California Court of Appeal Jun 8, 2023 No. E078422Unpublished
Filed 6/8/23 P. v. Garcia CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078422
v. (Super. Ct. No. RIF2004247)
ADRIAN GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr.
Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora
S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury convicted defendant and appellant Adrian Garcia of four counts of
engaging in oral copulation or sexual penetration with a child 10 years of age or younger
(Pen. Code, § 288.7, subd. (b); counts 1-4). The trial court sentenced defendant to 15
years to life in state prison on each count, with counts 2 and 4 to run concurrent, for an
aggregate sentence of 30 years to life. On appeal, defendant contends his trial counsel
was ineffective for failing to object to the psychologist’s expert testimony that children
do not lie about child molestation, requiring reversal of his convictions. We reject this
contention and affirm the judgment.
II.
FACTUAL BACKGROUND
Jane Doe’s paternal grandmother was married to defendant. Jane, who was born
in June 2008, considered defendant to be her grandfather. Around Mother’s Day 2019,
when Jane was 11 years old, Jane told her maternal grandmother that defendant had
touched her inappropriately. Jane’s grandmother called Jane’s parents, and Jane told her
mother what defendant had done to her. Jane’s mother reported the information to child
protective services.
On April 29, 2020, when she was still 11 years old, Jane Doe attended a forensic
interview during which she explained the events that occurred with her step-grandfather
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1 defendant. From age seven to age 11, Jane visited her paternal grandmother and
defendant at their house in Riverside during summer vacations. While visiting her
paternal grandparents, defendant molested Jane numerous times from the time she was
age seven, eight or nine years of age until she was age 11. Jane recounted several
incidents in detail.
Specifically, one night when Jane was eight or nine years old, she was sleeping
between her grandmother and defendant and woke up to find defendant pulling her to the
edge of the bed by her calves around 5:00 a.m. or 6:00 a.m. Defendant was squatting
next to the edge of the bed as he pulled Jane, who was laying on her back, towards him.
Defendant then pulled off her Jane’s shorts and underwear and pushed her nightgown up
towards her stomach. Defendant rubbed her vagina with his two fingers, which made her
vagina feel “tingly.” Defendant then penetrated her vagina with two fingers and moved it
up and down inside of her. Jane explained that her vagina felt uncomfortable when
defendant penetrated her with his fingers. After he penetrated her with his fingers,
defendant licked Jane’s vagina with his tongue until he was done or had to go to work.
Jane noted that defendant moved his tongue all round her vagina, which made her feel
“wet” and like she had to go to the bathroom. When defendant was done, he put Jane’s
clothes back on and moved her back to the middle of the bed. He would then take a
shower, get dressed and leave. During the incident, Jane’s paternal grandmother
1 A video of the forensic interview was played for the jury at the time of trial. The transcript of the interview was admitted into evidence as People’s exhibit No. 1A. At the time of trial, Jane was 13 years old.
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remained asleep in the bed. Jane believed defendant’s conduct was wrong, but she did
not say anything because she thought she would get hurt.
Jane recalled another instance that occurred in defendant’s living room when she
was nine or 10 years old. Jane explained that she fell asleep on her blow-up bed on the
living room floor and woke up to defendant carrying her to the couch. Defendant laid her
down on the couch and positioned her head on the arm rest. He put one of her legs on the
top of the back rest and the other leg hanging off the couch. Defendant removed her
pants and underwear and rubbed her vagina with his fingers. He then penetrated Jane’s
vagina with his fingers and licked her vagina with his tongue. Another incident occurred
at Jane’s apartment in Las Vegas when she was nine years old and defendant stuck his
hand inside her shirt while her parents and sister were also at the apartment. Specifically,
Jane explained that defendant came up behind her, reached down her shirt, touched her
bellybutton area, and hovered his hand in her torso area. When Jane moved to turn
around, defendant quickly removed his arm.
Jane remembered another instance when defendant placed her hand on where he
“goes pee” and moved her hand up and down rubbing his penis over his clothes. She
recalled losing feeling in her hand and being so scared that she became numb. The last
year that Jane visited her paternal grandmother and defendant’s home in Riverside, she
told her paternal grandmother that defendant had inappropriately touched her, but her
paternal grandmother did nothing about it.
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Jane’s mother recalled receiving two calls from Jane around her ninth birthday.
During the calls, Jane was upset, crying, and said that she wanted to come back home.
Jane’s grades started slipping the following school year, and Jane became distant and
angry at home with her parents and sister. Jane’s mother received emails from her
teacher saying that she was not focusing and not doing well on assignments. Jane’s
parents believed that she was going through a “tween” stage.
A sexual assault child abuse detective testified about the investigative process, the
commonality of late reporting by victims, and the lack of forensic evidence recovered in
the majority of cases. The detective did not have Jane undergo a forensic examination
because too much time had elapsed since the molestation incidents. The detective
attempted to contact Jane’s paternal grandmother because she was a potential witness, but
she refused to interview with the detective.
