People v. Phea

• Decision Date: 28 November 2018
• Docket Number: C080488
• Citation: 29 Cal.App.5th 583,240 Cal.Rptr.3d 526
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Malanje PHEA, Defendant and Appellant.

29 Cal.App.5th 583

240 Cal.Rptr.3d 526

The PEOPLE, Plaintiff and Respondent,

v.Malanje PHEA, Defendant and Appellant.

C080488

Court of Appeal, Third District, California.

Filed November 28, 2018

Certified for Partial Publication.^*

Allen G. Weinberg, Beverly Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, Acting P. J.Defendant was found guilty of all counts in a 33-count information. Thirty-one of the counts charged defendant with sex offenses against one of his daughters and two other victims, each of whom was 16 years old or younger at the time of the offenses. In the other two counts defendant was convicted of furnishing a controlled substance to the daughter. At trial, two additional victims testified to uncharged acts of child molestation and sexual misconduct pursuant to Evidence Code section 1108.¹ The trial court sentenced defendant to 46 years four months in prison.

On appeal, defendant asserts that: (1) the trial court abused its discretion in admitting the evidence of prior sex offenses pursuant to section 1108, and any forfeiture of that contention constituted ineffective assistance of counsel; (2) instructing the jury with CALCRIM No. 1191 allowed the jury to infer his guilt based on mere propensity proved by only a preponderance of the evidence, confusing and misleading the jurors on the burden of proof and conflicting with the circumstantial evidence instruction, and any forfeiture of these contentions constituted ineffective assistance of counsel; (3) the trial court abused its discretion in admitting expert witness evidence of child sexual abuse accommodation syndrome (CSAAS), and any forfeiture of that contention constituted ineffective assistance of counsel; (4) the trial court erred in instructing the jury with CALCRIM No. 1193 because that instruction permitted the jury to use the CSAAS evidence to evaluate the believability of the victims' testimony, reducing the prosecution’s burden of proof; (5) he sustained prejudice as a result of cumulative trial error; and (6) the trial court failed to exercise its discretion, and abused that discretion, in imposing consecutive sentences on counts one and two.

In the published portion of this decision (Discussion parts I.A. & I.E.3.) we reject defendant’s due process contentions and in doing so, we conclude that reliance upon McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 ( McKinney ) is misplaced because that case has no application in the context of section 1108 evidence. We also reject defendant’s contention that CALCRIM No. 1191 concerning uncharged acts of sexual misconduct² and the circumstantial evidence instructions conflict and reduce the burden of proof. (Part II. of the Discussion.) Our high court’s reasoning in cases involving a later version of the uncharged sexual misconduct instruction and instructions pertaining to section 1101, subdivision (b), compels rejection of defendant’s argument. Furthermore, the wording of CALCRIM No. 1191 makes it clear that the reasonable doubt standard applies to the charged offenses.

We vacate the sentences imposed on counts one and two and remand the matter for resentencing on those counts, at which the trial court shall choose whether to impose consecutive or concurrent sentences and articulate the reasons for its choices. We also direct the trial court at resentencing to clearly impose a court operations assessment and a criminal conviction assessment on all 33 counts. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Case-in-chief

J. Doe³ (Counts One & Two)⁴

J. was 32 years old at the time of her trial testimony. R., formerly defendant’s wife, was J.’s cousin.

J. recalled a time when she was 14 years old when she visited defendant and R. in Sacramento and defendant took J. and P. to a park and gave them alcohol. Defendant also made advances at both J. and P. When it was time to leave the park, J. and P. did not want to go in the house with defendant so they slept in the car in the driveway.

There were also occasions when J. saw defendant in the Bay Area. On one occasion, J. was at her grandmother’s house in Richmond and defendant was there. J. woke up and went into the living room where she saw defendant. Defendant passed J. a letter in which he told her that he had a dream about her. Later that day, defendant repeatedly called for J. at her grandmother’s house, but J. told her grandmother to tell him that she was not there. J. was scared, and she called P. and asked her to come over, which P. did. Later, defendant came to the house and he and P. went to the store together.

