Filed 4/29/19
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                             2d Crim. No. B289613
                                     (Super. Ct. No. 17F-11660)
     Plaintiff and Respondent,        (San Luis Obispo County)

v.

CODY ADAM JULIAN,

     Defendant and Appellant.


       Sports fans often use “statistical odds” to predict the
outcome of a sporting event. Statistical odds, however, are not a
substitute for admissible evidence to decide the guilt or innocence
of the defendant.
       Cody Adam Julian appeals a judgment following his
conviction after a jury trial of four counts of lewd acts upon a
child (Pen. Code, § 288, subd. (a)) and one count of sexual
penetration with a child under 10 years old (id., § 288.7, subd.
(b)). We conclude, among other things, that 1) the People’s expert
witness introduced inadmissible statistical evidence that went
beyond the permissible scope of child sexual abuse
accommodation syndrome (CSAAS) evidence and deprived Julian
of a fair trial; 2) Julian’s counsel provided ineffective assistance
by not objecting to this evidence; and 3) Julian’s defense was
prejudicially undermined by his counsel’s question that invited a
police detective to give the opinion that the People’s witness
against Julian was credible. We reverse and remand for a new
trial.
                                 FACTS
       Julian, 28 years old, moved into a home where four minor
sisters resided – child 1, child 2, child 3, and child 4.
                          Child 2’s Testimony
       Child 2, 10 years old, testified Julian played games with
her and her sisters, including tag and hide and seek. She played
a tickle game with Julian and her father. The prosecutor asked
her whether Julian “ever put his hands down [her] pants when
[she] played the tickle game.” She responded, “I don’t think so. I
don’t remember.” When he asked the question again, she said,
“No.”
       The prosecutor asked child 2 how many times Julian
touched her “private area” when she was seven years old. She
answered, “I think maybe, like, once or twice.” He asked, “Can
you tell me about the very first time you remember it
happening[?]” Child 2 responded, “I don’t really remember it.”
She remembered playing hide and seek near a truck. There were
“pokey leaves” on the ground. Julian asked her to sit on his lap.
She sat there because she did not want to sit on those leaves.
Julian put his hand “inside [her] underwear” and put his finger
in her “private area” – vagina. On a second occasion, they played
hide and seek near a truck. Julian asked her “to sit on his lap.”




                                 2
She “went on his lap and then he did the same thing that he did
[the first time].”
       The prosecutor asked child 2, “[W]hen you hid down by [a]
tree one time, did [Julian] do this to you?” She said, “Yes.” They
were playing hide and seek; she sat on his lap. Julian also
touched her private area on another occasion when they were on
a bed in a recreational vehicle (RV) playing hide and seek. He
put his finger in her vagina and her anus. She said it hurt. The
prosecutor asked, “How many times did something like this
happen in the RV?” She said, “I think, like – like, twice or
something.” She did not immediately report these incidents. She
eventually told child 4 about them.
       Julian’s counsel asked child 2 about a Child Abuse
Interdisciplinary Team (CAIT) interview where child 2 told the
interviewer that Julian first sexually assaulted her when she
“was still eight.” Counsel asked child 2, “[I]f you had said that,
would that have been true or would that have been a lie?” She
said, “I think it would have been a lie.” Counsel asked her about
another conflict between her sexual penetration testimony and
her CAIT interview. The CAIT interviewer asked her whether
Julian had “ever gone inside that part? [Her] private area?” She
responded, “Um no, not really.” Child 2 testified her answer to
the interviewer’s question was not “the truth.” During the CAIT
interview, she said Julian had her “sit in his lap every time.” She
testified, “That would have been mostly true and a little bit of a
lie.” She said, “[H]e didn’t have me sit on his lap when we were
in the RV.” Her statement to the CAIT interviewer that Julian
did not touch inside her “private area” while in the RV “was a
lie.” After talking with her mother, she remembered more details
than she mentioned in her initial CAIT interview.




