People v. Taylor

         CERTIFIED FOR PARTIAL PUBLICATION ^[*]

          APPEAL from the Superior Court of San Bernardino County No. FSB1502285. Kyle S. Brodie, Judge. Affirmed in part, reversed in part, and remanded with directions.

          Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          MENETREZ J.

         A jury convicted Stephen Darrell Taylor of numerous sex offenses against his adopted daughters, Jane Doe 1 and Jane Doe 2. In total, the jury convicted him on 12 counts. The trial court sentenced him to prison for a one-year determinate term and an aggregate indeterminate term of 165 years to life.

         On appeal, Taylor argues that the court erred by admitting expert testimony on child sexual abuse accommodation syndrome (accommodation syndrome) and instructing the jurors that they could use that evidence to evaluate the victims' credibility. He also asserts several sentencing errors. He argues that the court erred by (1) imposing two indeterminate terms under the former “One Strike” law (Pen. Code, ^[1] former § 667.61, subd. (a)) for two offenses that occurred during a single occasion, (2) imposing multiple punishments for four counts of aggravated sexual assault and four counts of lewd acts arising from the same facts, and (3) imposing a restitution fine and court operations and facilities fees without an ability to pay hearing.

         We agree that the court erred by imposing multiple punishments on four counts of aggravated sexual assault (counts 1 through 4) and four counts of forcible lewd acts (counts 5 through 8) that arose from the same conduct. Accordingly, we stay Taylor's sentence on counts 5 through 8. We also agree that the court should hold an ability to pay hearing, at least as to the court operations and facilities fees. We therefore reverse the order imposing those fees and remand for a hearing on Taylor's ability to pay them. As to the restitution fine, Taylor has forfeited his contention. We otherwise reject Taylor's arguments and affirm.

         BACKGROUND

         I. Offenses Against Doe 1

         Doe 1 was 18 years old when she testified at trial. She and Doe 2 are sisters. Doe 1, Doe 2, and their younger brother and sister were placed in the Taylor household as foster children. Doe 1 was in preschool when she was placed with the Taylors. They adopted her, but she did not recall at what age. She was removed from their home in 2008, when she was about nine years old.

         With respect to Doe 1, the amended information charged Taylor with four counts of aggravated sexual assault (rape) of a child (§§ 261, subd. (a)(2), 269, subd. (a)(1)), one count for each year between 2004 and 2008. It also charged him with four counts of forcible lewd acts on a child (§ 288, subd. (b)(1)), one count for each year between 2004 and 2008.

         Doe 1 was five years old when Taylor first raped her, and he continued to do so approximately once per week until she was removed from his home. He would take off his clothes and insert his penis into her vagina. She tried to push him off of her sometimes but was unable to do so. She told Taylor that she was going to report his sexual abuse. He said no one would help her or believe her because she was a child.

         Taylor and his wife physically abused Doe 1 by hitting her with belts, hangers, or spoons. Doe 1 told a social worker investigating the physical abuse about Taylor's sexual abuse. The social worker talked to Taylor's wife about it, and his wife “hit [Doe 1] for that.” Doe 1 was removed from the Taylor household because of the physical abuse.

         Years later, in 2013, Doe 1 disclosed Taylor's sexual abuse to her foster mother. In March 2013, a forensic interviewer spoke with Doe 1, and a forensic pediatrician examined her. Detective Jason Frey of the San Bernardino County Sheriff's Department observed Doe 1's interview with the forensic interviewer. She reported that Taylor would remove his clothes, remove her clothes, and insert his penis into her vagina.

         The forensic pediatrician concluded with reasonable medical certainty that Doe 1 had sustained a penetrating injury to her genitalia. The doctor discovered two abnormalities in Doe 1's genital area. She had a scar and tissue missing from her hymen. The abnormalities indicated that Doe 1 had suffered a penetrating injury that tore her hymen. Together with Doe 1's disclosures during interviews, the doctor's findings were “highly suspicious for sexual abuse.”

