Filed 6/30/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A158473
v.
ALVIN VILLETE CAPARAZ, (Napa County
Super. Ct. No. CR175531)
Defendant and Appellant.
Defendant Alvin Villete Caparaz was convicted of multiple counts of
lewd acts upon a child under the age of 14 and additional sexual offenses.
The two victims, Jane Doe 1 and Jane Doe 2, were his girlfriend’s nieces. The
trial court sentenced defendant to 90 years to life in prison.
Prior to the criminal jury trial, there was a trial on competency, and a
jury found defendant competent. On appeal, defendant claims error in both
the competency trial and the criminal trial.
As to the competency trial, defendant contends the trial court erred in
allowing the jury to hear improper hearsay in violation of People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez) and People v. Campos (1995) 32 Cal.App.4th
304 (Campos).
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts A., C., D., and
E.1. of the Discussion.
1
In the criminal trial, the trial court allowed the defense to present a
psychologist as an expert on false confessions and suggestibility. But the
court only allowed the psychologist to give general testimony and did not
permit the expert to offer his assessment of defendant’s particular
suggestibility and susceptibility to give a false confession, nor was the expert
permitted to testify about the results of psychological tests he administered
to defendant, including the Gudjonsson’s Suggestibility Scales. Defendant
claims the exclusion of this defendant-specific expert testimony was an abuse
of discretion. Defendant also argues that defense counsel was ineffective in
failing to object to improper questioning of the mother of one of the victims,
that the sentence imposed constitutes cruel and unusual punishment, and
that the matter should be remanded for resentencing in light of a recent
amendment to Penal Code section 654.
In the published portion of this opinion, we agree with defendant that
the trial court abused its discretion in excluding the expert’s defendant-
specific testimony, but we find the error harmless, and we conclude that
remand for resentencing is not necessary. In the unpublished portion of this
opinion, we address defendant’s remaining claims and find no error. We
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Defendant was born in the Philippines, and he and his family moved to
the United States in 1987 when he was 14 years old. Defendant lived in his
parents’ house with his longtime girlfriend and their son.
Defendant’s girlfriend, S., was close with her sisters, K. and D., both of
whom have children. The three sisters and their families (partners and
2
children) often spent time together on the weekends. Jane Doe 1 is K.’s
daughter, and Jane Doe 2 is D.’s daughter.
The offenses came to light in April 2015, after the principal of Doe 2’s
elementary school learned that Doe 2 told a school friend she had been
abused. The principal met with Doe 2, who told the principal that her “Uncle
Alvin” had touched her private parts when she was around six or seven years
old. Doe 2 said she would go to her aunt and uncle’s house on the weekends
in Vallejo, and the abuse happened there. After speaking with Doe 2, the
principal filed a report with Child Protective Services identifying the
suspected abuser as “Uncle Alvin Caparaz.” Soon after, Doe 1 and Doe 2
separately told their mothers that defendant had abused each of them.
In May 2015, defendant was arrested and held to answer for child
molestation and related offenses. A jury trial was set to start on June 26,
2017. On June 21, 2017, defense counsel declared a doubt about defendant’s
competence. In August 2018, a jury found defendant competent to stand
trial.
In a first amended information, the Napa County District Attorney
charged defendant with six counts: forcible lewd acts upon Doe 1, a child
under the age of 14 years (Pen. Code,1 § 288, subd. (b)(1); counts 1 and 2),
aggravated sexual assault of Doe 1, a child under 14 (§ 269, subd. (a)(5);
count 3), sexual penetration by foreign object of Doe 1, a child under 14
(§ 289, subd. (a)(1)(B); count 4), and lewd acts upon Doe 2, a child under 14
(§ 288, subd. (a); counts 5 and 6). As to counts 1, 2, 4, 5, and 6, it was alleged
1 Further undesignated statutory references are to the Penal Code.
3
that defendant committed the offense against more than one victim.
(§667.61, subds. (j)(2) and (e)(4).)2
A jury trial began in July 2019. The jury found defendant guilty of all
charges and found all special allegations true.
The Prosecution’s Case
Jane Doe 1
Doe 1 was 19 years old at the time of trial. The first incident she
recalled occurred at a family celebration at defendant’s house when she was
11 years old. Defendant carried her down the stairs, and Doe 1 “felt fingers
feeling up [her] shorts, around [her] butt area.” During the same visit, Doe 1
was playing hide and seek, and defendant told her he knew a good hiding
spot. He led her to a dark room she hadn’t been in before, and he said he
would give her a massage. Defendant started massaging her back and then
touched her breasts and butt, first over her clothes and then under her
clothes, touching her skin.
In one of the “worst times” Doe 1 recalled, defendant went into her
room, started groping her, and then unfastened his belt. Defendant grabbed
Doe 1’s wrist, moved her hand to his penis, and told her to touch it. He told
Doe 1 to squeeze his penis. She tried to pull away, but he had a “strong grip”
and kept her hand there. Defendant’s penis was hard, and he started jerking
her hand around. He ejaculated on the floor and rubbed the semen into the
carpet with his foot. During the same incident, defendant sucked on her
breasts and touched her butt. Doe 1 was 12 or 13 when this happened. Doe 1
2 Section 667.61 is the “One Strike” law, “which provides an alternative,
more severe set of penalties for certain sex offenses committed under certain
enumerated circumstances.” (People v. Anderson (2020) 9 Cal.5th 946, 954.)
It was further alleged as to counts 1 and 2 that defendant had “substantial
sexual conduct” with the victim. (§ 1203.066, subd. (a)(8).)
4
estimated that defendant made her touch his penis on three different
occasions.
In another incident when she was 11 or 12, Doe 1 walked from her
house to the family’s parked car to unload groceries. She was by herself, and
defendant followed her; he “came really close and put his . . . finger in [her]
vagina.” She was wearing shorts, and he moved his hand up her leg and
under her clothes. It was “[p]ainful, uncomfortable.”
Another time, when Doe 1 was about 13, defendant went in her room
and told her he would give her money if she did what he asked. He gave her
perhaps $10 in dollar bills and groped her breasts and butt and sucked on her
breasts. Doe 1 estimated defendant offered her money around four times.
The last incident Doe 1 remembered occurred when she was almost 14
years old. Defendant went into her room, and she threatened him with a
pocketknife. They “stared at each other for a second and then he left.”
Defendant told Doe 1 not to tell her parents and “keep it a secret,” but
she could not recall when he said that. When she was 13, Doe 1 told her
friend by text that she was sexually assaulted by her uncle.3
K. (Doe 1’s mother) testified that when Doe 1 was around 11 or 12, she
became “always sad, always mad.” One time, when S., defendant and their
son visited K.’s house, K. found Doe 1 hiding in a walk-in closet. D. (Doe 1’s
aunt) testified about a family trip to Disneyland. Defendant wanted Doe 1 to
stay at his family’s place, and Doe 1 “started crying, saying, I don’t want to
go, I don’t want to go, I want to stay with you, Auntie.”
3The friend testified at trial that Doe 1 told her something about her
uncle when they were in eighth or ninth grade. The friend testified that Doe
1 texted her “that he made her uncomfortable.” Doe 1 told the friend that
when defendant was around, “she would try to lock herself in her room to be
away from him.”
5
Jane Doe 2
Doe 2 was 15 years old at the time of trial. When she was seven and
eight years old, defendant would sometimes watch Doe 2, her brother, and his
own son.
Doe 2 testified the first incident occurred when she was seven and a
half. Defendant drove her, her brother, and defendant’s son to a playground
to play. Defendant was sitting in the driver’s seat of his car, and he told Doe
2 to sit next to him. Defendant “started caressing [her] bottom.” He rubbed
under her clothes, touching her skin.
In another incident when she was eight, Doe 2 and her brother were at
defendant’s house for a sleepover. Defendant took her to a walk-in closet and
closed the door. He rubbed her butt and “humped” her, “rubbing his genitals
on [her] behind.” Another time, Doe 2 was again with defendant, her brother,
and his son at the playground. Doe 2 was in the car with defendant, and he
touched her butt and sucked her breast. A fourth incident occurred in a
parking lot. Doe 2 was in the front seat with defendant, and he started
“squeezing [her] butt over [her] clothes.”
In fourth grade, Doe 2 had a sex education class and realized what
defendant had done was wrong. Doe 2 told her best friend about defendant.4
Pretext Telephone Call
On May 7, 2015, Doe 1 and her mother met with Napa County Deputy
Sheriff Nathalie Hurtado, and Hurtado had Doe 1 make a pretext phone call
to defendant. A recording of the call was played for the jury.
