People v. Herrera

1

THE PEOPLE, Plaintiff and Respondent, v. ERNEST GONZALES HERRERA, Defendant and Appellant.

H050625

California Court of Appeals, Sixth District

July 31, 2024

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. C1803765

WILSON, J.

A jury convicted defendant Ernest Gonzales Herrera of multiple sex offenses against multiple victims, each of whom was under the age of 14 at the time of the offenses. The trial court sentenced Herrera to a term of 15-years-to-life in prison.

On appeal, Herrera argues that: (1) the trial court abused its discretion by admitting evidence of a pretext phone call between himself and one of the victims, (2) the trial court abused its discretion by admitting photographs of each of the victims (all of whom were adults at the time of trial) which had been taken around the time of the offenses, (3) the trial court abused its discretion by admitting evidence of uncharged offenses, (4) the trial court erred by instructing the jury with CALCRIM No. 1191B concerning a propensity inference based on the charged sex offenses, (5) the trial court improperly admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS), (6) the trial court erred by instructing the jury with CALCRIM No. 1193 how it should evaluate CSAAS testimony, and (7) the cumulative effect of these errors warrants reversal.^[1]

For the reasons discussed below, we reject Herrera's arguments in their entirety and will affirm the judgment.

I. Factual and Procedural Background

A. Procedure

On November 8, 2021, the Santa Clara County District Attorney filed a second amended information charging Herrera with five counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1 (A. Doe),^[2] 2 (N. Doe), 3 (C. Doe), 4 (N. Doe), 6 (R. Doe), 8 (R. Doe));^[3] two counts of attempting to commit a lewd act on a child under the age of 14 (§§ 664, 288, subd. (a); counts 5 (C. Doe), 7 (R. Doe)); and one misdemeanor count of sexual battery (§ 243.4, subd. (e)(1); count 9 (R. Doe)). As to counts 1, 2, 3, 4, 6, and 8, the second amended information further alleged that Herrera had committed the offenses against more than one victim.

At the conclusion of the trial, the jury convicted Herrera on all counts and found true the multiple victim allegations associated with counts 1, 2, 3, 4, 6, and 8.

On November 10, 2022, the trial court sentenced Herrera to a total term of 15-years-to-life in prison, consisting of an indefinite term of 15-years-to-life on count 1, with concurrent indefinite terms of 15-years-to-life on counts 2, 3, 4, 6, and 8, plus two concurrent middle term sentences of three years on counts 5 and 7 and a concurrent term of one year on count 9. The trial court awarded 1,463 custody credits plus 219 days of conduct credits, calculated at 15 percent pursuant to section 2933.1, for a total of 1,682 days.

The trial court imposed $405.00 in victim restitution (§ 1202.4, subd. (f)); a $10,000 restitution fund fine (§ 1202.4, subd. (b)), a parole violation restitution fund fine of $10,000 (§ 1202.45) (suspended), a $1,230 sex offender fine (§ 290.3), a $280 court operations assessment (§ 1465.8, subd. (a)(1)), and a $270 court facilities assessment (Gov. Code, § 70373). All fines and fees except for the $405 in victim restitution were stayed pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157.

Herrera timely appealed.

B. Facts

1. Prosecution case

a. C. Doe's testimony (counts 3, 5)

C. Doe, who was 25 years old at the time of trial, testified that when she was around five or six years old, she went to visit her aunt, Y. Doe, and her uncle, Herrera, at their home.^[4] She was sitting on the living room couch with Herrera and Y. Doe watching television. Y. Doe went into the kitchen to prepare some snacks and C. Doe stretched her legs out across the couch. Herrera reached underneath C. Doe's clothes and put his fingers "around and a little bit inside"^[5] her vagina. C. Doe was confused and did not understand what was happening or why Herrera was touching her. Herrera continued to rub her vagina for about 15 minutes, stopping when Y. Doe returned from the kitchen with their food. C. Doe did not try to stop Herrera because she was afraid he might hurt her. She also did not tell her aunt or her mother, thinking that "someone might get hurt or in trouble ... ."

When C. Doe was about eight or nine years old, she was again at Herrera's house. Y. Doe asked her to go upstairs and tell Herrera that dinner was ready. C. Doe went upstairs and found Herrera in a room sitting in front of a computer, masturbating. Herrera turned toward her, showed her his erect penis,^[6] and told her to touch it. C. Doe told him, "No," then ran back downstairs. C. Doe did not tell her aunt because she thought it might cause friction between her aunt and Herrera or that Herrera might hurt her aunt.

