People v. Wilson
| Citation | 245 Cal.Rptr.3d 256,33 Cal.App.5th 559 |
| Decision Date | 27 March 2019 |
| Docket Number | A150500 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert Wayne WILSON, Jr., Defendant and Appellant. |
| Court | California Court of Appeals |
33 Cal.App.5th 559
245 Cal.Rptr.3d 256
The PEOPLE, Plaintiff and Respondent,
v.
Robert Wayne WILSON, Jr., Defendant and Appellant.
A150500
Court of Appeal, First District, Division 4, California.
Filed March 27, 2019
Certified for Partial Publication.*
Laura S. Kelly, Irvine, by Court-Appointment under the First District Appellate Project Independent Case System, for Appellants.
Xavier Becerra, Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; René A. Chacón, Supervising Deputy Attorney General; David M. Baskind, Deputy Attorney General, for Respondents.
TUCHER, J.
Defendant was convicted of 12 counts of lewd acts against a child, the daughter of his live-in girlfriend ( Pen. Code, § 288, subd. (b)(1) ),1 and one count of continuous sexual abuse of the same child (§ 288.5,
subd. (a)). He contends the trial court abused its discretion in admitting the testimony of his former wife, who testified he raped her, and of her son, who testified defendant sexually abused him when he was a young child; that the trial court abused its discretion in precluding medical testimony by defendant’s expert witness and admitting testimony by the prosecution’s expert about child sexual abuse accommodation syndrome (CSAAS) and false allegations of child abuse; and that it committed instructional error. In the published portion of this opinion, we conclude the trial court abused its discretion in admitting the testimony of a prosecution expert on child abuse, Dr. Anthony Urquiza, that
studies show only a very small percentage of allegations of child sexual abuse are false. We also agree with defendant that the trial court erred in failing to instruct the jury that the section 228.5 count was an alternative to the 12 counts of specific lewd acts. In the unpublished portion of this opinion, we reject all but one of defendant’s other contentions. However, we find the trial court’s errors harmless and affirm the judgment.
I. BACKGROUND
A. Procedural History
Defendant was charged with 12 counts for forcible lewd acts on a child under the age of 14 ( § 288, subd. (b)(1) ; counts 1 through 12) based on acts alleged to have taken place at various times between August 24, 2010 and August 23, 2012, and one count of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a); count 13) during the same time period and with respect to the same child, with allegations that he used force, violence, duress, menace, or fear and that he had substantial sexual conduct with the victim in connection with all 13 counts (§ 1203.066, subds. (a)(1) & (a)(8)).
Defendant’s first trial ended in a hung jury, and the trial court declared a mistrial. In the second trial, the jury found defendant guilty on all counts and found as to each count that he had substantial sexual contact with the victim, L.D.
At the sentencing hearing, the trial court sentenced defendant to the upper term of 10 years for counts 1 through 4 and the midterm of eight years for counts 5 through 12, with all sentences to run consecutively, for a total prison term of 104 years. The court dismissed count 13 as duplicative of the other counts.
B. Prior Sexual Offenses (Admitted Under Evid. Code, § 1108 )
1. Nicole C.
Defendant’s former wife, Nicole C., testified that she first became sexually involved with defendant when she was 14 years old and he was 19 years old.
She became pregnant with someone else’s child while she was 14, and began dating defendant again when she was about 15 and her son J.D. was a baby. When J.D. was almost two years old, the three of them moved to Kansas. They spent six months with defendant’s sister in Independence, then moved to the city of Cherryvale. Nicole was pregnant with defendant’s child when they moved to Kansas, and gave birth to a son, B.W., in January 2004. Defendant and Nicole married when Nicole was 16 years old, before B.W. was born.
Defendant would often take care of the children while Nicole worked in the evenings, feeding and bathing them and getting them ready for bed.