4 Doe 2’s friend testified Doe 2 told her that “[h]er mom’s brother” raped
her; Doe 2 did not say the uncle’s name. (Doe 2 testified that about a week
after telling her friend about the abuse, the principal at her school met with
Doe 2 and asked her about it.)
6
At the start of the call, Doe 1 told defendant she wanted to tell her
mom about when “you were touching me and stuff” but said she did not want
the police involved. Defendant responded, “No, no, no, no, just don’t, please—
please don’t . . . .” Doe 1 said she wanted to get over what happened, and
defendant promised he would not do it again. Doe 1 asked if he could
apologize to her. Defendant said he was “really sorry,” and he was “not in my
mind.” Doe 1 asked why he did it, and defendant responded, “ . . . I don’t
know what . . . just desperate or something.” Defendant again asked Doe 1
not to tell “because they’re going to call the police on me,” and said he was
really sorry “[f]rom the bottom of my heart.” Asked why he touched her
breasts and butt, defendant said, “[Doe 1], don’t . . . I just can’t help myself, I
don’t know why. I really regret this, you know, [Doe 1].” Doe 1 asked why
defendant made her touch him. Defendant answered, “I don’t know, I’m not
just thinking . . . I’m really sorry, [Doe 1], huh, so please don’t tell your
mom . . . .” Defendant told her, “I just . . . started to like you or something,
. . . like a crush,” “[y]ou really makes [sic] . . .it’s like your, ya . . . it’s kind of a
crush on you. That’s what it is.” Doe 1 asked why he made her touch his
penis and why he sucked on her breast, and defendant responded that he was
not thinking and asked Doe 1 to forgive him. She asked if he liked young
girls, and defendant said, “I think so, ya.” She asked him to “[s]ay what you
did to me.” Defendant said, “touching you” “[y]our boobs,” “butt.”
Defendant’s Statements to Law Enforcement
After the pretext call, Detective Hurtado arrested defendant at his
workplace in San Francisco; she told defendant she wanted to speak to him
about his nieces. Defendant gave recorded statements, first, during the drive
from San Francisco to Napa and, again, at the Napa Sheriff’s Department.
7
Car Ride
On the drive to the Napa Sheriff’s Department, Hurtado advised
defendant of his Miranda rights,5 and he said he understood. An audio
recording of the conversation was played for the jury.
During the car ride, Hurtado asked whether defendant knew which
niece she wanted to talk about, and he identified Doe 1. She told him she had
talked to Doe 1 “about some stuff” and wanted to hear defendant’s side about
what happened. Defendant said, “I don’t even know why I did that to her.”
Hurtado said she also talked to Doe 2 and asked what happened with her.
Defendant responded, “I just—somehow I just kiss her or something.” He
admitted that he felt her butt and kissed her breasts. Defendant said his
mother knew “the cops [were] looking for [him],” and he had told her, “That I
made a big mistake.”
According to Hurtado, defendant was crying off and on and he had his
head down for most of the conversation in the car.
Interrogation
At the Napa Sheriff’s Department, Hurtado spoke with defendant in an
interrogation room for about an hour. A videorecording of the interview was
played for the jury.
Hurtado asked about the first time anything happened with Doe 1.
Defendant believed it was in his house. He said it happened last year. He
said they were “just playing around” “with the kids” “Then suddenly just
(unintelligible).” Defendant admitted he touched her breasts and said it was
over her clothes. He agreed that he touched Doe 1’s breasts and butt under
her clothes, sucked on her breasts, and made her put her hands on his penis.
5 Miranda v. Arizona (1966) 384 U.S. 436, 444.
8
Hurtado said Doe 1 told her sometimes defendant “saw her for money,” and
asked if he remembered that. Defendant responded, “I gave her money.” He
said he did it “[s]o she wouldn’t tell,” but he was not sure how much money he
gave her. Hurtado asked if he looked at pictures of young girls online, and
defendant said he watched “pornos and stuff” on his iPad.6 Hurtado said it
“makes sense, why that would happen, if you had a crush on her,” and
defendant said, “It’s not right, though.” Later in the interview, defendant
said, “I’m just very attracted to her,” referring to Doe 1. Defendant admitted
he made Doe 1 touch his penis and he ejaculated. He said this happened
“[t]hree times” and he regretted it. Defendant also admitted that he put his
hand up her shorts and touched her vagina one time when Doe 1 was getting
groceries out of the car. Asked if he touched inside her vagina, defendant
responded, “I believe so,” and said he used his fingers.
Regarding Doe 2, defendant confirmed that he used to take her, her
brother, and his son to the park, and he would stay in the car with her.
Hurtado asked what happened in the car, and he answered, “I would touch
her boobs.” He denied touching her butt, but said he sucked her breast “[o]ne
time.” Defendant then admitted he touched her butt under her clothes and
said it happened “twice only.” Defendant denied touching her vagina.
In addition, defendant admitted that something happened with his own
cousins “a long time ago.” This was in response to Hurtado’s question
whether there were “other girls that this happened to.” Defendant
responded, “My cousin,” M. He said M. was 12 years old when things
6 Asked about the pornography he watched, defendant said it was
“kissing and touching,” and he denied that the girls depicted were under 18
years old. Defense counsel elicited testimony from Hurtado that she later
obtained defendant’s iPad from S., the iPad was searched, and “no illegal
content” was found.
9
happened. He admitted he touched her breasts and butt, sucked her breasts,
and made her touch his penis. Defendant said he also touched M.’s sister, J.
He admitted he touched her breasts and butt and made her touch his penis.
But when asked, “Did you touch her vagina? Did you suck on her boobs?”
defendant responded, “No, nothing.”
Defense
The defense aimed to call into doubt both the victims’ accounts of abuse
and identification of their abuser and defendant’s admissions to Doe 1 and
Hurtado. The defense sought to portray defendant as a simple, docile, and
compliant person who could be manipulated to admit to things he did not do.
Defense counsel suggested the victims may have been abused by their uncle
Dennis (the brother of S., D., and K.) and implied that D. and K. may have
wanted to blame defendant to protect their brother.7 The defense called four
witnesses: two of defendant’s relatives and two expert psychologists.
Defendant’s cousin J. (born in 1984) testified that when she was
growing up, defendant and his family lived in a separate unit in the same
building with her family and that defendant never did anything
inappropriate with her. She denied there was ever any touching,
“affectionate or anything,” between defendant and herself.8 In cross-
7Defense counsel elicited testimony from K. that she became estranged
from her brother Dennis around the time the offenses were discovered. It
was also established that Dennis lived in Vallejo. Defense counsel argued
this was significant because Doe 2’s school principal testified that Doe 2 said
the abuse happened in Vallejo.
8 Hurtado testified that she tried to contact defendant’s cousins M. and
J. during her investigation. She made an appointment to meet with M., but
M. later left a message that she did not want to participate in any kind of
investigation. Hurtado did not pursue the matter further because she
10
examination, J. said defendant was a popular guy who DJ’d parties and had a
lot of friends.
Defendant’s younger brother Anthony Caparaz established that
defendant, the oldest of five siblings, always lived with his parents.
Defendant graduated from high school and had jobs as a security guard and a
parking attendant. He spoke Tagalog at home with his parents and
“Taglish,” meaning “Tagalog/English,” with S.9 Anthony testified that
defendant is sometimes “easy to convince about silly things” and he is “a
relatively simple guy, the interest is the family and helping the family.”
The defense called forensic psychologist Joanna Edwards as an expert
on memory processes and suggestibility in adults and children. She testified
that memory is malleable and “constantly changing and evolving based on
outside information that may come after the fact.” Children “can be more
suggestible” compared to adults, and suggestive questioning can influence a
child’s memory. Edwards testified that informal conversations with parents,
who are not trained in proper interviewing protocols, can introduce memory
suggestibility issues. She explained there are risks in interviewing people
multiple times on the same subject; if one is asked a question and then asked
the same question again and again, the person “may come to the conclusion
that the answer that I provided the first time was not okay. And so I need to
answer differently.”10 Further, positive and negative reinforcement can
“wasn’t about to force somebody into making a disclosure if they weren’t
ready.” Hurtado left a message for J., but she never responded.
9 Defendant had a Tagalog interpreter at trial.
10 In this vein, defense counsel elicited testimony that Doe 2 spoke with
at least two people (her school principal and her mother) about being
molested before Hurtado interviewed her and that Doe 1 spoke with her
mother and two police officers before Hurtado interviewed her.
