Filed 3/23/22 P. v. Lee CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090887
Plaintiff and Respondent, (Super. Ct. No. 18FE008675)
v.
NHI LEE,
Defendant and Appellant.
Defendant Nhi Lee’s eight-year-old daughter H. told defendant’s two sisters, A.L.
and J.L., that defendant had molested her; she told them after A.L. told H. she had been
molested by defendant. This exchange took place after A.L. and J.L. told each other
about having been molested by defendant in the past. Defendant was subsequently
convicted of four counts of lewd and lascivious acts on a child under the age of 14 (Pen.
1
Code, § 288, subd. (a))1 following a six-day jury trial. He was sentenced to a 12-year
state prison term.
Defendant contends on appeal: (1) it was an abuse of discretion and violation of
his due process right to a fair trial to admit evidence of the sexual misconduct against his
sisters pursuant to Evidence Code section 1108; (2) the Child Sexual Abuse
Accommodation Syndrome (CSAAS) expert gave improper profile testimony; (3) trial
counsel was ineffective in failing to seek redaction of portions of his police interview;
(4) cumulative error warrants reversal; and (5) the sentence should be reversed and
remanded for resentencing because the trial court drew materially false conclusions from
the section 288.1 report.
It was within the trial court’s discretion and no due process violation to admit the
prior misconduct evidence even though the alleged acts took place 14 to 16 years before
the charged crimes. The prior acts were similar to the charged offenses, as they involved
sex crimes against children who were members of defendant’s immediate family, and
they were not prejudicial in the context of the charged offenses. The alleged profile
testimony was not objected to and therefore forfeited. The failure to object to the
CSAAS testimony was not ineffective as the expert did not give profile evidence.
Counsel had a valid tactical reason not to object to the police officer’s statements during
questioning in which she accused defendant of molesting H.; such statements gave
necessary context to defendant’s denials and claims of innocence made during the
questioning. Finding no cumulative error and no improprieties at sentencing, we shall
affirm.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
A. The Crimes
H. was 10 years old at the time of the trial; she was living with her mother,
stepfather, and their family after having lived with defendant, her brother, and various
members of defendant’s extended family in a house in Sacramento. When living with
defendant, she slept in the same bed as him while her Uncle Ger slept in another bed in
the same room. Her older brother A. used to sleep in the same bed as H. and defendant
until he got too big and moved to a bed in the hallway. H. sometimes slept on a living
room couch when defendant was not home; when defendant was home, she had to sleep
with him.
Defendant molested her on five or six occasions by turning her over so H.’s back
was against defendant’s body and then putting his penis on her butt. She and defendant
wore shorts and shirts. Defendant put his penis in the crack of her butt, but it never
reached her anus Defendant’s penis felt “floppy” and never felt “straight.” She would
try to squirm away, but defendant held on tight to prevent H. from moving. H. could not
free herself until defendant fell asleep.
H. did not like what defendant did to her, but she never complained to him and
was afraid to tell anyone. She still loved her father and did not want him to get in trouble
with the police.
On March 9, 2018, H. and a cousin went with A.L. to visit J.L. in Redding. While
they were in the living room talking about family problems, A.L. told J.L. that defendant
had molested her about 12 years ago when she was six years old. This led J.L. to ask H.
if anyone ever touched her private parts; H. started to cry and said defendant held her
down when they were in bed, and she felt his penis half-way in her butt. When J.L. told
H. she was going to have to tell Child Protective Services, H. replied, “you’re not going
to tell my dad, are you?”
3
In an interview two days later, H. told a Sacramento County sheriff’s deputy that,
about a year prior, defendant rolled her over in bed and put his private part in her butt. H.
told defendant to stop but he did not. He kept doing this until he fell asleep. Defendant
did this to her between five and 10 times; she was now a little afraid of him. At times
during the interview H. would cover her mouth, close her eyes, and start to sob.
