(Super. Ct. No. 08F03422)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Juan Ramon Rodriquez of aggravated sexual assault (rape) of a minor under the age of 14 years and more than 10 years younger than defendant (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); undesignated statutory references that follow are to the Penal Code), as well as three counts of forcible lewd and lascivious acts on a child under the age of 14 years (§ 288, subd. (b)(1)). As a result, the trial court sentenced defendant to an indeterminate prison term of 15 years to life in addition to a determinate 6-year prison term. The trial court also imposed, among other fines and fees, a $242.29 jail booking fee and a $27.22 jail classification fee. (Gov. Code, § 29550.2.)
On appeal, defendant contends (1) Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony should be per se inadmissible in California, (2) CALCRIM No. 1193 wrongly instructed the jury that it could use CSAAS evidence in assessing the victim's believability, (3) he received ineffective assistance of counsel when his trial attorney failed to object to most of the expert testimony regarding CSAAS, (4) the trial court erroneously precluded the defense from cross-examining the victim about her statement to the police that she was a virgin at the time she first reported the rape, (5) CALCRIM No. 3517 erroneously fails to instruct a jury that it may consider greater and lesser charged offenses in any order it wishes, (6) the cumulative effect of the alleged errors prejudiced his right to a fair trial, (7) section 654 requires that punishment for his conviction for lewd and lascivious touching for inserting his penis into the victim's vagina be stayed, and (8) the trial court wrongly imposed jail booking and classification fees pursuant to Government Code section 29550.2 without finding that he had an ability to pay the fees.
We modify the judgment to stay the sentence for one count of forcible lewd and lascivious touching (§ 288, subd. (b)(1)). In all other respects, we affirm the judgment.
On February 3, 2001, Ashley T. was 11 years old--about the same age as her friend Antonia. That evening, Ashley and Antonia went to a sleepover at the apartment of their friend, Blanca. The girls watched movies before turning out the lights and going to sleep at approximately 11:00 p.m.
Ashley fell asleep on a couch in the living room. She was wearing pajamas with a drawstring and a tank top. She had covered herself with a blanket. Sometime after midnight, defendant woke her up and told her to turn the lights off. Defendant is Blanca's brother. Ashley responded "why don't you turn off the lights," rolled over, and started going back to sleep. Five to 10 minutes later, defendant again woke Ashley. This time, defendant put his hand on Ashley's shoulder and rolled her onto her back. Defendant asked whether the boy with whom Ashley often hung out was her boyfriend. Ashley responded that the boy was not her boyfriend. Defendant then asked if she "had ever done anything sexual before" and kissed her cheek. Ashley was scared.
Defendant climbed on top of Ashley and put his hand over her mouth. Ashley tried to kick him, but she was unable to move. Defendant was much larger than she was, and she felt overpowered. Defendant told her that if she was loud, he would hurt her. Ashley believed him.
Defendant pulled Ashley's pants and underwear off before unbuttoning his own pants. Ashley was unable to get her pants back on. Defendant touched Ashley's vagina with his fingers. He then pulled his pants to his knees and inserted his penis into her vagina. Over the next two minutes, defendant inserted his penis three or four times. Ashley testified that "it hurt a lot." Defendant also kissed her on the lips. He then threatened that if she reported what happened, he would hurt or kill her. Ashley believed him.
Defendant got up and went to the bathroom for about 20 minutes before leaving the apartment. During this time, Ashley pretended to be asleep. After checking that defendant had really left, Ashley woke up Antonia. Ashley said that she did not feel comfortable and called her father. Fearing defendant, Ashley did not tell Antonia what had happened.
Ashley's father had just been released from custody following his arrest for driving under the influence. Her father came over to walk Ashley home. For fear of defendant, Ashley also did not tell her father what happened.
At home, Ashley found her underwear was spotted with blood. She threw the underwear away so her mother would not see it.
The next day, Ashley saw defendant but said nothing to him. Other than her friend, Marcello, Ashley did not tell anyone about what had happened.
In June 2007, Ashley left her house after an argument with her father. About two hours after she left the house, she spoke with a police officer. During the conversation, Ashley "felt that [she] needed to deal with it" and told the officer about defendant raping her years earlier. She testified, "I didn't know until a few years after it happened how to say it to someone and then I thought that it would be too late to say something; but I said something later because I was just sick of, you know, people saying all these things that weren't true about me." Ashley was uncomfortable with a physical sexual examination and refused to submit to one.
In March 2008, Sacramento County Sheriff's Detective Anthony Saika interviewed defendant. After initially denying that he knew the victim, defendant admitted touching Ashley's inner thigh near her vagina. Defendant "said something came over him and he decided to touch her, and he touched her inner thigh for approximately one to two minutes." Ashley woke up and began to cry. Defendant said "it's not like I got on top of her and covered her mouth." (Italics omitted.) The detective had not told defendant about Ashley's allegation that he had done those things.
Anthony Urquiza, Ph.D., a licensed psychologist, testified as an expert on CSAAS. Dr. Urquiza noted that he was not rendering an opinion about whether a particular child was molested or whether a particular individual perpetrated an act of child molestation. The witness further noted that he had not interviewed Ashley or reviewed the police reports in the case.
Dr. Urquiza explained that CSAAS "is a means to describe what commonly or typically happens with a child who has been sexually abused and to dispel any misunderstanding, misconceptions that therapists would have." To that end, CSAAS describes five categories of behaviors commonly engaged in by victims of child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction or recantation. CSAAS is not a diagnostic tool and does not predict that every victim of child sexual abuse will exhibit all five categories of reactions.
Dr. Urquiza explained that the general public has "some misperceptions" about child sexual abuse. This is because "[m]ostly what people hear tends to be the more sensationalistic things that hit the media or newspaper or some television show."
On cross-examination, Dr. Urquiza acknowledged that false allegations of sexual abuse do occur. He also admitted that CSAAS is premised on the assumption that persons who report being sexually abused as a child are telling the truth.
Ashley's father testified that he did not recall anything unusual about her when walking her home from the sleepover. She did not mention anything about what had happened. And, Ashley did not appear to behave unusually the next day either.
Ashley's friend, Antonia, testified that she asked Ashley why she suddenly wanted to go home from the sleepover. Ashley replied that she just wanted to go home. Antonia did not observe anything unusual about Ashley that night or the next day at school. Ashley did not stop coming over.
Blanca testified that she and Ashley remained friends until Ashley moved away from the apartment complex several months after the sleepover. Blanca did not notice anything different about Ashley after the sleepover.
Defendant testified on his own behalf, acknowledging that he initially lied to the detective about knowing Ashley. Defendant also stated that he lied about his initial denials about touching Ashley on the night of the sleepover. Defendant explained that he lied because he was afraid of going to jail. Defendant admitted telling Detective Saika that he believed a person who had sexual intercourse with a child would be punished by 10 years' imprisonment, but that a person who only touched the thigh of a child would be sentenced to 2 years.
Defendant stated that he only rubbed the victim's thigh "close to her vagina" for one or two minutes. Defendant admitted feeling "[a]ttracted to her." Defendant testified that he touched Ashley's clothed thigh, contradicting an earlier statement to the detective that he might have touched her bare leg. Near the end of the interview with the detective, defendant said that he would "come clean" but needed to go home and talk with his family first. To this, defendant added: "I am not ending this at all. I will come back. I will tell you the truth, what really happened."
I Admissibility of Evidence ...