Filed 9/28/20 P. v. Corsac CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300660
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA088950)
v.
ARTEMIO D. CORSAC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael V. Jesic, Judge. Affirmed with
directions.
Grace White for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Defendant Artemio D. Corsac was convicted by jury of
four counts of sodomy with a child 10 years old or younger (Pen.
Code, § 288.7, subd. (a), counts 1-4),1 three counts of sodomy by
use of force against a victim under the age of 14 (§ 286,
subd. (c)(2)(B), counts 5-7), and one count of continuous sexual
abuse (§ 288.5, subd. (a), count 8). He was sentenced to an
aggregate term of 133 years to life in prison.
On appeal, defendant contends there is insufficient
evidence supporting his convictions, arguing the victim did not
describe the acts committed against her at trial, and she recanted
her reports of abuse. He also contends his life sentence is
unconstitutionally excessive because he had no prior criminal
record. Lastly, defendant contends evidence of Child Sexual
Abuse Accommodation Syndrome was irrelevant and prejudicial,
and his trial counsel was ineffective for failing to object to this
evidence. We affirm.
BACKGROUND
N.H. was born in January 2004. Defendant dated N.H.’s
mother, and is the father of N.H.’s younger half sister. He lived
with N.H.’s family from 2010 until 2017.
While in middle school, N.H. told her friend B.H. that
defendant was sexually abusing her. On April 9, 2017, N.H.
texted B.H. that it had happened again. B.H. told her
grandmother, and the two went to the police to report the abuse.
That evening, the police went to N.H.’s home. When N.H.’s
mother heard the police knocking on the door, she walked with
N.H. and N.H.’s younger sister out the back of their apartment.
As they were walking from the police, N.H. told her mother that
defendant had touched her.
1 All statutory references are to the Penal Code.
2
Officer Irina Dankov with the Los Angeles Police
Department was one of the officers dispatched to N.H.’s home.
She and her partner caught up with mother, N.H., and the
younger child as they were walking quickly away from their
apartment. Officer Dankov later interviewed N.H., who said
defendant had moved in with her family six years earlier, when
she was seven years old. As soon as defendant moved in, he
began sodomizing her. N.H. told Officer Dankov that defendant
put his erect penis in her anus. According to N.H., defendant
sodomized her continuously, every four or five weeks, over the
six years he lived with her family. One time, he had tried to
touch her vagina, but she was able to block him with her hand.
Defendant told N.H. he would hurt her if she told anyone about
the abuse. N.H. was afraid, but eventually told her friend what
was happening.
N.H. told Officer Dankov that defendant had sodomized her
earlier that day. That afternoon, when N.H.’s mother went to the
market, defendant called N.H. to the bedroom. When N.H.
resisted, defendant told her it would be the last time. He grabbed
her by the hips, pulled down her pants, and inserted his penis
into her anus. After a few minutes, he ejaculated on her back.
N.H. went downstairs and texted her friend that it had happened
again.
N.H. was taken for a sexual assault exam, and a rape kit
was collected. The nurse conducting the exam noted several
lacerations to N.H.’s perianal area, the skin surrounding her
anus, consistent with something having been pushed inside her
anus. Hard stools or extensive wiping could not have caused
these injuries. An ultraviolet light showed dried bodily fluid on
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N.H.’s left buttock and lower back. A swab taken from N.H.’s
anus matched defendant’s DNA.
A video of N.H.’s interview with the sexual assault exam
nurse was played for the jury. N.H. said she was depressed and
wanted to go to sleep and never wake up. She sometimes cut
herself with pins. She felt this way after defendant abused her.
N.H. said the assaults were painful, it hurt to go to the bathroom
after defendant abused her, and she saw blood when she wiped.
N.H was scared to resist because defendant often hit her. She
worried about defendant hurting her little sister, but she also
worried about her little sister growing up without a father if
defendant were to go to jail.
N.H.’s mother did not bring her to court for trial. The court
found she was an unavailable witness, and her preliminary
hearing testimony was read to the jury. At the preliminary
hearing, N.H. initially denied that defendant did anything to her
and said she had not been honest with the police or the nurse
who examined her. Eventually, N.H. admitted defendant first
put his penis in her anus when she was seven, that he had done
so every four or five weeks over a six-year period, and that he had
done so on April 9, 2017.
N.H. later appeared and testified at trial. She was
generally uncooperative and said she had already “told you guys”
everything, and she did not want to repeat herself. She admitted
that she “mostly blocked everything out,” and that made her feel
better. She had not been honest with the police or the nurse who
examined her, but she did admit to making many of the
statements attributed to her.
Dr. Susan Hardie testified as a child sexual abuse expert.