J.L. made a pretext call to defendant on the day H. was interviewed. Defendant
denied molesting H. and repeatedly challenged J.L. to have H. examined to show he was
telling the truth. Defendant explained he would put his arm around his daughter when it
was cold, cuddling her as they fell asleep together. When asked if he had an erection
during this, defendant said: “Who knows? Like say, I was sleepin’. If she felt it then I
probably was erected. I don’t know.”
H. had a Special Assault Forensic Examination (SAFE) interview on March 28,
2018. H. told the interviewer that every time she got into bed with defendant, he would
scoot towards her and told her not to fall into the space between the bed and the closet.
Some nights defendant would turn her so H.’s back was against his body. She felt his
“private” pressing against the crack in her butt. Defendant left his penis there until he fell
asleep, after which she would move away from him. They both wore clothes; she could
feel his private pushing towards her anus, and it felt “straight.” H. would sometimes ask
defendant to loosen his grip because she could not breathe. Defendant held her this way
about six times, from when she just turned eight to right before she turned nine years old.
Defendant would not let H. sleep on the couch when she asked. She was afraid defendant
would keep doing this to her if she went back to live with him.
After H. started living with her mother, she made a video on her brother’s cell
phone saying her allegations that defendant molested her were all fake. She made the
video because she wanted it all to go away and to go home with her father. What she said
in the video was false; defendant did what she reported.
4
Defendant was interviewed by Sacramento County Sheriff’s Detective Kelly
Hodges on April 13, 2018. Defendant told the detective he had been legally separated
from his wife for about eight years and had custody of their two children. He shared his
bedroom with his younger brother, who slept in a separate bed. H. slept with defendant
in his bed about 60 percent of the time, and with her grandmother in another room the
rest of the time. When defendant and H. sleep together, she cuddles defendant’s arm
while he lies on his back. Defendant never pressed his body against H.’s back and never
put his penis on her. If he pressed his body against H. defendant did so when he was
sleeping. He did not think he got an erection when sleeping and did not believe H. felt
his penis get hard. Defendant did not know what happened and would have told
Detective Hodges had he known. Defendant said H. could be manipulated and bribed by
his sisters but did not accuse his sisters of manipulating H. into making false allegations.
He also denied molesting J.L. or A.L.
B. Prior Misconduct
A.L. was 21 years old at the time of the trial and 11 years younger than defendant,
her brother. When she was six or seven years old and living with her family in Rancho
Cordova, defendant took her to his bedroom and put his penis in her on more than two
occasions. She did not tell anyone in her family because in Hmong culture, men are
dominant and what they say goes. Had she told her family nothing would be done, as all
problems were addressed in men-only clan meetings without notifying the police.
A.L. first disclosed the assaults to J.L. when she visited J.L. at her home in
Redding in March 2018. J.L. then told A.L. that defendant had also molested her when
she was much younger. J.L. wanted to see if defendant molested H.; they called her to
the room where J.L. questioned H. after A.L. left the room. A.L. never told H. what
defendant had done to her.
Defendant’s sister J.L. was 30 years old at the time of the trial, and two years
younger than defendant. Women do not have a voice in the male-dominated Hmong
5
culture. She had seen female cousins get abused and the family does nothing to stop it.
The family also took no steps to protect her from a “creepy” brother-in-law who preyed
on her.
When she was around 13 years old and living with the family in Rancho Cordova,
defendant would run his hand along her breasts and buttocks, and then towards her
vagina while she slept on the living room couch. This happened at least 10 times over
one to two years. J.L. told no family members until telling her two other sisters about the
incidents two to three years ago. She did not tell A.L. about the abuse until the March
2018 visit.
J.L. became concerned about H. after A.L. described how she had been abused by
defendant. When J.L. asked H. whether anyone had touched her private parts, H. broke
down and cried. H. then told J.L. that defendant molested her.
Defendant also denied molesting J.L. and A.L. during the pretext call. Defendant
said that he used to sleepwalk and may have done something unintentionally. Pressed by
J.L., defendant responded, “we were kids. That was the past.”
C. CSAAS
Clinical psychologist Dr. Anna Washington testified as an expert on CSAAS.