                                 3
                   The Testimony of Child 2’s Sisters
       Child 1, eight years old, testified she and her sisters played
hide and seek with Julian. She and child 4 “would look,” and
Julian, child 2, and child 3 would hide. She did not remember
Julian doing anything that made her “feel uncomfortable.” He
did not do anything that made her sisters uncomfortable. Julian
did not touch her “in her private area” and she did not “ever see”
Julian touch child 2 in that area. She did not remember child 2
telling her that Julian did something to make her feel
uncomfortable.
       Child 3, seven years old, testified that when they played
hide and seek she, Julian, and child 2 would hide in an RV, and
child 1 and child 4 would try to find them. She was a “look out”
for child 1 and child 4 in the top bed of the RV. Julian and child
2 were hiding in a bed in the back of the RV. Child 3 saw Julian
“play a tickling game” with child 2 on her armpits and neck. She
did not see Julian touch child 2 in her private parts. She did not
remember child 2 ever telling her that Julian did something to
her or that she was afraid of Julian. She did not see Julian touch
child 1 or child 4 inappropriately.
       Child 4, 12 years old, testified Julian had a 20- or 30-
minute time limit for hide and seek. He and her two sisters
would hide in the RV, her father’s shop, his truck, and the forest.
One time while playing hide and seek, she saw Julian and child 2
in a bed in the RV. Child 2’s face was a little “paler than”
normal. Child 4 did not see Julian touch child 1, child 2, or child
3 in an inappropriate way. Sometime in 2016, child 2 said Julian
did something to her. Child 4 testified, “I thought she was
lying. . . . I didn’t think he could do something like that.” Child 2




                                  4
did not want child 4 to tell her mother. The next time child 2
mentioned this, child 4 “talked [child 2] into telling [her] mom.”
                      Urquiza’s Expert Testimony
         Anthony Joseph Urquiza, a clinical psychologist, testified
about the CSAAS theory. CSAAS dispels myths people have
about the reactions children have to sexual abuse, including the
myths that: 1) children are sexually abused by strangers, 2) they
can escape the abuse “environment,” 3) they would disclose abuse
“right away,” and 4) they “will be significantly distressed.” Most
sexually abused children are “sexually abused by somebody” they
know. They do not report abuse immediately. Fear motivates
them to keep the abuse secret. They learn “the ability to cope”
with the abuse. “They submit to the experience.”
      Statistical Data on False Allegations of Child Sexual Abuse
         After presenting CSAAS evidence, the People introduced a
new issue – the statistical percentage of false allegations by child
sexual abuse victims. Urquiza testified false allegations by
children “don’t happen very often.” “The range of false allegations
that are known to law enforcement or [Child Protective Services]
. . . is about as low as one percent of cases to a high of maybe 6, 7,
8 percent of cases that appear to be false allegations.” (Italics
added.) Julian’s trial counsel did not object to this testimony.
         Urquiza testified one study showed that of the 4 percent of
cases where there are false allegations, the “largest subgroup”
involved “some type [of] custodial dispute.” He also said that
research bears out that false allegations are “very infrequent, or
rare.” (Italics added.)
         On cross-examination, Julian’s counsel asked Urquiza to
name the studies that supported his claim that “false reports of
sexual abuse of children are rather rare.” Urquiza said a




                                  5
Canadian study supported the claim and it was “a good
methodological study.” Julian’s counsel asked about the data
used in the Canadian study to reach the conclusion that “false
allegations provided to law enforcement and other authorities
range from one to seven to eight percent.” (Italics added.)
Urquiza said there may be data limitations in that study, but
“the body of research supports” the claim that false allegations
are rare and “very” infrequent. He stated that there are 12
studies that show a “[false statement] rate that is as low as one
percent or as high as about six or seven or eight percent.” (Italics
added.)
       Julian’s counsel asked about a “Peters article.” Urquiza
said this involved emergency room reports by “medical personnel”
of rape or sexual assault victims. In “six percent of those cases,”
there “was some determination of a false allegation.” (Italics
added.) He said a Denver Department of Social Services study
found that in 551 cases, only “2.5 percent . . . have been false
allegations.” (Italics added.)
       When asked by Julian’s counsel about an article regarding
false abuse allegations when parents separate, Urquiza
reiterated that he did not rely on one study. He looked at a
“dozen studies” that supported a “one to six percent” false
allegation rate. He responded to further questioning by
repeating the claim that “the best research that we have is that
false allegations do occur but they happen infrequently or
rarely. . . .” “[A]ll [of the studies] fall relatively close to each
other” in concluding false allegations “happen very infrequently or
rarely.” (Italics added.) When Julian’s counsel asked about the
Denver study, Urquiza said, “[D]o kids make false allegations of




