Opinion
E063997
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. FLOYD FRANKLIN MANNING, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FMB1400418) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed in part and reversed in part with directions. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Floyd Franklin Manning, was charged with oral copulation of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 1), a lewd act upon a child under the age of 14 (§ 288, subd. (a); count 2), and indecent exposure, a misdemeanor (§ 314, cl. (1); count 3). A jury trial was held in February and March 2015. Following the close of evidence, the prosecution was allowed to add count 4, continuous sexual abuse of a child (§ 288.5, subd. (a); count 4), as an alternative to count 2.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant guilty as charged in counts 1, 3, and 4. Defendant was sentenced to the upper term of 16 years on count 4, plus a consecutive term of 15 years to life on count 1, and time served on count 3. Count 2 was dismissed. The evidence showed defendant committed the crimes between late 2013 and August 2014 against his then six- to seven-year-old stepgranddaughter, L., while L. lived in defendant's Yucca Valley home with her mother and her stepfather, defendant's son. Defendant was 76 to 77 years old when he committed the crimes.
Defendant claims the trial court prejudicially erred (1) in admitting evidence of his arrest for indecent exposure in Florida in 2012, (2) in failing to give a limiting instruction sua sponte, pursuant to CALCRIM No. 1193 or otherwise, that the jury could not use evidence of child sexual abuse accommodation syndrome (CSAAS) to determine whether L.'s molestation claims were true, and (3) in allowing the prosecution to amend the information at the close of the evidence to add count 4 as an alternative charge to count 2.
Defendant also claims his conviction in count 4 must be reversed because he cannot stand convicted of continuous sexual abuse of a child (§ 288.5, subd. (a); count 4) and oral copulation of a child (§ 288.7, subd. (b); count 1), when, as here, the acts underlying the convictions took place during the same time period. We agree that the conviction and sentence in count 4 must be reversed. In all other respects, we affirm the judgment.
II
FACTUAL BACKGROUND
A. General Background
In 2012, defendant, then age 75, lived in Sebring, Florida with his son Henry, Henry's fiancé, Christine, and Christine's daughter, L., who was born in March 2007. In December 2012, the four of them moved to a two-bedroom house in Yucca Valley. Defendant occupied one bedroom, Christine and Henry shared the other bedroom, and L.'s bed was in an alcove between the two bedrooms. Defendant paid the rent.
After putting L. to bed, Christine would close her and Henry's bedroom door. L. began having bed wetting problems after the family moved to Yucca Valley, and in the mornings Christine would sometimes find L. wearing not much clothing. Neither Christine nor Henry had ever seen defendant touch L. inappropriately, but they knew defendant had been arrested in Florida for indecent exposure. Defendant spent most of his time in his bedroom, and L. often hung out with defendant in his bedroom with the door open a few inches. Defendant rarely looked after L. alone but did so on a couple of occasions when Christine and Henry were not home. Christine trusted defendant.
During the few months before defendant was arrested on August 18, 2014, Christine noticed L. was acting "more anxious" and was showing animosity towards defendant. L. said defendant was mean, and Christine told L. to be respectful toward defendant. Henry also noticed a change in L. L. told Henry that she did not want to be left alone with defendant because he was old. Defendant would randomly buy L. candy and other gifts, and this increased during the months preceding his arrest.
During the evening of Friday, August 15, 2014, when L. was seven years old, L. was upset and told Christine defendant was a "back stabber." L. said, "He's doing it again" and he had "just done it." When Christine asked L. what she meant, L. said, "He has his parts out wiggling it around," and confirmed "his parts" meant his "boy parts," his penis. L. explained defendant "would take it out, wiggle it around until the stuff came out," he said he "had to" do this, and he had done this several times in his bedroom and in her alcove. When asked whether defendant had ever asked her to touch his penis, L. said, "No. It's gross." L. said defendant asked her to "lick" his penis, but she did not do it.
When L. was four years old, Christine explained male and female anatomy to L. and "how babies are made." L. used the term "fanny" or "vagina" in referring to her external genitalia. For the sake of consistency, we will also use the term vagina in referring to L.'s external genitalia.
On Friday, August 15, Christine had L. sleep in her and Henry's bedroom, told L. to stay away from defendant, and "kept a very close eye" on L. all weekend. Christine also told Henry what L. had told Christine. On Monday, August 18, 2014, Christine and Henry took L. to the police station and reported the molestations.