CSAAS has five components: (1) secrecy; (2) helplessness and entrapment;
(3) accommodation; (4) delayed, unconvincing and conflicted disclosure; and
(5) retraction. Without objection, she testified regarding some foundational elements of
the typical sexually abusive relationship.
A majority of the child sexual abusers are male, and a majority of the victims are
female. Perpetrators establish a positive or trusting relationship with the child in order to
ensure secrecy. The perpetrators tend to be someone in the child’s “circle of trust,” like a
caregiver, family acquaintance, or coach. Abuse usually starts with ambiguous touching
before progressing to overt sexual contact, including intercourse. This is known as
grooming, gradually preparing a child to go along with the abuse. Since victims often
6
love the perpetrators, they keep the abuse secret due to fear of losing the abuser or
causing family turmoil.
Secrecy is often associated with a child feeling helpless to prevent the abuse, as
the child cannot imagine life without that person. Accommodation occurs when the child
feels trapped in a sexually abusive relationship; the child may disassociate as a coping
mechanism. Secrecy, entrapment, and accommodation often result in delayed or partial
disclosure of the abuse. Delay is more common when a family member is the abuser, as
other family members often will refuse to believe the child. A child may retract or
minimize an accusation if he or she senses negative consequences from the disclosure.
CSAAS is not an actual syndrome or diagnosis; it uses clinical research to
describes patterns common to many child abuse victims. Whether a child has been
abused is a matter for a jury to determine and is not something to be diagnosed by a
mental health professional.
Dr. Washington never met the victim, does not know her name, and knew nothing
about the case other than she was a female.
Defense Evidence
Dr. Dan Field testified as an expert on the link between cardiovascular health and
erections. A man with normal physiology will have several spontaneous erections when
sleeping. This is called nocturnal penile tumescence.
DISCUSSION
I
Uncharged Sexual Misconduct Evidence
Defendant moved pretrial to exclude the uncharged sexual misconduct evidence
concerning the incidents where defendant molested J.L. and A.L., arguing the evidence
should be excluded pursuant to Evidence Code section 352. The trial court denied the
motion, finding the offenses were particularly probative in terms of defendant’s
inclination to engage in sexual conduct with minors.
7
Defendant contends it was an abuse of discretion and violation of due process to
admit the evidence. He argues the evidence was more prejudicial than probative,
claiming the allegations were too remote in time, the prior acts were dissimilar to the
charged crimes, the allegations were likely to confuse, mislead, or distract the jury, the
allegations lacked corroboration, the uncharged acts were too burdensome for him to
defend against, and the trial court failed to consider less prejudicial alternatives to
admitting the sisters’ testimony. Claiming that Evidence Code section 1108
unconstitutionally permits juries to convict based on propensity evidence, defendant
concludes the evidence prejudiced him and violated his right to due process.
Generally, evidence of prior misconduct is not admissible to prove propensity to
commit the charged conduct. (Evid. Code, § 1101, subd. (a).) However, evidence that a
person committed other acts can be admissible when relevant to prove some fact—i.e.,
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident—other than his or her disposition to commit such an act. (Id., Evid. Code,
§ 1101, subd. (b).) And, as relevant here, “[i]n 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, if the evidence is not
inadmissible pursuant to Section 352.” (Id., Evid. Code, § 1108, subd. (a).)
Thus, if the evidence is admissible under Evidence Code section 1108, the trial
court must “exclude [it] 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.”
(Evid. Code, § 352.) In conducting this weighing process, the trial court considers the
“ ‘unique facts and issues of each case . . . .’ ” (People v. Nguyen (2010)
184 Cal.App.4th 1096, 1116.) “ ‘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
8
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. [Citation.]’ ” (Id. at pp. 1116-1117.)
We review a trial court’s decision to admit evidence of a prior sexual offense
under Evidence Code sections 352 and 1108 for an abuse of discretion. (People v. Avila
(2014) 59 Cal.4th 496, 515.) A discretionary decision will not be disturbed on appeal,
absent “ ‘a showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’
[Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The uncharged misconduct evidence regarding A.L. showed that defendant forced
her to have intercourse with him when she was six or seven years old and defendant, who
is 11 years older than A.L., was 17 or 18 years old at the time. A.L. was born in October
1997, so the acts took place in 2003 or 2004, 14 or 15 years before the charged crimes.