                                 6
sexual abuse? Certainly. Do they make it very often? No.”
Counsel responded, “Thank you for stating that once again.”
       Julian’s counsel asked Urquiza about a book suggesting
there are multiple methods to determine false allegations.
Urquiza said that “you can have error in just about everything,”
but there are “multiple studies” reaching the same conclusion on
false allegations. When asked about a “Trocme & Bala” report,
Urquiza said he initially thought it showed a 4 percent rate for
false allegations. But it actually showed a “five percent” rate.
(Italics added.)
       On redirect, the prosecutor asked about the Trocme & Bala
report. Urquiza said, “[T]here was not a single instance of a false
reported case in that article where the child was the one saying I
was abused.” (Italics added.) When Julian’s counsel also asked
about that report’s “zero percent” rate of false allegations,
Urquiza responded there were 798 cases; 43 “were determined to
have been false,” but in none of those 43 cases was a child the
source of the false information.
                 Detective Menghrajani’s Testimony
       Police Detective Devashish Menghrajani testified the
detectives decided not to conduct a Sexual Assault Response
Team (SART) examination of child 2. Child 2’s disclosure was
beyond a “72 to 96” hour “guideline” for such exams. Julian’s
counsel asked, “[D]o you believe [child 2] was honest with you?”
Menghrajani responded, “Yes, Sir.”
                          The Defense Case
       Linai Poland testified she was a nanny for the family. She
observed the “interaction” between the girls and Julian. She did
not “ever see [Julian] touch any of the girls inappropriately.”
None of the girls ever complained to her that he acted




                                 7
inappropriately. Child 2 would tell her about things “she wanted
to complain about.”
        Matt Aanerud, a District Attorney investigator, monitored
“[i]n excess of a hundred” phone calls Julian made in jail.
Julian’s counsel asked regarding those calls, “[D]id my client ever
tell anyone to destroy any evidence?” Aanerud said, “I do not
recall ever hearing that.”
        Julian testified that child 1, child 2, child 3, and child 4
“would come and get [him]” to see if he “had time before work to
. . . play games with them, be it tag, hide-and-seek, anything they
would come up with.” Between June 2015 and August 23, 2016,
he played games with them “probably . . . 200 times.” Child 2’s
claim that he penetrated “her private areas” is not true. Her
claim that he “penetrated her private areas in an RV” is not true.
He did not molest her. He cooperated with the police in their
investigation because he did not “have anything to hide.”
                             DISCUSSION
                      Urquiza’s Expert Testimony
        Julian contends Urquiza’s statistical probability testimony
went beyond the permissible scope of CSAAS evidence, was
highly prejudicial, and deprived him of his right to a fair trial.
We agree.
        Urquiza testified in the People’s case regarding CSAAS.
During that testimony, he said false allegations of sexual abuse
by children “don’t happen very often.” “The range of false
allegations that are known to law enforcement or [Child
Protective Services] . . . is about as low as one percent of cases to a
high of maybe 6, 7, 8 percent of cases that appear to be false
allegations.” (Italics added.)




