People v. Johnsen

THE PEOPLE Plaintiff and Respondent, v. APOLLO JOHNSEN, Defendant and Appellant.

H048634

California Court of Appeals, Sixth District

February 21, 2023

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. C1641253)

Wilson, J.

Defendant Apollo Johnsen^[1] was convicted by a jury of 16 counts stemming from his prolonged sexual abuse of a child over a period of 10 years. Jane Doe, the victim in all counts, was defendant's sister-in-law, the half-sister of his wife. The trial court sentenced defendant to a total indeterminate prison term of 240 years to life and a determinate term of 44 years eight months.

On appeal, defendant argues the trial court prejudicially abused its discretion and violated his federal constitutional rights by making various evidentiary errors: (1) admitting a pretext phone call as evidence of an adoptive admission by defendant (2) admitting evidence of previous uncharged sex crimes; (3) admitting evidence of child sexual abuse accommodation syndrome; (4) limiting the scope of cross-examination of the People's clinical psychologist expert; and (5) admitting evidence of prior robbery and false imprisonment convictions. He also argues that his aggregate sentence of 284 years is cruel and unusual under the United States and California Constitutions, and that it must be vacated pursuant to recently enacted Senate Bill No. 567 (Senate Bill 567). (Stats. 2021, ch. 731, § 1.3, adding Pen. Code, § 1170, subd. (b)(1) &amp (2).)^[2]

We determine the trial court abused its discretion in one respect but that the error was harmless. We further determine that the sentence is not cruel and unusual, and that although Senate Bill 567 applies retroactively, reversal for resentencing is not warranted because any error in failing to apply amended section 1170, subdivision (b) was harmless. Accordingly, we affirm the judgment.

I. Factual and Procedural Background

A. The charges

On September 18, 2019, the Santa Clara County District Attorney's Office filed a third amended information charging defendant with 16 separate counts, including: eight counts of aggravated sexual assault on a child under 14 years of age and 10 or more years younger than defendant (§ 269; counts 1-8); five counts of lewd or lascivious acts on a child by force, violence, duress, menace or fear (§ 288, subd. (b)(1); counts 9-13); one count of assault with intent to commit a felony (§ 220, subd. (a)(2); count 14); one count of oral copulation by force, violence, duress, menace or fear on a minor victim 14 years of age or older (former § 288a, subd. (c)(2)(C)^[3]; count 15); and one count of sexual penetration by force, violence, duress, menace, or fear of bodily injury on a victim 14 years of age or older (§ 289, subd. (a)(1)(C); count 16).

B. The trial

The jury trial commenced in May 2019. Toward the end of trial in September 2019, defendant-who was on bail with a $1 million bond-failed to appear. The court subsequently issued a bench warrant for his arrest and the trial proceeded with defendant in absentia.

1. Prosecution evidence a. Jane Doe's testimony

Defendant married Carole G. in 2003. Jane Doe is Carole's younger half-sister and was four years old when defendant and Carole married.

Shortly after they married, defendant and Carole moved into a house in Santa Clara (Santa Clara house). Jane Doe lived with her brother and parents at their house in Fremont and they would often visit and sleep over at the Santa Clara house.

Jane Doe testified that when she was around age six, defendant began waking her up in the middle of the night when she stayed at his house, taking her to a different room and making her watch pornographic videos with him. Sometimes he would put his hand on Jane Doe's legs, touch her chest or buttocks, or rub her vagina through her pants. Often he would masturbate while doing so. Other times, defendant put his mouth on Jane Doe's vagina after taking her pants or skirt off. Defendant put his mouth on her vagina between five and 10 times before she was 15 or 16 years old. Jane Doe did not feel that she could say no to defendant because he was an authority figure and she felt obliged to obey him. She was afraid of defendant and had seen him aggressively discipline his children.

More than five times before Jane Doe turned 11, defendant put his hands down her pants and inserted his fingers into her vagina. When Jane Doe told him it felt wrong, defendant said "[i]t's supposed to feel good." Sometimes Jane Doe would cry and defendant would try to quiet her and tell her "it's okay." At least one time, defendant inserted his fingers in Jane Doe's anus while he masturbated and ejaculated. He asked Jane Doe to taste it, but she refused.