J.L. alleged defendant molested her for one to two years, beginning when she was 13
years old. Defendant is two years older than her, so he was 15 years old when these acts
started. J.L. was born in July 1988, so the acts took place between 2001 and 2002, about
16 years before the charged crimes.
Both sets of uncharged acts qualify for admission under Evidence Code section
1108. Defendant’s acts with his two sisters qualify as lewd or lascivious acts involving
children (§ 288), and his sexual assault of A.L. also constitutes either rape (§ 261), or, if
defendant was 18 years old at the time, unlawful sexual intercourse with a minor
(§ 261.5). His claim that Evidence Code section 1108 violates due process has been
rejected by the California Supreme Court (People v. Falsetta (1999) 21 Cal.4th 903, 916-
919), a decision we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court
9
(1962) 57 Cal.2d 450, 455.) We accordingly reject defendant’s facial attack on Evidence
Code section 1108. We also find no abuse of discretion in admitting the uncharged
sexual misconduct evidence.
We agree with the trial court that the evidence of defendant’s prior misconduct
was particularly relevant as it showed a sexual attraction to minors, and, more
importantly, to females in his immediate family. There are differences between the
charged and uncharged offenses, defendant was much younger when he committed the
uncharged acts, he is only two years older than J.L., A.L. was younger than H. was when
she was molested, and J.L. was older than H. was when defendant committed the
uncharged sex offenses against her, but these differences do not materially diminish the
relevance of the prior incidents.
Defendant claims his conduct with A.L. is too dissimilar to the charged offenses
because the conduct of the sexual assaults against A.L. involved the use of force and
level of penetration greater than that in the charged crimes. These differences are not so
great as to weigh against admission with any significance. There is some evidence
defendant used force in the charged crimes, as H. testified that defendant squeezed her
tightly when pressing his penis against her so that she could not move. H. told the
forensic examiner that defendant pulled her back down when she moved upwards to
avoid feeling his penis, and she sometimes asked defendant to loosen his arms because
she could not breathe. While, as defendant notes, he actively pursued A.L., he did not
have to do so to commit the crimes against H. because he required H. to sleep with him.
“ ‘ “[T]he charged and uncharged crimes need not be sufficiently similar that evidence of
the latter would be admissible under Evidence Code section 1101, otherwise Evidence
Code section 1108 would serve no purpose. It is enough the charged and uncharged
offenses are sex offenses as defined in section 1108.” ’ [Citation.]” (People v. Cordova
(2015) 62 Cal.4th 104, 133.) Even though the charged and uncharged acts were not
10
identical, there were similarities sufficient to give the uncharged acts additional
relevance.
We are also unpersuaded that the uncharged acts were unacceptably remote. (See
People v. Robertson (2012) 208 Cal.App.4th 965, 992 [listing cases affirming admission
of evidence of prior sexual crimes that occurred decades before the current crime];
People v. Pierce (2002) 104 Cal.App.4th 893, 900 [where crimes are substantially
similar, any prejudicial effect of remoteness may be mitigated]; People v. Branch (2001)
91 Cal.App.4th 274, 284 [“No specific time limits have been established for determining
when an uncharged offense is so remote as to be inadmissible”].) The approximate 14-to
16-year gap between the uncharged and the current offenses in this case does not
counterbalance the similarities between the crimes such that the prior acts should not
have been considered.
In asserting the crimes were too remote, defendant relies on our opinion in
People v. Harris (1998) 60 Cal.App.4th 727, but we find that case very different. In
Harris the prior conviction involved a violent and bloody sexual assault in which
defendant’s role was unclear, while the charged offense involved defendant’s nonviolent
sexual touching of an institutionalized victim. (Id. at p. 738.) The disparity of the
offenses and the use of the violent assault to prove the less aggressive crime resulted in
prejudice for multiple reasons. (Id. at pp. 738-741.) Such disparity between charged and
uncharged offenses is not present here.