                                  8
       Expert testimony on “the common reactions of child
molestation victims,” known as CSAAS theory evidence, “is
admissible to rehabilitate such witness’s credibility when the
defendant suggests that the child’s conduct after the incident –
e.g., a delay in reporting – is inconsistent with his or her
testimony claiming molestation.” (People v. McAlpin (1991) 53
Cal.3d 1289, 1300.) “ ‘Such expert testimony is needed to
disabuse jurors of commonly held misconceptions about child
sexual abuse, and to explain the emotional antecedents of abused
children’s seemingly self-impeaching behavior.’ ” (Id. at p. 1301.)
       But such evidence “is not admissible to prove that the
complaining witness has in fact been sexually abused.” (People v.
McAlpin, supra, 53 Cal.3d at p. 1300.) “The expert is not allowed
to give an opinion on whether a witness is telling the truth . . . .”
(People v. Long (2005) 126 Cal.App.4th 865, 871.)
       The expert providing CSAAS testimony may not give
“ ‘general’ testimony describing the components of the syndrome
in such a way as to allow the jury to apply the syndrome to the
facts of the case and conclude the child was sexually abused.”
(People v. Bowker (1988) 203 Cal.App.3d 385, 393.) Nor is it
proper for an expert to present “predictive conclusions” (ibid.),
such as alleged child abuse victims “should be believed” or
“abused children give inconsistent accounts and are credible
nonetheless.” (Id. at p. 394.) Such predictive conclusions go
beyond the scope of CSAAS evidence and may confuse the jury.
“[T]he jurors’ education and training may not have sensitized
them to the dangers of drawing predictive conclusions.” (Id. at
p. 393.) Where expert opinions on the statistical probability of
guilt are admitted, the jury may be “distracted” from its
“requisite function of weighing the evidence on the issue of guilt,”




                                  9
and may rely instead on this “irrelevant” evidence. (People v.
Collins (1968) 68 Cal.2d 319, 327.)
       Here the jury had to decide between the credibility of child
2’s testimony and Julian’s. But Urquiza’s 92 to 99 percent
probability evidence invited jurors to presume Julian was guilty
based on statistical probabilities, and not decide the evidence
properly introduced in the case. (People v. Collins, supra, 68
Cal.2d at p. 327.) Urquiza’s statistics were not admissible as
CSAAS evidence. (People v. Bowker, supra, 203 Cal.App.3d at pp.
393-394.)
       This statistical probability evidence deprived Julian of his
right to a fair trial. (Snowden v. Singletary (11th Cir. 1998) 135
F.3d 732, 739.) In Snowden, the defendant was convicted of five
counts of child abuse. The Eleventh Circuit vacated that
conviction. At trial an expert witness testified that “child
witnesses in sexual abuse cases tell the truth” 99.5 percent of the
time. (Id. at p. 738.) The court said, “That such evidence is
improper, in both state and federal trials, can hardly be
disputed.” (Ibid.) “The jury’s opinion on the truthfulness of the
children’s stories went to the heart of the case.” (Ibid.) “Witness
credibility is the sole province of the jury.” (Id. at p. 739.)
Allowing this expert testimony to “boost the credibility of the
main witness against [the defendant]” resulted in a
“fundamentally unfair” trial. (Ibid.)
       In Powell v. State (Del. 1987) 527 A.2d 276, an expert in a
child sexual abuse case testified that 99 percent “of the alleged
victims involved in sexual abuse treatment programs in which
she was . . . involved ‘have told the truth.’ ” (Id. at p. 278.) The
appellate court said, “The admission of Cantor’s percentage
testimony deprived Powell of his right to have his fate




                                10
determined by a jury making the credibility determinations, so
clearly crucial in these cases, without guidance from an expert, in
stark mathematical terms, bolstering the credibility of the
complainant and thereby impugning his credibility.” (Id. at pp.
279-280.)
       In State v. Myers (Iowa 1986) 382 N.W.2d 91, 92, an expert
testified that statistics show that “it is very rare for a child to lie”
about sexual abuse. In reversing the conviction, the appellate
court said, “We believe the effect of the opinion testimony was to
improperly suggest the complainant was telling the truth and,
consequently, the defendant was guilty. We conclude the opinion
testimony crossed that ‘fine but essential’ line between an
‘opinion which would be truly helpful to the jury and that which
merely conveys a conclusion concerning defendant’s legal guilt.’ ”
(Id. at pp. 97-98.)
       In Wilson v. State (Tex. Ct.App. 2002) 90 S.W.3d 391, 393,
the court held it was error to admit expert testimony about false
allegations being only 2 to 8 percent in a child sexual assault
case. It said this statistical evidence “did not aid, but supplanted,
the jury in its decision on whether the child complainant’s
testimony was credible.” (Ibid.)
       Courts from other jurisdictions have reached the same
conclusion. (State v. Lindsey (Ariz. 1986) 720 P.2d 73, 77
[expert’s “[q]uantification of the percentage of witnesses who tell
the truth” in incest cases “usurps the function of the jury”]; State
v. W.B. (N.J. 2011) 17 A.3d 187, 202 [“Statistical information
quantifying the number or percentage of abuse victims who lie
deprives the jury of its right and duty to decide the question of
credibility of the victim”]; State v. MacRae (N.H. 1996) 677 A.2d
698, 702 [expert testimony was inadmissible “because it




