Filed 10/19/17 P. v. Gilles CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Thomas Fox Gilles appeals a judgment convicting him of sexually molesting his daughter and sentencing him to three consecutive indeterminate terms of 15 years to life, plus an additional consecutive 27 years in prison. He challenges the sufficiency of the evidence in support of the jury’s finding that his crimes were committed with duress and in support of the court’s restitution award. He also argues that he was prejudiced by the admission of improper testimony by the prosecution’s expert witness regarding the low rate of false allegations of sexual abuse by children and asserts a related claim of instructional error. Finally, he argues that the court operations assessment imposed by the court is excessive. We find no error that requires reversal of his conviction, but agree that the amount of the assessment must be corrected.

Factual and Procedural History

Defendant was charged by information in counts 1 through 3 with oral copulation or sexual penetration with a child 10 years old or younger (Pen. Code,[1] § 288.7, subd. (b)), in counts 4 through 6 with aggravated sexual assault of a child under age 14 by oral copulation (§ 269, subd. (a)(4)), and in counts 7 through 15 with forcible lewd acts on a child under age 14 (§ 288, subd. (b)(1)).

The following evidence was presented at trial:

Jane Doe testified that defendant first touched her inappropriately when she was in second or third grade.[2] Over the course of the next few years, he repeatedly molested her. She was confused because it did not seem right and she thought it was “weird.” When the abuse first began, defendant told her not to tell anyone or he would be arrested. He repeated this warning five or six times over the course of the abuse. Initially, she was scared but after a while it seemed normal.

When Jane Doe was in fourth grade, she told her mother that defendant had touched her inappropriately on her private parts. In response, her mother confronted defendant and forced him to leave the house. After a few weeks, Jane Doe asked for him to return because she did not want to break up the family. She remembered that at the time she did not want to tell anyone because she did not want to lose her older half-brothers or send her dad to prison. Her father stopped molesting her when he returned to the family home.

Sometime after Jane Doe told her mother, she also told three friends. Her friends testified at trial and confirmed that Jane had told them about defendant’s sexual abuse.

When Jane Doe was in sixth grade, she continued to struggle with her feelings regarding the abuse. The following entry from her journal was introduced into evidence: “Dear Lord help me with my problem with my dad. Please help me figure out if I should tell them or not because I am almost scared to because my mom said that if I told anyone and they told an adult he would go to jail forever! That’s why I hate my dad. He ruined my life with what he did to me! I am even scared to be in the same car as him because I’m afraid that he will touch me! Even tucking me into bed. That’s why I like my mom tucking me in.”

In July 2015, she reported the abuse to two camp counsellors. One of the counselors reported the abuse to her husband, who reported the abuse to the police.

Psychologist Dr. Anthony Urquiza testified as an expert on child sexual abuse accommodation syndrome (CSAAS). Dr. Urquiza emphasized that the syndrome is not a diagnostic tool to determine whether a child has been sexually abused. Rather, it is an educational tool that is designed to “explain common characteristics of a child who has been sexually abused” and to “dispel any . . . misunderstandings [people] may have about sexual abuse.” The five components of the syndrome are secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation. With respect to secrecy, Dr. Urquiza testified that because most sexually abused children are abused by someone with whom they have an ongoing relationship, the abuser can control the child through either physical power, a position of authority, or threats of negative consequences if the child reveals the abuse. These factors explain why children often keep the abuse a secret. Helplessness addresses the misconception that victims will do something to prevent continuing abuse. The child might not see any other option but to submit to the abuse if the abuser has physical, mental, or authoritative control over the child, particularly if the child is young. With respect to entrapment and accommodation, Dr. Urquiza testified that once children are trapped in the abusive relationship, they will take steps to cope with the abuse such as to disassociate from or compartmentalize their experiences. This explains why children might not cry or appear upset when talking about the abuse. The delayed or unconvincing disclosure component dispels the misconception that abused children will report the abuse right away and addresses the situation when the child’s disclosures include inconsistencies, which result from having difficulty speaking about sexual acts. Finally, regarding retraction, Dr. Urquiza testified that “roughly 20 to 25 percent of kids who have been abused and disclosed will take it back,” usually because the perpetrator or a proxy for the perpetrator encourages them to recant.

Defendant denied that he had ever molested Jane Doe. He testified that he and Jane’s mother were getting a divorce and that Jane and her mother had often accused him of wasting money that the mother had inherited from her father.

Defendant’s friends and family members testified in support of defendant, generally to the effect that defendant’s demeanor and conduct around children was always appropriate.

Psychologist Dr. Annette Ermshar testified as an expert for the defense. She opined that CSAAS has been rejected by the scientific community, and the American Psychiatric Association rejected including it in the Diagnostic and Statistical Manual.

