29 Cal.App.5th 583
Cal. Ct. App.2018Background
- Defendant Phea was convicted on 33 counts involving multiple victims: 31 sex-offense counts (chiefly against his daughter Ja. and two other minors), and 2 counts for furnishing controlled substances; sentenced to 46 years 4 months.
- Two additional witnesses (P. and Ra.) testified about uncharged prior sexual misconduct under Evidence Code § 1108; DNA linked defendant to one victim (L.).
- The prosecution introduced expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS); jury received CALCRIM Nos. 1191 (uncharged sexual-misconduct evidence) and 1193 (CSAAS) and was instructed that § 1108 acts must be proved by a preponderance.
- Defendant raised on appeal claims that admission of § 1108 and CSAAS evidence, CALCRIM instructions, cumulative errors, and imposition of consecutive sentences on counts 1 and 2 violated due process or were otherwise erroneous; he also asserted ineffective assistance for counsel’s failure to object.
- The Court of Appeal affirmed the convictions but vacated sentences on counts 1 and 2 and remanded for resentencing and to ensure mandatory assessments were imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of § 1108 prior-sex-evidence and due process | §1108 is constitutional; trial court properly admitted P. and Ra. and balanced under §352 | §1108 is facially and as-applied unconstitutional (violates due process); admission weakened burden of proof; counsel ineffective for not objecting | Rejected. Falsetta/Reliford/Loy control; federal analogues uphold rule; §352 balancing would not have excluded evidence; counsel not ineffective for failing to make a meritless objection. |
| CALCRIM No. 1191 (preponderance for uncharged acts) and conflict with circumstantial-evidence instruction | Instruction correctly limits use of §1108 evidence and preserves reasonable-doubt standard for charged offenses | Instruction allows jurors to infer guilt from prior acts proved only by preponderance, conflicting with CALCRIM No. 224, diluting beyond-a-reasonable-doubt standard | Rejected. Court follows Reliford/Villatoro/Loy: CALCRIM No. 1191 is correct; its language and other instructions (including explicit “People must still prove…beyond a reasonable doubt”) prevent confusion. |
| Admission of CSAAS expert testimony and CALCRIM No. 1193 | CSAAS admissible for limited purpose (rehabilitate credibility/explain delayed/discrepant reports); CALCRIM 1193 properly limits use | CSAAS is unreliable/pseudoscientific, unduly prejudicial, and CALCRIM 1193 permits impermissible corroboration reducing burden of proof | Rejected. McAlpin and subsequent precedent permit CSAAS to rebut misconceptions about victims’ conduct; trial court did not abuse discretion; CALCRIM 1193 properly cautions jury that CSAAS is not evidence defendant committed charged crimes. |
| Consecutive sentences on counts 1 & 2 (both involving same victim at same time/place) | Sentencing court exercised discretion under rule 4.425 and Penal Code §669; consecutive sentences appropriate given separate acts/other aggravation | Counts 1 and 2 arose from the same episode against same victim so consecutive terms inappropriate or at least court failed to articulate reasons | Partially sustained as to procedure. Court vacated sentences on counts 1 and 2 and remanded for resentencing because the record does not clearly show the court’s reasons for consecutivity as to those counts; resentencing required to state grounds and impose mandatory assessments. |
Key Cases Cited
- People v. Falsetta, 21 Cal.4th 903 (1999) (upholding constitutionality of Cal. Evid. Code § 1108 and explaining §352 safeguards)
- People v. Reliford, 29 Cal.4th 1007 (2003) (approving §1108 instruction approach and reconciling preponderance finding for uncharged acts with guilty-beyond-a-reasonable-doubt requirement)
- People v. Loy, 52 Cal.4th 46 (2011) (declining to revisit Falsetta; discussing interaction of propensity instruction and burden of proof)
- People v. McAlpin, 53 Cal.3d 1289 (1991) (permitting CSAAS testimony for limited purposes—rehabilitating victim credibility and dispelling myths)
- United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (upholding federal rule admitting prior sexual acts as not violating due process when Rule 403 safeguards apply)
- United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017) (holding Federal Rule 413 constitutional on its face, noting Rule 403 safeguards)