 2006. No evidence suggested he
completed the crime of continuous sexual abuse of B.R. before September 2006. Thus,
we conclude beyond a reasonable doubt the evidence showing Perez-Mora molested B.R.
after September 2006 “‘was uncontested and supported by overwhelming evidence.’
[Citations.]” (Mil, supra, 53 Cal.4th at p. 417.) Application of the One Strike law to
Perez-Mora did not violate the ex post facto clauses of the federal and state
Constitutions.6
V. Custody Credits
Perez-Mora contends the trial court erred by failing to award him any
conduct credits. We disagree. Under the One Strike law, Perez-Mora is not entitled to
presentence conduct credits. (People v. Adams (2018) 28 Cal.App.5th 170, 182; People
v. Dearborne (2019) 34 Cal.App.5th 250, 267.)
6
Although we reject Perez-Mora’s ex post facto claim, we remind the district
attorney “[a] statute’s effective date is not a mere technicality; it is fundamental to due
process.” (Valenti, supra, 243 Cal.App.4th at p. 1174, fn.10.)
29
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
30