Neither of the reasons for exclusion under Evidence Code section 352 applies
here. The prejudice referred to in Evidence Code section 352 applies to evidence that
“uniquely tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues.” (People v. Felix (1994) 23 Cal.App.4th 1385,
1396.) The prior crimes were not unduly prejudicial in the context of the charged
offenses. Defendant was charged with repeatedly molesting his eight-year-old daughter.
Viewed in the context of the charged crimes, the acts against A.L., when defendant was
11
14 to 15 years old, or J.L., when she was 17 or 18 years old, would not evoke the sort of
emotional bias warranting exclusion under Evidence Code section 352. The uncharged
evidence was presented through the testimony of the two complaining witnesses and
there is no evidence in the record that this took excessive time or delayed the trial. While
defendant was not punished for the prior crimes, this does not render the uncharged
crimes evidence prejudicial here. The evidence involved distinct acts with different
alleged victims; it was not likely to confuse a jury that was instructed with CALCRIM
No. 1191A that it could not convict based solely on the uncharged offenses.
In light of the manifest relevance of the uncharged sex crimes and the lack of
reasons justifying exclusion, it was within the trial court’s discretion to admit the
evidence. For this reason, we likewise reject defendant’s as applied due process
challenge to the decision to admit the evidence. (See People v. Kraft (2000) 23 Cal.4th
978, 1035 [“Application of the ordinary rules of evidence generally does not
impermissibly infringe on a capital defendant's constitutional rights”].)
II
CSAAS Profile Evidence
Defendant claims it was prejudicial error to allow testimony by the CSAAS expert
to describe profiles of child molesters and victims. The contention is based on the
expert’s testimony: (1) that most child sexual abusers are men, and most child victims
are female; (2) for most child victims, the perpetrator tends to someone in the child’s
circle of trust, such as a caregiver, coach, family acquaintance, or someone with whom
they have a good relationship; (3) over time, the perpetrator tends to introduce some
inappropriate touch to the child, doing so gradually with ambiguous touching at first;
(4) the most common presentation of child sex abuse is the abuser is someone the child
loves and trusts; (5) child sex abusers groom the children using a positive relationship to
systematically prepare the child for sexual abuse and to stay quiet; (6) abusers begins
with appropriate touching, then progresses to inappropriate touching to very
12
inappropriate touching in order to keep the child quiet; and (7) the expert typically does
not see situations in which the abuser’s first touches on the child are full blown
molestation or intercourse.
Defendant did not object to the allegedly improper testimony, forfeiting his
contention on appeal. (Evid. Code, § 353, subd. (a); see People v. Holford (2012)
203 Cal.App.4th 155, 168-170.) Anticipating the forfeiture, defendant asserts the failure
to object constitutes ineffective assistance. We disagree.
“A profile ordinarily constitutes a set of circumstances—some innocuous—
characteristic of certain crimes or criminals, said to comprise a typical pattern of
behavior. In profile testimony, the expert compares the behavior of the defendant to the
pattern or profile and concludes the defendant fits the profile. [Citations.]” (People v.
Prince (2007) 40 Cal.4th 1179, 1226 (Prince).)
In Prince, the California Supreme Court concluded that the evidence complained
of on appeal was not profile evidence, as follows: “[The expert’s] testimony did not
evaluate defendant’s behavior against a pattern or profile. [The expert] did not offer an
opinion that he believed defendant was the culprit, nor did he relate his findings to
defendant at all. Instead, he compared documentary evidence of the crime scenes in the
present case and based upon his observation of common marks and his experience,
concluded the crimes had been committed by a single person. In any event, profile
evidence does not describe a category of always-excluded evidence; rather, the evidence
ordinarily is inadmissible ‘only if it is either irrelevant, lacks a foundation, or is more
prejudicial than probative.’ [Citation.] In sum, ‘[p]rofile evidence is objectionable when
it is insufficiently probative because the conduct or matter that fits the profile is as
consistent with innocence as guilt.’ [Citation.]” (Prince, supra, 40 Cal.4th at p. 1226,
italics omitted.)