Christine and Henry waited until Monday to report the molestations because they knew defendant would be out of the house visiting a senior center, and because defendant had a temper and possibly an operable gun in the house. B. L.'s Initial Interviews (August 18, 2014) and the Search of Defendant's Room
On August 18, 2014, San Bernardino County Sheriff's Deputy Jesse Moon interviewed L. with Christine present, then interviewed L. again without Christine present. Recordings of both interviews were played for the jury. During the first interview, L. appeared embarrassed to say things in front of Christine, but during the second interview L. revealed "more serious" aspects of the molestations.
During the first interview, L. said: "It was very gross and I'm just really worried to talk to anybody." L. explained that defendant had shown L. his penis "a bunch of times," beginning "a few months before 2014." He was "trying to get the stuff out" and told L. that "he's got to do it." L. said defendant did not "have to, it's very rude." He used a paper towel to wipe the "clear stuff." He also asked L. to rub his penis; he pulled up her shirt and touched her back with his penis; he tried to pull the back of her pants down and touch her vagina; he asked to touch her chest and kiss her vagina when she was sleepy; and he licked her all over her body. L. told Christine what defendant had been doing because she wanted him to stop.
During the second interview, L. revealed defendant had licked her vagina three times. L. explained: "I just wear loose pants to bed and . . . he notices it and then he pulls them down."
On August 21, deputies searched defendant's bedroom and recovered paper towels from a trash can, which DNA testing later showed had defendant's semen on them. Deputies also found a wooden back scratcher which L. had described during her interviews. Defendant was arrested. C. L.'s Child Abuse Assessment Interview (August 25, 2014)
On August 25, 2015, Dr. Clare Sheridan-Matney conducted a child abuse examination of L. (the assessment interview). During the assessment interview, L. reported it sometimes stung when she urinated, and she had genital and rectal itching, constipation, and yellow stains in her underwear. In seven-year-old children, these symptoms are commonly associated with molestation. L.'s physical examination showed no abnormalities to her vagina and she still had a hymen. L. had an anal tear, which could have been caused by constipation or diarrhea, and L. had a history of constipation.
Dr. Sheridan-Matney testified that most children are reluctant reporters of child molestation. Children usually disclose "a little bit" about the molestation and may disclose everything after they feel more comfortable. Children often feel responsible for being molested because they are told not to allow people to touch them "down there." Dr. Sheridan-Matney would not expect anger or false accusations from a seven-year-old child. She also would not expect a child that age to seek out the family member who molested them if other adults were available.
During her assessment interview, L. said that defendant showed her his penis and licked her. The licking began in early 2014. Defendant licked L.'s vagina, butt, nipples, neck, right fingers, hand, toes, and ears. While he licked her, he rubbed his own nipples and played with his penis until he ejaculated. He used his left hand to masturbate and his right hand to rub his nipples. He would taste his semen with his finger, wipe the rest with a paper towel, and told L. she should try it. L. told him to stop, but he said he "ha[d] . . . to get the stuff out" and told her not to tell anyone. He did this whenever she went to his room to keep him company at night and when people were not walking around the house. He also tried to make L. lick his penis, and told her she could have all of his candy if she did so.
L. also said defendant put his hand in her underpants, rubbed her vagina up and down, and rubbed her nipples. Twice defendant also pulled down her pants and rubbed her vagina with a back scratcher. Several times, defendant put his penis in L.'s pants. He also put his hand inside the part of her "fanny" "where you deposit your waste." D. L.'s Trial Testimony (February 2015)
L. was nearly eight years old when she testified at trial in February 2015. Defendant showed L. his private parts "[a] bunch" of times, beginning in late 2013, "[a]lmost every time" L. went into defendant's room. Defendant held his penis and played with it with his hands while also playing with his nipples. Defendant told L. not to tell anyone about it, and he would get into trouble if anyone knew what he was doing with her.
When L. went into defendant's room, she would sit on defendant's lap, chair or bed. When she sat on defendant's lap, he would touch her "upper [and] lower" "private parts" under her clothes. He rubbed any part of her body he could get to with his hands and penis. He also used a back scratcher on her lower private parts. More than once defendant put his penis into the front and the back of L.'s shorts, under her clothes. L. initially denied that defendant ever licked her lower private parts, but when asked about her earlier interview statements, she testified he licked her lower private parts three times.
