Opinion
H036255
09-26-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY SIMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. C1065365)
Defendant Timothy Simpson was convicted by a jury of committing a lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a), count 1), sexual penetration by force, violence, duress, menace or fear (§ 289, subd. (a)(1), count 2), rape by force, violence, duress, menace or fear (§ 261, subd. (a)(2), count 3) and misdemeanor sexual battery (§§ 242, 243.4, subd. (e)(1), count 4). The jury also found true the allegations in counts 1, 2 and 3 that Simpson committed those offenses against more than one victim within the meaning of section 667.61, subdivision (b) and (e). Simpson admitted having a prior felony strike conviction. (§§ 667, subds. (a), (b)-(i), 1170.12.)
Further unspecified statutory references are to the Penal Code.
After the trial court denied his Romero motion, Simpson was sentenced to a total term of 90 years to life, consisting of three consecutive terms of 30 years to life on counts 1, 2 and 3, to be served consecutive to a 15-year-sentence based on the multiple victims enhancements under section 667, subdivision (a). He was also sentenced to 90 days in jail with credit for time served on count 4. Simpson was ordered to pay various fines and fees and was awarded 332 days of credits.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, Simpson raises the following issues: (1) the trial court erred in admitting evidence of a prior sexual offense under Evidence Code section 1108; (2) there was insufficient evidence to sustain his convictions for forcible sexual penetration and forcible rape; (3) the trial court erred in admitting testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS); (4) the trial court erred in imposing mandatory consecutive sentences for his convictions on counts 2 and 3 as those offenses were not committed on separate occasions; and (5) if consecutive sentences were discretionary, rather than mandatory, the trial court failed to state the reasons it was imposing consecutive sentences on counts 2 and 3. Simpson further argues that, to the extent some of his arguments may be considered forfeited due to the failure of his trial counsel to object below, his trial counsel was ineffective.
We agree that there was insufficient evidence to support Simpson's convictions for forcible sexual penetration and rape (counts 2 & 3), but reject his arguments regarding the introduction of evidence of a prior sexual offense and the introduction of CSAAS evidence. We shall reverse and remand the matter to the trial court with directions that it reduce Simpson's convictions on counts 2 and 3 to the lesser included offenses of assault with intent to commit sexual penetration (count 2) and assault with intent to commit rape (count 3). (§ 220, subd. (a)(1).) The trial court shall then resentence Simpson accordingly on those two counts. Simpson's arguments that he was improperly sentenced on counts 2 and 3 are moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The People's case
1. Victim 1's testimony
Victim 1, who was 19 at the time of trial, began living in San Jose with her aunt, A., at the age of 14. A.'s daughter, victim 2, also lived with them and was six years younger than victim 1. Victim 1 was born with a partial hearing impairment; she could hear music and people talking on the phone without an aid, but was otherwise deaf without her hearing aids. She began using sign language first, but began to learn to speak at the age of four or five and can read lips "about . . . 50 percent."
Though assisted by an American Sign Language interpreter at trial, victim 1 answered the questions put to her orally in order to demonstrate her self-confidence.
Victim 1 considered A. to be a "second mom," and A. was her legal guardian while victim 1 lived with her. Simpson, who is victim 2's father, was not living at the house when victim 1 moved in, but did live there at times. Victim 1 referred to Simpson as "Uncle Tim."
In May 2008, A. gave birth to another daughter, fathered by Simpson. Victim 1 was 16 years old at the time. Between 1:30 a.m. and 1:40 a.m. on May 11, 2008, victim 1 was sleeping on the sofa in the living room, when she awoke to find Simpson on top of her. She could feel one or two of his fingers inside her vagina, and she noticed her pants and underwear had been removed at some point while she slept. Simpson was naked and victim 1's legs had been spread apart. He did not say anything to her, but his arm was moving back and forth. She then felt him insert his penis about a quarter of the way into her vagina. Victim 1 told Simpson to get off, and she pushed him away.
Victim 1 was 16 at the time of this incident, and was 5 feet, 7 inches tall, weighing 135 pounds. Simpson was 6 feet, 2 inches tall and weighed over 250 pounds.
She did not experience any pain or physical discomfort, but was shocked, confused and disgusted. In all, she estimated his finger(s) were inside her for five seconds or less and his penis was inside her for 25 seconds or less. Victim 1 was afraid Simpson would verbally abuse her, but he did not threaten her, hold her down or hit her at any time.
