Filed 12/10/20 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077721
Plaintiff and Respondent,
(Super. Ct. No. F15905754)
v.
REX GARCIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Moran Law Firm and Amanda K. Moran for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Rex Garcia, a retired law enforcement officer, was convicted by jury trial of one
count of continuously sexually abusing his step-granddaughter. On appeal, he raises a
litany of claims including challenges to the sufficiency of the evidence to prove the
crime, and that his counsel was constitutionally ineffective for failing to object to an
expert witness’s testimony. That witness, David Love, was designated an expert “in the
field of Child Abuse Accommodation Syndrome and the Neurophysiology of Trauma.”
Love’s testimony was admissible to generally describe common misconceptions
relating to child sex abuse victim credibility. In so doing, his testimony involved several
aspects closely resembling the trial’s facts. For example, he testified about factual
scenarios involving grandfathers abusing grandchildren and abusers who have “a title of
respect” in the community.
Love also recited many statistics regarding child sex abuse victims. One such
statistic was that only “one percent” of child sexual abuse allegations are false. At no
point did Garcia’s counsel object to Love’s testimony.
As we shall explain, these concerns, among others, lead us to conclude the expert
testimony in this case ran afoul of well-established limits on accommodation syndrome
evidence. We further conclude Garcia was prejudiced by his counsel’s failure to object
to Love’s testimony. Because the evidence was otherwise sufficient to prove the
conviction, the judgment is reversed due to ineffective assistance of counsel. The People
may retry the case upon remand.1
BACKGROUND
Charges
The Fresno County District Attorney charged Garcia with one count of continuous
sexual abuse of a child. (Pen. Code,2 § 288.5.)
Garcia’s remaining claims each seek a new trial. These claims are rendered
1
moot by our disposition.
2 Undesignated statutory references are to the Penal Code.
2.
Trial Evidence
Garcia married his wife in 2000. About nine years later, his wife’s son was
released from prison and permanently moved into their home. The son had a daughter, J.,
who was born in 2002. J. is Garcia’s step-granddaughter.
J. moved into Garcia’s home “about six months” after her father’s release from
prison. She was seven years old. Before then, her mother had been neither a constant nor
positive influence in her life.
Raising J. became a group effort. Everyone, including Garcia, helped with
homework and discipline. Garcia and his wife became J.’s primary providers because her
father was extremely busy pursuing his own education.
When J. was about nine years old, she moved into her own bedroom. Shortly after
her 13th birthday, she disclosed to her father that Garcia had been touching her
inappropriately. Her father believed her but was unsure how to proceed. He feared the
police would not believe J. because Garcia, a retired law enforcement officer with
approximately 30 years of experience, was well connected with local law enforcement.
Instead of immediately reporting the crime, he purchased a video camera hoping to gather
additional evidence.
The camera did in fact record three videos. The videos depicted Garcia entering
J.’s bedroom while she slept at night but did not capture any misconduct. Garcia
discovered the camera on the third night, prompting J. and her father to report the abuse
the following morning. Garcia was arrested the next day.
J.’s report to law enforcement and her trial testimony disclosed the following: She
was educated about sex abuse at a “fairly young” age and was taught the importance of
disclosing abuse when it occurs. Nonetheless, she did not immediately speak out against
Garcia because she “wasn’t sure that it was happening” until one morning when she woke
up with her pajama bottoms missing. She explained that Garcia had awakened her in the
middle of the night by touching the hair near her vagina. She went back to sleep, unsure
3.
if it was a dream. After waking up in the morning and noticing her pajama bottoms had
been removed, she disclosed the incident to her father.
This was not the lone incident. The first abusive incident J. could recall was when
she was about eight or nine years old. During that incident, Garcia touched her chest and
asked if “he could do this when [she’s] older.” The abuse resumed when she turned 12
and continued “once or twice” a week in the same manner as the incident that caused her
to disclose the abuse, i.e., Garcia touching the hair near her vagina in the middle of the
night while she slept.
J.’s father testified that during this time period, J. was depressed and struggled
with school. He “got her into counseling” the day after disclosing the abuse. He added
that, in the months preceding her disclosure, she began avoiding interaction with Garcia.
According to him, J. never explained why she avoided Garcia. For example, if he asked
her to ask Garcia to take her to the movies, she would simply respond, “[N]o, it’s okay.”
