People v. Lapenias

67 Cal.App.5th 162

282 Cal.Rptr.3d 79

The PEOPLE, Plaintiff and Respondent,

v.Johnny Alexander LAPENIAS, Defendant and Appellant.

G060133

Court of Appeal, Fourth District, Division 3, California.

Filed July 29, 2021

As Modified August 17, 2021

Sara H. Ruddy, Berkeley, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

Defendant Johnny Alexander Lapenias committed multiple sex offenses against his stepdaughter. However, Jane Doe did not disclose Lapenias' sexual abuse to the police until years later, when she was 14 years old.

At a jury trial, the trial court admitted expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), a theory that identifies typical behaviors of sexually abused children, including delayed disclosures. During the CSAAS expert's testimony, a juror asked: "Is it common for children to make up a story that abuse occurred, when, in fact it did not?" Over Lapenias' objection, the CSAAS expert testified: "No, that's rare." The jury later found Lapenias guilty of the charged sex offenses and the trial court imposed a life sentence.

On appeal, Lapenias challenges the admission of the CSAAS evidence, the related jury instruction, the CSAAS expert's testimony, and statutory fines and fees.

We find the trial court erred by allowing the CSAAS expert to testify that it is "rare" for children to make up stories about sexual abuse, but we do not find the error to be prejudicial, and we find no other errors. Thus, we affirm the judgment.

The Judicial Council encourages trial court judges to allow jurors to submit written questions to witnesses; this practice is not new or unfamiliar. (See Cal. Rules of Court, rule 2.1033 ["A trial judge should allow jurors to submit written questions directed to witnesses. An opportunity must be given to counsel to object to such questions out of the presence of the jury"].) Unfortunately, this court has recently seen a couple of instances, such as the one in this case, where a juror's question has led to the erroneous admission of objectionable testimony. If written questions are to be submitted by jurors—particularly when the questions are directed to expert CSAAS witnesses—we urge trial judges (and the parties) to carefully evaluate each question to determine if the answer may lead to unintended consequences.

IFACTS AND PROCEDURAL BACKGROUND

Doe was born in 1997 (she was 20 years old at the time of Lapenias' trial in 2017). Until she was five or six years old, Doe lived with her biological father and her grandmother. Doe had very little contact with her biological mother (mother) until 2004, when Doe was six or seven years old. Doe then began staying with mother and her husband Lapenias, primarily during summer vacations and major holidays. Lapenias had several jobs, eventually becoming an addiction recovery minister. Lapenias and mother at some point started taking into their home people with recovery issues.

Lapenias committed various sex acts against Doe over a period of several years, all when Doe was 13 years old or younger, at four different homes.

In the summer before Doe was in the fourth grade, Lapenias and mother lived in a little cabin behind his parents' house in Oakland. Doe was on a couch in the living room with Lapenias lying behind her. Lapenias put his hand down Doe's pants and touched her vaginal area over her underwear. Doe "tried to roll over. He would just flip me back and continue."

The second incident happened at a two-story house in San Jose "with square pillars." Doe was in a downstairs closet in her pajamas looking for shoes. Lapenias picked Doe up by putting his hands under her armpits and around her ribs. Lapenias fell back onto a bed directly behind him. Doe landed on top of Lapenias. Lapenias had his hands under Doe's clothing, but over her underwear. Doe said, "this incident was really quick because my younger sister was in the door frame, because I had screamed when he lifted me, and I told her to run back to the living room so she couldn't watch." Doe was then "able to get up and run out of the room to check on her."

A third series of incidents took place over a period of years at a two story "house on a hill" in San Jose. When Doe would sleep over, she "would sleep upstairs with my mother in her bed or downstairs on the couch with him." Lapenias "would turn on cartoons so I would feel comfortable. He would lay down next to me and wait a while until, I guess, he thought I was adjusted, and that is when he would start to molest me." Lapenias engaged in skin-to-skin contact by putting his fingers in Doe's vagina. Lapenias would ask Doe if she was "okay, if it feels okay." Doe would sometimes not respond, and sometimes she would say, " ‘Yes, I'm okay.’ " Doe said these incidents eventually became commonplace and routine.