11
influence reports made by children, and studies have shown “people can
create entirely false memories, even ones that can be particularly traumatic.”
Psychologist Ricardo Winkel testified as an expert in “suggestibility
within the context of false confessions.” He testified that research has shown
people “confess to things they didn’t do, including terrible crimes.” Factors or
variables that may make a person more susceptible to giving a false
confession include low education level, having cognitive deficits, being
interrogated in a non-native language, having a passive, compliant, or
dependent personality, and lacking experience with law enforcement.11
Winkel explained, “Each of these variables separately could contribute to
making a person susceptible. The more variables you have, the higher the
likelihood the person would [falsely confess]. Sometimes it increases
geometrically or exponentially.” Emotional state, such as being anxious or
depressed, is another factor. Winkel testified that a skillful investigator may
obtain a false confession “without any undue coercion [or] anything
untoward” and that “there are cases where people [falsely] confess not
because . . . of the actions of the investigator, but because of something in
them.” In cross-examination, Winkel testified that suspects confess for a
variety of reasons, “[i]ncluding guilt,” and he agreed that suggestible people
can give true statements. As we will discuss, Winkel met with defendant in
jail and conducted a psychological assessment to determine whether
defendant was especially susceptible to giving a false confession, but the trial
court did not permit Winkel to testify about the psychological testing he
11 Defense counsel elicited testimony from Hurtado that defendant was
“especially docile” and “especially compliant” during the interrogation. She
also testified that defendant had no criminal history or prior police contacts.
12
conducted or offer his opinion about defendant’s susceptibility to falsely
confess.
In closing argument, defense counsel emphasized testimony from Doe
2’s friend that Doe 2 said her “mom’s brother” molested her and pointed out
that D.’s brother was Dennis, not defendant. Defense counsel suggested Doe
2 “might be susceptible to altering her story if asked to do so by her mother”
and said, “What if she was asked to change from Dennis to Alvin?” He
argued multiple interviews risked altering the victims’ memories and
asserted that children, in general, are “not [the] most trustworthy
historians.” Citing expert Winkel’s testimony, defense counsel argued all the
variables that can make a person more susceptible to giving a false confession
were present in defendant’s case, and he noted that defendant “purportedly
confess[ed]” to molesting J. even though J. testified it never happened.
DISCUSSION
A. Claim of Sanchez/Campos Error at the Competency Trial
Defendant contends the prosecutor’s cross-examination of the defense
expert and the testimony of a prosecution witness at his competency trial
introduced improper hearsay evidence in violation of Sanchez, supra, 63
Cal.4th 665, and Campos, supra, 32 Cal.App.4th 304. We find no error and,
in any event, find no prejudice.
We begin with a brief primer on Sanchez and Campos and then
describe the competency trial and testimony and questioning at issue.
1. Sanchez and Campos
While lay witnesses may testify only about matters within their
personal knowledge (Evid. Code, § 702, subd. (a)), “experts may relate
information acquired through their training and experience, even though that
information may have been derived from conversations with others, lectures,
13
study of learned treatises, etc.” (Sanchez, supra, 63 Cal.4th at p. 675.) “The
hearsay rule has traditionally not barred an expert’s testimony regarding his
general knowledge in his field of expertise.” (Id. at p. 676.)
In Sanchez, the California Supreme Court distinguished general
knowledge from case-specific facts and clarified that “an expert cannot . . .
relate as true case-specific facts asserted in hearsay statements, unless they
are independently proven by competent evidence or are covered by a hearsay
exception.” (Sanchez, supra, 63 Cal.4th at p. 686.)
In addition, long before Sanchez was decided, the Court of Appeal in
Campos recognized, “An expert witness may not, on direct examination,
reveal the content of reports prepared or opinions expressed by non-testifying
experts.” (Campos, supra, 32 Cal.App.4th at p. 308.) More recently, Division
Four of our court restated the Campos rule: “An absent witness’s opinion may
not be smuggled into evidence through an expert by dressing it up as
background information.” (Strobel v. Johnson & Johnson (2021) 70
Cal.App.5th 796, 822.)
2. Background
In June 2017, after defense counsel declared a doubt about defendant’s
competence, the trial court suspended the criminal proceedings and
appointed psychologist Richard Geisler and psychiatrist Gregory Sokolov to
assess defendant’s competence to stand trial pursuant to section 1368. In
July 2017, both court-appointed experts submitted assessment reports to the
court with their conclusions that defendant was competent to stand trial.
14
Defense counsel then requested that the director of the regional center
assess defendant, and the court ordered that defendant be referred to the
Golden Gate Regional Center (GGRC).12
In April 2018, GGRC submitted a letter to the court stating that it had
determined defendant did “not have a developmental disability as defined in
§ 4523 [sic13] of the California Welfare and Institution Code” and, therefore,
defendant was “not eligible for services with Golden Gate Regional Center.”
12Regional centers are private non-profit corporations that contract
with the Department of Developmental Services to “assist persons with
developmental disabilities and their families in securing those services and
supports which maximize opportunities and choices for living, working,
learning, and recreating in the community.” (Welf. & Inst. Code, § 4640.7,
subd. (a); Tri-Counties Association for Developmentally Disabled, Inc. v.
Ventura County Public Guardian (2021) 63 Cal.App.5th 1129, 1137.)
In a trial on the question of a criminal defendant’s mental competence,
“[i]f it is suspected the defendant has a developmental disability, the court
shall appoint the director of the regional center . . ., or the director’s designee,
to examine the defendant to determine whether he or she has a
developmental disability. The regional center director or his or her designee
shall determine whether the defendant has a developmental disability, as
defined in Section 4512 of the Welfare and Institutions Code, and is therefore
eligible for regional center services and supports. The regional center
director or his or her designee shall provide the court with a written report
informing the court of this determination.” (§ 1369, subd. (a)(3).)
13 Welfare and Institutions Code section 4512 (not 4523) defines
“[d]evelopmental disability” as “a disability that originates before an
individual attains 18 years of age, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual. As
defined by the Director of Developmental Services, in consultation with the
Superintendent of Public Instruction, this term shall include intellectual
disability, cerebral palsy, epilepsy, and autism. This term shall also include
disabling conditions found to be closely related to intellectual disability or to
require treatment similar to that required for individuals with an intellectual
disability, but shall not include other handicapping conditions that are solely
physical in nature.” (Welf. & Inst. Code, § 4512, subd. (a)(1).)
15
The letter was signed by Nori Kitaoka, a GGRC forensic social worker. She
wrote that, due to defendant’s ineligibility for services, GGRC was “unable to
[prepare a section] 1369 report or comment concerning Mr. Caparaz’s
competency to stand trial.”
In August 2018, a jury trial was held to determine whether defendant
was competent to stand trial. A criminal defendant is presumed to be
competent, and it was defendant’s burden at trial to prove by a
preponderance of the evidence that he was mentally incompetent.14 (§ 1369,
subd. (f); People v. Buenrostro (2018) 6 Cal.5th 367, 387.)
Dr. Shields’s Testimony
The defense called psychologist Dr. John Shields as an expert in
competency and forensic psychology. He opined that defendant was
incompetent to stand trial. Shields testified he met with defendant four
times using a Tagalog interpreter. He also reviewed defendant’s social
history, medical history, police reports, interviews, and previous
psychological reports.
Shields gave defendant a test called the MacArthur Competence
Assessment Tool Criminal Adjudication, which Shields testified was a
“standardized way . . . to collect information” in contrast to the “very typical
methodology” other evaluators use of asking a defendant to identify “the
different people that are involved in court and what their job is,” which
Shields opined is a “more subjective” and less useful assessment method.
14“A defendant is mentally incompetent . . . if, as a result of a mental
health disorder or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner.” (§ 1367, subd. (a).)
16
Shields believed that to be competent to stand trial a criminal
defendant must “be able to reason, to use the information they know in order
to make other types of decisions,” and he found deficits in defendant’s legal
reasoning. He acknowledged that defendant was “pretty good at” “identifying
the roles of the various players” in the courtroom, but he found defendant
was “intellectually deficient” and concluded defendant would have problems
in “his ability to plan a legal strategy or to be engaged in his defense or
maybe even to assist in challenging witnesses. . . .”