                                  11
improperly provided statistical evidence that the victim more
probably than not had been abused”]; U.S. v. Brooks (C.A.A.F.
2007) 64 M.J. 325, 329 [expert’s testimony that 5 percent of child
sex victims lie about abuse was inadmissible]; State v. Williams
(Mo. Ct.App. 1993) 858 S.W.2d 796, 801 [doctor’s testimony that
incidents of children lying about sexual abuse is “less than three
percent” was inadmissible as an “improper quantification of the
probability of the complaining witness’[s] credibility”]; Lawrence
v. State (Okla. Ct.App. 1990) 796 P.2d 1176, 1177 [social worker’s
testimony that 10-year-old children tell the truth was
inadmissible and its admission constituted reversible error];
State v. Vidrine (La. Ct.App. 2009) 9 So.3d 1095, 1111 [expert’s
“testimony regarding the statistical probability of false reporting
. . . of rape cases was irrelevant to the charges at hand and was
clearly offered for the sole purpose of bolstering the credibility of
[the minor]”].)
         Collins, Bowker, Snowden, and the other authorities cited
show that Urquiza’s statistical evidence on false allegations
should not have been introduced.
                    Ineffective Assistance of Counsel
         The People note that Julian’s trial counsel did not object to
this evidence. Julian responds that his counsel was ineffective in
“failing to object.” We agree.
         In deciding ineffective assistance, we determine whether
counsel’s failure to object fell below the standard required for
reasonably competent attorneys and whether counsel’s
performance was prejudicial to the defendant’s case. (Strickland
v. Washington (1984) 466 U.S. 668, 687-692 [80 L.Ed.2d 674, 693-
696].) Here there is no justification for counsel’s failure to object
to Urquiza’s statistical evidence on false allegations. It was




                                 12
inadmissible and it improperly suggested Julian was guilty based
on statistical probabilities that were irrelevant to this case.
       The evidence also was highly prejudicial because this case
was a credibility dispute between child 2’s testimony and
Julian’s. It was a heavily contested case with strong defense
evidence. Julian denied child 2’s claims. He said he cooperated
with police because he had nothing to hide. Menghrajani
confirmed that he had cooperated. Poland never saw Julian
touch any of the girls “inappropriately” and she said none of the
girls ever complained that he engaged in such conduct. Aanerud
said child molesters frequently possess child pornography. The
police did not find evidence that Julian possessed such material.
Aanerud monitored more than 100 of Julian’s jail phone calls. He
could not recall one where Julian ever requested anyone to
destroy evidence.
       Child 1 testified Julian did not touch her inappropriately
and she did not see him touch child 2 in that manner. She did
not recall child 2 ever saying Julian did something to make her
“feel uncomfortable.” Child 3 and child 4 did not see Julian
inappropriately touch child 2 or their other sisters.
       When child 2 first told child 4 about her claims, child 4
believed child 2 “was lying.” Child 4 felt Julian could not have
done what child 2 claimed. There was no SART report to
corroborate child 2’s claims and no eyewitnesses. Child 2 had
difficulty remembering certain facts, gave some tentative
responses, and some of her testimony was introduced with
leading questions. The conflicts between child 2’s trial testimony
and a CAIT interview raised credibility issues. During closing
argument, the People conceded that child 2’s CAIT interviews