Garcia testified and denied ever inappropriately touching J.. He acknowledged he
entered J.’s bedroom on a nightly basis. He explained, due to his prior law enforcement
career and the Polly Klaas3 case, he routinely checked every lock and window to secure
the house each night. About a week before he was arrested, he talked to J.’s father about
when he planned to move out of the house with J..
Garcia’s wife testified and corroborated Garcia’s testimony about checking locks
and securing the house, including in J.’s bedroom. She also corroborated Garcia
discussed moving out with her son “just before [Garcia] was arrested ….” At some point
after Garcia’s arrest, she overhead J. saying, “[N]ow it’s mine and your house dad ….”
Both J. and her father denied that statement.
3In 1993, twelve-year-old Polly Klaas was abducted and murdered by a man who
entered her home through a window. (People v. Davis (2009) 46 Cal.4th 539, 552-558.)
4.
Several of Garcia’s friends, neighbors, and relatives testified on his behalf. These
witnesses were not concerned by J.’s allegations and testified Garcia was both
trustworthy with children and honest.
As mentioned above, Love testified as an expert for the prosecution. His
testimony, detailed below, discussed issues relating to the credibility of child sex abuse
victims.
Verdict and Sentence
Garcia was convicted as charged. He was sentenced to serve six years in state
prison.
DISCUSSION
To properly resolve this appeal, we must address two claims. First, is the evidence
sufficient to prove continuous sexual abuse of a child? Second, was defense counsel
constitutionally ineffective by failing to object to Love’s expert testimony? After
carefully reviewing the record, we reject the first claim but find merit in the second.
I. The Evidence Is Sufficient
Garcia challenges the evidentiary sufficiency of nearly every element of the crime.
Additionally, he claims J.’s testimony was “inherently improbable or physically
impossible.” These claims are meritless.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Lindberg (2008) 45 Cal.4th 1,
27.) “We presume in support of the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence.” (Ibid.)
“ ‘Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
5.
and the other innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507-
508.)
Four elements are necessary to prove continuous sexual abuse of a child. One, the
defendant either lived with or had recurring access to the victim. Two, the defendant
committed three or more acts of substantial sexual conduct or lewd or lascivious conduct
with the victim. Three, the first and last act occurred at least three months apart in time.
Four, the victim was less than 14 years old. (People v. Valenti (2016) 243 Cal.App.4th
1140, 1158; People v. Rodriguez (2002) 28 Cal.4th 543, 550; § 288.5, subd. (a).) Lewd
or lascivious conduct means any touching committed with a sexual intent. (People v.
Martinez (1995) 11 Cal.4th 434, 444-445.) The evidence at trial readily proves these
elements.
The first element is not in dispute. The evidence clearly establishes J. was
13 years old when she disclosed the abuse. The abuse first occurred several years earlier
when she was about seven years old. It also occurred on at least three separate occasions.
Indeed, the evidence established it occurred at least once per week for more than one
year. And the jury could infer a sexual purpose from the following facts: J. testified
Garcia repeatedly touched the hair near her vagina, on at least one occasion he removed
her clothing, and he once asked her if he could touch her chest when she was “older.”
Put simply, there could simply be no other purpose on this record.
6.
Finally, nothing in the record indicates J.’s testimony is either inherently
improbable or physically impossible.4 The evidence sufficiently proved the crime and
we reject Garcia’s contrary contention.
II. Defense Counsel Was Ineffective
Garcia argues Love’s accommodation syndrome testimony involved the improper
admission of statistical evidence, improper advocacy to the jury, and, rather than
rehabilitating J.’s credibility, it ultimately had the impermissible effect of proving the
crime. In conclusion, he claims his “[c]ounsel … had a duty to object to Love’s narrative
testimony ….” The People respond the argument is forfeited because there was no
objection and, alternatively, the testimony was properly admitted.
Garcia’s point is well taken. After carefully reviewing the record, we conclude the
expert testimony failed to adhere to long-standing and well-established limitations on
accommodation syndrome evidence. Defense counsel’s failure to object at any point
constitutes ineffective assistance of counsel because the excessive evidence was highly
prejudicial and suggestive of guilt.
A. Additional Background
As mentioned, Love testified for the prosecution and was qualified as an expert on
“Child Abuse Accommodation Syndrome and the Neurophysiology of Trauma.” He was
part of the original group that published a “paper” on “what is now known as Child
Abuse Accommodation Syndrome.” He testified the group initially met because they
were “concerned … that people don’t always want to believe [child sex victims] because
they don’t present like people expect them to.” “[A]s these cases were starting to go into
the court system [they] were having some difficulty with Child Protective Services, with
4To support this contention, Garcia repeatedly relies on witness declarations
attached to a new trial motion filed after conviction. The motion is not a part of the trial
record and has no bearing on his claim the evidence the jury considered was insufficient.
