P. v. Siqueiros

Filed 6/26/06 P. v. Siqueiros CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted defendant Cleto Siqueiros of two counts of lewd conduct with a child, one count of aggravated sexual assault of a child (rape), and two counts of forcible lewd acts upon a child. (Pen. Code, §§ 288, subds. (a) & (b)(1), 261, subd. (a)(2), 269, subd. (a)(1).)[1] The court imposed a total sentence of 29 years to life. It consisted of an indeterminate 15-years-to-life term for aggravated sexual assault and a consecutive determinate term of 14 years, comprising a six-year principal term for one count of lewd conduct; a subordinate consecutive, full mid-term of six years for a second count of lewd conduct; and a consecutive one-third the mid-term (two years) for the third count of lewd conduct. On appeal from the judgment, defendant claims the court erred in giving CALJIC No. 10.64, the standard instruction on Child Sexual Abuse Accommodation Syndrome (CSAAS). He argues that it created an unconstitutional presumption, which in turn lowered the prosecution's burden of proof. He claims his sentence violates the constitutional proscriptions against cruel and unusual punishment. And he claims the imposition of full and/or consecutive terms for two counts of lewd conduct violated his constitutional right to a jury trial.

We affirm the judgment

Facts

The victim Y. was born in January of 1991. When she was nine-months old, her mother became romantically involved with defendant, and he moved in. Thereafter, he and Y.'s mother had three children.

Y. testified about several incidents in which defendant sexually abused her. The first incident occurred when she was in kindergarten. She was in the bathroom, when defendant came in, fondled himself, and forced her hand onto his penis.

When Y. was in the third grade, defendant touched her three times. One time, he was driving her home from school. He stopped the car, grabbed her thighs, and told her that if she did not kiss him, he would not celebrate her birthday. She refused, and defendant angrily drove home.

When Y. was 10, she woke up one night, and defendant was on top of her. Her sweatpants and underwear had been pulled down. Defendant was holding her shoulders and pushing his penis into her vagina. It hurt, and she was shocked and scared. When defendant left, she went to the bathroom and wiped blood and semen from herself. Three years later, a medical examination revealed vaginal narrowing that was consistent with a penetrating injury, which could have been caused by a penis, finger, or other object.

In another incident around that same time, defendant came into Y.'s bedroom. She was watching cartoons on TV. He grabbed her thighs with both hands, rubbed between her legs, and then grabbed and rubbed her breasts. Defendant seriously warned her not to tell anyone. Sometime after that incident, the family moved to Reno. There, defendant came into her room one day and touched her legs and thighs.

Later, the family moved back to San Jose, where again, defendant came into her room one night and rubbed her thighs. When she was in the sixth grade, defendant offered to give her money if she allowed him to touch her. He told her if she told anyone, no one would believe her.

When Y. was in middle school, she started to argue and get into trouble with her parents for various reasons. Among other things, they were concerned about drugs and her friends. One day, Y.'s mother found methamphetamine in her backpack. Y.'s claimed that another girl put it there.[2] Her mother and defendant took her to a medical clinic to be tested for drugs and sexual activity. Y. was very upset that that her parents did not believe her. Doctor Antonia Zuzueta insisted that she and Y. be alone during the examination. Defendant reluctantly agreed. Y.'s drug test came back negative. However, Y.e told Doctor Zuzueta that three years before, she had had sex with defendant. Doctor Zuzueta reported the allegation to Child Protective Services, and later defendant was arrested.

Detective Juan Serrano of the San Jose Police Department interviewed defendant. Initially he denied any improper conduct. Later, however, he admitted that once he accidentally entered the bathroom while Y. was there. Ultimately, he admitted touching her and masturbating while he did so, and then smearing his semen on her. He said that his finger may have digitally penetrated her. However, he explained that Y. initiated the encounter because she wanted to see how it felt. She told him it felt good although a little painful. He said that when they finished, she demanded money.

Expert CSAAS Testimony

Carl Lewis, a criminal investigator for the district attorney, testified as an expert on CSAAS. He testified that CSAAS is not a scientific or diagnostic instrument used to establish that abuse has taken place. It is descriptive tool that offers an explanation for certain behaviors exhibited by children who have been sexually abused that might appear to be inconsistent common notions about how such a child victim would act. Among those behaviors are secrecy about the abuse; helplessness to do anything about it; entrapment by and accommodation of the abuser; delayed conflicted, and unconvincing disclosure of abuse; and retraction of previous accusations. He testified that accommodation behavior can account for a child victim acting as if nothing is wrong, engaging in compensatory behavior like rebelliousness, and performing poorly in school. CSAAS can explain delays in disclosing abuse and the sort of things that might trigger later disclosure, such as being disciplined. CSAAS can also explain why victims may later try to retract accusations under pressure from family members or concern about the consequences.

The Defense

Defendant testified that he touched Y. inappropriately on only one occasion, when she was 10 years old. He said that Y. had seen couples touching on TV and told him she wanted to know what it felt like. She pulled her pants down and asked him to touch her over her underpants. He touched her stomach, and she then moved his hand to her vagina. He masturbated while touching her until he ejaculated. After the incident, Y. asked him for money. He said he refused, saying it would be wrong. He denied penetrating her vagina with either his finger or penis.

Defendant testified that Y. falsely accused him because she was angry that he disciplined her and restricted her activities. He testified that when he and Y.'s mother took her to be examined, Y. was angry and rude, and he hit her.

Caljic No. 10.64

Defendant contends that the court erred in giving the standard instruction on CSAAS--CALJIC No. 10.64--because the instruction is constitutionally flawed.

The Attorney General claims that defendant waived his claim by failing to object. However, a defendant does not waive instructional error that affects his or her substantial rights. (§ 1259.) In People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, the court observed that â€