People v. Rivera
| Decision Date | 26 April 2021 |
| Docket Number | G057350 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL RIVERA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
* * * Defendant Anthony Michael Rivera sexually abused his step-granddaughter, Jane Doe No. 1, for years. When she was 10 years old, she realized he was also molesting her five-year-old sister, Jane Doe No. 2, and reported the abuse. A jury subsequently convicted defendant of: one count of sexual intercourse with Jane Doe No. 1 (Pen. Code, § 288.7, subd. (a); count 1);1 three counts of oral copulation with Jane Doe No. 1 (§ 288.7, subd. (b); counts 2, 3 & 4) and one count with Jane Doe No. 2 (count 8); two counts of sexual penetration with Jane Doe No. 1 (§ 288.7, subd. (b); counts 5 & 6) and one count with Jane Doe No. 2 (count 9). Defendant was also convicted of committing a lewd act on Jane Doe No. 1 (§ 288.7, subd. (a); count 7) and Jane Doe No. 2 (count 10), and the jury found defendant committed each lewd act offense on more than one victim (§ 667.61, subds. (b), (e)).
The court sentenced defendant to state prison for a total term of 80 years to life, comprised of two terms of 25 years to life (counts 1 & 10) and two consecutive terms of 15 years to life (counts 2 & 9). The court imposed concurrent indeterminate terms on the remaining counts: concurrent terms of 15 years to life on counts 3 through 6 and count 8 and a concurrent term of 25 years to life on count 7.
On appeal, defendant contends: (1) the evidence was insufficient to support his convictions in counts 8 through 10 and the multiple victim enhancements on counts 7 and 10; (2) the court erred by admitting expert testimony explaining child sexual abuse accommodation syndrome (CSAAS); (3) when instructing the jury on its consideration of the CSAAS evidence, the court erred by failing to omit the last sentence of CALCRIM No. 1193; (4) the prosecutor committed misconduct in her rebuttal argument; (5) his attorney rendered ineffective assistance; (6) his sentence constitutes cruel and unusual punishment; and (7) the court violated his due process rights by imposing certain finesand fees without first determining his ability to pay them. We reject these contentions and affirm.
D.F. had seven children, two of whom were girls. D.F.'s mother V. was married to defendant. Around 2011, V. began babysitting the children at the home she shared with defendant while D.F. was at work. V. would ensure the school-age children, including Jane Doe No. 1, got to school and would take care of them when they returned from school in the afternoon until their mother picked them up in the evening. Jane Doe No. 2 was too young for school so she would stay at her grandmother and defendant's house all day; she also spent most nights there.
Jane Doe No. 1 (Counts 1 through 7)
Jane Doe No. 1 was about seven years old when her grandmother began watching her and her siblings. Every day after school, she would go to her grandmother's house. Defendant would be home also.
A couple of times a week, her grandmother would leave the house to run errands or pick up one of the children from school, entrusting defendant to watch Jane Doe No. 1 and the other children at the house. Defendant would take Jane Doe No. 1 into his bedroom and molest her when her grandmother was out of the house. With the bedroom door closed and locked, he would rub her vaginal area with his finger and tell her to lick his penis like it was a lollipop. On a couple of occasions, he orally copulated her and touched her breasts. Sometimes when he had her lay down on the bed, he would pull down her pants, lay on top of her, and place his penis inside her labia majora. Eventually he developed a pattern where he would digitally penetrate her while he hadher orally copulate him, before getting on top of her on the bed. This abuse occurred frequently over a period of years.
While the abuse occurred mostly in the bedroom, defendant also touched Jane Doe No. 1's vaginal area once while they were in the garage and another time by a shed in the backyard.
Jane Doe No. 1 did not tell anyone defendant was molesting her because she was scared. She finally reported the abuse when she was 10 years old, after she saw something suspicious between defendant and her younger sister and asked Jane Doe No. 2 if defendant was touching her inappropriately. When Jane Doe No. 2 confirmed defendant was molesting her, Jane Doe No. 1 informed members of their family, who told her mother.
Her mother called the police. In a statement to the police and during her Child Abuse Services Team (CAST) interview, Jane Doe No. 1 described the abuse defendant had perpetrated upon her for years.
Jane Doe No. 2 (Counts 8 through 10)
Jane Doe No. 2 was about 19 months old when she went to live with her grandmother and defendant. Defendant would molest her when her grandmother left the house. He would take her into his bedroom, put her on the bed, pull down her pants, and digitally penetrate her. Sometimes he would tell her not to tell anyone. When her grandmother returned home, he would hurry her out of the room. He also molested her in the shed in the yard a few times.
Jane Doe No. 2 did not tell anyone about the abuse until her sister asked if defendant had touched one of her private places. After she said yes, her sister confided defendant had been molesting her also.
Jane Doe No. 2 did not remember some of the statements she made during her CAST interview, which was later played for the jury. She was five years old when the interview took place. During the interview, Jane Doe No. 2 stated defendant molested her on numerous occasions by pulling her into his bedroom and locking the door. She described his actions of digitally penetrating her, having her orally copulate him, and putting his penis on her "private" part. She also described him rubbing her breasts and touching her buttocks.
When the interviewer showed her a picture of defendant, Jane Doe No. 2 said she wanted her "grampe back." She also told the interviewer that she felt "good" about going to her grandmother and defendant's house.
About a year prior to the trial, Jane Doe No. 2 told the police she was abused by another man, D.V., when she was very young. Jane Doe No. 2 had lived with defendant's sister and brother-in-law, D.V., for about 18 months beginning when she was around one-and-a-half-months old. She reported that during this time, D.V. had put her on a bed and touched her private area with his finger. She said that when she tried to resist, he pushed her back down. She told the interviewer that she talked to another girl who was at the house and she was being hurt too.
At trial, Jane Doe No. 2 did not remember making this accusation against D.V. or the details of it and testified she did not believe the abuse happened. However, after the defense played a video recording of her being interviewed by the police, she testified she believed D.V. abused her, but she could not remember the interview. After watching the video, she testified she told her mother that D.V. was touching her inappropriately and that her mother stopped taking her there. D.F. denied that Jane Doe No. 2 told her about the abuse back then.
Dr. Ward, a clinical and forensic psychologist, explained CSAAS describes a pattern of behaviors exhibited by children who have been sexually abused. It is not a diagnostic tool and cannot be used to diagnose whether or not sexual abuse has occurred. It was developed to be used in a clinical setting to help clinicians understand a child's behavioral responses when sexual abuse occurs within an ongoing relationship.
Dr. Ward described the five stages of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, unconvincing disclosure; and (5) retraction or recantation. All five components are not present in all cases involving sexually abused children. Secrecy and helplessness are always present but the others may not be. Secrecy refers to the fact the sexual abuse occurs in secret and that children tend to keep the abuse secret for a long time. Helplessness refers to the inherent power differential between the abused child and the abusive adult. Entrapment and accommodation concern a child's inability to get out of the abusive situation, resulting in the child becoming entrapped and having to accommodate the abuse. A child may acquiesce or go along with the sexual abuse because the child believes he or she has to put up with this negative aspect of the relationship with the abuser to receive the positive benefits of the relationship. It can be very confusing for a child when a person providing the child positive emotional support is also sexually abusing him or her.
Delayed and unconvincing disclosure is the most widely researched aspect of CSAAS. The research indicates most people do not report sexual abuse until adulthood. The initial disclosure may be tentative or only reveal a little information to see how it is received. Whether the child reveals more depends on the listener's reaction. Retraction and recantation may occur after a disclosure has turned the...
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