7.
District Attorneys, and actually in trial sometimes, getting people to really comprehend
sort of the behaviors, the emotions, the patterns of molested kids.”
The prosecutor inquired into the paper’s conclusions. Love answered by first
stating it is “a pretty good assumption” that “kids whose parents get them into therapy,
they agree to participate in therapy, whether they have been in the court system or not, …
were sexually molested kids.” After further prompting, he concluded “there were
basically five categories of behaviors that we thought were relevant that could help us
train others to understand sexually molested kids.” The five categories are “secrecy,”
“helplessness,” “entrapment and accommodation,” “delayed, conflicted, and/or
unconvincing disclosure,” and “retraction.”
Love first described secrecy. Secrecy permits an abuser to continue sexually
molesting a victim. It requires access to the child and the ability to convince the victim
“to keep this secret; and [the abuser has] to in the long run believe this is never going to
be disclosed.”
Before moving on to the next category, the prosecutor asked about “experience
with children who may have been educated on what sexual abuse was but they still don’t
understand that something is wrong ….” Love replied that in fact occurs, especially if
the abuser is actively involved in the victim’s life.
The prosecutor followed up with a specific example where the “perpetrator [is] a
grandfather that has been in the life of the child for … the child’s entire life ….” Love
stated that children are taught to respect their elders who consequently “have innate
power” to “manipulate or use in this inappropriate way to make the secret work.” He
then answered a question about the role “a perpetrator’s position in the community or
having a title of respect might play” by explaining victims might “come[] to the
conclusion … they ain’t going to believe what I have to say.” In other words, victims
might believe speaking out against an abuser is futile because the abuser is an important,
popular, or powerful person.
8.
After confirming “description of the secrecy component” was complete, the
prosecutor started to ask, “With regard to helplessness --.” Love interrupted the question
and stated that “empirical research” has “found that … 94 percent of children who are
sexually molested in a very large study had a preexisting relationship with the offender.”
He went on to explain that abuse in the home is the most common and, because it “should
be a safe place,” “it’s pretty overwhelming,” leaving victims unable to “deal with
[abuse].”
The next question inquired into any connection between a child victim’s “stability
in life” and helplessness. Love answered that instability early in life can leave a child
developmentally “handicapped. We find these kids having more emotional problems,
more mental health issues, struggling more in school academically because they miss key
developmental stages in things in life.”
Love then explained entrapment or accommodation. Essentially, victims
accommodate abuse to survive. They do not have “in their sort of repertoire of possible
strategies … the flight or fight one available for them. So they just kind of go back in
that.” “They are accommodating just to try and get by.” He provided an example
involving a grandfather. In the example, the victim said she did not want to go to
Disneyland with her grandfather but did not disclose the abuse.
The prosecutor next inquired into how “the fact that a person is a provider to [a]
child maybe for basic needs like food and shelter come[s] into play at all with …
entrapment or accommodation?” Love replied, “I mean, kids aren’t stupid. They
know … that so and so is important because where we live or because what we do.”
Love was subsequently asked to describe “delay, conflicted or unconvincing
disclosure ….” His answer occupies nearly eight full pages in the record. It began with a
statistic: “74 percent of children who had been molested had not told a single person a
year after they were molested. … So we wanted to say delay is more common than not.”
He continued, “[W]e wanted to say because a child waits please do not disregard them
9.
when they come forward and give them equal credence as if they walked in the house
after it happened today at school.” And “42 percent of children had some significant
level of amnesia; failure to be able to remember key components of what happened to
them during the trauma process.” Then, after interposing an anecdote, Love stated,
“[T]he disclosure comes out in strange times and strange places and strange things. So
when kids finally tell their story sometimes it’s fragmented. Sometimes it’s all not
together. Sometimes they can’t remember all the pieces of it.” He then explained, “The
child gets interviewed usually by someone from Child Protective Services or law
enforcement when a recording is made. Then if anybody feels like there is something
here that’s valid, they get interviewed again, hopefully, at a forensic interviewing center.”