Victim 1 grabbed her pants and underwear off the floor, ran to her bedroom and locked the door behind her. She got dressed, and was lying on the bed, crying, when Simpson somehow got into the room. He went over to the bed and told victim 1 that no one would believe her if she said anything and she should not tell anyone what happened. He grabbed her arms and shoulders, and when he kissed her on the cheek, she could smell alcohol on his breath. Simpson left the room, but came back and again told her not to tell anyone.
On cross-examination, victim 1 admitted she never told the police about Simpson kissing her on the cheek after he assaulted her, and she did not mention this in her testimony at the preliminary hearing.
Later that morning, victim 1 went to the hospital to visit A. and told her what had happened. A. started crying and asked victim 1 if she was going to report it to the police. Victim 1 did not want to call the police because she was embarrassed and was concerned about splitting up the family. Her aunt went along with her wishes.
Over the next year, victim 1 felt uncomfortable around Simpson and avoided being alone with him, although she did have him perm her hair at one time. At another point during this year, while they were both in the kitchen, Simpson smacked victim 1 on the rear, which made her feel more uncomfortable. She also stopped inviting her girlfriends over to visit, because Simpson would act friendly toward them and victim 1 did not want him getting "close" to them.
At some point after A. and Simpson had their second daughter, they all moved to a new residence and Simpson began living with the family.
In June 2009, victim 1 graduated from high school. She invited a friend from Sacramento, victim 3, to visit and attend her graduation. On the evening of June 13, victim 1, victim 3 and A. watched television in the living room. Victim 1 fell asleep on the floor between 11:00 p.m. and 12:30 a.m. At about 7:00 a.m., victim 3 woke her up, looking uncomfortable and nervous. Even though victim 3 was supposed to stay with victim 1 for four weeks, her bag was packed and she had placed it near the front door. Using sign language, victim 3 told victim 1 that Simpson had come into the bedroom where she was sleeping and tried to talk to her, but she could not understand him. He left, but then returned, lay down on the bed with her and began rubbing her rear end. She began to get up and he walked out of the room.
Victim 1 broke down after hearing this, and told victim 3, without going into detail, that Simpson had touched her the year before. Victim 1 went into A.'s room, woke her, and asked her to come outside so she could talk to her without waking Simpson who was asleep next to A. Victim 1, victim 3 and A. went outside where victim 1 relayed what victim 3 had told her. A. began crying, and walked into the family room, where victim 2 was sleeping and asked if something had happened to her. Victim 1 did not hear victim 2's response, because she accompanied victim 3 to the train station so victim 3 could go home.
At the train station, victim 1 was picked up by Simpson's brother, A., victim 2 and the baby. Simpson's brother drove to the hospital, where victim 1 talked to a police officer about what had happened to her the year before.
2. Victim 2's testimony
Victim 2 was 13 at the time of trial. On the evening of June 13, 2009, victim 2 had fallen asleep on the couch in the family room while watching television. At about midnight or 1:00 a.m., victim 2 woke up and felt Simpson touching her thigh over her clothing, though she could not recall if it was her left thigh or right thigh. Simpson was sitting on the couch next to her, moving his hand towards her crotch, which victim 2 called her "private spot." Before his hand got there (or perhaps after—victim 2 was not sure if Simpson's hand reached her crotch), she kicked her legs at his hands, and Simpson got up and walked away. Victim 2 fell asleep again after that.
When she woke up, victim 2 told her mother what had happened. Her "private spot" itched. Her mother started crying and then she went with her mother to the hospital. Her uncle gave them a ride, along with her baby sister, and on the way, they picked up victim 1 at the train station.
Victim 2 said that Simpson had never touched her inappropriately before. He would sometimes give her a hug, but this particular touch did not feel like a "good" touch. A. had not told her Simpson physically or verbally abused her, but since Simpson was arrested, victim 2 said that the house was "more peaceful." Victim 2 was happy he was not there getting into more "fights with [her] mom." She denied that her mother was pressuring her to say anything bad about Simpson.