On another occasion, J. was in the ninth grade and she was called into the office at school. There, she found that there were flowers and balloons for her from defendant. J. threw them away. When J. got home later that day, her mother asked her where the flowers and balloons were. When J. asked her mother how she knew about them, J.’s mother responded that defendant "said he wanted to do something nice for you because you were feeling down." (Italics omitted.)

On another occasion, still when J. was 14, she visited R. and defendant for the summer. One day, R. went to work and J. took a shower. After taking a shower, J., wearing only a towel, went into a bedroom and closed the door. Defendant entered the room, started touching J., and tried to take her towel off. J. told defendant to stop, but defendant reassured her that he was not going to hurt her. Defendant eventually got J.’s towel off, laid her on the bed, touched her breasts, opened her legs, caressed her vagina, and performed oral sex on her. Defendant also inserted two fingers in J.’s vagina. He also attempted to place his penis in J.’s vagina. J. said no. Defendant’s penis pushed against J.’s vagina "but it wouldn't go and then [J.] told [defendant] that [she] wasn't ready and then he stopped." Defendant then left the room.

J. acknowledged that she did not disclose the incident to adults or to law enforcement. She felt like it was a difficult situation, particularly because defendant and R., who was J.’s cousin, had been together so long. J. felt guilty. J. eventually decided to disclose what had happened in 2012, after she learned that Ja., defendant’s daughter, had reported incidents to law enforcement. After that, J. spoke to R., told her what had happened, and R. told J. that she should contact law enforcement.

L. Doe (Counts Three & Four)⁵

L. was 25 years old at the time of trial. She testified that defendant dated her sister, S. Defendant was still married, but he had told S. that he and his wife were separated.

L. visited S. in August 2005. While they were all in a car together, defendant said something to S. about a threesome. Defendant asked L. if she would ever have a threesome with him and S. Later in the day, at S.’s apartment, defendant offered L., who was 15 years old at the time, a Long Island Iced Tea. Defendant told L. multiple times that she was sexy. Looking through a catalog, defendant pointed out some lingerie and told L. that she would look sexy in it. L. was feeling uncomfortable, and she just kept brushing defendant off.

L. stayed that night in S.’s apartment. Defendant touched L. inappropriately on more than one occasion that night. On the first occasion, L. was sitting on the couch under a blanket playing with S.’s nine- or ten-month-old son.⁶ Defendant picked up the baby and, when he did so, he picked up the blanket as well. As defendant lifted the baby with one hand, he rubbed L.’s vagina over her pajama bottoms with the other hand.

Later, defendant and S. were playing around and locking each other out of the apartment. At one point, when he locked S. out, defendant approached L. on the couch, rubbed her vaginal area over her clothing for about a minute, and tried to kiss her. Defendant said to L., " ‘We're doing this. We're going to do this.’ " He then went to unlock the door for S.

Defendant left the apartment, but, after he left, he called L. more than three times and sent her text messages. L. did not answer the calls. In the text messages, defendant told L., " ‘We're fucking tonight,’ " and " ‘Don't be scared.’ "

By the time defendant returned to the apartment, in the middle of the night or in the early morning, L. was asleep on the couch. Defendant knocked, but lightly enough so that S. would not hear. L. did not do anything, thinking that defendant might just go away. Defendant knocked harder, and then called S., who let him in. S. and defendant went into S.’s room, but defendant returned to the living room an hour or two later, after S. went to sleep. L. was on the couch, pretending to be asleep. Defendant approached the couch and touched L. under the blanket. Defendant pulled L.’s pajama bottoms down, tugged on L.’s underwear, ripping them, and put two fingers in her vagina. Defendant moved his fingers in and out. L. just lay there, not knowing what to do. L. told defendant not to touch her, but she acknowledged at trial that she did not know if she said it loudly enough, "or if it was in a joking way. I wasn't really aggressive telling him to stop." She felt embarrassed. After a few minutes, S. came into the room, and defendant dove onto the floor and pretended that he had just been lying there. Defendant then got up and went to the patio with S., had a conversation, and then went into the bathroom. Defendant left the apartment and S. went back to sleep. L. just lay there, not knowing what to do.

The next morning, L. called her mother to pick her up and told her what had happened. L. and her mother went to her mother’s house, where her mother called the police. Deputy Sheriff Gustavus Youngberg came to the house and took a statement from L. L. told Youngberg that def...