Shields diagnosed defendant with an unspecified neurocognitive
disorder. He gave defendant an intelligence test and determined his IQ was
“just a tick above” 70. Shields explained that this placed defendant in the
“borderline range of intellectual impairment. If he was in the impaired range
of intellectual impairment he would have IQ scores at or below 70 points,
which would meet one of the criteria for intellectual disability or what we
used to call mental retardation.” Shields testified that defendant was not
sufficiently intellectually impaired “to be referred to as . . . intellectually
disabled” but “he’s really close.”
On cross-examination, Shields acknowledged that when he met with
defendant, defendant was “very cooperative” and gave appropriate answers to
questions. Defendant understood the purpose of their meetings, and “he
knew I was there at his attorney’s request to evaluate him.” Shields agreed
that nothing in defendant’s high school or other records indicated he had
been evaluated for learning disabilities while in school. Shields further
acknowledged that defendant was not a client of a regional center.
Without objection, the prosecutor elicited Shields’s testimony that he
was aware defendant had some contact with the regional center and his
understanding was that the regional center determined defendant was not
17
eligible for its services. Shields explained that regional centers typically “go
through a series of steps and in some cases individuals can be disqualified for
eligibility before they’re actually seen by a psychologist who administers
standardized testing to assess their intellectual ability.” He did not know
what was done in defendant’s case.
The prosecutor then asked, “[I]f you were told or if you learned that
they [the regional center] had in fact conducted cognitive testing and
psychological testing and taken all the steps and then determined him
ineligible for Regional Center services, would that change your opinion in any
way?”
Shields responded, “No, not at all. . . . [T]he Regional Center typically
uses fairly discrete criteria and cutoffs for people that they consider to be
eligible for their services. [¶] In my experience when somebody is referred to
them with a possible intellectual developmental disability, the assessment
that’s conducted is really targeted to discerning whether or not the person
meets the diagnostic criteria for intellect disability, like mental retardation.
And I’m not surprised that in this case they would reach that conclusion . . . .”
He offered two reasons the regional center may have found defendant
ineligible. First, the diagnosis of intellectual disability must be established
before age 18, which would be difficult to establish when evaluating
defendant, who was 45 years old at the time of the competency trial. Second,
defendant’s IQ (according to Shields’s testing) was “just a tip above that line”
to qualify as intellectually disabled. Shields testified, “while he might not
qualify for Regional Center services, [he is still] . . . vulnerable to not be able
to fully comprehend the nature of these proceedings or adequately assist his
legal counsel.”
18
Motion for Mistrial and Objection to Kitaoka’s Testimony
Cross-examination of defense expert Shields continued without
objection. After a lunch break, however, defense counsel made an oral motion
for a mistrial on the ground the questions regarding the regional center “put
before the jury . . . the cognitive testing done by GGRC, which is far beyond
the scope of the letter,” referring to GGRC’s April 2018 letter to the court,
which stated defendant was ineligible for services and therefore GGRC could
not comment on whether he was competent.
Defense counsel also objected to allowing Nori Kitaoka to testify about
the GGRC letter.15 He argued, “The whole letter is without foundation and
violates Sanchez.”
The prosecutor responded that Kitaoka “has been the forensic social
worker from the inception of this GGRC case” and she would testify “that the
GGRC opened an assessment case, some cognitive testing took place, they
met with family, and had X, Y, Z meetings, interviewed Mr. Caparaz and at
the culmination of all that they determined he’s not eligible for GGRC
services.”
The trial court confirmed with the prosecutor that Kitaoka was part of
the team at the regional center who determined whether defendant was
eligible for services. The court asked whether any of the evaluators (Geisler,
Sokolov, Shields) had relied on the GGRC letter and confirmed that they had
not (as the letter postdated the evaluations). The court then denied the
15The prosecution’s trial brief listed Kitaoka as a witness. Other
prosecution witnesses included Drs. Geisler and Sokolov.
19
motion for mistrial, finding no Sanchez error, and permitted Kitaoka to
testify.16
Kitaoka’s Testimony
Kitaoka testified about what regional centers do and who qualifies for
services (generally, persons with developmental disabilities). (See fns. 12 and
13, above.) Kitaoka was the assessment social worker in defendant’s
eligibility case. In August 2017, the trial court requested GGRC prepare a
section 1369 report for defendant. Initially, GGRC “decided that there was
not enough evidence of suspicion of a developmental disability to open the
case,” and Kitaoka reported this determination to the court. Subsequently,
defense counsel submitted additional information, and GGRC decided there
was enough information to open an eligibility case.
Kitaoka testified that because GGRC only evaluates mental
competency for individuals who qualify for regional center services, GGRC
first had to determine whether defendant was eligible for services before it
could conduct a mental competency evaluation. She described the steps for
defendant’s eligibility assessment: defendant met with Kitaoka for a social
assessment; GGRC gathered available educational and medical records;
cognitive testing was done; and a meeting was held with defendant’s family.17
Kitaoka testified the final step in an eligibility determination case is a
case conference of the interdisciplinary team composed of the assessment
The next day, defense counsel filed a motion for reconsideration of his
16
request to exclude Kitaoka and a renewed motion for mistrial. After hearing
further argument from counsel, the trial court denied the motions.
For her social assessment, Kitaoka met defendant at the jail with a
17
Tagalog interpreter and asked him about his early development and adaptive
functioning. She testified his answers were rational and logical and assisted
in her assessment. Kitaoka also attended the family meeting.
20
social worker (Kitaoka in defendant’s case), the psychologist (who would
discuss the results of cognitive testing), and the GGRC physician (who would
discuss his or her review of the available medical records). Kitaoka testified
that, in defendant’s eligibility case conference, it was determined that he was
not eligible for regional center services. Therefore, the threshold was not met
for GGRC to conduct a mental competency evaluation.
On cross-examination, Kitaoka repeated that GGRC did not conduct a
competency evaluation of defendant. She agreed that a person with
significant intellectual disabilities would not be eligible for regional center
services if it could not be established that the person had the disabilities
before age 18.
3. Analysis
On appeal, defendant does not claim it was error to allow the jury to
learn that GGRC determined he was ineligible for regional center services.
Rather, defendant claims Kitaoka’s testimony violated Sanchez because she
effectively conveyed to the jury the expert opinions of the non-testifying
members of the interdisciplinary team that decided defendant was ineligible
for regional center services. In particular, defendant argues Kitaoka
conveyed information regarding GGRC psychologist Dr. Moore’s cognitive
testing of defendant and his out-of-court communications about his findings
and opinions.
We disagree with the premise of defendant’s claim. Kitaoka did not
testify as an expert witness, she testified as a lay witness. As the assessment
social worker in defendant’s eligibility case, she testified based on her own
personal knowledge that GGRC took certain steps and then determined
defendant was ineligible for services. She was at the meeting where the
decision was made. Defendant asserts the prosecutor appeared to view
21
Kitaoka as an expert, but this is of no moment. Kitaoka was not proffered as
an expert, the trial court did not designate Kitaoka as an expert, and “[i]t is
the trial court that makes this determination” (People v. Jablonski (2006) 37
Cal.4th 774, 823).
In any event, Kitaoka did not “relate as true case-specific facts asserted
in hearsay statements.” (Sanchez, supra, 63 Cal.4th at p. 686.) She did not
reveal the results of any cognitive testing by Dr. Moore or any of his opinions.
Indeed, she did not say whether the interdisciplinary team’s decision had
been unanimous. Likewise, her testimony did not violate Campos because
she did not “reveal the content of reports prepared or opinions expressed by
non-testifying experts.” (Campos, supra, 32 Cal.App.4th at p. 308.) Nothing
substantive about the results of Dr. Moore’s testing was conveyed to the jury
through Kitaoka’s testimony.
Defendant next argues the prosecutor’s cross-examination of Shields
violated Sanchez when he was asked whether his opinion about defendant’s
competence would change if he knew that the regional center had “conducted
cognitive testing and psychological testing and taken all the steps and then
determined [defendant] ineligible for Regional Center services.” Again, we
disagree with the premise of defendant’s argument. The prosecutor’s
question did not convey the results of Dr. Moore’s cognitive testing or his
opinions. The assumed facts underlying the question (that GGRC conducted
an eligibility assessment and then deemed defendant ineligible for services)
were established by Kitaoka’s admissible testimony based on personal
knowledge.