The final incident happened at "a recovery home" where Lapenias and mother took in people. Lapenias touched Doe in her vaginal area with his hands while they were on a couch, but Lapenias did not make skin-to-skin contact. Doe said it was "over my underwear, under my clothing."

Doe's Disclosures

Doe had known Payton B. since they were both in the second grade, and they were still close friends at the time of the trial. At some point, Doe disclosed to Payton B. that her mother's husband (Lapenias) was molesting her. Doe testified she told Payton in the fourth or fifth grade. Payton testified that Doe told her between sixth and seventh grade. According to Payton, Doe initially told Payton she was touched around her vagina and her chest, but about a year later, Doe said she was "full-on raped." Payton said that on both occasions when Doe disclosed, she was distraught, in pain, crying, and hysterical. Payton urged Doe to call the police, but Doe "didn't think anything would come of it." Doe instructed Payton not to tell anyone because she was embarrassed. Doe once told her school counseling group that she was being molested, which Payton testified she witnessed.

Doe did not tell mother about Lapenias' molestations because she was "scared" for her: "My mom has nothing unless she has someone and that's how it's always been. She has nothing unless she has someone by her side, and I don't know how she would have even felt if I did tell her." Doe said she "wasn't only afraid to tell my mother because of what she would have dealt with, I was also afraid for the people that we started taking in." Doe explained, "I would have felt bad they would have all went back to the situations that they were in before. They came to live with us, and I didn't want that for them."

In September 2012, Doe was caught stealing makeup from a store. At that time, Doe disclosed Lapenias' molestations to her grandmother, who contacted the Clovis Police Department. In April 2013, San Jose Police Department Officer Martin Tracey and another officer interviewed Doe.

Trial Court Proceedings

The prosecution filed an information charging Lapenias with two counts of committing a lewd or lascivious act against a child under the age of 14 with force or violence, and five counts of committing an aggravated sexual assault on a child under the age of 14. The crimes were alleged to have occurred between January 1, 2004, and December 31, 2010. The information further alleged Lapenias had a prior strike conviction (assault with a firearm).

In October 2017, a jury trial took place. The prosecution called four witnesses:

Doe, Payton, Officer Tracey, and CSAAS expert witness Dr. Blake Carmichael. Tracey testified that in July 2013, he had contacted mother who was still living with Lapenias (after Doe had disclosed the molestations).

On cross-examination, Lapenias' counsel confronted Doe with her prior statements. Doe did not recall telling police the first molestation happened at the house on the hill, and the second at the house in Oakland. Doe did not recall telling police she had disclosed to Payton almost immediately after the first molestation. Doe testified when she earlier said Lapenias had touched her more than 100 times, she meant it "felt" like more than 100 times. Doe admitted she knew her older sister had accused her stepfather (not Lapenias) of molestation and he was incarcerated as a result. Doe admitted she told police she did not report Lapenias because it would break up her mother's relationship, and she feared the ministry residents would think she was lying because she did not want to live in the recovery home.

CSAAS Testimony

Dr. Carmichael is a child psychologist who testified as an expert witness. Carmichael said he was given no information and had no knowledge about the facts of the instant case. Carmichael testified CSAAS is a theory originally published in the early 1980's, which is designed to dispel common misconceptions about how kids experience and report sexual abuse. Carmichael said there are five components of the CSAAS theory: 1) secrecy; 2) helplessness; 3) entrapment or accommodation; 4) delayed and unconvincing disclosure; and 5) retraction.

Dr. Carmichael testified: "The idea of secrecy is that a perpetrator really relies on this happening in secret, where they will gain access to the child and then integrate sexual touch into that relationship." Carmichael said helplessness refers to the power imbalance between children and adults; "So if the child feels like they don't have someone they can tell or if they do know they can tell somebody but there would be negative consequence if they were to tell, that helplessness is even greater." Carmichael testified "entrapment and accommodation" refer to children feeling trapped in a sexual relationship, and they often accommodate the abuse, sometimes by disassociating from it. Carmichael said delayed or unconvincing disclosure is very common: "We look at disclosure as a...