Around 10 times, L. saw "weird white gooey stuff" on defendant's penis. Defendant would lick some of it with his fingers and wipe the rest on a tissue. Defendant also asked L. to lick his fingers with the gooey stuff and to lick his penis. He told her he wanted her to lick his penis because it felt good and told her his gooey stuff was sweet. L. touched defendant's penis because he told her to, but she never licked his penis or his fingers.
Using the pictures she drew in her assessment interview, L. explained where defendant touched and licked her. L. said defendant was being disgusting and rude because she would tell him to stop but he would just keep doing it. She did not like what defendant was doing so she told her mom. E. Defendant's 2012 Florida Arrest for Indecent Exposure
On September 26, 2012, Sergeant Thomas Gilliard, a police officer with the City of Sebring, Florida, set up an undercover operation at the "Veteran's Beach" men's restroom in the city to address problems the city had been having with males soliciting others males to commit lewd acts and exposing themselves in the restroom. Sergeant Gilliard entered the restroom and saw defendant sitting on the toilet with his pants down around his ankles, masturbating his erect penis and "rubbing and pinching" his nipple for three to four minutes. As Sergeant Gilliard stood across from the stall and looked out the window, defendant stood up, pulled up his pants, leaving his erect penis exposed, and approached Sergeant Gilliard while continuing to masturbate and rub his nipple. Sergeant Gilliard asked what defendant wanted, and defendant said he liked his dick sucked. Sergeant Gilliard arrested defendant for exposing his sexual organ and solicitation to commit a lewd act. During an interview with another police officer following his arrest, defendant admitted he was rubbing himself and exited the stall exposing his penis. He said Sergeant Gilliard asked him what he wanted, so he told Sergeant Gilliard he liked getting a blow job. F. Defense Case
Defendant did not testify or present any affirmative evidence.
III
DISCUSSION
A. The Evidence of Defendant's 2012 Florida Arrest Was Properly Admitted
Defendant claims the court prejudicially erred and violated his due process right to a fair trial in admitting the evidence he was arrested in Florida in 2012 for exposing his penis in the men's public restroom and soliciting a lewd act from the undercover police officer who arrested him in the incident. As we explain, the court neither abused its discretion nor violated defendant's due process rights in admitting the prior arrest evidence.
1. Evidence Code Sections 1108 and 352
As a general rule, propensity evidence, including evidence of uncharged conduct, is inadmissible to show the person was predisposed or had a propensity to commit the same conduct on a specific occasion. (Evid. Code, § 1101, subds. (a), (b); People v. Earle (2009) 172 Cal.App.4th 372, 396.) Evidence Code section 1108 provides for an exception to this general rule: "'In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.' [Citations.]" (People v. Hernandez (2011) 200 Cal.App.4th 953, 965.) Evidence Code section 352 gives courts discretion to exclude probative evidence "'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption or time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.)
In Evidence Code section 1108 cases, five factors are particularly significant in determining whether evidence that the defendant committed an uncharged sex crime should be excluded under Evidence Code section 352: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors." (People v. Nguyen, supra, 184 Cal.App.4th at p. 1117.) A trial court's decision to admit prior sexual offense evidence under Evidence Code sections 1108 and 352 is reviewed for an abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61.)
2. Analysis
Defendant argues the evidence of his prior arrest "had no probative value" because the facts of that arrest did not show he had any propensity to commit a "serious sex crime such as oral copulation on a child." He observes his prior arrest did not involve children; rather, it showed he was in a men's restroom looking for consensual sexual activity with other men. He also argues the prior arrest evidence was highly prejudicial because it "paint[ed]" him as a sexual deviant.
In support of his argument that the evidence of his prior arrest had no probative value on whether he had a propensity to commit sex crimes against children, defendant relies on People v. Earle, supra, 172 Cal.App.4th at pages 385 through 400. Earle held that an indecent exposure charge was erroneously joined with a sexual assault charge. (Id. at pp. 397, 411.) Earle reasoned that the evidence the defendant committed indecent exposure was inadmissible to show he had a propensity to commit the distinct crime of sexual assault, absent expert testimony linking the two behaviors. (Id. at pp. 397-400.) Earle emphasized that Evidence Code section 1108 "cannot infuse an uncharged offense with relevance or probative value it cannot rationally be found to possess. In order for evidence of another crime to be relevant under [Evidence Code] section 1108, it must have some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged. [Citation.]" (People v. Earle, supra, at p. 397.) Defendant points out that here, as in Earle, no expert testimony was presented to show that men who exposed themselves in men's restrooms while looking for consensual sex with men are predisposed to commit lewd acts upon or orally copulate small children. No such expert testimony was necessary, however, given the striking similarities between defendant's behavior in the 2012 incident and his charged behavior with L. between late 2013 and 2014.