         In April 2015, Detective Frey called Taylor and pretended to be a counselor who was treating Doe 1. The detective had his wife pretend to be Doe 1 on the phone call. The detective's wife confronted Taylor about the sexual abuse. Taylor did not directly acknowledge the abuse but did not deny it. When the detective's wife, acting as Doe 1, asked Taylor “if he hated her when he did the sex things to her, ” Taylor said that he did not hate her, but he hated himself. He apologized to her more than once during the conversation. He also told her that he was sexually abused as a young boy, and “it took him many years to forgive that person.” He said that forgiving someone meant “‘[t]o forgive and never bring it up again.'”

         In June 2015, Detective Frey and another officer interviewed Taylor at the sheriff's station. Taylor initially denied sexually abusing Doe 1 but then admitted to twice penetrating her vagina with his finger and twice penetrating her vagina with his penis.

         Around this same time, Taylor's son confronted Taylor about Doe 1's and Doe 2's allegations of sexual abuse. Taylor said, “some of it was true, ” and he specifically admitted to “‘penis penetration, '” but would say nothing further.

         II. Offenses Against Doe 2

         Doe 2 was 19 years old when she testified at trial. Taylor and his wife adopted Doe 2 at age five, and she was removed from their home at about age 10. She is deaf and learned sign language at age 11, after she left the Taylor household. Taylor and his wife did not know sign language. Doe 2 communicated with them using their “home language, ” which she described as “very basic signs, very gesture-like.”

         With respect to Doe 2, the amended information charged Taylor with three counts of lewd acts on a child (§ 288, subd. (a)) and one count of attempted forcible lewd act on a child (§ 288, subd. (b)(1)), all occurring between January 2003 and January 2008. This was roughly the five-year period during which Doe 2 lived in the Taylor household.

         The prosecutor began by asking Doe 2 what Taylor did “when he touched [her] in a sexual way.” Doe 2 replied: “When I would get in my bed in my room he would come into bed with me. He would take off my clothes. I would tell him, no, no. And then his wife would come out and he quickly-when his wife would come in the bedroom he would quickly get out of my bedroom.” The prosecutor asked how many times that happened, and Doe 2 said twice. She said that he touched her breasts when he took off her clothes, and then explained that he did not completely take off her shirt, but just lifted it up and “cupped” her breast. He stopped because his wife arrived home. The prosecutor asked if she remembered telling an interviewer that Taylor had touched her breasts over her clothing. Doe 2 replied that she remembered telling the interviewer that, and the incident did occur. She did not remember anything more specific about that incident.

         On cross-examination, Doe 2 specified that the first time Taylor touched her breasts, it happened in his bedroom during the afternoon. Taylor's wife was not home. Doe 1 was outside playing in the yard. Doe 2 was not sure where her two younger siblings were. The incident stopped when Taylor's wife came home. The second time he touched her breasts also occurred in his bedroom. It was the afternoon again, and Doe 1 and her other siblings were in the yard. Again, Taylor's wife was not home.

         Doe 2 initially said that she did not remember Taylor engaging in any other “sexual touching” with her. But then the prosecutor asked if she remembered telling the interviewer that Taylor tried to make her touch his penis. She recalled telling the interviewer that and described the incident. Taylor's wife was not there on this occasion, and Doe 2's “brother and sister were out and about.” Taylor tried to “force [her] head down to him.” His pants were unzipped, but she did not see his penis because she closed her eyes. She said, “no, ” and went to brush her teeth “because it smelt so bad.”

         On cross-examination, defense counsel referred to the “third incident involving [Taylor] pushing [Doe 2's] head” and asked if Doe 2 recalled what year that happened. She did not recall, but it was probably summer. Doe 1 was at home watching television, but Doe 2 was unsure where her younger siblings were. Taylor's wife was again not home.

         The prosecutor also asked Doe 2 if she remembered telling the interviewer about an incident in which Taylor “called [her] to go to his room and he was not wearing a shirt.” They had the following exchange:

         “Q Do you remember what happened during that time?

         “A Yeah.

         “Q What happened?

         “A That's what I was explaining before.

         “Q I'm not sure what you mean. You were explaining what before?

         “A Yeah, that's what I was telling you about the first story.

         “Q The one where he touched your breasts?

         “A When he touched my breasts.

         “Q Do you remember also telling the interviewer that he tried ...