                               13
“were very different from her testimony” and there were “some
serious inconsistencies.” (Italics added.)
       But Urquiza’s statistical evidence tipped the scales in favor
of the People based on statistical studies that were irrelevant to
the issue of Julian’s guilt or innocence. It distracted the jury
from its duty to decide the properly admitted evidence. (People v.
Collins, supra, 68 Cal.2d at p. 327.) Such evidence may not be
prejudicial where it occurs in a slight passing reference by the
expert. But here the jury was bombarded with it.
       Julian’s counsel cross-examined Urquiza. But Urquiza
used that opportunity to repeatedly reassert his claim that
statistics show children do not lie about being abused. His
counsel’s questions about multiple studies only opened the door
to a mountain of prejudicial statistical data that fortified the
prosecutor’s claim about a statistical certainty that defendants
are guilty. (In re Jones (1996) 13 Cal.4th 552, 571.)
       Moreover, in closing argument, the prosecutor asked the
jury to rely on Urquiza’s statistical evidence that “children rarely
falsify allegations of sexual abuse.” He reminded jurors that
Urquiza “quoted a Canadian study for over 700 cases, not a single
one where there was a false allegation.” (Italics added.) The
claim that there is a zero percent chance children will fabricate
abuse claims replaced the presumption of innocence with a
presumption of guilt.
       In his closing argument, Julian’s counsel discussed his
position regarding Urquiza’s testimony about the “12 studies,”
the Canadian study, the Trocme & Bala study, a social worker
study showing “four percent or five percent” as false allegations,
and the prosecutor’s claim that “false allegations are very rare.”
When he discussed the statistical percentage of false allegations




                                14
in a study called “false allegations of sexual abuse of children and
adolescents,” the prosecutor objected. The court stopped the
argument for a 15-minute recess. When the jury returned, the
court instructed jurors that there was “a disagreement” by
counsel about “a certain study.” The jury should decide the issue
based on the evidence introduced about the study, not what the
lawyers remember about it. Consequently, the jurors’ attention
was directed, once again, to the statistical study evidence right
before they began their deliberations.
       But the jury’s duty to decide the facts does not include
considering inadmissible statistical information (People v.
Collins, supra, 68 Cal.2d at p. 327) or using studies of statistical
odds to determine guilt. (Ibid; Snowden v. Singletary, supra, 135
F.3d at p. 739.)
     Soliciting the Detective’s Opinion on Child 2’s Credibility
       Julian claims he was prejudiced by his counsel’s
questioning of Menghrajani. Counsel asked Menghrajani if child
2 was “honest with you” in making her claims. The detective
answered, “Yes, Sir.” This solicited inadmissible opinion
evidence, which bolstered the People’s case and undermined
Julian’s defense. (In re Jones, supra, 13 Cal.4th at p. 571; People
v. Long, supra, 126 Cal.App.4th at p. 871; People v. Sergill (1982)
138 Cal.App.3d 34, 41.)
       In Sergill, the defendant was charged with a sexual offense
on a child. Police officers testified they believed the child was
truthful. The Court of Appeal held “the officers’ opinions on the
child’s truthfulness during their limited contacts with her did not
have a reasonable tendency to prove or disprove her credibility
and were therefore not relevant.” (People v. Sergill, supra, 138
Cal.App.3d at p. 40, italics omitted.) It reversed the judgment of




                                15
conviction. The court said the trial court’s ruling that the officers
were qualified to render the opinion and the officers’ opinions
that they believed the child “may well have caused the jury to
place undue emphasis on the officers’ testimony,” resulting in
“the usurpation of the jury’s function as fact finder.” (Id. at
p. 41.)
       Julian did not receive a fair trial. The myriad reasons this
happened include the detective’s improper opinion testimony,
Urquiza’s inadmissible statistical evidence, the prosecutor’s
invitation that the jury consider the Canadian statistical study in
deliberations, and defense counsel’s failure to object. As we
pointed out in People v. Cowan (2017) 8 Cal.App.5th 1152,
flagrant errors of this type do not serve the public interest or the
cause of justice.
                            DISPOSITION
       The judgment is reversed and the case is remanded to the
trial court for a new trial.
             CERTIFIED FOR PUBLICATION.




                                      GILBERT, P. J.

We concur:



             PERREN, J.



             TANGEMAN, J.



                                 16
                  Craig B. Van Rooyen, Judge

           Superior Court County of San Luis Obispo

                ______________________________


     Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
     Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.




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