The prior arrest evidence showed that in 2012 defendant was masturbating in a public men's restroom while pinching his nipples and asked the undercover officer to orally copulate him. L. claimed defendant repeatedly did the same things in her presence between late 2013 and August 2014. The high degree of similarity between the uncharged and charged acts made the prior arrest evidence highly probative of whether defendant committed the charged crimes against L. and tended to show that L.'s molestation claims were credible. (People v. Story (2009) 45 Cal.4th 1282, 1293, quoting People v. Soto (1998) 64 Cal.App.4th 966, 983 [in enacting Evid. Code, § 1108 "'the Legislature "declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness."'"]; People v. Falsetta (1999) 21 Cal.4th 903, 917 ["[T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense."].) The age and gender differences between L. and the undercover officer went to the weight of the prior arrest evidence, but did not render the prior arrest evidence insufficiently probative to be inadmissible under Evidence Code section 352. (See People v. Hernandez, supra, 200 Cal.App.4th at p. 967.)
Nor was the prior arrest evidence unduly prejudicial. (People v. Doolin (2009) 45 Cal.4th 390, 439 [undue prejudice for purposes of Evid. Code, § 352 is evidence that "'"'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"'"].) Though, as defendant argues, the jury may have found defendant's behavior with the undercover police officer "distasteful," the prior arrest evidence was less, not more, inflammatory than the evidence of charged crimes because it involved an adult male undercover officer, not a six- to seven-year-old child. The prior arrest evidence was also not remote or stale; it was not likely to confuse or distract the jurors from its main inquiry of determining whether defendant was guilty of the charged crimes; and its presentation did not require an undue consumption of time. (See People v. Nguyen, supra, 184 Cal.App.4th at p. 1117.) In sum, the trial court did not abuse its discretion in admitting the prior arrest evidence under Evidence Code sections 1108 and 352.
Nor was there any due process violation. In Evidence Code section 1108 cases, "'[a] careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]'" (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104-1106.) The record affirmatively shows that the trial court carefully considered whether the probative value of the prior arrest evidence was substantially outweighed by its potential for undue prejudice, undue consumption of time, or confusing the issues. B. The Trial Court Did Not Have a Duty to Give CALCRIM No. 1103 or Another Limiting Instruction, Sua Sponte, on the CSAAS Evidence
Defendant claims the court erroneously failed to instruct the jury sua sponte, pursuant to CALCRIM No. 1193 or otherwise, not to use San Bernardino County Sheriff's Detective Corey Emon's or Dr. Sheridan-Matney's testimony about CSAAS to conclude that L.'s molestation claims were true. Alternatively, defendant claims his trial counsel rendered ineffective assistance in failing to request such a limiting instruction.
The pattern instruction, CALCRIM No. 1193 (Testimony on Child Sexual Abuse Accommodation Syndrome), states: "You have heard testimony from ___<insert name of expert> regarding child sexual abuse accommodation syndrome. [¶] ___'s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not ___'s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony."
1. Relevant Background
Detective Emon and Dr. Sheridan-Matney testified concerning CSAAS. Detective Emon testified that children tend not to disclose all of the details of a molestation until they build trust with the interviewer. Dr. Sheridan-Matney similarly explained that children are "reluctant reporters" of sexual abuse: they tend to initially disclose some details of the abuse and reveal more details after they feel more comfortable.
Dr. Sheridan-Matney further testified that children commonly recant allegations of sexual abuse or "zone out" when asked about the abuse, because they tire of being asked about the abuse and want the investigation to stop. Children in L.'s young age group do not usually falsify allegations of sexual abuse.
2. Analysis
It is settled that CSAAS testimony is inadmissible to prove a child's molestation claims are true. (People v. Housley (1992) 6 Cal.App.4th 947, 957; People v. Bowker (1988) 203 Cal.App.3d 385, 394 ["CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience."]; People v. Brown (2004) 33 Cal.4th 892, 908 [neither CSAAS testimony nor testimony concerning the reactions of domestic violence victims is admissible to prove the charged crimes occurred].) The Courts of Appeal are split, however, on whether CALCRIM No. 1193 or a similar limiting instruction must be given sua sponte, or only upon request. (People v. Housley, supra, at pp. 957-959 [recognizing split of authority and concluding limiting instruction must be given sua sponte].)