3. Victim 3's testimony
Victim 3 was 21 at the time of trial and went to visit her childhood friend, victim 1, in June 2009 when victim 1 was graduating from high school. Victim 3 is completely deaf and does not read lips. She communicates using American Sign Language with those who understand it, and in writing with those who do not. On that Saturday evening, victim 3 was watching television with victim 1 but got tired and went to sleep in victim 1's bedroom sometime between 10:00 p.m. and midnight. At some point after she went to bed, Simpson came into the bedroom and tried to talk to her, but she could not understand what he was saying. Simpson left the room and victim 3 fell asleep.
At around 4:00 a.m., victim 3 awoke and Simpson was on the bed next to her, rubbing her bottom through her pajamas. Victim 3 believed this continued for about 15 seconds, but when she started to get up, Simpson got up and quickly left the room. Victim 3 was afraid Simpson would return so she did not go back to sleep but went out to the living room where victim 1 was sleeping. Victim 3 tried to wake her friend but could not, so she went to sleep next to her. Between 7:00 and 8:00 a.m., victim 3 was able to wake victim 1 up and explain to her what had happened. When A. came into the room a few minutes later, victim 3 saw victim 1 and A. talking and noticed that A. did not look happy. At some point, victim 1 told victim 3 what Simpson had done to her, though she did not go into detail.
Victim 3 had already packed her bags and told victim 1 she wanted to return home. The two of them took a bus to the train station and while on the bus, victim 1 told victim 3 what Simpson had done to victim 2.
When victim 3 got home to Sacramento, she spoke to the police both in Sacramento and in San Jose.
4. Hospital examinations and police investigation
Lam Nguyen, a registered nurse at Kaiser, performed a medical screening of victim 2 at the hospital on the morning of June 14, 2009, though Nguyen had no independent recollection of that screening. According to her notes, victim 2 told her that her "father was trying to touch her private area last night[, . . . and] complain[ed] she woke up feeling itchy in her private area." Victim 2 did not want to disclose any information to Nguyen at first and said she was scared.
Dr. Chandu Arjun Karadi, an emergency room physician at Kaiser, also had no independent recollection of examining victim 2. His notes indicated victim 2 told him her father had tried to touch her private area the night before, and was complaining of mild itching in her vaginal area. Victim 2 was not bleeding, and related there was no history of abuse. Dr. Karadi performed a basic, cursory physical exam, which did not reveal any condition or injuries that required urgent treatment. He decided the police should be contacted, however, and Dr. Karadi assumed a more complete physical examination of victim 2 would be undertaken as a consequence of that referral.
Verissa Sadsad, a San Jose Police Department patrol officer, responded to the Kaiser emergency room on the morning of June 14, 2009, due to a report of a possible child molest. Upon arrival, she spoke with victim 2's mother for a short period of time to get some background of what had happened. Sadsad then met with victim 2 alone and recorded an interview with her, which was played for the jury.
During the interview, victim 2 told Sadsad that her dad had touched her while she was sleeping and she tried to push his hand away. Victim 2 said that he had tried to get his hand inside the waistband of her leggings, but she kicked him away from her. At no point in this interview did victim 2 say that Simpson had his hand on her thigh. Sadsad collected victim's 2 clothing as evidence, and transported her to Valley Medical Center (VMC) for a Sexual Assault Response Team (SART) exam.
Maria Finelli, a nurse practitioner and on-call pediatric SART examiner, performed a pediatric SART exam on victim 2 on June 14, 2009, at the "center for child protection" at VMC. Victim 2 would not answer questions about her sexual history, but her physical examination was normal, showing no signs of trauma or injury to her genitals and anus. The tests for sexually transmitted diseases were negative and there were no medical findings to support her complaint of vaginal itchiness.
Anthony Serrano, an investigator in the San Jose Police Department's Sexual Assault Unit, interviewed victim 1 and victim 2 on July 21, 2009, at the children's interview center. He interviewed each victim separately and the interviews were video recorded.
Serrano interviewed victim 2 for approximately 30 minutes. Victim 2 was nervous, but became upset and started to cry as the conversation got more detailed about Simpson touching her. Serrano showed victim 2 a drawing of a young girl and asked her to circle the area on the drawing that she called her "private part." Victim 2 circled the pubic area of the girl in the drawing. She also circled the girl's right thigh to show where Simpson's hand was "crawling" up her leg when she woke up. Serrano asked her if Simpson put his hands in her pants and if she remembered telling Sadsad he had done so, but victim 2 said she did not remember saying that. Victim 2 told Serrano, "He tried to put his hand on my pubic, and I didn't let him." She did not think he succeeded, but she fell back asleep and does not know what may have happened after that. Victim 2 also said she thought she was dreaming about Simpson touching her, but then felt she was not dreaming and told her mother.
