Opinion
D079453
01-31-2022
THE PEOPLE, Plaintiff and Respondent, v. LOMELI GOMEZ ROBLES, Defendant and Appellant.
Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Rob Bonta, Attorney Generals, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin and Ann P. Wathen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Santa Clara County, Super. Ct. No. C1630734 Paul O. Colin, Judge.
Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorney Generals, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin and Ann P. Wathen, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, ACTING P. J.
Defendant Lomeli Gomez Robles challenges his convictions for sexual abuse of his stepdaughter, Giselle Doe, over about a 10-year period beginning when she was seven years old. Robles contends the trial court erred in admitting, over objection: (1) Doe's January 2016 police interview; (2) expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS); (3) the conditional examination testimony of Doe's grandmother due to her unavailability; and (4) childhood photographs of Doe. We reject each of these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Doe was born in December 1998 and turned 20 years old during Robles's trial. Robles, who was 26 years older than Doe, began a relationship with Doe's mother, (Mother), when Doe was about two years old. Doe's half-sister (Sister) was born in 2003 and is the child of Mother and Robles.
Doe
Robles began molesting Doe when she was seven years old. Doe then was living with Robles, Mother, and Sister in an apartment on Rancho Drive in San Jose, California. Robles molested Doe more than 10 times when she was seven by rubbing her vagina skin-to-skin; digitally penetrating her vagina; and touching her chest. Robles would tell Doe to be "quiet" when molesting her, and at times would physically restrain her when she attempted to stop him or get away.
Doe was scared, confused, and felt "stuck" when Robles sexually abused her. Many times during the abuse Robles would "nervously laughQ" while reassuring Doe everything was going to be "okay" and not to "worry." The abuse typically occurred when Mother was working at night. After abusing Doe, Robles would act "normal" around the home as if nothing had happened.
The molestation of Doe continued when she was eight and nine years old. The family was still living on Rancho Drive. During this time frame, Doe estimated Robles touched her vagina skin-to-skin more than 15 times; digitally penetrated her vagina; and rubbed her chest. On occasion, Doe experienced a "burning" sensation in her vagina due to Robles touching her.
When Doe was eight years old, a social worker interviewed her at school after Doe disclosed to a teacher that Robles had hit Mother. Doe denied Robles hit or touched her inappropriately, telling the jury she did not then disclose the sexual abuse by Robles because she was afraid of him.
When Doe was about 10 years old, the family moved into a one-bedroom apartment at the Thornbridge Apartments in San Jose. While aged 10, Doe estimated Robles touched her vagina skin-to-skin and digitally penetrated her vagina more than 20 times; "lick[ed]" and "suck[ed]" her vagina more than 15 times; fondled, and put his mouth on her breasts at least five times; and penetrated her vagina with his penis about 10 times, which, because of her age, would only go inside her "just slightly." After some incidents of abuse, Doe would go into the bathroom and "stare" in the mirror, telling herself she was "disgusting."
On one occasion when she was 10, Robles molested Doe while she slept on the living room floor next to her maternal grandmother, Maria (Grandmother), who was visiting from Mexico. Doe and Grandmother were "very close." As Grandmother slept, Robles kissed Doe on the lips while she sat on the couch. Doe pushed him away and immediately went and laid next to Grandmother.
Robles followed Doe, using her blanket to partially cover himself while the two laid on the floor near Grandmother. He began rubbing Doe's "side area" with his hand. Panicked, Doe nudged Grandmother, hoping she would awaken. Doe next crossed her legs, put her hands over her chest, and made eye contact with Robles. He smiled and turned over. Doe fell asleep. However, during the night she was awakened by Robles touching her vagina over her pajamas. As Doe resisted, she saw Grandmother move. Robles stopped and turned onto his side.
The next morning, Doe witnessed a confrontation between Grandmother, Robles, and Mother, after Grandmother accused Robles of inappropriately touching Doe. Robles told Grandmother she was "crazy," called her a "liar" for making this accusation, and demanded she immediately leave the family home and never return. Grandmother complied.
Between the ages 11 and 13, Doe estimated Robles digitally penetrated her vagina more than 50 times; licked her vagina more than 20 times; touched her breasts; and penetrated her vagina with his penis between five to 10 times. She recalled one incident during this time period when Robles burst into the bathroom when she was naked and about to shower, lifted her onto the sink, and digitally penetrated her vagina.
She recalled another incident during this same period when he touched her vagina skin-to-skin after she got home from a friend's birthday party at Chuck E. Cheese. In another incident, Robles digitally penetrated her vagina, then licked her vagina, after she had come home from school. Doe recalled this specific incident because as she and her friends were walking home from school, one of them saw Robles hiding in some "bushes," watching Doe.
Doe and her family moved out of the Thornbridge apartment when she was 13 years old, after she graduated from the eighth grade. Robles continued to sexually abuse Doe, and told Doe he would harm her and Mother if Doe disclosed the abuse. He also told Doe if she disclosed, he would claim she had initiated the sexual contact.
When she was 13, Doe and Sister started visiting Robles at his parents' home in the city of Santa Nella, California, where Robles had moved after he and Mother separated. Robles continued to sexually abuse Doe during overnight visits at Santa Nella, including when Sister was in the bedroom asleep.
When Doe was 14 and 15 years old, she estimated Robles penetrated her vagina with his penis more than 30 times; put his mouth on her breasts 15 to 20 times; and digitally penetrated and licked her vagina more than 20 times. The sexual abuse occurred when Doe and Sister would spend the weekend at the Santa Nella home. Doe did not want to go on these overnights, but accompanied Sister-who missed her father and was then unaware of the sexual abuse of Doe-to ensure her safety. Doe recalled an incident at Santa Nella when she was about to shower. Robles entered the bathroom and began touching her "all over." During the incident, Doe saw Robles's cellphone hidden in a bathroom "vent." Doe became angry and confronted Robles after she saw naked images of herself on his cellphone.
Between the ages of 15 and 17, Robles molested Doe less frequently. Doe sometimes would go to Santa Nella without Sister. She went because Robles told her he was "lonely" and because he threatened to hit her and kill Mother if she did not go.
