People v. Larios

THE PEOPLE, Plaintiff and Respondent, v. MANUEL LARIOS, Defendant and Appellant.

G060208

California Court of Appeals, Fourth District, Third Division

April 22, 2022

NOT TO BE PUBLISHED

Order Filed Date 5/10/22

Appeal from a judgment of the Superior Court of Santa Clara County No. C1764443, Eric S. Geffon, Judge. Reversed.

Robert Brownlee for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E Winters, Chief Assistant Attorney General, Jeffrey M Laurence, Assistant Attorney General, Amit Kurlekar and David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

It is ordered that the opinion filed on April 22, 2022, be modified in the following particulars:

On page 23, the last paragraph of the opinion is deleted and replaced with the following:

"Splain was the only neutral witness who did not have a material interest in the case. Additionally, had the trial court excluded Splain's testimony, Krauss would not have been able to testify to the contents of Splain's e-mail or his interview with Splain. With the introduction of the e-mail's contents, the jury essentially heard the honest and trustworthy clergyman deliver Larios's ostensible confession twice. Had the trial court excluded the honest and upright priest's testimony, it was reasonably probable Larios would have received a better result. The judgment must be reversed and the matter remanded to the trial court."

The petition for rehearing is DENIED. This modification does not effect a change in judgment.

OPINION

O'LEARY, P. J.

Manuel Larios appeals from a judgment after a jury convicted him of sexual offenses. Larios argues the trial court erred in admitting evidence, and the prosecutor committed misconduct. As we explain below, the court erred by admitting a priest's testimony without determining its probative value and without weighing its probative value, if any, against its prejudicial effect.^[1] We reverse the judgment because the court's error resulted in a miscarriage of justice that denied Larios a fair trial.

FACTS^[2]

I. Introduction

Briefly, the evidence at trial showed the following. While 12-year-old Elsa Doe^[3] was living in a 480-square foot, two-bedroom San Jose house (House) with her sister Maria Larios (Maria), Maria's husband Larios, and others from about 1998 to 2000, Larios molested Elsa. At various points over 15 years, Elsa reported the abuse to a school homework aide, her future husband Jonathan N., her mother, and her sisters.

In 2015, Maria learned of Elsa's accusations and confronted Larios. Trying to save his marriage, Larios sought counseling with a priest, first alone and then with Maria. The priest ultimately concluded he was a mandated reporter and spoke with the police. Elsa's accusations divided her family, and some either blamed her for not remaining silent after so many years or did not believe her. Apparently not obtaining the remorse or support she desired, Elsa decided she would "stand up for [herself]" and contacted the police.

An information charged Larios with the following: two counts of aggravated sexual assault of a child under 14 years old (Pen. Code, § 269, all further statutory references are to the Penal Code, unless otherwise indicated) (count 1-rape (§ 261, subd. (a)(2) & count 2-sexual penetration by a foreign object (§ 289, subd. (a)); two counts of lewd or lascivious acts on a child by force or fear (§ 288, subd. (b)) (counts 3 & 4); lewd or lascivious act on a child under 14 (§ 288, subd. (a)) (count 5); and three counts of oral copulation by force or fear (former § 288a, subd. (c), renumbered as § 287, subd. (c), by Stats. 2018, ch. 423, § 49) (counts 6, 7 & 8).^[4]

II. Pretrial

Before trial, the prosecution filed motions in limine inter alia seeking to admit the following evidence: Dr. Blake Carmichael's expert testimony on child sexual abuse accommodation syndrome (CSAAS); and Jonathan's testimony concerning Elsa's statements Larios molested her pursuant to the fresh complaint doctrine.

Larios filed a motion in limine and three supplemental motions in limine. Larios sought to exclude evidence pursuant to Evidence Code sections 350 and 352, the federal and California constitutions, and "[w]here noted . . . under the hearsay rule." As relevant here, Larios requested the trial court exclude the following: Father Thomas Splain's testimony pursuant to Evidence Code section 352 because it was of minimal probative value and would confuse the jury and unduly prejudice him; Jonathan's testimony; and Carmichael's testimony. The trial court denied Larios's motions regarding Splain's and Jonathan's testimony, and denied in part and granted in part the motion concerning Carmichael's testimony. We will discuss the court's ruling regarding Splain's testimony more fully below. The prosecution's first witness was Splain, but we recite the facts chronologically.