Here, as in Prince, the expert did not evaluate defendant or his behavior, and she
did not offer an opinion that she believed defendant committed the crimes. The evidence
13
was introduced to assist the jury in determining the victim’s credibility in light of
common characteristics of child victims of sexual molestation, thus helping the jury to
understand topics such as delayed disclosure. Therefore, any objection to the testimony
as improper profile evidence would have been denied, and defendant has accordingly
failed to carry his burden of establishing trial counsel’s substandard performance. (See
People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to
make frivolous or futile motions”].)
III
Failure to Redact the Police Interview
Defendant next contends trial counsel was ineffective in failing to seek redaction
of parts of his interview with law enforcement in which the interviewing officer,
Detective Hodges, accuses him of being the perpetrator, claims his denials were false,
and told defendant H. was telling the truth when she accused him of molesting her. He
claims such statements were inadmissible, prejudicial to the defense, and should have
been redacted from the interview.
Defendant’s interview with law enforcement was presented to the jury in its
entirety. The allegedly offending statements take place during two exchanges. During
the interview, after defendant said his brother sleeps in the same room as defendant and
H., Detective Hodges said, “I don’t believe you.” Defendant started to respond, but
Detective Hodges interrupted and told defendant, “I know you’re lying about something.
I just want you to come clean and tell me what—what—what’s really going on.”
Defendant replied, “I would tell you if I know.”(Sic.) Detective Hodges asked defendant
to tell her; shortly thereafter defendant said, “No, I don’t know what happened. I told
you. Like, I’m lost.”
Later in the interview, Detective Hodges tells defendant, “[A]nd, like, personally,
just the way it looks, and from what [H.] even said, I feel like it’s—it’s not—it was
acid—almost not accidental, ‘cause you don’t—you’re unaware of it, probably, but that it
14
did happen. And I’m just trying to make sure that we—if—if you’re saying no, it didn’t,
and it probably did, why are—why are we not coming to an agreement. How can we get
to the same page[?]” After summarizing what defendant had told her, Detective Hodges
next said to defendant, “She would cuddle up next to you. But then something—she’s
feeling something.” Defendant replied, “Well, I don’t know what she’s feeling . . . .”
Detective Hodges said she did not believe H. was lying and “I’ve been in this job for
almost 13 years, and I don’t think she’s lying to me.” Defendant responded, “Hm. See, I
don’t know, like . . . .” Detective Hodges next reiterated her question whether defendant
thought H. was lying; defendant replied, “To my knowledge, you know, I don’t know,
like, if she felt it or not.”
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674];
People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
We will not reverse for ineffective assistance of counsel if there was a reasonable
tactical reason for counsel’s action. (People v. Mai (2013) 57 Cal.4th 986, 1009.) Here,
we perceive a tactical purpose in not objecting to Detective Hodges’s statements.
Counsel could reasonably determine that, by maintaining his innocence in the face of
repeated accusations from Detective Hodges and claims from her that H. was not lying,
defendant’s claims of innocence were more credible than if the allegedly offending
statements were redacted from the interview. Defendant’s claim of ineffective assistance
of counsel is therefore without merit.
IV
Cumulative Error
Defendant asserts his convictions should be reversed for cumulative error.
Defendant has identified no trial error to accumulate, so his contention necessarily fails.
15
V
Section 288.1 Report
Defendant’s final claim is that the trial court drew materially false conclusions
from the section 288.1 report, requiring the sentence to be vacated and the matter
remanded for resentencing.
A. Background
At the defense’s request, the trial court ordered a section 288.12 evaluation of
defendant before sentencing. The trial court posed six questions to the evaluating
psychologist, Dr. Lisa Boal Perrine:
“1. Is the defendant, by reason of mental defect, disease, or disorder predisposed
to the commission of a sexual offense?
“2. If so, is the defendant predisposed to such a degree that he is dangerous to the
health and safety of others?
“3. Is the defendant unsuitable for probation because of mental disease, defect, or
disorder?
“4. Is imprisonment of the defendant not in the best interest of the child?