She explained the characteristics of Child Sexual Abuse
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Accommodation Syndrome (CSAAS). She testified it is a model to
explain a child’s behavior following sexual abuse, though it does
not predict or prove that a child has been sexually abused. She
testified that children often delay reporting sexual abuse until
they are older. Also, because the abuse happens in secret,
children often will experience shame, fear, or the belief that they
have done something wrong. Abused children may make
inconsistent statements, or recant earlier accusations.
Elizabeth Pizarro testified for the defense. She was a
family friend and babysitter, and she was living with N.H.’s
family on April 9, 2017. Ms. Pizarro testified she was with N.H.
at the time the alleged assault occurred, and N.H. was never out
of sight. N.H. never told Ms. Pizarro that defendant did anything
sexual with her. Ms. Pizarro admitted on cross-examination that
she may have been confused about what happened on April 9,
and that she possibly left for work before N.H.’s mother returned
from the store that day.
Lucia Cotiy lived with N.H.’s family between 2012 and
2016. Defendant was rarely home. He left early in the morning
and came home late at night. She never witnessed any
inappropriate contact between defendant and N.H.
Defendant testified he worked a lot and was rarely at
home. He fathered a child with N.H.’s mother, but he was also
seeing another woman. N.H.’s mother tried to extort money from
him, telling defendant she would “tell the truth” in exchange for
$20,000. He refused to pay her because he believed in “justice.”
Defendant spent the night at his girlfriend’s house on
April 8, 2017. The next morning, N.H.’s mother repeatedly called
defendant, telling him their daughter was sick. Once he arrived
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at N.H.’s home, mother seduced him and they had sex.
Defendant denied ever doing anything “inappropriate” with N.H.
DISCUSSION
1. Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support
his conviction because N.H. did not testify to the kinds of acts
committed against her, when they occurred, or how often they
occurred, and she recanted her disclosures to police and the
sexual assault nurse.
“In assessing the sufficiency of the evidence, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) In
conducting this review, the appellate court has no power to judge
the effect or value of the evidence, to weigh the evidence, to
consider the credibility of the witnesses, or to resolve conflicts in
the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In People v. Jones (1990) 51 Cal.3d 294, the court addressed
the sufficiency of sexual abuse testimony. (Id. at p. 315.) “The
victim . . . must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed
has occurred and to differentiate between the various types of
proscribed conduct (e.g., lewd conduct, intercourse, oral
copulation or sodomy). Moreover, the victim must describe the
number of acts committed with sufficient certainty to support
each of the counts alleged in the information or indictment (e.g.,
‘twice a month’ or ‘every time we went camping’). Finally, the
victim must be able to describe the general time period in which
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these acts occurred (e.g., ‘the summer before my fourth grade,’ or
‘during each Sunday morning after he came to live with us’), to
assure the acts were committed within the applicable limitation
period. Additional details regarding the time, place or
circumstance of the various assaults may assist in assessing the
credibility or substantiality of the victim’s testimony, but are not
essential to sustain a conviction.” (Id. at p. 316, italics omitted.)
The evidence here meets these standards. N.H. told the
police and the sexual assault nurse that defendant put his penis
in her anus when she was seven, he continued to do so every four
or five weeks over the following six-year period, and he did so on
April 9, 2017. She also told B.H. that defendant had been
abusing her. Officer Dankov testified to these facts, and they
were corroborated by N.H. in the recording of her interview with
the sexual assault nurse. N.H.’s physical examination revealed
injuries consistent with sexual abuse, and semen matching
defendant’s DNA was found in N.H.’s anus. Defendant is asking
us to reweigh the evidence and resolve conflicts in his favor. This
we cannot do.
2. Cruel and Unusual Punishment
Defendant contends his indeterminate sentence constitutes
cruel or unusual punishment under California’s Constitution.
Defendant has forfeited this claim of error by failing to object
below. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
In any event, the claim fails on its merits. Section 288.7,
subdivision (a) mandates a sentence of 25 years to life for the
crime of sexual intercourse or sodomy with a child who is under
10 years of age. “A punishment is cruel or unusual in violation of
the California Constitution ‘if, although not cruel or unusual in
its method, it is so disproportionate to the crime for which it is
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inflicted that it shocks the conscience and offends fundamental
notions of human dignity.’ ” (People v. Baker (2018)
20 Cal.App.5th 711, 723 (Baker), quoting In re Lynch (1972)
8 Cal.3d 410, 424.) Whether a sentence constitutes cruel and
unusual punishment is a question of law we review de novo.
(Baker, at p. 722.)
The state constitutional analysis requires a three-pronged
approach, under which a court (1) evaluates “the nature of the
offense and/or the offender, with particular regard to the degree
of danger both present to society,” (2) “compare[s] the challenged
penalty with punishments prescribed for more serious crimes in
[its] jurisdiction,” and (3) “compar[es] the challenged penalty with
the punishments prescribed for the same offense in other
jurisdictions.” (In re Lynch, supra, 8 Cal.3d at pp. 425-427, italics
omitted.) “The weight afforded to each prong may vary by case,”
and “ ‘[d]isproportionality need not be established in all three
areas.’ ” (Baker, supra, 20 Cal.App.5th at p. 723.)