When B.W. was a few months old, defendant began to be aggressive. On one occasion he kicked Nicole off the bed and continued kicking her when she refused to have intercourse with him. Another time, when she was trying to leave him, he pinned her against the wall, threw his wedding ring at her eye, and punched the wall next to her face. On three occasions, he raped her. The first rape took place in the bathroom, over the sink. She did not recall the events that led up to it. The second rape took place in the living room, while the children were present. She did not want to have intercourse with him and he got angry; Nicole testified, "I didn’t want to fight it again because I was so scared of the last time." Nicole also testified that defendant raped her anally on one occasion, in their bedroom.
About six months after the assaults began, Nicole decided to end her relationship with defendant, and he moved out of the house. Afterward, he wrote her a letter in which he told her he was sorry for raping her and an email that said, "I know I raped you and ... I am sorry." Nicole never reported the rapes to law enforcement.
Nicole left Kansas and returned to California when J.D. was "three, turning four." She had noticed that J.D. was frightened at night and that he was worried defendant would come and kidnap him and B.W.
2. Assaults on J.D.
J.D. was 15 years old when he testified in 2016. He testified that B.W. was born when he was two and a half or three years old, and that he returned from Kansas to California when he was about five or six years old. While they were living in Kansas, defendant watched J.D. when Nicole was working.
J.D. testified that the bathroom in the family’s home in Kansas had a standing shower, and defendant bathed J.D. in the shower. Defendant would
get into the shower with J.D. J.D. testified that defendant raped him in the shower when he was four or five years old, by standing or squatting behind him and putting his penis in J.D.’s anus. It caused J.D. intense pain. This happened almost every time defendant showered with him. J.D. recalled a little bit of bleeding from his anal region and recalled having difficulty passing stools; he did not know if the problems were caused by the anal rapes or by his lactose intolerance. He sometimes had a hard time sitting as a result of the pain, and it was sometimes hard to sleep. Defendant told J.D. that if he told Nicole about it, J.D. would get into trouble, and defendant threatened to kill J.D., Nicole, and B.W.
After J.D. returned to California, he told a friend what had happened, but he asked her not to tell anyone. He did not tell Nicole until he was older. When J.D. was about nine years old, while he was temporarily living with grandparents in Washington State, he began seeing a therapist because he was getting increasingly angry and "didn’t want to come out and do anything." He did not tell the therapist about the sexual abuse immediately; after the therapist continued asking him about what had happened in his past and what was aggravating him, J.D. found it overwhelming to "keep it in," and a week or two after he began therapy he revealed what had happened.
There were some inconsistencies with J.D.’s memories. He testified the shower in the Kansas house had a plastic door that pulled out and that once, when defendant was raping him in the shower, he hit the shower door so hard that he bent it, so that it came out of the seal at the bottom. In an interview that took place in 2011, when he was ten years old, he said he broke the door and ran away. The evidence showed, however, that the shower in the house in Cherryvale had a plastic shower curtain, not a door. About three feet away, a flimsy "pocket door," which rolled into the wall, led to J.D.’s bedroom.
In the 2011 interview, when he was ten years old, J.D. said that after the incident in which he broke the shower door, he ran to his room and locked it; he and B.W. climbed down from their second-floor window on a ladder outside; and J.D. rode his tricycle, with B.W. on his lap, to "where [his] mom was." At trial, however, he testified he did not recall those events, and Nicole testified he never visited her at work. J.D. testified that he recalled riding his bike with B.W. after one of the incidents in the shower, but did not recall going to Nicole’s work.
Nicole never noticed any injuries on J.D.’s private parts, except one occasion when a bug bit him and caused swelling. She never noticed any blood on J.D.’s underwear. J.D. was no longer using diapers, and she...
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...13 Cal. Rptr. 2d 259, §12:80 Wilson, People v. (2020) 56 Cal. App. 5th 128, 270 Cal. Rptr. 3d 200, §22:10 Wilson, People v. (2019) 33 Cal. App. 5th 559, 245 Cal. Rptr. 3d 256, §17:120 Wilson, People v. (2008) 166 Cal. App. 4th 1034, 83 Cal. Rptr. 3d 326, §11:10 Wilson, People v. (1967) 256 ......