“5. Is rehabilitation of the defendant feasible in a recognized treatment program
designed to deal with child molestation, and if the defendant is to remain in the
household, a program that is specifically designed to deal with molestation within the
family?
2 Section 288.1 states: “Any person convicted of committing any lewd or lascivious act
including any of the acts constituting other crimes provided for in Part 1 of this code
upon or with the body, or any part or member thereof, of a child under the age of 14 years
shall not have his or her sentence suspended until the court obtains a report from a
reputable psychiatrist, from a reputable psychologist who meets the standards set forth in
Section 1027, as to the mental condition of that person.”
16
“6. Is there no threat of physical harm to the child victim if there is no
imprisonment?”
In response to the first question, the psychologist found there was “no evidence the
defendant is predisposed to commission of a sexual offense. Dr. Perrine found the
charged and uncharged offenses were “likely crimes of opportunity rather than predatory
in nature,” which involved no penetration or apparent coercion. She stated the second
question not applicable, and, in response to the third question, concluded defendant was
not unsuitable for probation for mental health reasons as he had no current or prior
mental health diagnosis. Dr. Perrine noted defendant had a stable employment history
since the age of 18 years old, has no prior legal history, and there was “no evidence of
impulsive acting out behaviors or substance abuse history that would suggest he might
not comply with probation.” In response to the fourth question, Dr. Perrine stated
imprisonment was not in the child’s best interests, as it would reduce resources for the
family, including H. She answered the fifth question by concluding rehabilitation of
defendant was “feasible in a recognized treatment program designed to deal with child
molestation and specifically designed to deal with molestation within the family.”
Noting defendant repeatedly denied the charges and uncharged offenses, Dr. Perrine
“strongly recommended” such treatment. Regarding the last question, she found the risk
of physical harm to H. if defendant is not imprisoned to be “greatly reduced because she
now resides with her mother . . . .” Dr. Perrine recommended a probation condition
prohibiting defendant from residing with female children under the age of 14.
The trial court addressed its concerns with the report at sentencing as follows:
“Section 3, there’s no evidence of impulsive acting out. Sure there is. That’s what
this crime is all about. She then says it’s a crime of opportunity. That’s the basis of
impulsive acting out.
“She wants to say that in section 2, I think, likely crimes of opportunity in
section 1, and then section 3, no evidence of impulsive acting out.
17
“If it’s not impulsive acting out, it’s premeditated assaults on a child. So you can’t
have it both ways.
“Section 4, she says, well, because the defendant worked at Flowmasters—and I
have absolutely no information about what the mother does for a living—well, the money
would be useful to the victim child. Well, she doesn’t know what—Dr. Perrine, when
she writes the report, doesn’t even gather information about the occupation of the mother,
who may be perfectly capable of supporting the child, which would be something that
somebody should consider.
“She then says, in section 5, ‘assuming conviction.’ He was already convicted at
this point this report was written, so how would she write a report following a sentence
where she says he repeatedly denied the charges, as well as previous allegations by his
sister, and then writes, assuming a conviction—well, he’s already been convicted.
“So I guess I’m not entirely sure what Dr. Perrine’s thought process was when she
authored this report. It appears that she didn’t realize a conviction had taken place and
she writes things that to the Court seem at odds with one another.”
The trial court said it would have considered probation had this been “an isolated
incident or a single count”, but there was evidence of “a longstanding sexual deviation
toward young girls, and young girls, specifically, the defendant’s own children.” The
court was completely unimpressed with Dr. Perrine’s report, as “it appears to minimize
things that I think are significant and emphasizes things to which they’re inaccurate.” It
also found the recommendation to keep defendant out of custody “without inquiring as to
the financial abilities of the mother in the current situation is not particularly helpful to
the court.”
The trial court continued: “Coming to the conclusion there’s no evidence of
impulsive actions would cause the Court to have to come to the conclusion that these
were premeditated instances. And perhaps they were, given the fact that the defendant
removed his son from the bedroom and then required the daughter to sleep with him and
18
then conducted himself in the way that the testimony came out would certainly be an
indication of premeditated conduct.”