"We review independently the question of whether the trial court has a duty to give a particular jury instruction. [Citation.] '"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]' [Citation.]" (People v. Mateo (2016) 243 Cal.App.4th 1063, 1071 (Mateo).)
In Mateo, the Second District Court of Appeal, Division Five, recently concluded that limiting instructions on CSAAS evidence are not required to be given sua sponte and must only be given upon request. (Mateo, supra, 243 Cal.App.4th at pp. 1071-1074.) We agree with Mateo's holding and its reasoning.
As Mateo explains, limiting instructions are generally not required to be given sua sponte. (Mateo, supra, 243 Cal.App.4th at p. 1071, citing Evid. Code, § 355 and California Supreme Court decisional law].) Expert testimony in criminal cases is an exception. (Mateo, supra, at p. 1072; Pen. Code, § 1127b.) In criminal cases, Penal Code section 1127b requires the court to instruct the jury sua sponte that it is not required to accept expert opinion testimony as conclusive, that the jury should give expert opinion testimony the weight which the jury finds it is entitled, and that the jury may disregard any expert opinion testimony it finds unreasonable. These principles are stated in CALCRIM No. 332 (Expert Witness Testimony), which was given here, as it was in Mateo. (Pen. Code, §1127b.)
Mateo emphasized that section 1127b also provides that "'[n]o further instruction on the subject of opinion evidence need be given.'" (Mateo, supra, 243 Cal.App.4th at p. 1072, italics omitted.) Mateo then surveyed the decisional law on whether CALCRIM No. 1193 or similar limiting instructions must be given sua sponte, and noted that Housley was the only decision requiring sua sponte limiting instructions on CSAAS evidence. (Mateo, supra, at pp. 1071-1073.) Mateo noted that Bowker did not expressly hold that limiting instructions on CSAAS must be given sua sponte, and the same court that decided Bowker held in three subsequent cases, namely, in People v. Stark (1989) 213 Cal.App.3d 107, 116, People v. Sanchez (1989) 208 Cal.App.3d 721, 735, and People v. Bothuel (1988) 205 Cal.App.3d 581, 587, that limiting instructions on CSAAS evidence must only be given "'if requested.'" (Mateo, supra, at p. 1073.)
Mateo also noted that Housley was inconsistent with the California Supreme Court's subsequent decision in People v. Humphrey (1996) 13 Cal.4th 1073, because the court repeatedly referred to the trial court's duty to give a limiting instruction on battered women's syndrome on request. (Mateo, supra, 243 Cal.App.4th at p. 1073.) Mateo reasoned: "Battered women's syndrome is analogous to CSAAS. Both syndromes explain that victims' 'seemingly self-impeaching' behaviors—e.g., delayed disclosure, returning to the home—are consistent with their claims of having been beaten, raped, or sexually molested. [Citations.] We can think of no reason why a duty to instruct should be imposed in one situation and not the other." (Ibid.)
Mateo thus concluded, based on statutory and decisional law, that CALCRIM No. 1193 must be given only upon request. As noted, we agree with Mateo and conclude that CALCRIM No. 1193 or a similar limiting instruction was not required to be given by the court sua sponte, but only upon request, and here, no such limiting instruction was requested.
We also reject defendant's alternative claim that his trial counsel was ineffective in failing to request CALCRIM No. 1193 or another limiting instruction on the CSAAS testimony. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his trial counsel's representation fell below an objective standard of reasonableness and that the deficient representation prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) In order to show prejudice, the defendant must show there is a reasonable probability that he would have realized a more favorable result, absent his counsel's error. (Strickland v. Washington, supra, at p. 694.)
There is no reasonable probability that defendant would have realized a more favorable result had CALCRIM No. 1193 or a similar limiting instruction been given. It was clear to the jury that Detective Emon and Dr. Sheridan-Matney were not vouching for L.'s molestation claims in testifying about CSAAS, even though they testified they had met with L. (Cf. People v. Housley, supra, 6 Cal.App.4th at p. 959 [failure to give limiting instruction on CSAAS evidence harmless in part because expert witness "twice told the jury she had not met the victim and had no knowledge of the case."].) Rather, Detective Emon and Dr. Sheridan-Matney explained why L.'s behaviors—including her reluctance to testify that defendant had licked her vagina three times, and her failure to initially disclose all of the details of the sexual abuse—were consistent, rather than inconsistent, with her having been sexually abused. There is no reason to believe the jury misunderstood or misapplied the CSAAS testimony as evidence that defendant committed any of the charged crimes against L.