Moreover, even assuming Kitaoka’s testimony and/or the prosecutor’s
question to Shields did contain inadmissible hearsay about Dr. Moore’s
cognitive testing, the errors were harmless. As we have stated, defendant
22
does not claim it was error for the jury to learn he was ineligible for regional
center services. Kitaoka testified that regional centers serve persons with
developmental disabilities, and she described the steps GGRC took in
determining defendant was ineligible for services. At most, the jury may
have inferred from Kitaoka’s testimony that GGRC’s cognitive testing
supported a conclusion that defendant was not developmentally disabled.
But this potentially inferred fact comported with defense expert Shields’s
own testimony; he testified that cognitive testing showed defendant was in
the “borderline range” of intellectual impairment and his IQ was slightly too
high to classify him as intellectually disabled.
More to the point, the question before the jury was not whether
defendant was developmentally disabled, it was whether defendant was
competent to stand trial. Kitaoka testified that GGRC did not conduct a
competency evaluation of defendant. On this record, it is not reasonably
probable that a result more favorable to defendant would have been reached
in the absence of the alleged errors. (See People v. Duarte (2000) 24 Cal.4th
603, 618–619 [applying Watson standard to state law error in admitting
hearsay].)
Finally, because defendant’s hearsay claim fails, his related due process
claim also fails. (See People v. Abilez (2007) 41 Cal.4th 472, 503 [“Having
found no state law error, we also reject defendant’s federal constitutional
claim”].)
B. Exclusion of Expert Testimony on Defendant’s Susceptibility to Give a
False Confession
Defendant contends the trial court’s exclusion of proffered testimony
from defense expert Winkel regarding his assessment of defendant’s
suggestibility and susceptibility to give a false confession was an abuse of
23
discretion and violated his rights to due process and a fair trial. We conclude
the trial court abused its discretion, but we find no prejudice.
1. Background
Well before trial, defendant filed a motion in limine to allow expert
witness Dr. Winkel to testify on “issues of suggestibility and Miranda
comprehension of the defendant and false confessions.” The motion included
Winkel’s report, which he prepared at defense counsel’s request to evaluate
whether defendant was “especially susceptible to giving a false confession.”
Winkel met with defendant twice and administered psychological tests
including the Gudjonsson’s Suggestibility Scales (GSS). He reported that
defendant’s GSS scores “indicate that he is a highly suggestible individual,
more so than 85% of comparable population samples. As is the case with all
other tests he took, his limited English possibly contributed to his offering
random, incorrect answers when he didn’t understand questions or didn’t
recall an original story he was asked to remember.” Winkel found defendant
to be “a weak, passive individual, lacking assertiveness, with very poor social
skills. . . . Cognitively, he is slow, appears easy to manipulate, and seems
eager to avoid confrontations.” Winkel opined that defendant was “highly
susceptible to giving a false confession under the stress of a police
interrogation.” He also concluded that defendant was not able to understand
and knowingly waive his Miranda rights.18
18 Defendant made a separate motion, not at issue here, to suppress his
statements to Hurtado during the car ride and at the Sheriff’s Department as
involuntary and in violation of Miranda, and Winkel testified at a hearing on
this motion. The trial court denied the motion to suppress, finding defendant
made a knowing, intelligent, and voluntary waiver of his Miranda rights and
his statements were admissible. The court also found defendant is bilingual
and speaks English.
24
Defendant sought to have Winkel testify about false confessions
generally and about his specific findings regarding defendant including his
GSS scores.
The trial court did not issue a definitive ruling pretrial but indicated it
was inclined not to allow Winkel to testify under Evidence Code section 352
unless evidence was presented that defendant falsely confessed. After trial
commenced, the court held a hearing under Evidence Code section 402 to
determine whether Winkel would be permitted to testify. At the section 402
hearing, Winkel testified he had been admitted in California state courts as
an expert in suggestibility and false confessions many times. He testified
that the GSS is a peer-reviewed widely accepted test in his field and that he
gave defendant the GSS and made specific findings that were stated in his
report. Defense counsel argued there was now evidence defendant falsely
confessed, because defendant’s cousin J. had testified that defendant never
touched her inappropriately and because the absence of illegal pornography
on defendant’s iPad showed that defendant “invented information” in his
statements to Deputy Sheriff Hurtado.
After hearing counsels’ arguments, the trial court ruled that it would
allow Winkel to testify generally about false confessions “[p]ursuant to the
line of cases like Page,”19 but it would not permit testimony about defendant’s
GSS results under Evidence Code section 352.
19 In People v. Page (1991) 2 Cal.App.4th 161, the trial court allowed
the defense to present an expert on “the general psychological factors which
might lead to an unreliable confession,” but the expert was not permitted to
identify particular elements in the police interrogation of the defendant that
indicated those psychological factors were present or to opine on the
reliability of the defendant’s confession. (Id. at pp. 180, 183.) The appellate
court concluded this limitation on the defense expert’s testimony did not
25
Explaining its reasoning, the court first referred to its earlier denial of
defendant’s suppression motion (see fn. 18), stating that it had already
deemed both confessions (statements made during the car ride and at the
Sheriff’s Department) to be voluntary and, further, “I personally also deem
the confessions, both confessions, to be reliable.”
But the court recognized that voluntariness and reliability “are two
separate issues” and observed, “[T]he case law seems to hold that reliability
is a factual determination to be made by the fact-finder.” The court noted
that in this case, there was no improper questioning or coercive behavior
during the police interviews.
The court then stated, “What we are left, I think, is the issue whether
he has any mental conditions or other vulnerabilities that make him
susceptible to false confession. [¶] . . . But the fact of the matter is we have
more than just the two confessions, we have an admission that he made to a
10 year old [sic]—one of the alleged confessions, and it’s a little hard to argue
he was entrapped or psychologically worn down by a 15 year old. She is not
an authority figure. And certainly she was perhaps coached by law
enforcement before she made the pretext call, but this is a case where I’m not
particularly concerned about a false confession, given the evidence that’s
been admitted. [¶] Two victims who happen to be related, they disclosed at
different times to different people. We have a pretext call where he’s making
a number of damning admissions. So this is not a case where we are simply
left with a confession by a defendant and nothing else.
“. . . I’m limiting the Defense to the hour that they promised the Court
it would take to present this evidence. [¶] And I would ask that [the
violate the defendant’s right to present a complete defense. (Id. at pp. 185–
186.)
26
prosecutor] . . . take the same amount of time to cross-examine, if you need it.
I will not permit the doctor to testify as to the results of the GSS exam under
[Evidence Code section] 352 . . . .”
2. Standard of Review
“ ‘When expert opinion is offered, much must be left to the trial court’s
discretion.’ ” [Citation.] The trial court has broad discretion in deciding
whether to admit or exclude expert testimony [citation], and its decision as to
whether expert testimony meets the standard for admissibility is subject to
review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395,
426.)
Trial courts also have “broad discretion to exclude relevant evidence
under Evidence Code section 352 ‘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.’ [Citations.] Such ‘discretion
extends to the admission or exclusion of expert testimony.’ ” (People v. Linton
(2013) 56 Cal.4th 1146, 1181 (Linton).) We review evidentiary rulings under
Evidence Code section 352 for abuse of discretion. (Ibid.) The trial court’s
discretion to exclude evidence is not unfettered. “An abuse of discretion will
be ‘established by “a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice. . . .” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 390.)
3. Analysis
Defendant argues Winkel’s defendant-specific testimony was highly
probative to the defense theory that defendant’s admissions were false and
that he only agreed that he committed the offenses because he is highly
27
suggestible and susceptible to giving a false confession. Defendant contends
the trial court abused its discretion in excluding Winkel’s testimony under
Evidence Code section 352 because there was no counterbalancing risk of
confusion or undue consumption of time given that Winkel would be
testifying about false confessions and the issue of suggestibility in general.20
The Attorney General responds that the trial court acted within it discretion
because the excluded testimony was “not particularly probative where there
was [1] no evidence that Detective Hurtado engaged in coercive conduct and
[2] no evidence that [defendant]’s confessions were in fact false.”
Initially, we observe there is no dispute here about whether a
psychological expert’s assessment of a criminal defendant’s level of
suggestibility and the results of psychological testing, including the results of
a GSS test, could be admissible in the appropriate case. California courts
have long permitted experts to rely “on ‘standardized’ psychological tests.”
(People v. Stoll (1989) 49 Cal.3d 1136, 1154, 1158 [“defense expert opinion on
an impressive range of psychiatric diagnoses has been admitted . . . where
the expert made known at trial that he relied, in part, on” standardized
psychological tests].) And, in Linton, supra, for example, a defense expert
was permitted to testify “regarding [the] defendant’s particular personality
traits that may have lowered his ability to withstand the pressures of
interrogation and increased his suggestibility.” (Linton, supra, 56 Cal.4th at
p. 1183.)