It then denied probation and imposed a 12-year state prison term.3
B. Analysis
Defendant claims the trial court violated his right to due process by imposing a
sentence based on material misinformation. According to defendant, the trial court erred
“in finding, that Dr. Perrine mischaracterized the offenses simply because she said they
did not demonstrate a level of impulsive behavior that would make [defendant] a poor
candidate for probation.” He asserts the trial court compounded the error “by rejecting
Dr. Perrine’s concern that incarcerating [defendant] would adversely affect H., simply
because Dr. Perrine did not determine how much money H.’s mother made to support
her.” He claims these specific errors were compounded by the fact that the trial court
used this misinterpretation to determine the section 288.1 report lacked credibility.
Finding the trial court “imputed materially false and derogatory information to
[defendant] based on its misreading of Dr. Perrine’s report” and because it “relied on its
materially false and derogatory interpretations of the facts to deny probation,” defendant
concludes the sentence violated due process.
While a sentencing or probation hearing is not required to have the same
procedural safeguards required at trial, such a hearing violates due process if it is
fundamentally unfair. (People v. Peterson (1973) 9 Cal.3d 717, 726.) Fundamental
unfairness may arise if a court relies on factually erroneous sentencing reports or other
3 This was in line with the probation report, which recommended a 12-year term based
on the aggravating factors that the crimes involved planning (Cal. Rules of Court, rule
4.421(a)(8)); defendant took advantage of a position of trust or confidence in committing
the offenses (Cal. Rules of Cout,rule 4.421(a)(11)), and defendant engaged in violent
conduct which indicates a serious danger to society (Cal. Rules of Court, rule
4.421(b)(1)). The report also noted defendant’s Static-99R risk assessment score placed
him in the average risk category to reoffend within five years if granted probation.
19
incorrect or unreliable information. (People v. Eckley (2004) 123 Cal.App.4th 1072,
1080 [material factual inaccuracies in sentencing documents rendered sentencing
fundamentally unfair].) However, a trial court is deemed to have considered all relevant
criteria in deciding whether to grant probation or in making any other discretionary
sentencing choice, unless the record affirmatively shows otherwise. (Cal. Rules of Court,
rule 4.409; People v. Weaver (2007) 149 Cal.App.4th 1301, 1313, disapproved on
another ground in People v. Cook (2015) 60 Cal.4th 922, 939.)
The trial court did not rely on material factual inaccuracies in rendering the
sentence. It correctly pointed out that Dr. Perrine’s finding in response to question four
that defendant had no history of impulsive behavior which would render him unsuitable
for probation contradicted her answer to question one where she said the crimes were
opportunistic rather than predatory. It was also reasonable for the trial court, which
presided over the trial and saw the evidence of defendant’s guilt, to implicitly find fault
with the response to question one by pointing out that there was evidence of
premeditation, namely defendant committing the crimes after getting H.’s brother to sleep
elsewhere and by requiring H. to sleep with him. Likewise, there was nothing
unreasonable or erroneous in the trial court’s conclusion that the failure to consider the
mother’s earning capacity diminished the credibility of Dr. Perrine’s finding that
imprisoning defendant would adversely affect H. by depriving the family of resources.
The trial court is entitled to evaluate the weight to be given to a psychological
evaluation. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) The court’s sentencing
decision was not based on its reasons for finding the report not credible but rather was
based primarily on the numerous instances of molestation in the charged and uncharged
offenses. It was within the court’s discretion and no deprivation of due process to deny
probation and impose the 12-year state prison term.
20
VI
Abstract Error
The Attorney General correctly identifies an error in the abstract, which
mistakenly sums the total sentence as eight rather than the imposed term of 12 years. In a
conflict between the abstract and the judgment orally pronounced by the court, the oral
pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) We
shall order a correction to the abstract.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment showing defendant was sentenced to a 12-year state prison term and
to forward a certified copy to the Department of Corrections and Rehabilitation.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
MAURO, J.
\s\ ,
KRAUSE, J.
21