On January 3, 2016, 17-year-old Doe and Sister went to the Santa Nella home for the weekend. During the night while Sister ostensibly was asleep, Robles began molesting Doe, who resisted. Laughing, Robles then told Doe he had naked photographs and videos of her, and threatened her, saying," 'You're going to pay for this.'" Not wanting to awaken Sister, Doe "silently cr[ied]."
The following day, Robles drove the two girls back to their mother's home in San Jose. Once home, Doe went into Mother's bedroom, panicked, and for the first time disclosed Robles's sexual abuse. Sister also disclosed she had overheard Robles say," 'You're going to pay for it'" and" 'Giselle, I have nude photos and videos of you.'" Mother was in "shock" and cried after her daughters' disclosures.
Grandmother
As discussed post, Grandmother was deemed unavailable at trial, and portions of her conditional statement were read to the jury. Grandmother testified that during a visit with Doe's family in 2010 or 2011, while she was sleeping on the living room floor with both granddaughters, she was awakened by Robles and saw him grab Doe's breast. Although pretending to be asleep, Grandmother heard Doe tell Robles, "I'm going to tell my mom," and Robles make a "shushing sound" for Doe to keep quiet. Robles then left the room.
Grandmother estimated Robles returned about 30 minutes later. In the meantime, Grandmother had changed positions with Doe to protect her from Robles. Over her clothes, Robles grabbed Grandmother's vagina and buttocks. Grandmother responded by slapping his face and telling him he had "made a mistake."
The following day, Grandmother confronted Robles about his inappropriate touching of Doe (and her). Robles responded, "What I'm raising is for me." Grandmother told Mother that Robles "touches [Doe] too much" and it needed to stop. Grandmother, however, did not report Robles to the police because she was afraid of him and he said nobody would believe her. At Robles's request, Grandmother left the family home that morning.
Investigation
Mother took her daughters to the police station on January 4, 2016, the same day Doe first disclosed the sexual abuse by Robles. The two girls separately prepared handwritten statements for police: Doe, describing the sexual abuse by Robles, and Sister, describing Robles's statements to Sister from the night before.
Officer Jose Rodriguez of the San Jose Police Department interviewed Doe on January 12, 2016. As discussed post, a minimally redacted version of the video recording was played for the jury.
On February 1, 2016, at the request of police Doe made a pretext phone call to Robles, which was recorded and also played for the jury. During the call Doe told Robles she was having nightmares and needed his help. Robles responded he wanted to talk to Doe, but not over the phone because "maybe they are monitoring . . . and listening to me." He repeatedly denied "raping" her, admitted he was "scared about all of this," but if they talked in person he could "clarify" things for her.
The transcript of the phone call is in the appellate record.
A few days later, Robles text-messaged Doe, asking if could contact her. The next day he sent another message asking if they could meet in person so he could" 'explain everything, '" and requesting she not tell Mother about his messages.
Trial Court Proceedings
In November 2017, the Santa Clara County District Attorney filed an amended information charging Robles with seven counts of forcible lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts 1-7); two counts of oral copulation or sexual penetration of a child under the age of 10 (§ 288.7, subd. (b); counts 8 & 9); two counts of sexual intercourse or sodomy with a child under the age of 10 (id., subd. (a); counts 10 & 11); four counts of aggravated sexual assault on a child under the age of 14 (§ 269; counts 12-15); and two counts of committing a lewd act on a child 14 or 15 years old (§ 288, subd. (c)(1); counts 16 & 17).
Unless otherwise indicated, all further statutory references are to the Penal Code.
The jury found Robles guilty as charged, except it deadlocked on count 15, aggravated sexual assault on a child under the age of 14. The trial court declared a mistrial on that charge and later dismissed it pursuant to the People's motion. In April 2019, the court sentenced Robles to an indeterminate term of 125 years to life, consecutive to a determinate term of 59 years and 8 months.
DISCUSSION
I. Admission of Doe's Police Interview
Additional Background
Doe was interviewed by the police on January 12, 2016. Following Doe's cross-examination at trial, the People moved to admit Doe's entire January 12 interview, estimated to be about 90 minutes long. In support, the prosecutor argued that the accuracy and reliability of Doe's memory had been put at-issue during her cross-examination; that Doe, in her trial testimony, had made several prior inconsistent and consistent statements in the police interview; and that the entire interview should be played because otherwise it would be "disjointed" and hard to follow.
Defense counsel had no objection to the admission of prior inconsistent and consistent statements from the interview. However, counsel opposed the admission of the entire interview, highlighting for the court a number of subject matters in his cross-examination of Doe that she had omitted in the interview.
The prosecutor in reply argued there were multiple inconsistent statements from the interview, and, because Doe testified her memory of the various incidents of molestation had improved over time, it was important for the jury to hear the entire interview in assessing Doe's credibility. The prosecutor also relied on Evidence Code section 356 (discussed post) to support the admission of the entire interview. The court took the matter under submission, noting it took "pretty detailed notes" of Doe's testimony and wanted to review the transcript of the interview in more detail.
After reviewing the transcript, the court stated it was inclined to allow a substantial portion of the police interview to be played for the jury, with exception to certain redactions it was proposing and any others requested by the defense. In explaining its ruling, the court stated in part as follows:
A transcript of the minimally redacted interview is included in the appellate record.
"[I]n almost each of the discussions about an incident in the statement, as well as in her testimony, there are references made explicitly or implicitly about other sexual acts, particularly as to the chronology and length of time and her estimates. [¶] So I believe, even if this is looked at as a multiple-statement interview, those statements are sufficiently focused on what has been the substance of this case, and/or they are so merged together into the overall allegation of sexual assault over the course of approximately ten years that they should come in in some degree on the basis of [Evidence Code section] 356, but certainly that they are consistent or inconsistent, not only on the specifics, for example, the bushes or Chuck E. Cheese [incidents], but also the overall allegations."
Guiding Principles
Evidence Code section 1200 prohibits the admission of hearsay evidence. Evidence Code section 1235 allows the admission of a witness's hearsay statements that are inconsistent with the witness's testimony at a hearing, subject to Evidence Code section 791. (See also Evid. Code, § 1236 [analogous provision for consistent statements].)