Defendant notes that the trial court limited Winkel’s direct
20
examination to one hour and asserts defense counsel would likely have been
“amenable to fitting the [excluded] defendant-specific testimony within that
hour.”
28
Regarding the probative value of the excluded evidence, Winkel’s
proffered testimony was clearly relevant to whether defendant’s statements
to Detective Hurtado were reliable. (See United States v. West (7th Cir. 2015)
813 F.3d 619, 620–621, 624 [expert testimony regarding the defendant’s GSS
test results, “low IQ and mental illness and how these combined conditions
might have influenced his responses to the officers’ questions while in police
custody” was “clearly relevant and admissible on the issue of the reliability of
[the defendant’s] confession”]; United States v. Roark (11th Cir. 1985) 753
F.2d 991, 994 [defendant-specific expert testimony from a psychiatrist that
the defendant “was extremely susceptible to suggestions and . . . could be
‘suggested’ into making up untrue stories” was “certainly relevant to the
issue of what weight the jury should give [the defendant]’s incriminating
statements”].) That Hurtado did not engage in coercive conduct does not
diminish the relevance of Winkel’s psychological assessment of defendant
because the defense theory was not that law enforcement engaged in tactics
that improperly coerced defendant into falsely confessing. Rather, it was that
defendant’s psychological makeup was such that he was, according to
Winkel’s written report, “easy to manipulate and . . . eager to avoid
confrontations” and “highly susceptible to giving a false confession,” even
without coercion by the interrogator. 21 Nor can it reasonably be said that
there was no evidence suggesting defendant may have falsely confessed. (Cf.
Linton, supra, 56 Cal.4th at pp. 1179–1182 [no abuse of discretion to exclude
proffered social psychologist’s expert testimony regarding interrogation
techniques and false confessions where “[t]here was no other evidence offered
that logically called into question the veracity of [the defendant’s]
21Recall that Winkel testified a person might falsely confess “not
because of the actions of the investigator, but because of something in them.”
29
admissions”].) As defense counsel argued, defendant’s cousin J. testified
defendant never touched her inappropriately even though defendant told
Hurtado that he molested her. And no illegal pornography was found on
defendant’s iPad even though he confessed to looking at “pornos and stuff” on
his tablet.
Regarding potential counterbalancing factors for excluding relevant
evidence under Evidence Code section 352, nothing in the record supports a
determination that Winkel’s relevant defendant-specific testimony would
have wasted time or confused or misled the jury. (Cf. United States v. Roark,
supra, 753 F.2d at p. 994 [defense expert’s testimony about the defendant’s
suggestibility could not reasonably be excluded under the evidence rule
permitting exclusion of probative evidence “ ‘if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence’ ”].) In this case, the
trial court permitted Winkel to testify as an expert. As defendant points out,
there is no reason to think defense counsel could not have elicited Winkel’s
opinion about defendant’s susceptibility to falsely confess and the bases for
his opinion within the hour allotted for his testimony. Explaining its
rationale for excluding Winkel’s testimony about defendant’s particular
susceptibility to falsely confess, the trial court stated that it “personally”
deemed the confessions reliable and it was “not concerned about a false
confession in this case.” But, as the court acknowledged, the reliability of
defendant’s admissions was a question for the jury, not the court.22
22 As the United States Supreme Court has observed, “[E]ntirely
independent of any question of voluntariness, a defendant’s case may stand
or fall on his ability to convince the jury that the manner in which the
30
In short, given the probative value of Winkel’s testimony to the defense
and the lack of any countervailing reason to exclude the evidence, we
conclude the trial court’s ruling under Evidence Code section 352 to exclude
the testimony was an abuse of discretion.
That said, we agree with the Attorney General that the error was
harmless under the circumstances. This prosecution was not a close case.
Doe 1 and Doe 2 testified about the abuse, and each victim had previously
revealed the abuse to a close friend. Doe 1’s friend testified that Doe 1 told
her she would try to lock herself in her room to avoid defendant, and Doe 1’s
mother testified she found Doe 1 hiding in a closet when defendant visited
the house. The first time Doe 2 revealed the abuse to an adult (the school
principal), she identified her abuser as Uncle Alvin. There was no evidence
that either victim had a motive to lie about being abused.
The jury listened to a recording of the pretext call in which defendant
admitted to Doe 1 that he molested her. This call was made before defendant
was arrested; yet, when Doe 1 said she wanted to tell her mother about
“when, uh you were touching me and stuff,” defendant appeared to know
exactly what she was referring to from years past, and his immediate
response was to ask her not to tell anyone. The jury heard defendant
respond, “No, no, no, no, just don’t, please—please don’t.”23 Defendant
confession was obtained casts doubt on its credibility.” (Crane v. Kentucky
(1986) 476 U.S. 683, 689, italics added.)
23 Even Winkel testified that false confessions generally are not elicited
this quickly. Asked on redirect whether “[i]t can be as simple as someone
saying to a defendant did you assault this person and they did not but they
just say yes, they agree,” Winkel responded, “It usually takes a little longer,
there’s a back and forth. I haven’t seen, like, a—I have never seen, like, a
one question confession, but that kind of exchange can lead to false
31
continued to beg Doe 1 not to tell her mother about the abuse “because
they’re going to call the police on me.” When Doe 1 asked why he did it,
defendant said, “I just can’t help myself, I don’t know why. I really regret
this,” and he explained his behavior by saying, “I just . . . kinda like . . .
pretty much started to like you or something, I don’t know why, kind of . . .
uh . . . like a crush.”
In his interrogation, defendant stated (without prompting from Deputy
Sheriff Hurtado) that he first molested Doe 1 at his house and that he made
her touch his penis three times, corroborating Doe 1’s account that the first
incident occurred at his house and that he made her touch his penis on three
different occasions.
The jury heard from defense expert Winkel that false confessions occur
even without coercive conduct by the interrogator and that low education
level, being interrogated in a non-native language, being passive and
compliant, and lacking experience with law enforcement are all variables
that can cause a person to be more susceptible to falsely confessing. The
defense presented evidence showing defendant had only a high school
education, he mainly spoke Tagalog and always lived with his parents, he
was “easy to convince about silly things,” he had no prior history interacting
with the police, and he was especially docile and compliant during the police
interviews. The jury listened to a recording of the discussion between
Hurtado and defendant on the car ride from San Francisco to Napa and saw a
video of the interrogation that occurred at the Sheriff’s Department. There
was no evidence that defendant recanted.
confession.” And, of course, Winkel was referring to in-person police
interrogations, not a telephone conversation between a 42-year-old man (who
is not under arrest) and a 15-year-old girl.
32
On this record, we do not believe there is a reasonable probability that
a result more favorable to defendant would have been reached had the jury
also heard Winkel’s testimony about defendant’s GSS scores and his
assessment that defendant was highly susceptible to giving a false confession
in a police interrogation because Winkel’s testimony would not have
explained defendant’s admissions to Doe 1 in the pretext call. (See People v.
Garcia (2018) 28 Cal.App.5th 961, 970–971 [applying Watson standard to
claimed state law error in excluding expert testimony].) According to his
report, Winkel’s expert assessment of defendant was that he was “highly
susceptible to giving a false confession under the stress of a police
interrogation.” But defendant points to nothing in the record suggesting
Winkel would have testified defendant was susceptible to making false
statements in a telephone conversation with his 15-year-old niece.
We also reject defendant’s claim that the exclusion of part of Winkel’s
proffered testimony violated his right to present a defense. “Although a
defendant has the general right to offer a defense through the testimony of
his or her witnesses, ‘a state court’s application of ordinary rules of
evidence—including the rule stated in Evidence Code section 352—generally
does not infringe upon this right.’ ” (Linton, supra, 56 Cal.4th at p. 1183.)
The trial court’s ruling “did not result in the blanket exclusion of evidence
concerning the circumstances of defendant’s admissions and confession.”
(Ibid.) As we have recounted, defense expert Winkel was allowed to testify on
false confessions, the defense was allowed to elicit testimony on defendant’s
traits and circumstances that may have rendered him vulnerable to giving a
false confession, the jury viewed the video of defendant’s interview at the
Sheriff’s Department and listened to recordings of his other statements of
admission, and defense counsel strenuously argued defendant was
33
susceptible to giving a false confession. Defendant was not denied the right
to present a defense. (See id. at pp. 1183–1184 [rejecting claim of violation of
the right to present a defense based on the exclusion of expert testimony
regarding false confessions where the jury listened to tape recordings of the
defendant’s interviews, heard the testimony of detectives and a psychologist
regarding the circumstances of the interviews, and heard expert testimony
regarding the defendant’s particular personality traits, and defense counsel
“was able to and did strenuously argue this evidence established his
admissions and confession were false”].)
