Unreported / Non-Citable
Background
A Kings County jury convicted Serafin Santiago-Santiago of two counts of aggravated sexual assault of a child under 14 by forcible rape, one count of forcible lewd act upon a child under 14, and four counts of lewd act upon a child under 14. The jury also found true allegations concerning the victim’s particular vulnerability and Santiago-Santiago’s abuse of a position of trust. The trial court imposed an aggregate sentence of 30 years to life plus 24 years. The prosecution’s evidence included testimony from the victim, her mother, and her aunt, a recorded forensic interview, and expert testimony explaining Child Sexual Abuse Accommodation Syndrome.
On appeal, Santiago-Santiago claimed defense counsel was ineffective for failing to object to portions of the aunt’s testimony, opinion testimony from the mother and aunt about the victim’s truthfulness, and alleged prosecutorial vouching. He also challenged the trial court’s unanimity instructions, asserted cumulative error, and disputed the finding that count 3 occurred on a separate occasion for mandatory full-term consecutive sentencing under Penal Code section 667.6, subdivision (d). The parties separately agreed that the determinate and indeterminate portions of the sentence had been recorded improperly in a single abstract of judgment.
The Court’s Holding
The Court of Appeal rejected the ineffective-assistance claims. Although the aunt’s detailed account of the victim’s disclosure included inadmissible hearsay, counsel explained that he deliberately left it unchallenged because its shower allegation differed from the victim’s other accounts and could be used to attack her credibility. The court held that this was a rational tactical decision. It likewise found reasonable tactical grounds for not objecting to cumulative details or interrupting an emotional witness. The mother’s and aunt’s opinions about the victim’s truthfulness were objectionable, but their conduct had already conveyed their belief in her, making the opinions largely cumulative and any assumed deficiency nonprejudicial. The prosecutor’s rebuttal, read in context, responded to the defense’s fabrication theory with record-based argument rather than improper personal vouching.
The court agreed that CALCRIM No. 3501 should have been given because much of the victim’s account described repeated acts generically. It nevertheless found the omission harmless beyond a reasonable doubt: the modified CALCRIM No. 3500 required agreement on an act, CALCRIM No. 3515 required separate consideration of each count, and the defense’s categorical fabrication theory presented the jury with an all-or-nothing credibility question. Read with the instruction that every verdict be unanimous, the instructions also did not reasonably suggest that act-specific unanimity applied to only one count. The court rejected cumulative error because the individual claims did not establish prejudice.
Substantial evidence supported the separate-occasion finding for count 3. Testimony about repeated rapes and digital penetrations over years permitted the trial court to find that at least one forcible digital penetration occurred on a different day from the rapes charged in counts 1 and 2. The prosecutor’s closing discussion of force did not clearly elect one incident as the sole basis for count 3. Finally, the court directed preparation of amended abstracts using Judicial Council forms CR-290 for the determinate sentence and CR-292 for the indeterminate sentence, with the amended abstracts forwarded to the appropriate entities. In all other respects, it affirmed the judgment.
Key Takeaways
- A deliberate decision to preserve arguably inadmissible testimony for use in attacking a witness’s credibility can defeat an ineffective-assistance claim on direct appeal.
- The omission of CALCRIM No. 3501 was instructional error, but the other unanimity instructions and the all-or-nothing credibility defense made that error harmless beyond a reasonable doubt.
- A prosecutor’s first-person phrasing does not itself establish vouching when the argument, viewed in context, relies on trial evidence and reasonable inferences.
- Evidence of repeated sexual offenses over several years supported the finding that count 3 occurred on a separate occasion, and the prosecutor’s discussion of the force element was not a clear election of one incident.
- The only relief ordered was correction and forwarding of separate determinate and indeterminate abstracts of judgment; the convictions and sentence otherwise remained affirmed.
Why It Matters
The opinion applies established deference to counsel’s tactical choices while separately addressing whether challenged evidence was objectionable and whether any assumed deficiency caused prejudice. Its unanimity analysis distinguishes the need for CALCRIM No. 3501 from prejudice, emphasizing the instructions actually given and the way the defense framed the case.
The sentencing discussion also distinguishes a prosecutor’s explanation of an offense’s elements from a clear election of a particular act. The disposition is correspondingly narrow: it corrects the sentencing documentation without disturbing the separate-occasion finding, the aggregate sentence, or any conviction.