People v. Flores

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY FLORES, Defendant and Appellant.

F078233

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

May 21, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. F15907539)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Robert Anthony Flores was convicted by jury of committing a lewd act upon a child (Pen. Code,¹ § 288, subd. (a); count 1) and sexual battery by restraint (§ 243.4, subd. (a); count 2) against his stepdaughter, D., and continuous sexual abuse (§ 288.5; count 3) against his stepdaughter, J. As to counts 1 and 3, the jury found appellant had engaged in substantial sexual conduct with a person under the age of 14 (§ 1203.066, subd. (a)(8)). In addition, as to counts 1 and 3, the jury found appellant had committed the offenses against multiple victims.

Appellant was sentenced to a prison term of 15 years to life on count 1 (§ 667.61, subd. (b)), a consecutive term of 15 years to life on count 3 (§ 667.61, subd. (b)), and the middle term of three years on count 2, to be served concurrently.

On appeal, appellant contends the judgment in its entirety must be reversed because expert testimony was admitted which exceeded the permissible scope of Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence and rendered his trial fundamentally unfair. Appellant also contends his conviction in count 3 must be reversed because section 288.5 violates his state constitutional right to a unanimous verdict and his federal constitutional right to due process.

In addition, appellant raises several sentencing errors. He contends his life sentences on counts 1 and 3 the court imposed pursuant to section 667.61 are unauthorized because they violate ex post facto laws. He also contends the trial court sentenced him to consecutive terms on counts 1 and 3 based on the mistaken belief doing so was mandatory. Finally, he contends fines and fees must be stricken because the trial court made a finding that he had the inability to pay them but imposed them anyway under the law prior to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We agree the matter must be remanded for resentencing because the life sentences violate ex post facto laws and so the sentencing court may reconsider the imposition of consecutive terms. On remand, appellant may raise his inability to pay argument. In all other respects, the judgment is affirmed.

FACTS

In 2006, appellant married Tina, who had children from a previous relationship, including J. and D. When appellant and Tina were married, J. was approximately five years old and D. was approximately 10 years old. Appellant, Tina, J., and D. all lived together in various homes.

J. was a junior in high school when she testified at trial. J. testified appellant first sexually abused her when she was about five years old. On this first occasion, appellant had called her into a detached room in the backyard across from the garage when no one else was home. Appellant, who was drinking and listening to music, stopped what he was doing, picked J. up, and laid her on the floor on her stomach. Appellant then pulled J.'s pants and underwear down to her ankles. When J. tried to get up, appellant held her shoulders down. Appellant started to rub J.'s butt with his hands on the outside of and in between her butt cheeks. Appellant put his penis in between J's butt cheeks but not inside her. Appellant was lying on top of J. and moving "up and down." A similar incident happened a week or two later in appellant and Tina's bedroom in the main house.

J. testified incidents like this happened "a lot," more than 20 times, when the family was living at that house. A year or two later, when J. was in first grade, the family moved to another house. They were at that house for about a year, and multiple similar incidents occurred, about 10 times by J.'s approximation. The family moved again when J. was in the fourth grade. At that home, additional incidents occurred. The incidents started out the same way as the very first, but appellant began penetrating her anus with his penis. About 20 more incidents of similar sexual abuse occurred at this house; sometimes appellant would just put his penis in between J.'s butt cheeks, and other times, he would penetrate her anus. On one occasion, while J. was in seventh grade, appellant penetrated her vagina with his penis.

The incidents always occurred when Tina was out doing something and J. was home alone with appellant. J. tried to avoid being alone with appellant by going to her grandmother's house, asking to go with Tina when she left the house, or hiding in her bedroom and the bathroom. At one point, the incidents stopped. Appellant then stopped drinking and began attending church regularly.

On cross-examination, J. testified she thought appellant was her biological father until she was 13 years old. She had since started spending time with her father's side of the family. Defense counsel introduced family photographs of J. with appellant. Tina and appellant had strict rules regarding J. seeing boys.

D. was 21 years old when she testified at trial. When D. was approximately 11 or 12 years old, appellant began making sexual comments to her that made her feel uncomfortable, such as telling her that he liked her butt. On one occasion, around that time, she walked past him and he grabbed her butt and squeezed it. Appellant often exposed himself to D. around the house by pulling down the front of his pants.

D. testified appellant would often pull D.'s pants down and put her face down on his and Tina's bed, pull her underwear down to her knees, hold her down with his body weight, and rub his penis on her butt. Appellant grunted a lot and moved up and down while doing this. D. was not sure if appellant penetrated her anus. D. had a hot and sticky substance on her afterward. This happened more than 20 times. D. testified appellant did this whenever he got the chance when Tina was not home. D. did not tell Tina or J. about what happened. At one point, D. did tell her brother's girlfriend, who told Tina. D. left home after she graduated high school because of the sexual abuse.

The final incident that caused D. to move out of the home occurred in appellant's office. Appellant had been drinking and he pulled his pants down and rubbed his penis on D. D. tried to get away but he was too heavy and he placed his penis on her butt.

On cross-examination, D. testified the household was strict and she and J. were never allowed to go anywhere; they just went to school and did their chores and homework at home. D. testified she had a boyfriend in high school that she did not tell Tina or appellant about. They found out about him because she was caught with him in a bathroom across the street from the school. To punish D. for this incident, Tina hit D. and grounded her for "a long time." The defense introduced father's day and birthday cards that D. made for appellant. D. wrote messages of appreciation and love to appellant in the cards. D. testified she once loved appellant because he was a good person and nice when he was sober, but she no longer loved him.

In December 2015, J.'s choir teacher observed J. presenting as "very shut down" and exhibiting troubling behavior. The teacher called J. into her office to speak with her because it appeared her anxiety was growing and the physical signs of her shutting down seemed to increase. The teacher asked J. if she was being physically, mentally, sexually, or emotionally abused at home. J. responded by saying, "Well, not now." The teacher asked J. if she meant she had been sexually abused, and J. then told the teacher she had been sexually abused from the age of five to the age of 12 but that she had never told anyone. The teacher asked if it was someone she lived with, and J. responded that it was her stepfather.

J. testified the teacher was the first person to whom she disclosed the abuse. She never told Tina because she assumed Tina would take appellant's side. She never planned on talking about it but felt comfortable with the teacher, and the teacher's questioning just brought it out of her. J. said she appeared upset the day the teacher called her into the office because D. had just moved out a couple of weeks prior and she really missed her.

After school that day, J. went to the home of her maternal grandparents, Curtis and Patricia. Later that afternoon, officers from the Fresno Police Department and a child protective services (CPS) worker came to the house to discuss the allegations.

J. told one of the officers who initially arrived that appellant had had sexual intercourse with her about once a week from the time she was five years old until she was 12 years old.

Detective Jennifer Federico responded to the residence and had Patricia call Tina and have her come to the house. When Tina arrived, Federico told her J. had accused appellant of sexually abusing her. Tina did not believe it and said that J. and appellant were never alone together and that J. was lying.

While Federico was speaking with Tina, D., J., and Curtis were in a room in the back of the house together. Curtis asked D. what she thought about the allegations, and D. responded that she believed J. because appellant had done the same thing to her. Curtis then went to get...