Evidence Code section 791 states:
"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [Tf] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Evid. Code, § 791.)
We review the trial court's hearsay ruling for an abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
Analysis
During his cross-examination of Doe, defense counsel highlighted various incidents and details of sexual abuse from her direct testimony that she either did not disclose, or had only partially disclosed, in the January 2016 police interview. By way of example only, during cross-examination Doe was asked about an incident of sexual abuse when she was eight or nine years old that she remembered as a result of her wearing a "snowflake nightgown." Doe admitted she did not recall this specific incident or mention "snowflake" pajamas during the police interview. However, she testified that since the interview, her memory had improved, including as a result of her participating in therapy.
There were other instances of sexual abuse and details of such abuse Doe testified to on direct that she did not disclose during the police interview. As another example, she testified on direct about an incident when Robles licked her vagina when she was 10 years old because she remembered the "raspiness" of his mustache in her vaginal area. Doe, however, admitted on cross she had not mentioned Robles's "raspy" mustache in the interview.
We agree with Robles that, to the extent Doe's statements in the police interview were neither inconsistent nor consistent with her trial testimony, those statements were inadmissible under Evidence Code sections 1235 and 1236, respectively, and under Evidence Code section 791. The People, however, argue these prior statements were nonetheless admissible under the "rule of completeness" codified in Evidence Code section 356. We disagree.
Evidence Code section 356 provides:
"Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Evid. Code, § 356.)
The purpose of the rule of completeness is" 'to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.'" (People v. Clark (2016) 63 Cal.4th522, 600 (Clark).)
We conclude there was no justification under Evidence Code section 356 for the jury to hear almost the entirety of Doe's 90-minute police interview because defense counsel did not use "selected aspects" from that interview to create a "misleading impression" of the remaining subject matter. (See Clark, supra, 63 Cal.4th at p. 600.) Quite simply, the rule of completeness cannot be used as a means to rehabilitate a witness's credibility-after the witness has been impeached by omissions or inconsistencies in a previously given statement-to show the remainder of the witness's statement was consistent with his or her testimony. (See People v. Riccardi (2012) 54 Cal.4th 758, 803 (Riccardi) [concluding the rule of completeness did not warrant admission of an audio recording of the victim's friend's two-hour interview with the police when only selected portions of the recording were necessary to refute the defense's claim that the friend's testimony was fabricated, and when the remaining portion was unnecessary to the understanding of the otherwise admissible portion].) Instead, the jury was specifically instructed regarding its role in determining the credibility of witnesses and the weight, if any, to be given to witness testimony.
The court gave CALCRIM No. 226, which provides in part: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. [¶] You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well was the witness able to remember and describe what happened? [ [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember." (Italics added.)
Although the trial court erred in allowing the prosecution to introduce the police interview with only minor redactions, we conclude it was harmless." [S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see Riccardi, supra, 54 Cal.4th at p. 804 [applying Watson in finding the admission of the entire audio-recorded statement was harmless].)
We find the overall prejudicial impact of the trial court's error was minimal. The police interview was mostly cumulative of Doe's lengthy trial testimony. And, while the recording may have had the effect of bolstering Doe's credibility, at the same time it also may have impeached her credibility to the benefit of Robles, as it showed the differences, including inconsistencies, between her trial testimony and her recorded statement.
Indeed, the record shows during closing argument defense counsel attacked Doe's credibility as a result of these differences. Counsel used the "snowflake nightgown" incident as an example. Specifically, he argued Doe on direct-examination gave "minute details" regarding the sexual abuse she endured while wearing the snowflake pajamas, which incident he noted took place about 10 years before the trial. He added, however, that Doe never mentioned snowflake pajamas during the police interview that took place about three years before her trial testimony. Counsel argued a witness's memory does not get better over time, but instead fades, making Doe not credible.
Counsel addressed other incidents Doe neglected to mention during the police interview that she testified about at trial, including the "sink" incident when Robles barged into the bathroom as she was about to shower; and the incident that occurred the same day Doe's friends saw Robles hiding in some "bushes" as they were walking home from school.
Counsel then attacked the prosecutor's use of the police interview to show Doe was credible. He argued the prosecutor's premise-that one would expect the police interview to contain less detail than Doe's lengthy trial testimony-was faulty because a person's memory does not become more accurate and improve over time; adding, "A long interview with a policeman closer in time to the incidents, one would think that would be more reliable" than that person's trial testimony. Counsel argued that the discrepancies between Doe's testimony and her police interview showed she was not to be believed.
Based on this record, we conclude any "boost" to Doe's credibility by playing the police interview with only minor redactions was offset by the potential damage to her credibility based on her omission in the recorded statement of instances and details of sexual abuse that were the subject of her trial testimony.
In addition, we find the error harmless because the evidence of Robles's guilt was strong. (See People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman) [in determining whether an error was harmless, "an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result"].) The jury here clearly found Doe credible when she testified to the myriad incidents of sexual abuse by Robles over about a 10-year period. Her detailed testimony alone was sufficient to support Robles's convictions. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [the "testimony of a single witness is sufficient to support a conviction" unless the testimony is "physically impossible or inherently improbable"].)
Moreover, Doe's testimony was corroborated in part by the testimony of Grandmother, as summarized ante, and by Sister, who overheard her father threaten Doe and say he had naked photographs and videos of Doe. In contrast, the evidence supporting a different outcome was comparatively weak, as defense counsel argued Doe fabricated the accusations of sexual abuse against Robles as "payback" because he was a "wife beater" who had committed acts of domestic violence in Doe's presence. Thus, the court's error in admitting the police interview with only minor redactions was harmless. (See Riccardi, supra, 54 Cal.4th at p. 804; Breverman, supra, 19 Cal.4th at p. 177; Watson, supra, 46 Cal.2d at p. 836.)
II. CSAAS Evidence
Robles next contends the trial court prejudicially erred in admitting CSAAS evidence. We disagree.
Additional Background
During motions in limine, the People sought to admit expert testimony on CSAAS and requested the court use CALCRIM No. 1193. The prosecutor argued this evidence was relevant because Doe's disclosures were "piecemeal," "conflicted," and "delayed." The defense moved to exclude the CSAAS evidence, claiming it was not probative, was highly prejudicial, and was not deemed reliable by the relevant scientific community, as found by courts from other jurisdictions.