Serrano interviewed victim 1 for approximately one hour. He says she was cooperative, but needed to compose herself three or four times during the interview at points when the questions became more detailed about the assault. There was no sign language interpreter present during the interview and victim 1 spoke her responses to Serrano's questions. Victim 1 told Serrano she awoke about 1:15 a.m. to find Simpson putting his finger inside of her vagina. Her pants and underwear had been taken off as she slept. She also said she did not know what was going on and "when I turned, he put his finger in me." As she became more awake and could see more clearly, he moved on top of her, separated her legs and tried to put his penis in her vagina. She then pushed Simpson off, grabbed her clothes and left the room.
5. Prior acts evidence
A prior victim, who was 28 at the time of trial, testified she met Simpson at an apartment complex one evening while she was hanging around with some of her friends. She was then 15 years old.
Someone mentioned they wanted to go to a fast-food restaurant, and the victim and several others got into a van driven by Simpson. They ordered from the "drive-thru" window and came right back to the apartment complex. As everyone was climbing out, Simpson said he wanted to talk to the victim. Though she thought this was strange, she agreed since he said they would only go to the end of the building and it would be "real quick." Simpson told her to get in the front seat and she complied.
Simpson drove to the end of the structure, but exited the complex and drove down a few streets before parking. He asked her if she wanted to make some money, and she said, "As long as it's legal." Simpson started the car and drove onto the freeway. The victim asked him where he was going, and he said he was just going to the store. The victim started to get worried, and after what felt like an hour to her, Simpson pulled over in a sparsely-populated neighborhood.
Simpson started touching her leg, telling her she had to prove she was not a police officer and had to show her "loyalty." As he continued to rub her leg, the victim realized that something bad was going to happen and began to scream and cry, telling him to leave her alone. He remained calm and said she needed to prove her loyalty. He also said that someone had sent him to kill her. The victim finally said she was having her period, but Simpson leaned over her and took her pants off. He pulled out her tampon, rolled down the window and threw it out of the van. Simpson then raped the victim.
Afterwards, Simpson told the victim he would take her home, but warned her not to say anything to anyone. On the way to her house, Simpson played music on the radio and was "being extra nice" to her. The victim feared for her life, and did not want Simpson to know where she lived, so she directed him just to the front of the condo complex. As she got out, Simpson said, "Make sure you don't tell anyone what happened." He also wrote his telephone number on a piece of paper and told her to call him.
The victim did not immediately report the incident to the police. Because of her cultural background, she was afraid her family would disown her if they learned she was raped. The next day, the victim did tell her best friend what had happened and her best friend's parents convinced her to call the police a few days afterward.
The victim is Persian and was born in Iran.
6. CSAAS testimony
Carl Lewis testified as an expert on the subject of CSAAS. Lewis had not investigated this particular case, interviewed any of the witnesses or reviewed any reports or transcripts from the case. CSAAS is not a diagnosis or a syndrome, despite its name, but is a tool used by those dealing with child sexual abuse intervention to not automatically rule out the possibility of such abuse due to preconceived notions of how a child victim should behave. There are five categories which comprise CSAAS: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosure; and retraction.
Secrecy describes the fact that the sexual abuse almost exclusively occurs when the offender is alone with the child, which sends a subtle message to the child that the behavior is wrong. The offender will often reinforce the secrecy by warning the child not to tell anyone, and saying bad things will happen if the child does tell.
Helplessness refers to the fact that children are dependent on adults, and are unable to resist an adult's sexual advances, particularly where the child is emotionally close to the adult. A child's disclosure of sexual abuse will be a more drawn-out process, as the child "test[s] the waters of that disclosure" and gauges the reaction of adults to his or her tentative cries for help. If the signals are misread by adults, and the abuse continues, the child's sense of helplessness is reinforced.
Entrapment and accommodation refer to how a child suffering sexual abuse finds a way of accommodating the situation and attempting to act as if everything is normal. The child may deny that anything is wrong, but there may be a change in behavior or school performance. Depending on age, the child may become more rebellious, begin abusing substances or become promiscuous. The child may also exploit the secrecy to obtain benefits from the offender.