In 2018, C. Doe learned that her younger sister, R. Doe, had been molested by Herrera as well, so she reported both of her encounters with Herrera to her mother and to the police. Before the incidents with Herrera, C. Doe "looked at him as an uncle[,]" but afterwards her relationship with him was "[w]eird[,]" because Herrera acted as if nothing had happened with her. She continued to visit his home but only to see her aunt, and she was "afraid" to see him as she did not want him to do anything to her again.

b. A. Doe's testimony (count 1)

A. Doe, who was 32 years old at the time of trial, testified that when she lived with her mother, A. Doe would visit Y. Doe and Herrera often, "maybe ... weekly _." One time, when A. Doe was around seven years, Herrera did something that made her feel uncomfortable. A. Doe recalled she was wearing a teal green t-shirt with a Disney character on it and "teal-colored/gold sweatpants." Although it was not a holiday, lots of family members were at Herrera's house when A. Doe arrived. Y. Doe told A. Doe that all of her cousins were in the" 'bonus room'" upstairs which had a "pool table [] and all the video game systems, [and] computer."

As A. Doe went upstairs, Herrera came out of his bedroom which was just at the top of the stairs. Herrera was in his underwear, which A. Doe said were black briefs. A. Doe went to give him a hug and Herrera squatted down, hugged her and kissed her on the mouth. A. Doe felt his tongue go into her mouth which felt weird so she ran into the room where her cousins were playing.

A. Doe did not tell anyone about the kiss despite how uncomfortable it made her feel. Her mother and her aunts "constantly" told her that family was important, that one had to be "loyal to family[,]" and "family wouldn't do wrong things to you." A. Doe did not think that anyone would believe her, especially her aunt, Y. Doe, because she was married to Herrera. Whenever A. Doe went to Herrera's house afterward, she only did so to see her aunt or other family. She would say hello to Herrera but not engage with him otherwise.

In 2016, A. Doe became temporary guardian to her younger sister, R. Doe, who was then about 14 years old. In 2018, when R. Doe was about 16 years old, A. Doe dropped her off to stay with Y. Doe and Herrera for about a week while school was not in session. Despite what Herrera had done, A. Doe was hopeful nothing would happen to R. Doe. However, R. Doe told A. Doe that Herrera did something to her. In the course of reporting what happened to R. Doe to the police, A. Doe told the police about the incident with Herrera kissing her.

On cross-examination, A. Doe testified that when she was three or four years old, she was sexually assaulted by her mother's boyfriend, and then placed in foster care. At the time of the incident with Herrera, she was living with her father and stepmother.

c. N. Doe's testimony (counts 2, 4)

N. Doe was 34 years old at the time of trial. A. Doe, C. Doe, and R. Doe were her cousins and one of her maternal aunts, Y. Doe, was married to Herrera.

When she was younger, N. Doe would spend a week or two every summer, as well as holidays, at Herrera's house. N. Doe described three incidents, which occurred when she was between nine and twelve years old and she was staying at Herrera's house, where Herrera made her feel uncomfortable.

In the first incident she could recall,^[7] N. Doe said she was sleeping on a pallet on the floor in her aunt and Herrera's bedroom. She remembered waking up in the middle of the night, with Herrera kneeling on the floor next to her. Herrera was holding her hand on his exposed penis. N. Doe could not recall if he moved her hand at all, but she lay there quietly for a couple of minutes. Herrera did not speak to her, and N. Doe has no recollection of how the incident ended. N. Doe fell back asleep and the next day, everyone "got up and went about the day." N. Doe did not tell her aunt or anyone else what Herrera had done, and at that age, she "probably had no idea what was going on[] [or] ... how to process it, so ... [she] probably just ignored it."

Within a year or so of the first incident,^[8] N. Doe was alone in a vehicle with Herrera, and they were stopped at a stoplight. Herrera grabbed her left hand and put it inside his shorts. N. Doe could feel his penis through his underwear. The incident was brief, no more than five minutes, because Herrera let her hand go when he started driving again. N. Doe felt "[g]ross" but could not otherwise remember what was going through her mind at the time. Again, she did not tell her aunt.

N. Doe said that the third incident did not involve any physical touching. She was sitting on a couch in Herrera's living room. Herrera was standing across from her in a bathrobe facing a sliding glass door that led to the backyard. N. Doe could see the lower...