CALCRIM No. 1193 currently provides: "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) [or any conduct or crime[s] with which (he/she) was not charged]. [¶] 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."
The trial court admitted the CSAAS testimony, recognizing that, while some states (i.e., New Jersey, as discussed post) have limited or excluded CSAAS evidence, "it is very much the State of California law that this testimony is still appropriate." Based on the offers of proof in this case, the court found there was "very clearly a delayed disclosure" and "arguably inconsistent disclosures" by Doe, and she feared reprisal if disclosure was made. The court ruled the CSAAS evidence would be admitted after Doe's testimony was complete.
The court, however, also ruled the People's expert would not be able to rely on statistics to show, for example, that "nine out of every ten reports" of sexual abuse are true, thereby supporting the veracity of Doe's testimony. The court also ruled it would admonish the jury regarding the use of CSAAS evidence, including "re-reading parts or all" of the instruction dealing with this evidence.
During trial, defense counsel renewed his objection to expert testimony on CSAAS, claiming for the first time this evidence was irrelevant because the jurors during voir dire had each agreed that "children respond differently to sexual assault because they're individuals, and that there's not one way they'll respond." Counsel thus argued there was no need for expert testimony on CSAAS because "there are no myths to dispel." In upholding its prior ruling, the court recalled the questions to the jurors during voir dire on this subject matter were in connection with whether they could be challenged for cause, which it found was for a different purpose than admitting the CSAAS evidence.
The People called licensed psychologist Blake Carmichael to testify on the characteristics of children who have been impacted by sexual abuse. After Dr. Carmichael was designated as an expert but before he testified on
CSAAS, the court admonished the jury as follows (using CALJIC 10.64): "So, members of the jury, evidence will be presented to you by Dr. Carmichael concerning [CSAAS]. This evidence is not received and must not be considered by you as proof that the alleged victim's claim is true. [CSAAS] research is based upon an approach that is completely different from that which you must take to this case. "The syndrome research begins with the assumption that a molestation has occurred and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. [¶] The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested."
The record shows the court preferred the CALJIC instruction on CSAAS over its CALCRIM counterpart.
Dr. Carmichael testified CSAAS was based on an article published in the early 1980's that identifies behaviors of sexually abused children, including to dispel "misconceptions and myths that people still hold about kids and, after they have been sexually abused, how they should act or might act." Dr. Carmichael conducted no investigations in this case, including interviewing witnesses or reading police reports and transcripts; he did not know the parties, the nature of the charge or charges against Robles, or anything about this case including its facts; and he was not testifying to indicate whether or not Doe had in fact been sexually abused. Instead, he told the jury his role was merely to "educate people . . . about this population of kids and the field of psychology in general" as it related to child sex abuse.
Dr. Carmichael stated there are five recognized aspects of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment or accommodation; (4) delayed, conflicting, and/or unconvincing disclosure; and (5) retraction or recanting. He noted there was no "checklist" or "tool" to use to determine when a child has been sexually abused, and therefore not all five components are necessarily present in a given situation.
Dr. Carmichael opined that most children are sexually abused by someone with whom they have a preexisting relationship. As a result, he noted some abused children are apprehensive to disclose the abuse, and may not do so for "long periods of time," because they are told by the abuser to keep it a secret; the abuser threatens them or their family members with potential harm if they disclose; or they worry about the consequences- including to their family-once disclosure is made. He also opined that the "majority of kids delay disclosures" of sexual abuse, and some may wait to do so until after they turn 18 years old.
In addition, if a child is repeatedly sexually abused over the course of months or years, Dr. Carmichael noted "some of those events kind of start blurring together and they get jumbled up," making it "very difficult" for the abused child to recount each instance of abuse. He explained that is why the "consistency of telling [of the abuse] will oftentimes be quite inconsistent." He also noted sometimes an abused child will engage in" 'incremental disclosure, '" which is a "process" of disclosure and not "a one-time event"; and other times the child will deny being sexually abused even when asked directly, because the child is not yet "comfortable" talking about it.
Guiding Principles
The Supreme Court in People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin), held that expert testimony on "the common reactions of child molestation victims," known as CSAAS, "is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation."" 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self- impeaching behavior.'" (Id. at p. 1301; see also People v. Munch (2020) 52 Cal.App.5th464, 472 (Munch) [noting "courts have long recognized the well-established relevance, necessity, reliability, and importance" of CSAAS evidence].)
As the trial court here admonished the jury, CSAAS evidence "is not admissible to prove that the complaining witness has in fact been sexually abused." (McAlpin, supra, 53 Cal.3d at p. 1300; see People v. Bowker (1988) 203 Cal.App.3d 385, 393.) Nor is an expert "allowed to give an opinion on whether a witness is telling the truth. . . ." (People v. Long (2005) 126 Cal.App.4th865, 871.) We apply an abuse of discretion standard in reviewing the decision of a trial court to admit expert testimony. (McAlpin, at p. 1299.)
Analysis
We conclude the trial court did not abuse its discretion in admitting CSAAS evidence due to Doe's behavior in waiting almost 10 years to report the sexual abuse; her denial of being sexually abused when confronted by a social worker during a school interview; and her inconsistent description and omission of certain instances and details of abuse in statements she made during the recorded interview in January 2016, and at Robles's November 2016 preliminary hearing, when events ostensibly were "fresher" in her mind than her trial testimony years later. That the prosecutor in the instant case may not have expressly stated these particular behaviors, as evidence that was potentially inconsistent with a finding of abuse, is not determinative;" [i]t is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino)) Clearly, that was the case here.
Moreover, the record shows the trial court handled the admission of CSAAS evidence carefully and correctly. Prior to Dr. Carmichael's testimony, the court admonished the jury that it was to consider CSAAS testimony only for the limited purpose of showing, if it all, Doe's responses as demonstrated by the evidence were not inconsistent with her having been sexually abused; and that it was the People's burden to prove Robles's guilt beyond a reasonable doubt. (See Patino, supra, 26 Cal.App.4that p. 1744 [because CSAAS testimony is inadmissible to prove a molestation occurred," [i]t can be highly prejudicial if not properly handled by the trial court"].)