Delayed, conflicted and unconvincing disclosure describe how there is almost always a delay between the time of the abuse and its disclosure, due to the internal conflict over whether or not to say something. The children often fear the unknown consequences of disclosure, and when they do report it, it may happen at a time or in a way that seems unconvincing.
Retraction refers to a child's tendency to retract or minimize the accusation in order to restore the "sense of comfort" that existed before the accusation is made. The child can feel as if he or she is to blame for the disruption and turmoil that ensues once there has been a report of sexual abuse.
The five categories are not a checklist, nor are they symptoms. They are intended to assist in explaining unexpected circumstances which occur regularly in cases of child sexual abuse.
7. Stipulations
It was stipulated that victim 2's leggings were tested for DNA and Simpson's DNA was not detected in the area sampled, which included the front center exterior and waistband and exterior crotch and inner thigh areas. DNA results were inconclusive in the upper front exterior, left and right thigh of those leggings, meaning Simpson could not be included or excluded as a contributor to the male-specific DNA found there.
It was further stipulated that, on December 21, 1999, Simpson was convicted of a felony violation of section 261.5, subdivision (d). In that case, Simpson was found to have had unlawful sexual intercourse with a minor, i.e., the prior victim, when he was over 21 years old and the minor was under 16 years of age.
B. The defense case
The defense rested without presenting any evidence or witnesses.
C. Verdict and sentencing
The jury found Simpson guilty on all four counts and found true the multiple victims enhancements with respect to each count. Simpson admitted the prior conviction allegations both for purposes of the three strikes law and section 667, subdivision (a).
After his Romero motion was denied, Simpson was sentenced to consecutive 30 years to life terms on counts 1, 2 and 3, along with three consecutive five year terms for the multiple victims enhancement for a total term of 90 years to life, consecutive to 15 years. He received a 90 day jail sentence with credit for time served on count 4. Simpson was further ordered to pay various fines and fees and awarded 332 days of credit.
II. DISCUSSION
A. Evidence Code section 1108 evidence
Simpson makes two arguments with respect to the evidence introduced through the testimony of the prior victim pursuant to Evidence Code section 1108. His first argument is that Evidence Code section 1108 is unconstitutional and thus the evidence should have been excluded. His second argument is that the trial court should have excluded the evidence under Evidence Code section 352. We reject both arguments.
1. Evidence Code section 1108 is constitutional
Simpson contends that Evidence Code section 1108 violates constitutional due process principles, though he acknowledges that the Supreme Court has rejected this contention in People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta). He raises the point simply to preserve the claim for review. As we are bound by the decision in Falsetta, we also reject the argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. The trial court did not abuse its discretion in allowing the prior victim to testify pursuant to Evidence Code section 1108
a. Relevant proceedings
Prior to trial, the prosecutor moved to introduce evidence of Simpson's 1997 prior uncharged act of rape pursuant to Evidence Code section 1108. Specifically, the prosecution sought to present the prior victim's testimony and evidence Simpson was convicted of unlawful sexual intercourse by a person over 21 years old with a minor under 16 years old. After defense counsel objected, the parties engaged in several discussions regarding this issue with the court. Defense counsel asked the court to exclude the evidence in its entirety, or preclude the prior victim from referring to guns, drugs or threats. Defense counsel argued that the prior offense was remote in time, dissimilar to the current charged offenses, and its admission would make Simpson appear to be "a violent predator."
After stating that it "considered [Evidence Code section] 352," the trial court found the prior victim's testimony to be probative and also ruled that the prosecution could introduce evidence that Simpson was convicted of unlawful sexual intercourse as a result of this offense. It precluded the defense from introducing evidence that the prior jury failed to reach a verdict on the rape charge, resulting in a mistrial, and that Simpson ultimately pleaded guilty to the lesser offense. It also precluded the prosecution from presenting evidence that Simpson was initially charged with rape in that case and received a five year sentence as a result of his plea.
b. Analysis
Evidence Code section 1108, subdivision (a), provides: "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 Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Evidence Code section 1108 creates an exception in sex-offense cases to the prohibition in Evidence Code section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (Falsetta, supra, 21 Cal.4th at p. 911.) "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (Id. at p. 915.) Consequently, the statute permits the trier of fact to consider uncharged sexual offenses " ' "as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' " (Id. at p. 912.) "With the enactment of section 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 [complaining] witness.' " (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, "the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ' "it has too much." ' " (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
"By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶] . . . [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. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Simpson contends that the trial court abused its discretion in admitting the evidence of prior conviction. He argues that the incident with the prior victim was "far more inflammatory than and dissimilar to the charges" in the instant case. The prior victim's testimony hinted that Simpson was involved in other criminal activity, since he asked her if she wanted to make some money, said she needed to prove her loyalty and to prove she was not a cop. The prior victim was a stranger, rather than a family member or acquaintance, and none of the current victims claimed Simpson threatened them in any way, whereas the prior victim said that Simpson told her he had been sent to kill her.