Dr. Veronica Thomas, a clinical and forensic psychologist, testified regarding
various subjects involving child sexual assault victims. She explained that sexual assault
victims usually know their abusers, abusers groom their victims, victims delay disclosure
of child sexual abuse when they know their abuser, victims often do not hate or disdain
their abusers because they know them, victims’ coping mechanisms, their inconsistencies
in reporting the events, and other behavior commonly exhibited by victims of child
sexual abuse. Dr. Thomas acknowledged that she did not interview Jane and knew
nothing about defendant’s case.
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Jane’s paternal grandmother testified in defendant’s defense. She stated that it
was impossible for defendant to molest Jane on the night Jane slept in their bed. She
recalled the night that Jane requested to sleep with her and defendant in their queen-size
bed because Jane was afraid was the only time that Jane slept with them. The paternal
grandmother explained that she did not get any sleep that night as she was in the middle
of Jane and defendant and it was very crowded in their bed. The paternal grandmother
denied that she was asleep the night when Jane slept in their bed. The paternal
grandmother also stated that Jane never told her that something inappropriate had
happened between Jane and defendant and that if Jane had said something, she would
have spoken to defendant and Jane’s parents about it. The paternal grandmother admitted
that defendant’s attorney instructed her not to talk to anyone about the allegations.
III.
DISCUSSION
Defendant argues that his trial counsel was ineffective for failing to object to the
forensic psychologist’s expert testimony that “children do not lie about being molested”
and that he was prejudiced by counsel’s omission. The People respond that defendant
mischaracterizes the psychologist’s expert testimony as the psychologist never stated
children do not lie about being molested and never vouched for Jane’s credibility, and
thus no objection was necessary. In the alternative, the People assert that any error was
harmless.
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A. Additional Background
Here, Dr. Thomas, a clinical and forensic licensed psychologist, testified regarding
child sexual abuse and victim behavior, including delayed disclosure by victims,
grooming, inconsistencies in victims’ recollection of sexual abuse, and general behaviors
of abusers and their victims. Dr. Thomas explained that it is a misconception that
children are often sexually abused by strangers when the most of the children are sexually
abused “in the context of a relationship,” such as by people they know, people they trust,
and those that they have an ongoing relationship. Further, it is common for victims to
delay reporting the abuse and the disclosure may occur incrementally based on the age of
the child and many psychological factors. Dr. Thomas indicated that generally, teenagers
report the abuse “soon thereafter or within a year” and “little kids may or may not report,
depending on the circumstances of the relationships involved.” Dr. Thomas also testified
about various coping behaviors utilized by children, such as by wanting to mostly watch
movies and TV and play video games, not eating or having bathroom issues, the child
becoming angry and defiant, changes in behavior, and depression.
Dr. Thomas does not conduct forensic interviews of child victim’s as they are
specialized and did not do so in this case. Dr. Thomas testified that she did not have any
knowledge regarding the facts or allegations in defendant’s case. She did not know Jane,
had never met her, and never interviewed her. She also did not view the video of the
forensic interview or review any of the reports in this case. Dr. Thomas explained that
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she did not “know anything about this case” and that her expert testimony was about
child sexual assault victims in general.
On cross-examination of Dr. Thomas, defendant’s trial counsel attempted to have
the expert testify about child abuse allegations based on false memories of the child and
false memories created by others. The expert defined false memories as “the capacity to
believe somebody else’s encouragement about something that didn’t happen.” Prior to
Dr. Thomas defining a false memory, the following colloquy occurred between defense
counsel and Dr. Thomas:
“[DEFENSE COUNSEL] Q. . . . if a child is asked over and over again to retell
something that’s happened to them, something that may start as a false memory, I mean
they believe that, and they’ve been asked to say it over and over again. Does that child
really believe that that’s true? Does that question make sense?
“A. Yes. Although you’re asking about a false memory, something that never
happened, something that you and your mom are talking about a picture. Well, yes. And
in child sex abuse, there is no picture. It’s just a talk, a disclosure, or not a disclosure. So
they sort of don’t go together, if you understand.
“Q. They don’t. Because in a - - I mean I’m assuming in a child sexual abuse in a
false memory, it could be a disclosure that’s to something that isn’t true; is that correct?
A. Yes. That would make it a lie though. And that’s pretty unusual for this kind
of an allegation.”
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Dr. Thomas explained that false memories start when “there’s a suggestion from
somebody, usually an adult that something has happened to the child . And the child has
no recollection of it, but can be increasingly encouraged to believe certain things with
education and pressure and suggestions, even though it may not have been the right time,
the right year, the right day or anything.” The expert further testified that although
everyone lies, people do not lie about big things, such as “starting a fire or being
molested or hurting somebody else” because “that’s pretty audacious, and that’s going to
be difficult to uphold and sustain.”
On redirect-examination, Dr. Thomas explained the reason why it would be
difficult to “uphold and sustain” being molested because “the onus is upon the child to
explain details of their experience. And those details are usually where there is no sexual
abuse, are exotic and weird.” Further, children do not recall explicit descriptive details
about an incident of sexual abuse that occurred to them if it were a false memory.
Defense counsel did not object to any of the above expert testimony.
B. Governing Law
“‘In order to establish a claim of ineffective assistance of counsel, defendant bears
the burden of demonstrating . . . that counsel’s performance was deficient because it “fell
below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] . . . If a defendant meets the burden . . . , he or she also must show
that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been