Additionally, L.'s trial testimony and prior interview statements were remarkably consistent concerning the details of the molestations, despite L.'s equivocation on the stand about whether defendant had ever licked her vagina. L. also described defendant as repeatedly masturbating while pinching his nipples—the same behavior the Sebring, Florida undercover officer, Sergeant Thomas Gilliard, testified he saw defendant doing in the public men's restroom in September 2012. This made L.'s accusations all the more credible, because it was extremely unlikely that L. could or would fabricate a story so strikingly similar to the prior arrest evidence. There was no evidence that L. had heard about defendant's prior arrest, or its details. In sum, on this record it is not reasonably probable defendant would have realized a more favorable result had the jury been instructed, pursuant to CALCRIM No. 1193 or otherwise, not to use the CSAAS testimony as evidence that defendant committed any of the charged crimes against L. C. The Trial Court Did Not Err in Allowing the Prosecution to Amend the Information at the Close of the Evidence to Add Count 4 as an Alternative Charge to Count 2
Defendant claims the court prejudicially erred and violated his federal due process rights under federal law in allowing the prosecution to amend the information at the close of the evidence to add count 4, continuous sexual abuse of a child (§ 288.5, subd. (a)), as an alternative to the lewd act charge in count 2 (§ 288, subd. (a)). He argues his conviction in count 4 violated state law because insufficient evidence at the preliminary hearing showed his sexual abuse of L. continued for more than three months. (§§ 288.5, subd. (a), 1009.) He also argues the late amendment violated his federal due process rights by adding a legal theory he was given no adequate opportunity to defend. We reject these claims and conclude the amendment was properly allowed.
"Due process requires that 'an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.] Thus . . . 'a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.' [Citations.]" (People v. Graff (2009) 170 Cal.App.4th 345, 360; § 1009.) The trial court had discretion to allow the prosecution to amend an information at the conclusion of the trial, and the court's exercise of this discretion will not be disturbed on appeal absent a clear abuse of discretion. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)
There are four elements to section 288.5, subdivision (a), which criminalizes the continuous sexual abuse of a child under age 14: (1) the defendant lived in the same home with, or had recurring access to, the child; (2) the defendant committed three or more acts of substantial sexual conduct or lewd or lascivious conduct with the child; (3) the child was under the age of 14 at the time of the acts; and (4) the acts occurred over a period of at least three months. (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284-1285; see CALCRIM No. 1120.) The fourth element requires that at least three months pass between the first and the last acts of sexual abuse. (People v. Mejia (2007) 155 Cal.App.4th 86, 94-95.)
Defendant claims the fourth element—that the sexual abuse of L. occurred over a period of at least three months—was not shown by the evidence taken at the preliminary hearing. This is not so. At the preliminary hearing, Deputy Moon testified that when he spoke to L. on August 18, L. said the molestations had been "going on since before 2014 and it had happened a bunch." Detective Emon similarly recounted that, at L.'s child assessment hearing on August 25, L. recalled that defendant touched her "multiple times starting in early 2014," and that the molestations happened late at night in defendant's bedroom.
This preliminary hearing testimony put defendant on notice that he would be defending against acts of sexual abuse that began as early as late 2013 and continued through mid-August 2014, when L. reported the abuse—a period of more than three months. (§ 288.5, subd. (a).) And, in allowing the amendment, the trial court noted that the preliminary hearing testimony and the original information, which alleged that the acts of abuse took place "[o]n or about November 1, 2013 through August 18, 2014," put defendant on notice of the factual basis of the section 288.5 charge, including that the acts of abuse occurred over more than three months. Accordingly, there was no abuse of discretion in allowing the amendment.
Defendant relies on Mejia, which is factually distinguishable. The defendant in Mejia appealed his section 288.5 conviction, claiming insufficient evidence showed that at least three months passed between the first and last time he sexually abused the victim, and the Mejia court agreed. (People v. Mejia, supra, 155 Cal.App.4th at pp. 92-95.) The information charged that the abuse occurred "'on or between June 1, 2004 and September 17, 2004.'" (Id. at p. 93.) The victim turned age 14 on September 18, taking any acts of abuse that occurred on or after September 18 out of the ambit of section 288.5. (Id. at p. 94.) Though the victim testified to numerous acts of abuse that occurred in June and before September 17, 2004, the victim testimony did not show that the abuse began early enough in June or continued late enough in September to span a period of at least three months. (Id. at pp. 94-95.)