If multiple “interview[s] aren’t all identical, that’s pretty common.” The answer
concludes with Love testifying, “I think that for us we want to say that please don’t
disregard the testimony because they didn’t come forward right away. Please understand
the children are still sometimes conflicted. And when they are sitting here they are really
conflicted. I give credit to a lot of kids to be able to sit here in this scenario.”
The prosecutor immediately followed up with, “[H]ow would a child being asleep
and waking up to the molest affect these behaviors …?” Love answered, “[K]ids will
have a hard time separating reality from … a dream, from what’s really going on. So
you’ll have this part of transitional problem to even sorting out what the heck this is all
about.”
The next question asked if these behaviors continue after disclosure. Love
responded in the affirmative and added, “75 percent of my molested kids end up with
clinical depression or post-traumatic stress disorder.”
The prosecutor followed up by seeking another statistic: “[W]hat percentage of
children you work with … even recognize they are traumatized?” Love answered,
“[O]ne percent.” With specific references to problems at school, the subsequent inquiry
was about how commonly victims “act[] out.” Love replied that victims act out because
10.
“[t]hey are coping and also can’t cope with it.” He then described a “project” involving
1200 “kids” per year. According to him, these “kids … are acting out, getting in trouble,
don’t do well on their grades, don’t show up at school, bully people.” He concluded,
“[T]hey aren’t bad kids. They are kids who get angry. They are kids who act out
because something really bad has happened to them. … I can tell with confidence this is
traumatized children exhibiting to us their trauma.”
The prosecutor then asked, “And would you like to talk about retraction?” Love
explained his group began researching why “children will retract some or all of the initial
disclosure along the line.” His explanation continued, “[W]e wanted to say there are
truly molested kids, 15 percent, who will retract some or all of their accusations, even
though they were truly molested, ‘cuz of them, the dynamics of their life, the pressure
placed on them, those kind of things.” Without further prompting, Love testified the
“National Center on Child Abuse and Neglect … went through 320,000 cases … and
found that one percent were false reports. So are there false reports? Truly there are.
NCCAN found one percent. But false is kind of not a good word. In our business of
legalese of the State of California in child abuse, CPS can go out and find an
unsubstantiated case. You don’t have enough information to do something. Didn’t say it
didn’t happen.” The expert concluded the answer to this question by stating, “We wanted
people to understand that we have tons of cases of kids who are probably truly molested,
it’s just not enough to put together to make it work, even though we see them in therapy.”
The prosecutor then prompted Love to define retraction. He replied retraction is a
complete denial after an initial disclosure or report. He also explained minimization,
which is a mechanism victims utilize to appease people after disclosure and alleviate its
ramifications.
Love testified the reason minimizing and retraction occur is due, in part, to
changing family dynamics. He explained, “Families line up on both sides of the accused
11.
and the victim. That’s tough. That’s tough for us as adults to work through. … And
imagine how dramatically confusing and difficult it is for a child.”
On cross-examination, defense counsel inquired into whether Love’s previous
therapy practice involved “confirmed victims” as opposed to alleged victims. He
responded,
“They are folks who they or their family members assume
that they were truly molested. They are symptomatic of some
problems that are causing their life to be in some kind of
turmoil or difficulty and felt therapy would be valuable for
them. Not all had been convicted in the courts.
“An interesting piece of that is high piece of our funding to
allow us to do this work is from the California Victims of
Crime program. And we have to file a claim with the state
that says we believe this child, for instance, was molested
because the child said this, the parent said this, or if they have
been to court or if we have a CPS report or a police report. I
have a lot of police reports that never went to court. And then
they will pay us for all of the therapy for that child. And they
will set aside $20,000 in and [sic] a fund for that until they
are 18 for future needs if we, in their evaluation, believes [sic]
this is a victim of a crime.”
He also acknowledged accommodation syndrome is “not a diagnosis.” Instead,
“[i]t’s a clinical description of a group of behaviors that are consistent with sexually
molested children.”
Defense counsel later asked if “the best use for” accommodation syndrome “is in
how to deal with a child .…” Love testified that was one of two major reasons. “[T]he
other major reason is is [sic] that they [sic] are a lot of things like the delay and like, um,
not remembering things clearly that we felt worked against children who were truly
molested being believed. So the other piece was please because of these things, the five
issues that I talked about in detail, don’t disregard the child just because they delay.
Don’t disregard them just because their memory of these things is somewhat jumbled or
12.
confused or through interviews it kind of morphs and changes a little bit. All we wanted
to say, please listen carefully. Don’t prejudge. And maybe use a little of this knowledge
to better work through what you’ve heard to come to both an accurate and appropriate
decision.”