Simpson also argues that the prior was remote as it concerned conduct that took place 11 or 12 years before the current incidents. He adds that he was actually convicted of a lesser crime than what the prior victim described, which may have led the jurors to speculate how a forcible rape turned into a conviction for unlawful sexual intercourse and tempted them to punish him in the instant case to make up for the lesser punishment in the prior case. Simpson points out that one juror sent a note to the court expressing confusion about "how to handle" the prior victim's testimony and whether it could be used in the jury's "evaluation of this defendant."
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) The trial court's exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Simpson fails to carry his burden on appeal. He merely reargues the position he adopted below by relying on factors that arguably support his position (remoteness; guilt uncertainty; prejudice of propensity evidence) instead of focusing on the factors supporting the trial court's decision and explaining why it was irrational to rely on those factors (e.g., propensity evidence is highly probative; evidence in question is not remote; Simpson suffered a conviction; evidence in question is relatively benign). (See People v. Wesson (2006) 138 Cal.App.4th 959, 970.)
We add that Evidence Code section 1108 contains no predicate requirement that there be a high degree of similarity between the prior and current offenses as Simpson suggested below. "It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 41.) The Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so would tend to reintroduce the strictures of prior law which the statute was designed to overcome " ' "and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not 'specialists,' and commit a variety of offenses which differ in specific character." ' " (People v. Soto, supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, West's Ann. Evid. Code (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, similarity of the crimes is a consideration in the Evidence Code section 352 analysis required by Evidence Code section 1108, inasmuch as it is one of many factors for the trial court to consider when the evidence is offered pursuant to that section.
We also observe that, though the remoteness of a prior offense is an appropriate factor in weighing probative value against potential prejudice, there is no bright-line rule for determining when remoteness eliminates the probative value of a prior offense. (See, e.g., People v. Branch, supra, 91 Cal.App.4th at p. 285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto, supra, 64 Cal.App.4th at pp. 991-992 [more than 20 years]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 (Harris) [prior crime remote--23 years--but also inflammatory, irrelevant, likely to confuse and distract the jury].) Simpson provides no support for his implicit view that one's past criminal conduct, even from a dozen or so years ago, has no relevance in revealing one's present propensities, especially in the area of sexual conduct. Although the court in Harris found that the trial court had abused its discretion in admitting evidence of a 23-year-old burglary conviction that involved a sexual assault, the remoteness of that prior offense was one of several reasons for the holding; the court also found that the prior offense evidence was extremely "inflammatory and nearly irrelevant and likely to confuse the jury and distract it from the consideration of the charged offenses." (Harris, supra, at p. 741.)
The admissibility of prior-sex-offense evidence is a highly subjective, fact-specific question. The record demonstrates that the trial court applied the factors outlined by the Falsetta court in determining the admissibility of the evidence, and its balancing of those factors is not open to reexamination simply because they could conceivably be construed to favor Simpson.
B. Insufficient evidence of force, menace, fear or duress as to counts 2 and 3
The information in this case alleged both sexual penetration and rape of victim 1 "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ." (§§ 289, subd. (a)(1), 261, subd. (a)(2).) Simpson argues that his convictions on these two counts must be reduced to convictions for assault since there was insufficient evidence of force, fear, or duress.
In any challenge to a conviction based on the insufficiency of the evidence, our review is highly deferential. We determine " ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Moon (2005) 37 Cal.4th 1, 22.)