Here, by contrast, it was clear from the preliminary hearing testimony that the sexual abuse of L. began as early as late 2013 and was still occurring in mid-August 2014, when L. reported the abuse. Defendant argues "no evidence was presented at the preliminary hearing as to the date [L.] reported the abuse," but this is not an accurate reflection of the record. At the preliminary hearing, Deputy Moon testified he spoke with Christine and L. at the sheriff's station on August 18, 2014, and that Christine told him L. reported the molestations to Christine "earlier in the week." Deputy Moon also testified at the preliminary hearing that L. told him the abuse had "been going on since before 2014," indicating that the abuse began in late 2013 and was still occurring in August 2014, a period of more than three months. (§ 288.5, subd. (a).)
Lastly, defendant relies on Gray v. Raines (9th Cir. 1981) 662 F.2d 569 to support his claim that the late amendment adding the section 288.5 charge violated his federal due process rights. Gray was charged with first degree forcible rape but was convicted of second degree statutory rape after the prosecution was allowed to amend the information to add the second degree rape charge at an in-chambers jury instruction conference near the close of the evidence. (Gray v. Raines, supra, at pp. 570-571.)
Gray held that the late amendment violated the defendant's federal due process right "to be informed of the nature and cause of the accusation." (Gray v. Raines, supra, 665 F.2d at pp. 572-573.) The court explained that use of force was an element of first degree rape, while the age of the victim was an element of second degree statutory rape, and Gray had insufficient notice and opportunity to defend against the second degree statutory rape charge. (Id. at p. 573.) Gray's defense to the forcible rape charges was that the victim consented, but "[t]he state was permitted to wait until Gray had put on evidence of consent as a defense to the charged offense, and then use that evidence to convict Gray of the second offense. Such a procedure is repugnant to the concept of due process and fundamental fairness." (Ibid., fn. omitted.)
Here, unlike the defendant in Gray, defendant presented no affirmative defense evidence to any of the charges. Moreover, and as explained, the section 288.5 charge was based on the evidence presented at the preliminary hearing, and the late-stage amendment did not compromise defendant's ability to defend against the section 288.5 charge. Unlike the late-stage amendment in Gray, the late-stage amendment here was not a "bait and switch" tactic which compromised or deprived defendant of his ability to defend against the section 288.5 charge. D. Defendant's Conviction in Count 4 (§ 288 .5, subd (a)) Must Be Reversed Because It Violates Section 288 .5, subdivision (c)
Defendant claims his conviction for continuous sexual abuse of a child in count 4 (§ 288.5, subd. (a)) must be reversed for reasons independent of the late-stage amendment adding count 4 to the information: the conviction in count 4 was obtained in violation of section 288.5, subdivision (c). We agree and reverse the conviction on this ground.
Charges of continuous sexual abuse of a child under age 14 in violation of section 288.5, subdivision (a), section 288.5, subdivision (c) states, in pertinent part, that: "No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066 [which includes oral copulation, or masturbation of the victim or the offender], with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. . . ."
Section 288.5, subdivision (c) thus prohibits a conviction for continuous sexual abuse of a child (§ 288.5, subd. (a)) and a conviction based on the acts underlying the continuous sexual abuse conviction (People v. Johnson (2002) 28 Cal.4th 240, 244-248). Instead, such counts must be charged in the alternative, or the acts underlying the convictions must have occurred in different time periods. (§ 288.5, subd. (c).)
Here, the lewd act charge in count 2 (§ 288, subd. (a)), was charged in the alternative to count 4, and the jury found defendant guilty in counts 1, 3, and 4. The oral copulation charge in count 1 (§ 288.7, subd. (b)) was not charged in the alternative to count 4. And, as the People concede, the acts of oral copulation occurred during the same time period as the acts underlying the continuous sexual abuse conviction. (§ 288.5, subd. (c).)