Despite Supreme Court authority admitting CSAAS testimony, Robles cites decisions from out-of-state courts excluding or limiting CSAAS evidence. We, however, are bound by stare decisis to follow California law, including the McAlpin decision admitting CSAAS testimony. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [trial and appellate courts must follow binding Supreme Court authority].) Moreover, as courts have recently observed, "the vast majority of jurisdictions [outside California] have rendered decisions that are consistent with McAlpin." (See, e.g., Munch, supra, 52 Cal.App.5that p. 472.)
As he did in the trial court, Robles primarily relies on State v. J.L.G. (N.J. 2018) 190 A. 3d 442 (J.L.G.), to support his claim of error on this issue. There, the New Jersey Supreme Court had remanded the matter for hearing to better assess the defendant's claim CSAAS evidence was inadmissible. In the remanded hearing, four experts testified, and the parties introduced numerous scientific studies. (Id. at p. 446.) The J.L.G. court held CSAAS expert testimony was no longer admissible except for the aspect of delayed disclosure, deeming such evidence unreliable from a scientific standpoint. (Ibid.)
Here, unlike the situation in J.L.G., the CSAAS evidence was not being used as scientific proof to support a finding that Doe had in fact been sexually abused by Robles. To the contrary, Dr. Carmichael unambiguously testified that it was up to the jury to determine whether Doe had been sexually abused by Robles; and that his (i.e., Dr. Carmichael's) testimony was limited to educating jurors on certain misconceptions and myths regarding the behaviors of sexually abused children that may not be apparent to laypeople. (See Munch, supra, 52 Cal.App.5that pp. 470-471 [rejecting a similar argument of the defendant based on J.L.G. and concluding "J.L.G. involves an aberrant view of CSAAS," was" 'overly dismissive of the "accommodation" aspect of CSAAS, '" and relied on a journal article that was inconsistent with the general view held by child abuse experts, which article was subsequently challenged by those experts for poor statistical analysis] .) We conclude J.L.G. does not guide our analysis on this issue.
Robles also relies on other cases from outside our jurisdiction to support his claim CSAAS evidence is inadmissible. One such case is Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270. But that case arose in a different context and the court did not actually hold CSAAS evidence is never admissible. (Id. at p. 1273.) Although not cited by Robles, the Ninth Circuit more recently stated, "[W]e have held that CSAAS testimony is admissible in federal child-sexual-abuse trials, when the testimony concerns general characteristics of victims and is not used to opine that a specific child is telling the truth." (Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 991; see also Munch, supra, 52 Cal.App.5that p. 470 ["Ninth Circuit decisions are consistent with McAlpin."].) In any event, we do not follow these out-of-state decisions when they conflict with California law. (See Munch, at pp. 468-469 [following McAlpin and rejecting the defendant's reliance on out-of-state authorities that may disagree with it].)
Robles also argues CSAAS evidence should be excluded because myths and misconceptions about child sexual abuse victims are no longer prevalent, including among the jurors in this case based on their jury questionnaires. We disagree.
McAlpin recognized a" 'jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, [Evidence Code section 801, subdivision (a) declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [people] of ordinary education could reach a conclusion as intelligently as the witness."'" (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.) Robles has not shown that Dr. Carmichael's testimony" 'would add nothing at all'" to the jury's understanding of commonly held misconceptions about child sexual abuse. (Id. at p. 1300.)
Evidence Code section 801, subdivision (a) provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact."
Nor do we agree with Robles that CSAAS evidence was unnecessary in this case because the jury questionnaires allegedly indicated none of the jurors had any preconceived notions about how victims of child sexual abuse should or should not act, as allegedly confirmed during voir dire. Rather, the jury questionnaires pertained to whether jurors were subject to challenge for cause, as correctly noted by the trial court. (See, e.g., Code Civ. Proa, §§ 225, 229.) And Robles identifies no requirement that admission of CSAAS evidence is conditioned on the People demonstrating that one or more jurors does or does not hold preconceived notions about child sexual abuse. As we have explained, CSAAS evidence is admissible to assist the jury in understanding an area outside of their common knowledge. (See McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)
Finally, we reject Robles's contention that the admission of CSAAS evidence violated his rights to a fair trial and due process. Generally, a trial court's compliance with the rules of evidence does not violate a defendant's due process rights. (People v. Hall (1986) 41 Cal.3d 826, 834-835.) Because we have concluded there was no evidentiary error with respect to the court's decision to admit CSAAS evidence, we further conclude the admission of this evidence did not violate Robles's constitutional right to a fair trial or due process. (See People v. Cage (2015) 62 Cal.4th 256, 284 ["because the trial court did not abuse its discretion in admitting [the challenged evidence], there was no violation of defendant's constitutional rights"]; see also People v. Lapenias (2021) 67 Cal.App.5th 162, 174 [admission of CSAAS evidence did not violate due process]; Patino, supra, 26 Cal.App.4that pp. 1744-1745 [same].)
III. Grandmother's Testimony Was Properly Admitted
Robles next contends the trial court erred in admitting testimony from Grandmother's conditional statement after it found her unavailable for trial.
Additional Background
In late March 2018, the People filed an unopposed motion to conduct a conditional examination of Grandmother pursuant to section 1335 et seq. In the motion, the People contended Grandmother was a 77-year-old Mexican citizen who resided in the "remote" city of Palma Grande in the state of Nayarit, Mexico, and who suffered from "several diagnosed medical problems" "including diabetes, heart disease and a . . . hip injury" that, until recently, had left her "primarily bedridden." Although Grandmother could not travel by airplane due to her medical condition, she agreed to take a bus from her home in Mexico to the international border, and then be driven by car to San Jose for her court appearance. The court granted the motion, and Grandmother was conditionally examined on April 23, 2018, including being extensively cross-examined by defense counsel.
As relevant to this issue, Grandmother testified at the April 23 hearing that she had recently fallen at her home in Mexico and had broken her "hip" and "lower back on the side of [her] spine," making it difficult for her to stand up or move. As a result of the fall, she had been bedridden for three months, but had sufficiently recovered to make the trip. However, because of her underlying health issues, Grandmother's doctor told her it was too "dangerous" to undergo surgery for her hip.