Here, defendant argues he has no prior criminal history,
and asserts N.H. suffered no physical harm. He does not discuss
the other In re Lynch factors. Defendant attempts to cure this
deficiency in his reply brief, but we do not consider arguments
raised for the first time on reply. (People v. Mitchell (1995) 36
Cal.App.4th 672, 674, fn. 1.)
We have considered all the In re Lynch factors as applied to
the facts of this case and conclude defendant’s punishment is not
cruel or unusual. Section 288.7’s punishment is commensurate
with how similar crimes are punished elsewhere, and how other
severe sex crimes are punished in this state. (See, e.g., Baker,
supra, 20 Cal.App.5th at pp. 730-732.)
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Defendant’s conduct was especially heinous. Defendant
tortuously sexually assaulted, hit, and emotionally terrorized his
girlfriend’s young daughter for many years, threatening her if she
disclosed his abuse. N.H. was gravely harmed, both physically
and emotionally. The Legislature expressly contemplated the
imposition of life sentences for particularly heinous sex crimes on
children, such as the crimes in this case. (Baker, supra,
20 Cal.App.5th at p. 729.) “Only in the rarest of cases could a
court declare that the length of a sentence mandated by the
Legislature is unconstitutionally excessive.” (People v. Martinez
(1999) 76 Cal.App.4th 489, 494.) We find no reason to do so here.
3. Expert Testimony
Defendant contends the expert testimony about CSAAS
was irrelevant and prejudicial. He says the jury should have
been instructed “ ‘that the expert’s testimony is not intended and
should not be used to determine whether the victim’s molestation
claim is true.’ ” In fact, the jury was instructed on this point, as
described below. Defendant acknowledges his counsel did not
object to the CSAAS evidence below and contends counsel was
ineffective for failing to do so.
We find no merit to these contentions. To establish
ineffective assistance of counsel, defendant must show both
deficient performance and prejudice. (People v. Hart (1999)
20 Cal.4th 546, 623.) “ ‘To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment “unless counsel was
asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation . . . .” ’ ” (Id. at
pp. 623-624.) Any objection to the expert testimony in this case
would have been overruled as meritless.
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Expert testimony about CSAAS is routinely offered in cases
such as this one, where a young sexual abuse victim recants her
testimony at trial. One of defendant’s theories at trial was that
N.H. had lied about the abuse, as evidenced by her later
recanting her reports. CSAAS evidence may not be introduced to
prove that a victim was abused, but for decades it has been
properly admitted in child sexual abuse trials “to rehabilitate [a]
witness’s credibility when the defendant suggests that the child’s
conduct after the incident . . . is inconsistent with his or her
testimony claiming molestation. [Citations.]” (People v. McAlpin
(1991) 53 Cal.3d 1289, 1300; id. at p. 1301[“ ‘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. [¶] The great majority of courts approve
such expert rebuttal testimony.”].)
Moreover, the jury was instructed with CALCRIM
No. 1193, which told the jury the expert’s testimony “is not
evidence that the defendant committed any of the crimes charged
against him.” CALCRIM No. 1193 instructed the jury that it
could consider the expert’s testimony on CSAAS “only in deciding
whether or not [N.H.’s] conduct was not inconsistent with the
conduct of someone who has been molested, and in evaluating the
believability of [her] testimony.” We presume the jury followed
the court’s instructions. (People v. Wilson (2008) 44 Cal.4th 758,
834.)
The jury was also instructed with CALCRIM No. 332,
explaining how a jury should view expert witness testimony. No
further limiting instruction on the use of CSAAS expert
10
testimony was required. (See, e.g., People v. Mateo (2016) 243
Cal.App.4th 1063, 1072.)
The instructions mirrored the expert’s testimony that
CSAAS is a model that may explain a child’s behavior but is not
evidence that a child was molested.
On this record, defendant cannot demonstrate prejudice.
The evidence here was overwhelming, and any error was
harmless under any standard of review. (People v. Watson (1956)
46 Cal.2d 818, 835-837; Chapman v. California (1967) 386 U.S.
18, 24.)
4. Abstract of Judgment
Respondent notes the abstract of judgment incorrectly
reflects that defendant’s sentences on counts 1 through 4 are to
be served concurrently, when the court ordered them to run
consecutively. The abstract of judgment must be corrected to
accurately state the sentence imposed by the court.
DISPOSITION
The judgment is affirmed. The superior court is directed to
amend the abstract of judgment to reflect that defendant’s
sentences on counts 1 through 4 are to be served consecutively,
and to send a certified copy to the Department of Corrections and
Rehabilitation.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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