At the close of evidence, the court instructed the jury with CALCRIM No. 1193.
The instruction informed the jury “testimony about Child Sexual Abuse Accommodation
Syndrome is not evidence that the defendant committed any of the crimes charged against
him. You may consider this evidence only in deciding whether or not [J.’s] conduct was
not inconsistent with the conduct of someone who has been molested in evaluating the
believability of her testimony.”
The jury was also instructed with CALCRIM No. 332. This instruction stated a
“witness was allowed to testify as an expert and to give an opinion. You must consider
the opinion but you are not required to accept that it is true or correct. … In evaluating
the believability of an expert witness follow the instructions about the believability of
witnesses generally.”
In closing arguments, each party referenced Love’s testimony. The prosecutor
first told the jury,
“[Y]ou are tasked with deciding [whose] testimony to believe.
As you do that I’m asking you to have a running playback in
your mind of David Love’s testimony. David Love, who
knows nothing about this case … was able to give you a more
accurate picture of what happened in this case than the
defendant’s closest friends and family.”
The prosecutor again asked the jury to keep a “running playback of Mr. David Love,
while you are considering all the evidence ….”
Defense counsel reminded the jury that accommodation syndrome is “not a
diagnostic tool.” Counsel quoted CALCRIM No. 1193 and stated accommodation
13.
syndrome “is not evidence that [Garcia] committed any of the crimes charged against
him.”
In rebuttal, the prosecutor urged the jury to “keep in mind everything that
Mr. Love said. What Mr. Love said about the research and the science of what he was
talking to you guys about, the syndrome that he was talking to you guys about … they
started this research and put it into a research paper, because people who had been
victims of sexual molestation didn’t present the way that most people would expect them
to present…. He was saying that not all victims of molest will present the same way.
And sometimes their, um, behaviors or their response may be inconsistent with what we
would think of people who have been victims of molest. And that’s all I’m asking you to
do is consider that.”
Finally, the prosecutor argued, “[A]ccording to David Love, who has done
research in this field, [J.] doesn’t even consider herself a victim. When I asked Mr. Love
what percentage of children do you see who acknowledge that they’ve been victimized,
he said one percent. And [J.’s] responses from the witness stand clearly showed that. ...
She didn’t mention that she’d been the victim of sexual molest … because she doesn’t
see herself as a victim.”
B. Improper Expert Testimony
Expert testimony explaining abuse accommodation syndrome in child sex abuse
cases “ ‘is admissible to rehabilitate [a child victim’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.’ [Citation.] ‘ “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.” ’ ” (People v. Julian (2019) 34 Cal.App.5th 878, 885
(Julian).)
14.
Accommodation syndrome evidence “ ‘is not admissible to prove that the
complaining witness has in fact been sexually abused.’ [Citation.] ‘The expert is not
allowed to give an opinion on whether a witness is telling the truth ….’ ” (Julian, supra,
34 Cal.App.5th at p. 885.) “The expert … may not give ‘ “general” testimony describing
the components of the syndrome in such a way as to allow the jury to apply the syndrome
to the facts of the case and conclude the child was sexually abused.’ ” (Id. at pp. 885-
886.) Such testimony is inappropriate because jurors “may not [be] sensitized … to the
dangers of drawing predictive conclusions. The expert may be aware that although
victims of child [sex] abuse generally exhibit a particular type of behavior, that behavior
is also found in significant numbers of children who have not been molested. The jury
may not be similarly cognizant.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393
(Bowker).)
Advocacy on behalf of victims is beyond the scope of abuse accommodation
syndrome evidence. (Bowker, supra, 203 Cal.App.3d at pp. 393-394 [“permissible
limits” of expert testimony “far exceeded” where “transcript … was replete with
comments designed to elicit sympathy for child [sex] abuse victims and solicitations that
children should be believed”]; Julian, supra, 34 Cal.App.5th at p. 886 [reiterating
impropriety of an expert advocating child sex abuse victims “ ‘should be believed’ ” or
“ ‘abused children give inconsistent accounts and are credible nonetheless’ ”].) “Because
the line between impermissible use of expert testimony to prove the child was abused,
and permissible use of such testimony … is by no means a bright one, the better practice
is to limit the expert’s testimony to observations concerning the behavior of abused
children as a class and to avoid testimony which recites either the facts of the case at trial
or obviously similar facts.” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384
(Gilbert).)