The jury found defendant guilty on all counts. Defendant was sentenced to 45 years to life (three consecutive terms of 15 years to life for counts 4 through 6) plus 27 years (nine consecutive three-year lower terms for counts 7 through 15). Terms for counts 1 through 3 were stayed (§ 654). Defendant timely filed a notice of appeal.

Discussion

1. Substantial evidence supports the finding that defendant used duress to abuse Jane Doe.

Defendant was convicted of 11 counts of forcible lewd acts on a child under age 14 (§§ 269, subd. (a)(4); 288, subd. (b)(1)). “Section 288, subdivision (a) makes criminal any lewd and lascivious act with a child under the age of 14. Section 288, subdivision (b) prescribes a separate violation when the act is committed using force or duress. The prison terms for the two violations are identical. However, a violation of section 288, subdivision (b) constitutes a violent felony under section 667.6 which mandates a substantial sentence enhancement and authorizes the full separate consecutive terms.” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578.) Section 269, subdivision (a)(4) provides for enhanced sentencing when an act of oral copulation upon a child “is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.” (see § 288a, subd. (c)(2)(3), and (d).) Defendant contends there is insufficient evidence of force or duress to support his conviction. The Attorney General does not dispute the lack of evidence of force, but argues that there is substantial evidence of duress.

“ ‘Duress’ as used in this context means ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citations.] ‘The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.’ [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14.) In Cochran the court observed, “The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her parent.” (Id. at p. 15.) Indeed, the court observed that “as a factual matter, when the victim is as young as this victim [nine years old] and is molested by her father in the family home, in all but the rarest cases duress will be present.” (Id. at p. 16, fn. 6.)

As in Cochran, the victim’s young age when the abuse began, the fact that the perpetrator was her father, and his threat that he would be arrested if she reported the abuse amply support an inference that defendant used duress to accomplish his crimes. Contrary to defendant’s argument, the inference is not simply that Jane Doe was afraid to disclose the abuse, but that her participation was impelled by an implied threat of hardship or retribution. (See People v. Senior (1992) 3 Cal.App.4th 765, 775 [“A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition.”].) Accordingly, there is no basis to disturb the jury’s finding that Jane Doe was molested by defendant under duress.

2. Dr. Urquiza’s testimony did not violate defendant’s right to due process.

Prior to trial, based on the parties’ agreement, the court made an in limine ruling prohibiting the expert witnesses from testifying about the statistical frequency of false allegations of child sexual abuse.[3] Consistent with the parties’ agreement, Dr. Urquiza did not testify on direct examination about the frequency of false allegations of child sexual abuse.

The topic was broached briefly, however, while defense counsel was cross-examining Dr. Urquiza on the elements of the CSAAS. After asking a number of questions about how false allegations might manifest within the context of the syndrome, defense counsel asked, “Isn’t it true that a child can accommodate an adult who has an agenda to falsely accuse someone, some other parent?” Dr. Urquiza clarified that accommodation is a synonym for coping and agreed that it is “possible for a child to accommodate or cope with an adult who’s encouraging them or pressuring to make a false allegation.” When defense counsel suggested the child would “go along with [the false allegation] in order to cope with that person,” Dr. Urquiza interrupted stating, “I’m hesitating because . . . I don’t think I’ve encountered a situation like that. Is it possible? Certainly. But in 30 some years of being involved in a child abuse business, I don’t recall ever encountering a situation.” He continued, “False allegations happen, but they happen with very low frequency. . . . Maybe other people do, but I’ve never encountered a situation like that.” Defense counsel then asked, “And you previously testified that this low frequency usually occurs in . . . custody cases.” Dr. Urquiza answered, “I want to make sure that I state this carefully. . . . One of the best predictors of a false allegation appears to be within custodial disputes. [¶] Now, there’s two really important caveats. One is, in the best study that we have, none of the children made an allegation that was determined to be a false allegation. A false allegation was made and a false allegation was made at about 4 percent of cases where law enforcement or CPS was informed. Ninety-six percent, there was no false allegations presented, but false allegations have been fairly infrequently or rarely. I think that characterizes 4 percent. But in that best predictor group within that 4 percent was a custodial dispute in which it was not the child who made the allegation of sexual abuse. It was somebody else.” The frequency of false allegations was not discussed further.

After Dr. Urquiza completed his testimony, defense counsel moved to strike the portion of the testimony about the low frequency of false allegations, including the testimony regarding the 4 percent statistic, or alternatively to allow the defense expert to rebut that testimony. After reviewing the record of Dr. Urquiza’s testimony, the court denied the motion to strike and precluded rebuttal testimony by defendant’s expert. The court found that there was no violation of its pretrial ruling because its ruling only precluded the witness from “blurt[ing] it out with respect to a nonresponsive question” and the expert’s answer in this instance was responsive to the questions being asked by defense counsel. Defense counsel requested that the 4 percent figure not be mentioned in jury arguments and the prosecutor agreed. Consistent with their agreement, the 4 percent figure and the low frequency of false allegations of child sexual abuse were not mentioned by either attorney in closing argument.