C. Defense Counsel’s Failure to Object to a Question Posed to K.
Defendant argues he received ineffective assistance when defense
counsel did not object to certain prosecutor questioning of the mother of one
of the victims, which led to a “particularly dramatic emotional outburst” by
the witness in front of the jury. We disagree.
1. Background
In the direct examination of Doe 1’s mother K., the prosecutor asked,
“What are your feelings as you sit here now about the defendant, about Mr.
Caparaz?” K. answered, “How could you? How dare you.” The prosecutor
said, “You’re upset?” K. responded, “Upset? I’m mad. I’m hurt. What did
you do to my kid and my family, you broke us up. There’s no better evil, no
evil, what you did. It haunts me every time I close my fucking eyes.” At this
point, the trial court said, “Okay. We can stop there. [¶] Ask another
question.”
The prosecutor had no further questions, and defense counsel asked for
a break. The trial court ordered a recess and stated, “I’m sorry. Everyone,
it’s been a hard morning. If we could—I’m sorry. If we could just take a
break at this point and maybe we can escort her out.”
34
Defense counsel, outside the presence of the jury, then moved for a
mistrial based on K.’s outburst, which he described as “completely
inappropriate and quite out of control.”24 He stated the witness “was going
on a rant and she had to literally be carried out in front of the jury; the jury
had to be removed while she was still sitting here with [her] head down on
top of the table, heaving and sobbing, unable to regain her composure.”
The trial court stated, “it was quite emotional, it was quite a scene, I
would concede that for the record.” But, the court noted, defense counsel did
not object to the question. The court advised defense counsel, “you have to be
on top of the objections; you really do, when these questions are asked.” The
court also cautioned the prosecutor that this was an emotional case.
The prosecutor argued her question about K.’s current feelings about
defendant was appropriate because the defense on cross-examination was
going to question her motives and suggest she was biased. The prosecutor
stated that she had cautioned the witnesses “not to have this kind of outburst
on the stand” and she had not intended to elicit an outburst. She further
observed, “I think the reason [defense counsel] probably didn’t object is
because it’s not an improper question. It does go to the bias, motive,
credibility, all of those things. So I was not anticipating that and that’s not
what I was trying to elicit.”
Defense counsel defended his conduct in not objecting to the
prosecutor’s question, explaining, “[K.] had answered several questions,
which was the reason why I hadn’t objected, about her feelings about the
case. She answered several questions about her feelings about Alvin and she
maintained her composure.”
24The trial court denied the motion for a mistrial, and defendant does
not challenge the ruling on appeal.
35
2. Analysis
“When examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a presumption
counsel acted within the wide range of reasonable professional assistance. It
is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009.)
“It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable.
[Citation.] A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” (Strickland v. Washington (1984) 466 U.S.
668, 689; see In re Valdez (2010) 49 Cal.4th 715, 729–730 [quoting
Strickland].)
36
In this case, considering defense counsel’s perspective at the time the
prosecutor posed her question (rather than with the benefit of hindsight), we
conclude counsel’s conduct fell within the wide range of reasonable
professional assistance. “An attorney may choose not to object for many
reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Caro (2019) 7
Cal.5th 463, 514.) Here, defense counsel offered his reason for not objecting
to the prosecutor’s question. He explained he had observed K. testify
previously, including “several questions about her feelings about [defendant]
and she maintained her composure.” Thus, defense counsel deemed it
unnecessary to object to the prosecutor’s question about how she felt about
defendant because he did not believe the answer risked prejudicing his client.
Perhaps he also believed objecting risked antagonizing the jury or would call
unnecessary attention to the question. Or defense counsel may have thought,
as the prosecutor suggested, that the question was relevant given the defense
theory that K. and D. were biased against defendant in that they wanted to
blame him for abuse that might have been committed by their own brother.
In short, we cannot say this is the rare case where the failure to object
amounted to ineffective assistance of counsel.
D. Cumulative Prejudice
We have concluded that excluding part of defense expert Winkel’s
testimony was harmless, and we have found that defense counsel did not
provide ineffective assistance in not objecting to a question posed to K. Since
we have found only one error, there is no cumulative error, and defendant’s
claim of cumulative prejudice also fails.
37
E. Sentencing Issues
The trial court sentenced defendant to 25 years to life for count 1
(forcible lewd act upon a child), 25 years to life for count 2 (same), 15 years to
life for count 3 (aggravated sexual assault of a child), 25 years to life for count
4 (sexual penetration of a child), 15 years to life for count 5 (lewd act upon a
child), and 25 years to life for count 6 (same). The court stayed the term for
count 3 pursuant to section 65425 and ordered the term for count 6 to run
concurrent with count 1. The remaining terms were to be served
consecutively for a total sentence of 90 years to life in prison. For counts 1, 2,
4, 5, and 6, defendant was sentenced under the One Strike law (§ 667.61,
subds. (e)(4) and (j)(2)).
1. Claim of Excessive Punishment
Defendant contends the sentence constitutes cruel and unusual
punishment. We are not persuaded.
“In general, fixing appropriate penalties for crimes is a distinctly
legislative determination [citations], implicating sensitive questions of policy
and values that ‘are in the first instance for the judgment of the Legislature
[or the people] alone.’ [Citation.] But the legislative power to craft
punishments is subject to constraints rooted in both the state and federal
Constitutions. In limited circumstances, one or both provisions may relieve a
defendant from a sentence that was otherwise lawfully imposed.” (In re
Palmer (2021) 10 Cal.5th 959, 967–968. (Palmer).) “A claim of excessive
punishment must overcome a ‘considerable burden’ [citation], and courts
should give ‘ “the broadest discretion possible” ’ [citation] to the legislative
25 The prosecutor had argued to the jury that counts 3 and 4 “represent
just one specific incident” when Doe 1 was getting groceries out of the car and
defendant put his fingers in her vagina.
38
judgment respecting appropriate punishment. [Citations.] A punishment
does not qualify as constitutionally excessive unless it is ‘ “out of all
proportion to the offense.” ’ ” (Id. at p. 972.) “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 (Martinez).)
Review of a claim of excessive punishment involves “(1) an examination
of the nature of the offense and the offender, with particular attention to the
degree of danger both pose to society; (2) a comparison of the punishment
with the punishment California imposes for more serious offenses; and (3) a
comparison of the punishment with that prescribed in other jurisdictions for
the same offense.” (Palmer, supra, 10 Cal.5th at p. 973.)
a. Nature of the Offense and Offender
“ ‘A look at the nature of the offense includes a look at the totality of
the circumstances, including motive, the way the crime was committed, the
extent of the defendant’s involvement, and the consequences of defendant’s
acts. A look at the nature of the offender includes an inquiry into whether
“the punishment is grossly disproportionate to the defendant’s individual
culpability as shown by such factors as his age, prior criminality, personal
characteristics, and state of mind.” ’ ” (People v. Reyes (2016) 246 Cal.App.4th
62, 87 (Reyes).) These considerations do not indicate grossly disproportionate
punishment. Defendant was an adult in his late 30’s when he repeatedly
molested his girlfriend’s young nieces (beginning when they were 11 and 7
years old) over a period of years. Defendant knew what he was doing was
“not right,” but he continued to victimize the girls. We agree with the
Attorney General that the “sexual abuse of children plainly is a grave and
serious crime and few crimes . . . are more despicable because of the life-long
39
consequences to the victims.” (See People v. Christensen (2014) 229
Cal.App.4th 781, 806 [lewd conduct on a child “may have lifelong
consequences to the well-being of the child”]; People v. Baker (2018) 20
Cal.App.5th 711, 724 (Baker) [“ ‘There exists a strong public policy to protect
children of tender years’ ”].)