Finally, juries “must evaluate” the evidence “without statistical evidence placing a
thumb on the scale for guilt.” (People v. Wilson (2019) 33 Cal.App.5th 559, 571
15.
(Wilson).) “Where expert opinions on the statistical probability of guilt are admitted, the
jury may be ‘distracted’ from its ‘requisite function of weighing the evidence on the issue
of guilt,’ and may rely instead on this ‘irrelevant’ evidence.” (Julian, supra,
34 Cal.App.5th at p. 886, quoting People v. Collins (1968) 68 Cal.2d 319, 327.)
Love’s testimony in this case ran afoul of these guidelines. His testimony
included multiple irrelevant and highly prejudicial statistics. Several questions and
answers improperly mirrored various facts in the case. And his testimony included
advocacy. In total, his testimony created an impermissible “predictive index” within
which the jury could “pigeonhole the facts … and conclude abuse had occurred.”
(Bowker, supra, 203 Cal.App.3d at p. 395.) We discuss each impropriety in turn.
Chief among the concerns is the statistical evidence. Love testified 74 percent of
victims do not disclose abuse for at least one year after it occurs, 75 percent of victims
are diagnosed with clinical depression or PTSD, 94 percent of victims have a preexisting
relationship with the abuser, and only one percent of victims recognize their own
traumatic experience. Each statistic directly reflected the evidence in this case: J. did not
disclose abuse for more than one year, she dealt with depression, she had a preexisting
relationship with Garcia, and, arguably as discussed below, did not recognize her trauma.
The most troubling statistic, however, was Love’s testimony only “one percent” of
320,000 reviewed cases “were false reports.” And if that were not powerful enough, he
then immediately suggested the percentage of false reports was even lower than one
percent by claiming, “[F]alse is … not a good word.” Rather, he equated false reports to
cases with proof insufficient to take legal action. He summed up this statistic by opining
there are “tons of cases of kids who are probably truly molested, it’s just not enough to
put together to make it work, even though [they are] in therapy.” This testimony is
irrelevant, inadmissible, and extremely prejudicial because it “suggest[ed] to the jury that
there was an overwhelming likelihood [J.’s] testimony was truthful.” (Wilson, supra,
33 Cal.App.5th at p. 570; accord Julian, supra, 34 Cal.App.5th at pp. 885-887.)
16.
Because each statistic coincided with the evidence in this case, the jury could
conclude J. was abused simply by applying each statistic to the evidence. Indeed, the
prosecutor argued to the jury that J. did not “consider herself a victim” based on her
testimony. The prosecutor linked this conclusion to Love’s testimony that only one
percent of victims recognize their trauma. The argument essentially states that if
99 percent of victims do not recognize their trauma, and if J. does not recognize her
trauma, then she is a victim. These improper predictive conclusions were not, however,
isolated to statistics.
For example, Love testified it is “a pretty good assumption” a child participating
in therapy was in fact “sexually molested.” He also testified, “acting out, getting in
trouble,” and struggling with school is consistent with abuse. These predictive
conclusions resemble similar evidence adduced during the trial and add upon the
statistics. Abating the risk the jury might draw these unwarranted conclusions is the
reason limits are placed on accommodation syndrome evidence.
The “ ‘scientific’ framework into which the jury could pigeonhole the facts of the
case” (Bowker, supra, 203 Cal.App.3d at p. 395) was exacerbated by questions and
answers mirroring several facets of J.’s testimony.5 These facets included inquiries about
a grandfather-abuser, a provider-abuser, an abuser with a “title of respect,” a victim with
an unstable childhood, a victim struggling in school, a sleeping victim, and whether
educating a child about abuse necessarily results in victims promptly reporting abuse.
Again, each answer coincided with the actual evidence and continued to expand the
predictive framework established by Love’s testimony.
5 Love testified he was unaware of the facts at issue in this case. Whether or not
expert testimony purposefully or unintentionally mirrors the facts at trial is irrelevant to
the risk of prejudice. Moreover, the prosecutor who elicited the testimony was intimately
familiar with the facts.
17.
Beyond predictive conclusions, Love’s testimony recited anecdotes similar to the
trial facts. He testified, without prompt, about a case in which a victim did not want to go
to Disneyland with her grandfather. The example was apparently offered to explain how
some victims attempt to cope with abusers even though they are unable to actively
combat or report the abuse. This anecdote corresponded directly with J.’s father’s
testimony describing J.’s attempts to avoid interacting with Garcia.