One time, Jane Doe was playing a game of hide and seek with defendant and his two children at the Santa Clara house. Defendant found Jane Doe hiding in a closet, at which point he put her on the bed, pulled down her pants and put his mouth on her vagina. He then tried to insert his erect penis into her vagina and penetrated the outer lips. Jane Doe told him to stop because it hurt, and he eventually stopped.

Another time, Jane Doe went into the kitchen in the Santa Clara house and defendant pulled his penis out and told Jane Doe to touch it. Jane Doe refused and defendant pushed her head down towards his penis. Jane Doe managed to resist and left the room.

Jane Doe testified that she did not recall any other incidents after that point until she was 15 or 16, when defendant assaulted her at her house after he had driven over to pick her up and bring her back to the Santa Clara house. On that occasion, he threw her down forcefully on the bed, pinned her down, kissed her and put his mouth on her chest and vagina. Jane Doe screamed for help, so defendant covered her mouth with his hand. He then tried to insert his erect penis into her vagina and penetrated the outer lips. Jane Doe struggled to get away, eventually breaking free and hiding in her mother's bathroom with the door locked. Defendant knocked on the door, apologizing and telling her to come out. After five to 10 minutes, Jane Doe emerged from the bathroom and defendant drove her to the Santa Clara house. Jane Doe stated that she went with defendant because he had said that if she did not, Carole would have asked what had happened or taken so long. Defendant told Jane Doe not to tell anyone about the incident because it would hurt the family; Jane Doe did not say anything about it because she was afraid it would tear her family apart.

One time when Jane Doe was between 10 and 12 years old, she told her mother that defendant had exposed himself to her, but her mother did not go to the police or do anything else with the information.

In May 2016, Jane Doe suffered an anxiety attack. Her mother heard her screaming and crying in her bedroom; when she went into the room, she saw Jane Doe on the floor crying, shaking, hyperventilating, hitting the floor and trying to hurt herself.

As her mother attempted to calm her, Jane Doe said, "take me away from him . . . take me away from him." Her mother asked, "Who?" and Jane Doe said defendant's name. Jane Doe testified at trial that at the time of the anxiety attack, she felt that defendant "was coming for" her.

After calling 911, Jane Doe's mother took her to the emergency room. While at the hospital, Jane Doe eventually disclosed to a social worker that she had been sexually abused by defendant. That day or the next, Jane Doe went to the police and informed them about the sexual abuse.

b. Pretext phone calls

Shortly after Jane Doe reported the sexual abuse, the police arranged for her to make two pretext phone calls to defendant.^[4] In the first call,^[5] Jane Doe said, "there's some stuff that still like bothers me. Well, I don't know like how to say it. It's like what happened to me when I was younger. It's been playing a big part of my life right now and I just need like some closure because it's still affecting me today and I don't know how to deal with it. [¶] . . . [¶] . . . I just like want to know like why? Hello?" Defendant responded, "I'm not sure what you're talking about." Jane Doe said, "I just want to know why you did what you did to me when I was younger . . . there's a bunch of kids in the world that you're around and you did this like to me and it just bothers me." Defendant replied, "Uh, [Jane Doe] I'm at home and um, we're here; everybody's here. So um ...."

At that point, defendant attempted to put Carole on the phone and the investigating officer ended the call. Jane Doe then called defendant back; defendant said he would call her back later but never did. Jane Doe and the investigating officer attempted a third pretext phone call on June 24, 2016, but defendant did not answer.

c. Prior uncharged sex offenses

At trial, the People put on evidence of prior uncharged sex crimes by defendant. Y.Y. Doe testified that defendant raped her in 2002 in a motel room in Beaumont, Texas, when she was 20 years old. Nicole Doe, a friend of defendant's wife, Carole, testified that defendant committed sexual battery against her while watching a movie with her at the Santa Clara house in 2002 or 2003.

d. The CSAAS evidence

Clinical psychologist Dr. Blake Carmichael testified as an expert on child sexual abuse accommodation syndrome (CSAAS). He testified that CSAAS is an educational tool used to address common myths and misconceptions about how children act as victims of sexual abuse. There are five general categories of CSAAS: secrecy, helplessness, accommodation, delayed or conflicting disclosure, and retraction or recanting. Dr Carmichael asserted that CSAAS is not a mechanism to determine whether a particular child has been sexually abused. In addition, he...