II. Prosecution Evidence

In January 1998, Elsa moved from Mexico to California. After a brief stay with one sister, she moved to San Jose to live with another sister, 27-year-old Maria, her husband, 26-year-old Larios, and their two children, seven-year-old M.L. and four-year-old D.L.

They lived in a 480-square-foot home that had two bedrooms and one bathroom. Larios and Maria occupied one bedroom. Larios's brother, Martin Larios (Martin), his wife Martha Larios (Martha), and their infant child also lived there and occupied one bedroom. Elsa slept in the living room on a sofa bed with her nieces, but D.L. often slept with her parents.

Not long after Elsa arrived, Larios began to make her feel uncomfortable. He told her that he loved her, he hugged her, and he rubbed her upper arm. Larios made Elsa wear more modest clothes but not his daughters. Elsa's sister, Sandra U., confirmed this. Elsa understood Larios "was the man of the house[, ]" and she obeyed the rules and did not complain.

Sometime after Elsa turned 13 years old, Larios began entering the living room at night and rubbing her body. On the first occasion, Elsa was sleeping on her back when she felt Larios's hand touch her breasts over her clothes. Elsa did not move or say anything. On the second occasion, Larios did the same thing. Elsa did not report the touching because she did not think anyone would believe her. She started sleeping on the floor under the pullout portion of the sofa bed.

On the next occasion, Elsa was asleep under the sofa bed. Larios pulled her from under the bed, waking her up. He pulled her pajama bottoms and underpants down and used his fingers to penetrate her vagina. He touched his penis to the lips of her vagina but before he could penetrate her, there was a noise. He got up and went to the bathroom. Elsa felt worthless and did not think anyone would believe her.

About a year later, Elsa and her nieces moved into a room that had previously been inaccessible to them. It had a futon bunk bed. On four or five occasions, Elsa would go to her bedroom to go to sleep while Larios remained in the living room with his daughters watching television until they fell asleep. Larios would carry his daughters into their room and put them to bed-D.L. on the top and M.L. on the bottom with Elsa. Larios would pull down Elsa's pajama bottoms and underwear and perform oral sex on her. He used his tongue to penetrate her vagina. Larios would kneel on the bed and masturbate. During one of the occasions, Larios told Elsa "[her] vagina was like [her] sister's." During another occasion, he used his fingers to penetrate her vagina. During these incidents, Elsa did not move or say anything, she was "paralyzed."

At one point, Elsa suggested to Maria that her nieces should go to sleep at the same time she did; Elsa wanted to lock the door. Maria said to leave them with Larios. Elsa occasionally got her nieces to go to sleep at the same time, and she locked the bedroom door. Around this time, Maria and Larios told Elsa they wanted the best for her. Elsa said, "No. He wanted me for him."

Elsa enjoyed school because she was not around Larios. But because of what Larios did to her, she had low self-esteem and did not have many friends.

At the end of her sophomore year, the family moved to Madera for about one year. Larios was home on weekends. Before he left for work on Monday mornings, Larios would rub Elsa's breasts over her clothing while she was in bed.

The family moved back to San Jose and Elsa began her senior year of high school. Larios and Maria allowed her to have a boyfriend, but Elsa did not tell him what Larios did because he and Larios worked together and were friends. At school, Elsa told a homework aide named Rosa that "[Larios] had done things to [her] that were not right." The aide did not ask her any questions, offer to get her help, or call the police. This made Elsa feel like it was not worth discussing.

In 2003, Elsa graduated from high school, turned 18 years old that summer, and met her future husband, Jonathan later that year. In May 2004, she and Jonathan moved in together. Before they moved in together, Elsa told Jonathan that Larios molested her because she wanted to be honest with him about the issues she was dealing with. Jonathan confirmed this.

After Elsa moved out, she maintained a relationship with Maria because she considered her a mother and she loved her nieces. Elsa and Jonathan had four daughters. Elsa let Maria babysit her oldest daughter a few times during the day when Larios was at work. When Elsa was in the hospital to deliver her third child, she let her two daughters spend the night at Maria's house because Jonathan and his family were in Fresno visiting his dying grandmother. Elsa never left her children in Larios's sole...