Other portions of Love’s testimony were both nonresponsive to the posed question
and prejudicial. After initially answering a question about whether his private therapy
practice involved “confirmed victims,” he testified he personally experienced “lots” of
cases involving “police reports that never went to court” but the “California Victims of
Crime” program nonetheless paid children $20,000 if “we” believe the victims.
Monetary payments to victims have nothing to do with either the question or
accommodation syndrome. But it obviously suggests many abusers escape apprehension
and prosecution despite truthful victims who receive monetary payments from the state.
Love’s nonresponsive testimony spilled over into improper advocacy. When
describing delayed or unconvincing disclosures, he testified, “I think that for us we want
to say that please don’t disregard the testimony because they didn’t come forward right
away. Please understand the children are still sometimes conflicted. And when they are
sitting here they are really conflicted. I give credit to a lot of kids to be able to sit here in
this scenario.” (See Bowker, supra, 203 Cal.App.3d 394 [expert inappropriately
expressed “how frightening it” is for a child to testify in court].) When asked about “the
best use for” accommodation syndrome, he partly testified, “[P]lease because of these
things, the five issues that I talked about in detail, don’t disregard the child just because
they delay. Don’t disregard them just because their memory of these things is somewhat
jumbled or confused or through interviews it kind of morphs and changes a little bit. All
we wanted to say, please listen carefully. Don’t prejudge. And maybe use a little of this
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knowledge to better work through what you’ve heard to come to both an accurate and
appropriate decision.”
In sum, Love’s testimony involved facts “obviously similar” to those at issue.
(Gilbert, supra, 5 Cal.App.4th at pp. 1383-1384.) He recited irrelevant and prejudicial
statistics and anecdotes. And he improperly advocated on behalf of victims. These
improprieties resulted in a “predictive index” within which the jury could “pigeonhole the
facts … and conclude abuse had occurred.” (Bowker, supra, 203 Cal.App.3d at p. 395.)
Accordingly, we find the testimony crossed the line from a permissible use into an
impermissible use of accommodation syndrome evidence.
C. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the “ ‘right to the effective assistance of
counsel.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) “ ‘[T]o establish a
claim of ineffective assistance of counsel, [Garcia] bears the burden of demonstrating,
first, that counsel’s performance was deficient because it “fell below an objective
standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.]
Unless a defendant establishes the contrary, we shall presume that “counsel's
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” ’ ” (People v. Bell (2019) 7 Cal.5th
70, 125 (Bell).) “[D]eference to counsel’s performance is not the same as abdication”
and “ ‘must never be used to insulate counsel’s performance from meaningful scrutiny
and thereby automatically validate challenged acts or omissions.’ ” (People v. Centeno
(2014) 60 Cal.4th 659, 675 (Centeno).)
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“ ‘If a defendant meets the burden of establishing that counsel’s performance was
deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that
is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ ” (Bell, supra, 7 Cal.5th at p. 125.) “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” (In re Gay (2020) 8 Cal.5th 1059, 1086.) “How readily deficient
performance undermines confidence in the trial’s outcome will in part depend on the
strength of the trial evidence on any decisive points. A ‘verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than one
with overwhelming record support.’ ” (Id. at p. 1087.)
Both prongs are met here. Although the record sheds no light on why counsel did
not lodge any objections, we conclude there is no possible satisfactory explanation.
As described above, much of Love’s testimony was objectionable. At a minimum,
counsel should have objected to the testimony that false reports constitute one percent of
cases because its import—that 99 percent of allegations are true—is facially prejudicial
and irrelevant. It was also nonresponsive to the question regarding “retraction” which
was subsequently defined as a victim denying abuse after an initial disclosure. (See Evid.
Code, § 766 [“A witness must give responsive answers to questions, and answers that are
not responsive shall be stricken on motion of any party.”].) The fact that only one
percent of reports are false does not answer the question. Another nonresponsive
example is the testimony about $20,000 funds for victims in situations involving “police
reports that never went to court.”
Other objectionable examples abound. Counsel should have objected to questions
reciting “obviously similar facts” to Garcia’s case. (See Gilbert, supra, 5 Cal.App.4th at
pp. 1383-1384.) Undoubtedly, counsel was aware several questions and answers during
Love’s examination involved facts strikingly similar to those at trial. The legal precedent
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underlying these objections is decades old. Consequently, we cannot find a satisfactory
explanation for counsel’s inaction.
