Child molest victim diagnosed with Asperger’s syndrome was unavailable to testify at defendant’s second trial because the witness would suffer substantial trauma if he was required to testify again. Appellant was charged with multiple counts of lewd acts against two children, Spencer S. and Joshua K. (Pen. Code, § 288, subd. (a)). At his first trial, the jury convicted appellant of the charges involving Spencer, but deadlocked with respect to the charges involving Joshua. At his second trial, appellant was convicted of the counts pertaining to Joshua, and a lewd act against a third child, Zachary. The jury also found sentencing allegations true (Pen. Code, §§ 1203.066, subd. (a)(8), 667.61, subds. (b), (e)). Appellant was sentenced to a total term of 27 years to life. He raised numerous issues on appeal, including that the trial court erred during his second trial by admitting Joshua’s testimony from the first trial because Joshua was not “unavailable” within the meaning of Evidence Code section 240, subdivision (a)(3). Held: Affirmed. In certain circumstances, a witness’ prior testimony is admissible at trial if the witness is “unavailable,” which occurs if the witness is “[d]ead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.” (Evid. Code, § 240, subd. (a)(3).) Expert testimony may be used to establish unavailability. (Evid. Code, § 240, subd. (c).) The appellate court disagreed with appellant’s argument that Joshua’s diagnosis, Asperger’s syndrome, is not a mental illness. The court also concluded that there was sufficient evidence that Joshua was unavailable based on the testimony of two experts, a psychiatrist and a therapist, who treated him and opined that he would be severely traumatized, and suffer a substantial and long-lasting regression in his condition, if he was required to testify again.

Trial court did not err in admitting evidence of prior lewd acts against Spencer in the retrial of the counts involving Joshua. At appellant’s second trial, the court admitted evidence of the prior offenses against Spencer (Evid. Code, §§ 352, 1108). The offense against Spencer involved oral copulation, while the offenses against Joshua and Zachary involved inappropriate touching, which was less serious. On appeal, appellant argued that the evidence should have been excluded because (1) it lacked probative value, (2) it was inflammatory, and (3) it confused the issues and misled the jury. The appellate court disagreed. The incidents involving Joshua and Zachary occurred in public at a daycare program at an elementary school where appellant worked as a leader, and the offense against Spencer occurred in private when appellant was babysitting Spencer at the boy’s home. The incidents were similar in that they all involved sex acts against young boys entrusted to his care. While the Spencer evidence was more severe, it was not so inflammatory that it should have been excluded. The prosecutor also did not use the evidence to incite the jury during closing argument. The failure to disclose that appellant had been convicted of his offenses against Spencer did not increase the chance that the jury punished him for the uncharged offenses, as it was instructed with CALCRIM No. 1191 regarding the use of uncharged offenses. The appellate court also disagreed with appellant’s claim that the trial court failed to weigh the probative value of the evidence against any prejudice, as required by section 352.

Appellant waived his prosecutorial misconduct claim by failing to object to the prosecutor’s comments during closing argument. During closing argument, defense counsel argued that just because appellant molested Spencer, this did not mean that he was guilty of all the child molests that happened at the school. The prosecutor responded that it was improper for the jury to consider any other incidents of child molestation that may have occurred at the school, explaining that “[t]here could be 15 victims out there; there could be 2. There’s only 2 before you. Don’t worry about the other stuff. That’s improper.” Appellant claimed on appeal that the prosecutor’s comments during closing argument regarding the possibility of other victims constituted prosecutorial misconduct. The appellate court found that the claim was waived because trial counsel did not object and an objection would not have been futile. Even if the claim was not waived, there was no misconduct. The prosecutor was responding to defense counsel’s comments and, if anything, the comments were ameliorative.

Appellant’s sentence of 27 years to life for five Penal Code section 288, subdivision (a) offenses against three victims is not cruel and unusual punishment. Finally, appellant argued that the sentencing scheme for his crimes was unconstitutional as applied to him because the length of his sentence is grossly disproportionate to the nature of the offenses he committed, which did not involve force or violence, especially because he had no prior criminal record. The appellate court disagreed. Under both the federal and state constitutions, appellant’s sentence was not cruel and unusual. (Graham v. Florida (2010) 560 U.S. 48; In re Lynch (1972) 8 Cal.3d 410.) Although lewd conduct on a child is not as serious as murder, mayhem, and torture, it may have lifelong consequences for the child, as illustrated by the deterioration of Joshua’s mental and emotional state in this case. Further, appellant was not just convicted of one offense against one child; he was convicted of five offenses against three victims that occurred over a period of years. He repeatedly breached the trust of the children’s parents, who had trusted him to care for and supervise their children. Appellant failed to show that the punishment was disproportionate to his crimes in light of the punishment for more severe crimes, or the same crime in other jurisdictions.