"However, '[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]' [Citation.] 'Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.' " (People v. Tripp (2007) 151 Cal.App.4th 951, 955-956; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
In the context of a prosecution for aggravated sexual penetration and rape, "force" means that the defendant accomplished the offenses by the use of force sufficient to overcome the victim's will. (In re Asencio (2008) 166 Cal.App.4th 1195, 1200.) The salient question is "whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker." (People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
The court in People v. Pitmon (1985) 170 Cal.App.3d 38 defined "duress," as used in the context of sex offenses against minors, as "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." (Id. at p. 50.) This definition of "duress" was subsequently adopted by the California Supreme Court in People v. Leal (2004) 33 Cal.4th 999, 1004.
In the context of aggravated rape in violation of section 261, the definition of "duress" does not include "hardship," but is otherwise identical. (§ 261, subd. (b).)
In People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), this court found insufficient evidence to establish duress. In Espinoza, the defendant, who was the victim's father, came to the victim's bedroom, sat on the bed, pulled her pants down, rubbed her breasts and vagina, and attempted to have intercourse. It was uncomfortable, and the victim was frightened and scared. However, she did not resist, nor did she and the defendant speak to each other. (Id. at pp. 1292-1293.)
In Espinoza, we reasoned that duress could not be based solely on the fact that the defendant was the victim's father, he was bigger, her intelligence was limited, and she was afraid. "What is missing here is the ' "direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' [Citation.] Duress cannot be established unless there is evidence that 'the victim['s] participation was impelled, at least partly, by an implied threat . . . .' [Citation.] No evidence was adduced that defendant's lewd act and attempt at intercourse were accompanied by any 'direct or implied threat' of any kind. While it was clear that [the victim] was afraid of defendant, no evidence was introduced to show that this fear was based on anything defendant had done other than to continue to molest her. It would be circular reasoning to find that her fear of molestation established that the molestation was accomplished by duress based on an implied threat of molestation." (Espinoza, supra, 95 Cal.App.4th at p. 1321.) In sum, there is sufficient evidence of duress if the totality of the circumstances supports an inference that the victim's participation was coerced in a way that was more threatening than mere psychological pressure, i.e., enticement, urging, or insistence. (Ibid.)
In this case, there is simply not sufficient evidence to support a finding that Simpson used either force, fear or duress to accomplish his assaults. Though Simpson removed victim 1's pants and underwear and spread her legs apart, those acts occurred while she was asleep. Victim 1 testified that Simpson's finger was already in her vagina when she first awoke. As he removed his finger and put his penis in her vagina, she was still waking up and "get[ting] [her] bearings," and thus she made no effort to stop him. She was "shocked and--and confused. And disgusted." She was also afraid, but only that Simpson might subject her to "verbal abuse." Her testimony was clear that Simpson did not hold her down or pin her to the couch with his body.
Once victim 1 was awake enough, she pushed Simpson away, and he made no attempt to persist in the assault. Though he subsequently followed her into her bedroom, sought to soothe her and dissuade her from reporting the incident to anyone, he made no further sexual advances toward her. Simpson was (and is) much larger than victim 1, but there was no evidence that he ever took advantage of his size by using or threatening to use force against victim 1, whether before, during or after the incident, nor did victim 1 ever indicate that she was afraid Simpson would physically attack her.
Because there is insufficient evidence to sustain the convictions for aggravated sexual penetration and aggravated rape, Simpson's convictions for counts 2 and 3 must be reduced to the lesser-included offenses of assault with intent to commit sexual penetration (count 2) and assault with intent to commit rape (count 3). (Former § 220, subd. (a).)
In his opening brief, Simpson suggested his convictions on counts 2 and 3 be reduced to convictions for the lesser-included offense of assault, citing In re Jose M. (1994) 21 Cal.App.4th 1470, 1474 and CALCRIM No. 1045. The People's brief did not address the issue of possible lesser included offenses at all. "One charged with rape by force or violence may be found guilty of assault with intent to commit rape." (In re Jose M., supra, at p. 1477.) CALCRIM No. 1045 lists assault with intent to commit forcible sexual penetration as a lesser included offense of aggravated sexual penetration. The People did not address the issue of lesser included offenses.
Former section 220, subdivision (a) (now subdivision (a)(1)) provided as follows: "[A]ny person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years." Section 220 was amended effective September 9, 2010, redesignating subdivision (a) as (a)(1) without change and adding subdivision (a)(2), which provides longer prison terms for qualifying assaults against a victim who is under age 18. Since Simpson's assaults took place in May of 2008, he cannot be subjected to the increased penalties provided under subdivision (a)(2).