As the trial court found, Dr. Urquiza’s testimony was undoubtedly responsive to defense counsel’s line of questioning. Indeed, the prosecutor expressly warned the court and counsel that this precise testimony might be forthcoming if defense counsel cross-examined the witness on false allegations. (See fn. 3, ante.) Defense counsel asked Dr. Urquiza repeated questions about whether false accusations were possible and how they might manifest within the context of CSAAS. After answering a number of these questions, Dr. Urquiza indicated that while possible, he believed false allegations were made at a “very low frequency.” Although defense counsel claimed that his follow up question was an attempt to “correct the problem by bringing in custody disputes,” Dr. Urquiza’s response, including mention of the 4 percent figure, was clearly responsive. Defense counsel opened the door to the prohibited subject and, as the trial court found, the testimony was not in violation of the pretrial ruling because it was responsive to the questions asked. The court did not err in denying defendant’s motion to strike.[4]

Contrary to defendant’s argument, Dr. Urquiza’s testimony was not otherwise inadmissible.[5] Defendant argues that Dr. Urquiza’s testimony was inadmissible because it “usurped the jury’s fact-finding authority, vouched for Jane’s credibility, and was exceedingly prejudicial. His impermissible testimony told the jury that Jane Doe was telling the truth and that appellant was guilty.” As defendant argues, a lay witness’s opinion of the veracity of another person’s statements is inadmissible and irrelevant on the issue of the person’s credibility because it invades the province of the jury as the ultimate fact finder. (People v. Melton (1988) 44 Cal.3d 713, 744; People v. Zambrano (2004) 124 Cal.App.4th 228, 239-240.) Similarly, the veracity of those who report crimes to the police is not a proper subject of expert testimony. (People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.) In this case, however, Dr. Urquiza made it clear he was not vouching for the victim or telling the jury that defendant was guilty. He repeatedly emphasized that CSAAS is not a diagnostic tool to determine if a child has been sexually abused and expressly testified that he had no information about the case and was not telling the jury whether defendant was guilty.

In his reply, defendant argues that the evidence was inadmissible because it was irrelevant. While the evidence of “whether or not different victims were molested on different occasions” is irrelevant to whether the defendant is guilty in this instance, the statistical likelihood of a false allegation being made is not necessarily irrelevant when a witness is repeatedly asked whether it is possible that a child made false allegations. There was no error in the admission of Dr. Urquiza’s testimony.

3.CALCRIM No. 1193

The jury was instructed pursuant to CALCRIM No. 1193 as follows: “You have heard testimony from Dr.’s Urquiza and Ermshar regarding child sexual abuse accommodation syndrome. Dr.’s Urquiza and Ermshar’s testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not Jane Doe 1’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.”

Defendant contends that CALCRIM No. 1193 is an incorrect statement of the law because “as given [it] did not inform the jury that CSAAS assumes the truth of the molestation claim. It did not state the legal principle that the evidence was relevant only to educate the jurors about how molested children in general may act. Instead, it told the jurors, in a convoluted way, that they could consider this evidence to determine whether Jane’s conduct was ‘not inconsistent’ with having been molested.”[6]

Contrary to defendant’s argument, CALCRIM No 1193 is a proper statement of the law. Expert testimony about CSAAS is admissible to explain the witness’s behavior—such as delayed reporting of the alleged incident—when such behavior has been used to attack her credibility. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) “ ‘[S]uch evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse.’ ” (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069.) The instruction is entirely consistent with this purpose when it instructs the jury that it “may consider this evidence only in deciding whether or not Jane Doe 1’s conduct was not inconsistent with the conduct of someone who has been molested.”

Defendant’s suggestion that the instruction is “convoluted” and that the jury would be unable to understand and apply the instruction is unsupported speculation. “Jurors are routinely instructed to make . . . fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions.” (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

Finally, contrary to defendant’s argument, CALCRIM No. 1193 does not lower the prosecution’s burden of proof in violation of his federal constitutional rights. CALCRIM No 1193 does not permit the jury to use evidence about CSAAS to prove the molestation occurred. To the contrary, the instruction specifically informs the jury that CSAAS testimony is not evidence that the defendant committed a crime. The evidence is admissible only to help explain the state of mind of the victim.

4. Restitution

The California Constitution requires restitution to be imposed “in every case” in which the victim of the crime suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(A)-(C); People v. Giordano (2007) 42 Cal. 4th 644, 655.) Section 1202.4, subdivision (f)(3)(F) implements this mandate by requiring trial courts to order restitution where victims have suffered “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” Noneconomic damages compensate a victim for “subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” (Civ. Code, §1431.2, subd. (b)(2); People v. Smith (2011) 198 Cal.App.4th 415, 431.)