The People in late October 2018 filed a motion in limine to admit Grandmother's April 23 conditional examination testimony under Evidence Code section 240, subdivision (a)(4). In support, the People contended Grandmother was not a resident or citizen of the United States, was of "advanced age," and had difficulty traveling because of her poor health. Robles opposed the motion, arguing the People had failed to show under Evidence Code section 240, subdivision (a)(4) that Grandmother was unavailable because she was a "nonresident foreign citizen." The defense further argued the People also had failed to proffer any evidence Grandmother was unable to travel due to poor health.
In reply, the People noted that until recently, it had been "impossible" to reach Grandmother because the telephone lines had been downed by a hurricane. Grandmother also had fallen again and reinjured her hip, making it even more difficult for her to walk. The People thus argued that
Grandmother's "present physical infirmity" was another basis to find her unavailable under Evidence Code section 240, subdivision (a)(3); that the defense had had a full and complete opportunity in April to cross-examine Grandmother at her conditional examination; and that she had nothing new to add to her testimony since that examination.
Although sympathetic to Grandmother's medical conditions and her difficulty traveling, the court at the November 13, 2018 in limine hearing found the People needed to make a more detailed showing before it found her unavailable and admitted her conditional statement. The court added the People had "plenty of time to do that." The issue of whether Grandmother was unavailable under Evidence Code section 240, subdivision (a)(4) due to her living in a remote part of Mexico and being a Mexican citizen, was not discussed at this hearing.
In late November 2018, the People filed an affidavit by Sergeant Rodriguez, the same officer who had interviewed Doe in January 2016 and who also had interviewed Grandmother sometime later in 2016. Rodriguez stated under penalty of perjury that he had spoken with Grandmother by telephone on November 20; that Grandmother confirmed the telephone lines to her home had been recently repaired following a hurricane; and that she had fallen in October and reinjured her hip. As a result of her injury, Grandmother was unable to sit upright, was bedridden and being cared for by her nieces, and was taking pain medication prescribed by her doctor. Previously, when she gave her conditional statement in April, Grandmother had endured a 30-hour bus ride from her home to the international border, and then traveled several more hours by car from the border to San Jose for her examination. Due to her poor medical condition, Grandmother indicated she was unable to travel to the United States per the advice of her doctor.
At a follow-up hearing, defense counsel argued Rodriguez's affidavit was not competent evidence on the issue of Grandmother's unavailability because it was inadmissible hearsay. Counsel also argued the issue was not whether the People were acting in good faith, but whether they were diligent in making Grandmother available for trial. The court inquired whether counsel wanted to question Rodriguez regarding the contents of the affidavit, but counsel declined.
The court found Rodriguez's affidavit was admissible for a nonhearsay purpose-to show the People's efforts to secure Grandmother's presence at trial. The court found the affidavit was sufficient to show the People had exercised reasonable diligence and there was a good-faith basis for her unavailability under Evidence Code section 240, subdivision (a)(3) due to physical injury or infirmity. In making its decision, the court noted Rodriguez's affidavit was consistent with Grandmother's testimony from the conditional examination, when she stated she had a number of health issues including a broken hip that previously had left her bedridden for months.
Guiding Principles
"A criminal defendant has a state and federal constitutional right to confront witnesses, but the right is not absolute. If a witness is unavailable at trial and has given testimony at a previous court proceeding against the same defendant at which the defendant had an opportunity to cross-examine the witness, the previous testimony may be admitted at trial. In a criminal case, the prosecution bears the burden of showing the witness is unavailable and, additionally, that it made a 'good-faith effort' [citation] or, equivalently, exercised reasonable or due diligence to obtain the witness's presence at trial." (People v. Sanchez (2016) 63 Cal.4th411, 440 (Sanchez).)
Evidence Code section 1291 provides, in pertinent part: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2).) Evidence Code section 240, in turn, defines the phrase "unavailable as a witness." Relevant to this case, a witness may be unavailable if he or she is "unable to attend or to testify at the hearing because of then-existing physical. . . illness or infirmity." (Evid. Code, § 240, subd. (a)(3).)
Because we conclude Medina was unavailable under subdivision (a)(3) of Evidence Code section 240 due to "physical. . . illness or infirmity," we need not decide whether Medina was separately unavailable under subdivision (a)(4) of this statute. (Evid. Code, § 240, subd. (a)(4) [unavailability means a witness is" [a]bsent from the hearing and the court is unable to compel his or her attendance by its process"]; cf. People v. Sandoval (2001) 87 Cal.App.4th 1425, 1441-1443 [concluding under subdivision (a)(4) of Evidence Code section 240 that the trial court erred in finding a witness unavailable and admitting his preliminary hearing testimony at the defendants' murder trial when the witness, who was one of two eye witnesses to the murder, resided in Mexico but was willing and-unlike Medina-able to return to California to testify but the People refused to pay about $100 in expenses for him to obtain the necessary paperwork in Mexico, and when the People had other options available to secure the witness's live testimony, including using teleconferencing, which options were unavailable in the instant case given Medina was bedridden and unable to sit upright].)
To satisfy Evidence Code section 240, subdivision (a)(3), "the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness's attendance, or his [or her] testifying, relatively impossible and not merely inconvenient." (People v. Gomez (1972) 26 Cal.App.3d225, 230 (Gomez); see People v. Winslow (2004) 123 Cal.App.4th464, 471 (Winslow) [same].)
Robles's challenge to the admission of Grandmother's conditional examination testimony requires us to review both the question of fact- whether the People established by a preponderance of evidence that her diagnosed medical conditions, when considered in light of the fact she lived in a rural part of Mexico far from the international border, rendered her unavailable-and the question of law, whether under the circumstances Robles's right to confront Grandmother was violated. "The standards of review for questions of pure fact and pure law are well developed and settled. [A]n appellate court reviews findings of fact under a deferential standard. . ., but it reviews determinations of law under a nondeferential standard, which is independent or de novo review." (People v. Cromer (2001) 24 Cal.4th 889, 893-894 (Cromer) [appellate court independently reviews trial court's finding the prosecution used reasonable efforts to locate missing witness]; see Sanchez, supra, 63 Cal.4th at p. 440 ["The reviewing court defers to the trial court's determination of the historical facts if supported by substantial evidence, but it reviews the trial court's ultimate finding of due diligence independently, not deferentially."].)