In some circumstances, actively choosing not to object to a solitary improper
question or inadmissible answer might well constitute sound trial strategy. But counsel’s
complete and repeated failure here to object to damaging testimony on different legal
grounds falls below an objective standard of reasonableness.
We further conclude counsel’s deficient performance prejudiced Garcia.
Initially, we note defense counsel, in closing argument, quoted the court’s earlier pattern
instruction on CALCRIM No. 1193 to correctly remind the jury that Love’s “testimony
about Child Sexual Abuse Accommodation Syndrome” was not evidence Garcia
committed the crimes. There are two reasons counsel’s reminder did not alleviate or cure
the prejudice. First, after counsel’s reminder, the prosecutor in rebuttal again asked the
jury to “keep [Love’s testimony] in mind” and then immediately applied the statistical
evidence directly to the case by arguing J. did not consider herself a victim in accordance
with 99 percent of other victims. The rebuttal argument ran counter to and undercut the
court’s earlier pattern instruction. The court did not thereafter clarify the law. (Centeno,
supra, 60 Cal.4th at pp. 676-677 [jury instructions do not eliminate prejudice where
“prosecutor’s argument [is] the last word on the subject”]; People v. Cowan (2017)
8 Cal.App.5th 1152, 1155 [same].)
Second, Love was qualified as an expert in both accommodation syndrome and
“[n]europhysiology of [t]rauma.” The instructions did not explain to the jury how to
utilize testimony about neurophysiology of trauma. Indeed, the evidence never
differentiated between accommodation syndrome and neurophysiology. Were the
statistics expert testimony about accommodation syndrome and thus not evidence Garcia
committed the crime? Or were they expert testimony founded in the neurophysiology of
trauma for which the jury had neither guide nor limit to its evidentiary value? Or were
they simply expert testimony reciting statistics without regard to accommodation
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syndrome? Because these questions were not addressed, we cannot conclude the
instructions mitigated the risk the jury improperly accepted Love’s excessive testimony
as evidence Garcia committed the crime.
The potential for prejudice was great. The evidence for guilt consisted primarily
of J.’s largely uncorroborated testimony.6 There was no confession, no forensic
evidence, and no third-party eyewitness. The case presented for the jury a classic
credibility contest.
The defense contested nearly every allegation and offered a motive for J. to
fabricate the allegations. Garcia testified in his own defense and denied all allegations.
He also refuted the video exhibits by sensibly explaining his presence in J.’s bedroom
while she slept. His explanation regarding his presence was corroborated by his wife,
who also corroborated J.’s possible motive to lie. And many witnesses testified to
Garcia’s character for honesty and trustworthiness with children.
Because the evidence for guilt was equivocal, counsel’s failure to object to Love’s
testimony undermines our confidence in the outcome. (See, e.g., Julian, supra,
34 Cal.App.5th at pp. 888-889 [finding deficient performance prejudicial where “case
was a credibility dispute” and “heavily contested … with strong defense evidence”];
Centeno, supra, 60 Cal.4th at p. 677 [finding deficient performance prejudicial where
“prosecution depended almost entirely on … credibility”]; cf. Wilson, supra,
33 Cal.App.5th at p. 572 [deficient performance harmless where evidence included
contradictory expert testimony and “other percipient witnesses”].) Love’s testimony that
only one percent of child sex abuse allegations are false, along with the other outlined
6 The video evidence at trial is at best inconclusive. Only one of the three exhibits
(Ex. 1) arguably shows any contact between Garcia and J., it is somewhat obscured, and
the video only lasted a few seconds. It is not definitive and could be consistent either
with J.’s testimony or Garcia’s explanation at trial. It does not mitigate the prejudice
resulting from counsel’s failure to object to the significant evidentiary error in this case.
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improprieties, placed a heavy “thumb on the scale for guilt.” (Wilson, supra,
33 Cal.App.5th at p. 571.) Counsel’s failure to attempt to balance the scale by objecting
denied Garcia his constitutional right to effective counsel.
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DISPOSITION
The judgment is reversed for proceedings consistent with this opinion.7
SNAUFFER, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
SMITH, J.
7 Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2),
we are required to report our reversal of the judgment for ineffective assistance of
counsel to the State Bar of California for investigation of the appropriateness of initiating
disciplinary action against trial counsel. We shall do so upon issuance of the remittitur in
this case.
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