The People argue defendant has forfeited his claim that his conviction in count 4 must be reversed based on section 288.5 subdivision (c) because he did not raise the claim by demurring to the amended information in the trial court. The People rely on the Third District's decision in People v. Goldman (2014) 225 Cal.App.4th 950, in which the defendant was convicted of continuous sexual abuse of a child and a lewd act in violation of section 288.5, subdivision (a). (People v. Goldman, supra, at pp. 953-955.) Goldman held that the defendant forfeited the claim of error on appeal because he did not demur to the information charging the two counts. (Id. at pp. 955-957.) Goldman reasoned, in part, that: "The charging prohibition found in section 288.5, subdivision (c) is, in the words of the demurrer statute [section 1004], a 'legal bar to the prosecution.' (§ 1004, par. 5.) . . . Because it is a legal bar to prosecution, a defendant must demur to preserve for appeal an objection to the improper charging." (Id. at p. 956, italics added, citing People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176-1177.)
Defendant argues Goldman was wrongfully decided in part because it confused charges with convictions, and also because section 288.5 prohibits multiple convictions, not just multiple charges. We agree that section 288.5, subdivision (c) is not merely a "charging prohibition." (People v. Goldman, supra, 225 Cal.App.4th at p. 956.) By prohibiting multiple charges, the statute likewise prohibits multiple convictions for continuous sexual abuse of a child (§ 288.5, subd. (a)) and for discrete sexual offenses, including lewd acts, oral copulation, and other substantial sexual conduct underlying the continuous sexual abuse conviction (People v. Johnson, supra, 28 Cal.4th at p. 248; People v. Torres (2002) 102 Cal.App.4th 1053, 1055, 1057; People v. Bautista (2005) 129 Cal.App.4th 1431, 1433-1434; People v. Rojas (2015) 237 Cal.App.4th 1298, 1308-1309). And "[w]here, as here, we conclude as a matter of law that multiple convictions are not authorized, the issue may be raised on appeal even in the absence of an objection in the trial court." (People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192.)
Goldman is also factually distinguishable. In addition to concluding that the defendant forfeited his claim of section 288.5 error by failing to demur, Goldman concluded that the defendant could not demonstrate the prejudice prong of his alternative claim that his counsel was ineffective in failing to demur because, had his counsel demurred, the information could have been amended to correct the "section 288.5, subdivision (c) problem." (People v. Goldman, supra, 225 Cal.App.4th at pp. 957-958.) The information in Goldman alleged that the lewd act occurred "'[o]n or about JUNE 1999 THROUGH JUNE 2000,'" and that the continuous sexual abuse occurred "'[o]n or about JUNE 2000 THROUGH JUNE 24, 2002.'" (Id. at p. 955.) Thus, the time that the charges allegedly occurred overlapped by one month, June 2000. The evidence showed and the jury found, however, that the lewd act occurred when the victim was 11 years old. (Id. at p. 958.) Substantial evidence also showed that the defendant committed at least three other or additional lewd acts against the victim when she was 12 and 13 years old. (Ibid.) Thus, the one-month overlapping time defect in the information in Goldman could have been corrected "by separating the two crimes using [the victim's] 12th birthday, which was in June 2000." (Ibid.) Accordingly, the defendant in Goldman was not prejudiced by his counsel's failure to demur.
Here, in contrast to Goldman, the section 288.5, subdivision (c) defect in the amended information could not have been corrected by demurrer and further amendment. The amended information charged that the oral copulations of L. occurred "[o]n or about November 1, 2013 through August 18, 2014," and the continuous sexual abuse of L. occurred "[o]n or about December 1, 2013 through August 15, 2014." L. testified defendant orally copulated her three times, beginning in early 2014. She could not specify when the other acts of continuous sexual abuse occurred, but claimed they occurred beginning in late 2013 through mid-August 2014. Thus, had defendant's counsel demurred to the amended information, the amended information could not have been corrected to allege that the acts of oral copulation occurred outside the time frame in which the other or additional acts of continuous sexual abuse occurred. (§ 288.5, subd. (c).) The remedy for the section 288.5 violation here is to reverse defendant's continuous sexual abuse conviction in count 4, because count 1 is the count that carries the least punishment. (People v. Torres, supra, 102 Cal.App.4th at pp. 1059-1060.)
IV
DISPOSITION
Defendant's conviction in count 4 for the continuous sexual abuse of L. (§ 288.5, subd. (a)) is reversed and defendant's 16-year sentence on count 4 is stricken. The matter is remanded to the trial court with directions to prepare an amended abstract of judgment reflecting this change to the judgment, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment—including defendant's oral copulation conviction in count 1 (§ 288.7, subd. (b)) and his 15-year-to life sentence on count 1—is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.