Analysis
On appeal, Robles concedes Grandmother's conditional examination occurred before a judge, her examination was properly transcribed, and he was present at the examination and his counsel had an opportunity to, and did in fact, cross-examine her. Robles also does not dispute that Grandmother has no new information to offer in this case since her conditional examination.
Substantial evidence supports the trial court's finding that Grandmother was" 'unavailable as a witness'" within the meaning of Evidence Code section 240, subdivision (a)(3) due to "physical. . . illness or infirmity."
First, we conclude the trial court properly admitted Rodriguez's affidavit for the nonhearsay purpose of showing the People's reasonable and good faith efforts in attempting to secure Grandmother's attendance. (See People v. Smith (2003) 30 Cal.4th 581, 611 [rejecting the defendant's challenge to the prosecution's use of hearsay evidence to establish a Japanese foreign exchange student had returned to Japan after testifying at the preliminary hearing, which evidence included a telephone call between a district attorney investigator and the student, finding this information "sufficed to show that the prosecution made reasonable efforts to locate him and that further efforts to procure his attendance would be futile"].)
Second, there was sufficient competent evidence to support the finding Grandmother was physically ill or infirm within the meaning of Evidence Code section 240, subdivision (a)(3). Indeed, Grandmother herself testified in April 2018 about her myriad health issues that then made travel to the United States arduous to say the least. Because of these health issues and her living in a remote part of Mexico-far from the international border-the People moved under section 1335 et seq. to preserve her testimony in case she was unavailable for trial. Thus, the information in Rodriguez's affidavit merely confirmed Grandmother's own testimony that she suffered from myriad health issues that made her attendance" relatively impossible," and "not merely inconvenient," for purposes of subdivision (a)(3) of Evidence Code section 240. (See Winslow, supra, 123 Cal.App.4th at p. 471; Gomez, supra, 26Cal.App.3datp. 230.)
Third, we find inapposite the decision of People v. Williams (1979) 93 Cal.App.3d 40 (Williams) on which Robles primarily relies allegedly to show there was an absence of competent evidence to establish Grandmother's unavailability. In Williams, the Court of Appeal rejected the trial court's finding a rape victim was unavailable to testify at the defendant's second trial, after she testified for six days in his first trial that ended in a mistrial after the jury could not decide guilt. The Williams court found the testimony of third-party witnesses insufficient regarding the victim's unavailability due to mental infirmity when (1) there was no evidence offered by (i) the victim of her "absolute refusal" to testify a second time (id. at p. 54), or (ii) a medical professional that the victim would suffer substantial impairment to her mental health for a significant period of time if required to testify again (ibid.); and (2) the evidence also established that the anguish and physical effects the victim had suffered were "temporary in nature and disappeared upon the conclusion of the first trial" (ibid.).
Here, unlike the rape victim in Williams, Grandmother was not unwilling to testify due to a temporary condition. Instead, Grandmother was unable to testify as a result of having a broken hip, among other significant health issues, that left her bedridden while living in a rural part of Mexico, far from the international border and the San Jose courthouse.
In addition, Grandmother's unavailability was not based on a mental infirmity as was the case of the victim witness in Williams, which infirmity generally requires an opinion by an expert who can give supporting reasons for the likely negative effect of the court appearance on the witness's mental health. (See, e.g., People v. Stritzinger (1983) 34 Cal.3d 505, 516-518 [reversing trial court's finding that victim's mother's testimony about the child's emotional difficulties was legally sufficient to find the child unavailable]; see also Evid. Code § 240, subd. (c) ["Expert testimony [from'a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010'] that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a)." (Italics added.)])
Instead, as we have noted her unavailability was due to physical infirmity, as corroborated by her own testimony at the April 2018 conditional examination and by Rodriguez's affidavit updating her medical status. (See Evid. Code, § 1250, subd. (a) [permitting admission of "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) . . . when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [Tf] (2) The evidence is offered to prove or explain acts or conduct of the declarant."].)
Next, exercising de novo review we conclude the People used reasonable efforts to secure Grandmother's attendance at the trial, but could not do so because of the severity of her physical illness or infirmity. (See Sanchez, supra, 63 Cal.4th at p. 440; Cromer, supra, 24 Cal.4th at pp. 893-894.) Robles nonetheless had the "right and opportunity to cross-examine" Grandmother at her conditional examination in April 2018 "with an interest and motive similar to that which he has" at trial. (See Evid. Code, § 1291, subd. (a)(2).) The record shows he exercised that right, as defense counsel conducted a thorough cross-examination of Grandmother at the conditional examination. (See Crawford v. Washington (2004) 541 U.S. 36, 59 (Crawford) [the Sixth Amendment's confrontation clause bars admission of testimonial hearsay against the defendant in a criminal trial unless the declarant is unavailable and the defendant had a previous opportunity for cross-examination]; Sanchez, supra, 63 Cal.4th at p. 680 ["Under Crawford. . ., admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing."].)
Finally, even if the trial court erred in admitting Grandmother's conditional statement testimony, we conclude it was harmless. A violation of a defendant's constitutional right to be confronted with the witnesses against him or her is harmless error if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Arredondo (2019) 8 Cal.5th 694, 709.) "An assessment of harmlessness cannot include consideration of whether the witness' testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence." (Coy v. Iowa (1988) 487 U.S. 1012, 1021-1022.)
Here, we note Grandmother merely corroborated one incident of Robles's sexual abuse of Doe when she was about 10 years old, which incident occurred at night when Doe was lying next to Grandmother. Doe, however, provided detailed testimony regarding this same incident, including regarding the confrontation between Grandmother and Robles the following morning when Robles demanded Grandmother leave, and not return to, the family home after Grandmother accused him of inappropriately touching Doe. Thus, even without Grandmother's evidence, there was other substantial evidence regarding this particular incident of sexual abuse, as well as the other incidents of abuse, to support Robles's guilt on all counts, as we have summarized in detail ante. Based on our de novo review, we conclude the trial court did not err in finding Grandmother unavailable under Evidence Code section 240, subdivision (a)(3).) (See Sanchez, supra, 63 Cal.4th at p. 440; Cromer, supra, 24 Cal.4th at pp. 893-894.)