C. Admission of CSAAS evidence
Simpson concedes that Lewis's testimony regarding CSAAS "was in accordance with guidelines set forth in applicable current California caselaw," but argues that the time has come to "reconsider the propriety of admitting such testimony."
In sum, Simpson claims that the public has become so well informed about the behavior of child abuse victims that there are no longer any misconceptions for CSAAS evidence to dispel. He also argues that the introduction of that evidence was unduly prejudicial. We disagree with both arguments.
Simpson also claims that CSAAS "has been rejected by the relevant scientific community as a diagnostic tool for making child sexual abuse determinations." While this may be true, it is an empty statement. Lewis explained that CSAAS is not a diagnostic tool and could not be used as a "child abuse detector" or to "discern between truthful and false allegations."
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Simpson's first argument is not only speculative, it is contrary to the controlling authority in this state. (See People v. Brown (2004) 33 Cal.4th 892, 906-907 [reaffirming earlier reasoning for admitting CSAAS evidence].) To the extent that our Supreme Court has recognized that such evidence may be relevant, useful, and admissible in a given case, as an intermediate appellate court, we are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) In any event, Lewis's testimony concerning CSAAS was helpful in explaining the different stages of reaction that some victims progress through. (See People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [CSAAS evidence admissible to disabuse misconceptions about how a child reacts to molestation].) Jurors may have an understanding that victims of abuse are reluctant to report the offense, but they may not understand the reasons for the delayed reporting, or why the victims did not retaliate. Accordingly, the trial court could have reasonably found that the expert testimony would add to the jurors' common fund of information regarding the reactions of abuse victims.
Simpson relies on an out-of-state case that excluded CSAAS evidence in its entirety to argue both that California should exclude this type of evidence in all cases and that, in the instant case, the evidence was improperly admitted (see, e.g., Com. v. Dunkle (Pa. 1992) 602 A.2d 830 [testimony about uniformity of behaviors of abused children not sufficiently established to have gained general acceptance in its particular field]), but we decline to follow that decision. Simpson has not produced any evidence or authority that CSAAS evidence is no longer accepted in the scientific community or that California courts are prepared to reconsider their opinions accepting such evidence. Again, the California Supreme Court has referred to the admissibility of CSAAS evidence in a variety of factual contexts to support various rulings.
Simpson alternatively argues that, to the extent his first claim may be considered forfeited because counsel did not raise it below, his counsel was constitutionally ineffective. Since any such objection would have been meritless, however, Simpson's counsel cannot be said to have been ineffective for failing to raise it. (See People v. Ochoa (1998) 19 Cal.4th 353, 463 ["Representation does not become deficient for failing to make meritless objections."].)
We also reject Simpson's claim that the admission of the evidence transgressed his due process rights because the evidence was irrelevant and prejudicial. The evidence was highly probative because it helped the jurors to understand that children who are molested sometimes act in ways that are counterintuitive. The evidence was not unduly prejudicial because it was not geared toward the facts of this case specifically, but was provided as a general explanation of how children who are abused sometimes act. Furthermore, the trial court twice specifically instructed the jury on the proper use of the evidence and, absent evidence to the contrary, we presume the jury followed the court's instructions. Therefore, we conclude the trial court did not abuse its discretion in admitting the CSAAS evidence.
D. Consecutive sentences on counts 2 and 3
Simpson also asserts that the crimes in counts 2 and 3 did not take place on "separate occasions, and therefore the trial court erred in imposing consecutive sentences on those counts pursuant to section 667.6, subdivision (d). To the extent that the court imposed those sentences pursuant to the discretionary authority conferred upon it by section 667.6, subdivision (c), the trial court failed to provide a statement of the reasons it relied upon in exercising that discretion."
Because we have found that Simpson's convictions on counts 2 and 3 must be reduced to convictions on the lesser included offenses, he will have to be resentenced on those reduced charges. As a result, Simpson's arguments on this subject are moot.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to: (1) reduce Simpson's conviction on count 2 to a conviction of the lesser-included offense of assault with intent to commit sexual penetration (former Pen. Code, § 220, subd. (a)); and (2) reduce Simpson's conviction on count 3 to a conviction of the lesser-included offense of assault with intent to commit rape (former Pen. Code, § 220, subd. (a)). The trial court shall then resentence Simpson on counts 1, 2, 3 and 4 as appropriate.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.