Defendant’s reliance on In re Rodriguez (1975) 14 Cal.3d 639,
superseded by statute as stated in Palmer, supra, 10 Cal.5th at p. 975, is
misplaced. In Rodriguez, 22 years of imprisonment was found to be
disproportionate where the petitioner’s single incident of lewd conduct
“caused no physical harm to the victim” and “lasted only a few minutes,” the
petitioner “was only 26 years old at the time of the offense,” and his “conduct
was explained in part by his limited intelligence, his frustrations brought on
by intellectual and sexual inadequacy, and his inability to cope with these
problems.” (14 Cal.3d at pp. 653–655.) Defendant, in contrast, was much
older when he molested his girlfriend’s nieces, his offensives involved two
victims and multiple incidents over the course of years, and there was no
evidence that his crimes were attributable to cognitive deficits. The facts of
this case are significantly more aggravated than those in Rodriguez. (See
Baker, supra, 20 Cal.App.5th at pp. 715, 727 [15 years to life sentence for
single count of oral copulation of six-year-old was not cruel or unusual; the
nature of the offense was significantly more aggravated than the offense in
Rodriguez].)
b. Comparison with More Serious Offenses
Defendant argues the One Strike law resulting in 15-year-to-life terms
for the non-forcible lewd conduct against Doe 2 is disproportionate given that
defendant would not be subjected to a One Strike term for “more serious”
crimes such as assault with intent to commit rape, pimping or pandering for
40
prostitution, or sexual penetration or sodomy. Similar arguments have been
rejected in Baker, supra, 20 Cal.App.5th at pages 727–729, and Reyes, supra,
246 Cal.App.4th at pages 88–89. “ ‘Punishment is not cruel or unusual
merely because the Legislature may have chosen to permit a lesser
punishment for another crime. Leniency as to one charge does not transform
a reasonable punishment into one that is cruel or unusual.’ ” (Baker, at p.
727.) “[T]he punishment under the One Strike law ‘is precisely tailored to fit
crimes bearing certain clearly defined characteristics.’ ” (Reyes, at p. 89
[upholding sentence of life without the possibility of parole for forcible oral
copulation and forcible rape during the commission of a burglary under the
One Strike law].) We do not believe this is one of the “rarest of cases” where
the sentence mandated by statute is unconstitutionally excessive. (Martinez,
supra, 76 Cal.App.4th at p. 494; see Baker, supra, 20 Cal.App.5th at p. 730
[“A comparison of the mandatory 15-year-to-life sentence under section 288.7,
subdivision (b) to the punishments for similar and more serious sex offenses
in California does not suggest this is that ‘rarest of cases’ in which ‘the length
of a sentence mandated by the Legislature is unconstitutionally excessive’ ”].)
c. Comparison with Other Jurisdictions
As the Attorney General notes, defendant makes no attempt to address
the third prong of the excessive punishment analysis, which we take as a
concession on this prong. (See Reyes, supra, 246 Cal.App.4th at p. 89
[“Because Reyes ‘makes no effort to compare his sentence with . . .
punishments in other states for the same offense’ we take it ‘as a concession
that his sentence withstands [that] constitutional challenge’ ”].)
Finally, we reject defendant’s claim that his sentence is excessive under
the Eighth Amendment on the ground it “equates to a sentence of life without
the possibility of parole.” “The Eighth Amendment prohibits imposition of a
41
sentence that is ‘grossly disproportionate’ to the severity of the crime.
[Citations.] In a noncapital case, however, successful proportionality
challenges are ‘exceedingly rare.’ ” (People v. Haller (2009) 174 Cal.App.4th
1080, 1087 [citing cases].) Defendant offers no authority for his position that
this is one of those exceedingly rare cases. (Cf. Baker, supra, 20 Cal.App.5th
at p. 733 [“Baker cannot show that the sentence imposed on him, severe as it
may be, violates the Eighth Amendment as applied to him”].)
2. Assembly Bill No. 518
At the time the trial court sentenced defendant (and during the period
defendant was committing the offenses), section 654 provided that when an
act or omission was “punishable in different ways by different provisions of
law,” the trial court was required to punish the defendant “under the
provision that provide[d] for the longest potential term of imprisonment.”
(Former § 654, subd. (a), as amended by Stats.1997, ch. 410, § 1.) Effective
January 1, 2022, however, Assembly Bill No. 518 (2021–2022 Reg. Sess.) (AB
518) amended section 654, subdivision (a), “to afford sentencing courts the
discretion to punish the act or omission under either provision,” without
regard to the longest potential term of imprisonment. (People v. Mani (2022)
74 Cal.App.5th 343, 351 (Mani).)
In this case, count 3, aggravated sexual assault of a child (§ 269, subd.
(a)(5)), and count 4, sexual penetration of a child (§ 289, subd. (a)(1)(B)), were
based on the same incident. (See fn. 25.) As we have described, the trial
court sentenced defendant to 25 years to life in prison for count 4 under the
One Strike law and imposed and stayed the 15-year-to-life term for count 3,
pursuant to section 654. We asked the parties to be prepared to address at
oral argument whether the matter should be remanded for resentencing in
42
light of AB 518’s amendment to section 654, and we granted the parties leave
to file supplemental briefing on the issue.
The Attorney General acknowledges that AB 518 applies retroactively
to cases such as defendant’s that are not final on appeal (Mani, supra, 74
Cal.App.5th at p. 379), but he posits that remand is not necessary here
because the trial court is without discretion to stay punishment mandated by
the One Strike law. The Attorney General relies on section 667.61,
subdivision (h) (§ 667.61(h)), of the One Strike law, which provides,
“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, a person who is
subject to punishment under this section.” (Italics added.)
When a defendant is convicted of two offenses for which section 654
prohibits multiple punishment (as is the case here), the trial court imposes
sentence for one of them, and then imposes and stays the sentence for the
other offense. (Mani, supra, 74 Cal.App.5th at p. 380.) A stay is a type of
suspension. (See People v. Santana (1986) 182 Cal.App.3d 185, 190 [“A stay
is a temporary suspension of a procedure in a case”].) The Attorney General
argues section 667.61(h) means a trial court is prohibited from suspending or
staying the imposition of a One Strike sentence notwithstanding any other
law, including section 654.
Defendant argues section 667.61(h) means that a trial court is
prohibited from granting probation for a One Strike offense and nothing
more.26 But this interpretation of section 667.61(h) renders the phrase “nor
shall the execution or imposition of sentence be suspended for” meaningless,
and “interpretations that render statutory terms meaningless as surplusage
26Defendant did not file supplemental briefing; appellate counsel
stated his position at oral argument.
43
are to be avoided” (People v. Hudson (2006) 38 Cal.4th 1002, 1010).
Defendant also points out that section 667.61(h) does not mention section 654
and does not expressly prohibit the “stay” of a sentence. The failure to
identify section 654 is not dispositive; it is enough that the provision applies
“[n]otwithstanding any other law.” (See In re Greg F. (2012) 55 Cal.4th 393,
406 [“When the Legislature intends for a statute to prevail over all contrary
law, it typically signals this intent by using phrases like ‘notwithstanding
any other law’ or ‘notwithstanding other provisions of law’ ”].) And, as we
have explained, a stay is type of suspension; thus, a prohibition against
suspending a sentence necessarily prohibits the stay of a sentence.
We agree with the Attorney General’s reading of section 667.61(h)
because it comports with the plain meaning of the provision and does not
render the phrase “nor shall the execution or imposition of sentence be
suspended for” surplusage. This reading also serves the purpose of the One
Strike law, which is “to increase the penalties imposed on defendants who
commit certain sexual offenses under specified circumstances.” (People v.
Betts (2020) 55 Cal.App.5th 294, 299.)27
Accordingly, we conclude the trial court in this case has no discretion to
suspend or stay the One Strike sentence for count 4 in favor of the shorter
27 Read as a whole, the One Strike law evinces the Legislature’s intent
to impose the greatest punishment possible for offenses covered by the law.
Section 667.61, subdivision (f), for example provides that where “the
minimum number of circumstances . . . that are required for the punishment
provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as the basis
for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever
is greater, rather than being used to impose the punishment authorized
under any other law, unless another law provides for a greater penalty or the
punishment under another law can be imposed in addition to the punishment
provided by this section.” (Italics added.)
44
non-One Strike sentence for count 3 notwithstanding the amendment to
section 654, and there is no need to remand for resentencing.
DISPOSITION
The judgment is affirmed.
45
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Mayfield, J.*
A158473, People v. Caparaz
*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
46
Court: Napa County Superior Court
Trial Judge: Hon. Elia Ortiz
Victor Blumenkrantz under appointment by the Court of Appeal, for
Defendant and Appellant
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein,
Carlos A. Martinez, Jaime A. Scheidegger, Deputy Attorneys General, for
Plaintiff and Respondent
A158473, People v. Caparaz
47