In light of our decision on the merits that the admission of Medina's conditional examination testimony did not deprive Robles of his Sixth Amendment right to confront a witness, we decline to address the People's alternative argument that Robles's failure to object on this specific ground in the trial court forfeited this argument on appeal. (See People v. Thompson (1998) 61 Cal.App.4th 1269, 1280, fn. 11 [confrontationissue forfeited due to failure to raise such objection in the trial court].)
IV. The Childhood Photographs of Doe Were Properly Admitted
Robles next contends the trial court prejudicially erred when it ruled to admit about 13 childhood photographs of Doe. We disagree.
The photographs were not included in the appellate record.
Additional Background
Robles moved in limine to exclude what ultimately became the People's exhibit No. 4, which was a seven page document of childhood photographs of Doe from the ages of five to 16. The defense contended the photographs were unduly prejudicial under Evidence Code section 352 because the People's real purpose in seeking their admission was to "engender sympathy" for Doe, as they showed an "attractive smiling child[]."
In opposition, the People argued the photographs were "more than simply pictures of a child." Instead, their admission would assist Doe in creating a timeline of specific acts of sexual abuse by Robles that spanned nearly a decade. According to the prosecutor, the photographs included "specific backgrounds, locations inside a residence, objects, and the like," which would also be "helpful" to the jury in judging the credibility and reliability of Doe's memory. The People also argued that the photographs were probative on the issue of "force or 'duress, '" as they also showed Doe's size and build as a child, in comparison to Robles; and that their admission was not unduly prejudicial under Evidence Code section 352.
At the in limine hearing, the court found the photographs were limited in number, as the record shows there were two when she was five years old; two when she was six or seven; one when she was eight; two when she was nine; one when she was 10; two when she was 11 or 12; and three when she was between the ages of 13 and 16 (i.e., 13 in total). The court also found the photographs were relevant, as they were probative of her childhood and the reliability of her memory including when the sexual abuse started, where it occurred, and when it stopped, among other subject matters; and were not unduly prejudicial, as they were unlikely to "elicit an emotional response" from the jury.
Defense counsel in response asked the court to order the People to redact the photographs to exclude Doe's family members, as a few of them also included pictures of Mother and Sister (with one including a picture of her and Robles). After additional argument, the court tentatively overruled Robles's objection to the admission of the photographs, noting, however, its ruling would "depend on the issues" and testimony for which they were being admitted. The record shows each of the photographs was subsequently admitted into evidence.
Guiding Principles
" 'The rules pertaining to the admissibility of photographic evidence are well-settled. Only relevant evidence is admissible.'" (People v. Heard (2003) 31 Cal.4th 946, 972 (Heard).)" 'The trial court has broad discretion in determining the relevance of evidence.'" (Id. at p. 973.)" '[W]e rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative (Evid. Code, § 352). A trial court's decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.'" (People v. Lewis (2009) 46 Cal.4th 1255, 1282 (Lewis).)" 'To determine whether there was an abuse of discretion, we address two factors: (1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect.'" (Ibid.)
Analysis
We conclude the court properly exercised its broad discretion when it found the photographs were both relevant and not unduly prejudicial. (See Lewis, supra, 46 Cal.4th at p. 1282; Heard, supra, 31 Cal.4th at p. 972.) The record shows the prosecutor used the photographs to assist Doe in recalling specific incidents of sexual abuse, as they were a "snapshot in time" of Doe's childhood during the roughly 10-year period she was being abused by Robles. The photographs not only assisted Doe in recalling when certain incidents of sexual abuse did, or in some cases, did not occur (to the benefit of the defense), but also where they occurred, including in the various homes where Doe and her family lived over this extended period.
We will assume, without deciding, that Robles preserved his argument on appeal that the photographs were inadmissible on relevancy grounds, even though it appears from the record his only objection to their admission was under Evidence Code section 352. (See People v. Demetrulias (2006) 39 Cal.4th 1, 20 ["' "A 'defendant's failure to make a timely and specific objection' on the ground asserted on the appeal makes that ground not cognizable."'"].)
Clearly, the 13 photographs were also relevant given the charges in this case, all of which were age specific. (See, e.g., counts 8-11 [applying to a child under the age of 10]; in contrast to counts 1-7, and 12-15 [applying to a child under the age of 14].) The photographs also were relevant on the issue of force and duress, which the People were required to prove for the offenses of aggravated sexual assault and forcible lewd acts on a child under the age of 14. (See §§ 269, subd. (a), 288, subd. (b); see also People v. Cochran (2002) 103 Cal.App.4th8, 13 ["The offenses of aggravated sexual assault and forcible lewd acts on a child under the age of 14 years require proof that 'force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person' was used."]; People v. Pitmon (1985) 170 Cal.App.3d38, 51 [recognizing the "total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress," and the "disparity in physical size between an eight-year-old and an adult also contributes to a youngster's sense of his relative physical vulnerability"].)
We also conclude the trial court properly exercised its broad discretion when it found the probative value of the photographs was not substantially outweighed by any undue prejudice. (See Lewis, supra, 46 Cal.4th at p. 1282.) As noted, there were only 13 photographs. The photographs also spanned about an 11-year period, covering Doe's childhood from the age of 5 to 16, or about one photograph per year. And, from the description of the photographs in the record, it appears some of them were school pictures of Doe, as she recognized the "fake" background behind her picture. Given the probative value of the photographs and their minimal prejudicial effect, the trial court did not err in admitting them under Evidence Code section 352.
V. Cumulative Error
Finally, Robles contends the aforementioned evidentiary errors deprived him of his constitutional right to a fair trial. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to [the] defendant in their absence.'" (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The litmus test' for cumulative error 'is whether [the] defendant received due process and a fair trial.'" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
Because we have found no error, or have found any such error harmless, they cannot as a group constitute cumulative error. (See People v. Richardson (2008) 43 Cal.4th959, 1036.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J. DATO, J.