“ “A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ‘ “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.’ ” ’ ” (People v. Lehman (2016) 247 Cal.App.4th 795, 801.)

“In evaluating awards of restitution for noneconomic losses, courts have looked to civil law for guidance. [Citation.] The Civil Code provides noneconomic damages are for ‘subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.’ [Citation.] ‘ “No fixed standard exists for deciding the amount of these damages. [In a civil trial, a jury] must use [its] judgment to decide a reasonable amount based on the evidence and . . . common sense.” [Citation.] . . . “An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” [Citation.] [¶] The obvious difference between the review of a civil award of noneconomic damages and a criminal restitution order for noneconomic damages is that the trial court, not a jury, makes the determination in the first instance. Even with that difference in mind, [there is] no reason to adopt any other standard of review.’ ” (People v. Lehman, supra, 247 Cal.App.4th at pp. 801-802.)

As requested by the prosecutor, the court awarded restitution for noneconomic damages in the amount of $1 million. The court explained the award as follows: “I am going to talk about restitution. And in talking about restitution, it seems to me that both counsel and the court agree that there is a huge area of arbitrariness that is necessarily involved in the calculation of restitution. [¶] . . . [W]hen it comes to general damages that involve an evaluation of the pain, emotional pain, the trauma of the events themselves, and the future, there is very little that any studies have shown with respect to concrete dollar amounts serving to be full compensation. [¶] It seems to me, though, that the court can’t shirk from its duties just because it’s a difficult one, and because it is not well-documented. It seems to that part of the work is to refer to the various documents that the People have submitted relating to awards in this county for similar type cases. [¶] And using that as a backdrop, the court is then required to apply those to the facts that are involved here, which is that Jane Doe was approximately nine years old when she underwent what is a very serious trauma at the hands of the defendant. [¶] She testified in court, and the court was impressed with not only her credibility, but with the apparent and obvious deep scarring that she had sustained, even though the passage of seven years had passed. There’s clearly deep-seated trauma. And while the court observed that deep-seated trauma, there is no direct evidence in this case about what effect that would have on this particular Jane Doe. [¶] But the deep-seated scars that are left on victims for the rest of their lives is, in fact, well documented. And the fact that despite the passage of seven years, this trauma was apparent on her. It seems to me clear that her future is going to be filled with lots of symptoms and therapists to deal with this very young childhood trauma. [¶] That trauma, seems to me, that the court must also take into consideration is aggravated by the fact that there has been no humanity shown, no compassion shown by Mr. Gilles to his victims. Instead, Mr. Gilles emphatically denied these events occurred. [¶] And there’s no question in my mind, and certainly no doubt in the court’s mind about the impact that has on the victim in the sense that it withholds healing, it creates further trauma, in the sense that not only did the victim lose a parent when this incident was inflicted at the age nine, but now the victim is confronted with losing their entire family because of the denial of Mr. Gilles. [¶] This entire family is now polarized, and has taken Mr. Gilles’ side in things, leaving the victim isolated and facing the future without any of the members of that family. [¶] Had Mr. Gilles been contrite, and had Mr. Gilles sought her forgiveness, there would have been the possibility of support, possibility of healing, not just from his apology but from the healing effects that family can provide, and which this victim is now deprived of. [¶] It seems to me that the million dollar request that the People have requested is not outrageous.”

Defendant contends “there was insufficient evidence to uphold the court’s award for noneconomic loss.” He notes that Jane Doe did not testify to “the emotional pain that she suffered or the impact that these events had on her life” and contends the court improperly relied on “awards from other cases in reaching its decision and considered the fact that appellant proceeded to trial.” We disagree.

The trial court’s comments reflect careful and reasoned consideration of the amount and basis for the award. The court expressly referenced how the “deep-seated trauma” suffered by Jane Doe was apparent in her testimony. Although she did not testify explicitly to her continued pain and suffering, the court reasonably relied on its observations of her on the witness stand and its experience in other matters involving similar abuse to conclude that she was not likely to fully recover for years to come. It is not unreasonable to infer that she suffered considerable pain and suffering based on the nature of the abuse suffered. Accordingly, we find no abuse of discretion in the restitution award.

5.Court Operations Assessment

Section 1465.8, requires the court to impose a court operations assessment of $40 for every conviction for a criminal offense. Here, the court imposed an $1,800 assessment. Defendant contends, and the Attorney General agrees, that the amount should have been set at $600. Accordingly, the judgment is modified to that extent and the abstract of judgment must be amended to reflect the correct amount.

Disposition

The judgment is affirmed, except with respect to the amount of court operations assessment. The trial court is directed to correct the abstract of judgment to reflect a $600 court operations assessment and to forward a certified copy to the Department of Corrections and Rehabilitation.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Jenkins, J.

A149141