Filed 11/15/13 P. v. Thipthammavong CA4/2

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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055864

v.                                                                       (Super.Ct.No. SWF1100151)

RICKY LAMMONE                                                            OPINION
THIPTHAMMAVONG,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.

Affirmed in part; reversed in part with directions.

         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant

and Appellant.

                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Senior Assistant Attorney General, William M.




                                                             1
Wood, Gary W. Brozio and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff

and Respondent.

         Defendant Ricky Lammone Thipthammavong began inappropriately touching

Jane Doe 1, his biological daughter, when she was five years old. Defendant had sexual

intercourse with Doe 1 numerous times. Defendant stopped molesting Doe 1 when she

was 11 years old. Defendant also had sexual intercourse with Jane Doe 2, who is also his

biological daughter, starting when she was five years old, and ending when she was

almost eight years old.

         Defendant was convicted of seven counts of aggravated sexual assault on a child

(rape and sexual penetration by force) and one count of committing a lewd act upon a

child.

         Defendant claims on appeal as follows:

         1.    The jury should have been instructed that a reasonable, good faith belief in

consent is a defense to the aggravated sexual assault counts, and the failure to allow such

a defense violated his federal constitutional rights to due process and a fair trial.

         2.    Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence should

be inadmissible for all purposes, and its admission in this case was prejudicial.

         3.    CALCRIM No. 1193 erroneously advised the jury that it may consider the

CSAAS expert testimony in determining the complaining witnesses’ credibility.

         4.    CALCRIM No. 330 improperly bolstered Doe 2’s credibility in violation of

his state and federal constitutional rights to a jury trial, confrontation, due process of law,

and the right to present a defense.


                                               2
       5.     His sentence of 15 years to life for his lewd conduct conviction is erroneous

because he was not convicted of offenses listed in Penal Code section 667.61, subdivision

(c),1 the one strike law against more than one victim.

       6.     The $240 restitution fine violates ex post facto principles, and the fine must

be reduced to $200 according to the law applicable when the offenses were committed.

                                             I

                            PROCEDURAL BACKGROUND

       A jury found defendant guilty of five counts of aggravated sexual assault (rape) of

Doe 1 pursuant to section 269, subdivision (a)(1) (counts 1, 4-7). The jury also found

true the special allegations for counts 5 through 7 that he committed the offenses against

more than one victim within the meaning of section 667.61, subdivision (e)(5). The jury

additionally found defendant guilty of committing a lewd and lascivious act against Doe

2 (§ 288, subd. (a)) (count 8). They also found him guilty of two counts of aggravated

sexual assault (rape and sexual penetration) of Doe 2 (§ 269, subds. (a)(1), (5)) (counts 9,

11). For the counts against Doe 2, the jury found true the special allegations for counts 8

and 9 that he committed the crimes against more than one victim (§ 667.61, subd.

(e)(5)).2




       1      All future statutory references are to the Penal Code unless otherwise
indicated.
       2      The jury was hung on two additional charges of rape of Doe 1, and those
charges were dismissed in the interests of justice. They also found defendant not guilty
of a charge of forcible sodomy on Doe 2.


                                             3
       Defendant was sentenced to consecutive 15-years-to-life sentences on all counts

(including the lewd conduct conviction in count 8) for a total state prison sentence of 120

years to life. He was ordered to pay a $240 restitution fine pursuant to section 1202.4.

                                              II

                                FACTUAL BACKGROUND

       A.     People’s Case-in-Chief

              1.        Sexual acts against Doe 1

       Doe 1 was 13 years old at the time of trial. Her mother was M. K. and Doe 2 was

her nine-year-old sister. Defendant was her biological father. When Doe 1 was in the

third grade, defendant and M.K. ended their romantic relationship. Does 1 and 2 stayed

with M.K. during the week and had visitation with defendant on the weekends.

       When Doe 1 was in the third or fourth grade, she visited defendant in an apartment

where Doe 1’s aunt lived. Doe 1 and defendant were lying on the floor in the living

room. Doe 1 believed that Doe 2 was in the shower. No other adults were home. Doe 1

was wearing a shirt but no pants. Defendant got on top of her. He put his penis in her

vagina. She described it as feeling “awkward,” and it “hurt.”

       On another occasion, when Doe 1 was in the third or fourth grade, defendant had

taken Does 1 and 2 to a party. After leaving the party, defendant drove Doe 1 and Doe 2

to their home. When they arrived home, Doe 2 went to take a shower. Defendant again

put his penis inside Doe 1’s vagina that night. Doe 1 never told defendant that the sexual

intercourse hurt her.




                                              4
       Another time, when Doe 1 was 10 or 11 years old, defendant was living with

Doe’s aunt in Perris or Menifee. Defendant had his own bedroom. Defendant and Doe 1

had sex in the bedroom. Defendant had some type of camera. Doe 1 had no clothes on

below her waist. Defendant took a picture of her from the waist down while her clothes

were off. He put a pillow over her face while he took a picture.

       On another occasion, while they were living in Temecula, Doe 1 exited the shower

while she and Doe 2 were staying with defendant. Doe 2 went into the shower when Doe

1 came out. Doe 1 went into defendant’s bedroom to get clothes, as she was only

wearing a towel. Defendant was lying on the bed wearing only boxer shorts. He told her

to sit on his lap. Defendant took his penis out of the hole in his boxers and put it in her

vagina. Initially at trial, Doe 1 could not recall the first time she had sex with defendant,

but she believed he started molesting her when she was nine or ten years old. She later

testified that the first time she and defendant had sex, she was four to six years old. M.K.

was in the room on her computer but had her back to them. Doe 1 claimed it was very

“quick.”

       Defendant stopped having sex with Doe 1 when she was between 10 and 11 years

old but gave no reason for stopping. Doe 1 could not recall all the times that defendant

had sex with her. Initially, each time defendant would have sex with Doe 1, she would

“kind of squirm” her body and try to get away from him. After some time, Doe 1 quit

trying to squirm away from defendant because it would not work. She knew she could

not get away. She continued to be “scared” throughout the time these incidents were

happening. Defendant never threatened Doe 1, but he did tell her not to tell anyone.


                                              5
       When she was 12 yrs. old, Doe 1 finally told M.K. what had happened. M.K.

caught her sending sexually explicit text messages to a boy. M.K. told Doe 1 that she

was going to have to take a virginity test. Doe 1 thought that such a test was real and was

scared. She told her mother what defendant had done to her because she did not want her

mother to think she had had sex with her boyfriend. She told M.K. that defendant was

“full-on raping” her since she was five years old.

       Doe 1 claimed she never talked to Doe 2 about any of these things. They were not

close. Doe 1 did not tell her mother, in the presence of Doe 2, what defendant was doing

to her. Doe 1 had not had sex with anyone else. In sixth and seventh grade, Doe 1

started cutting herself. M.K. called the police.

                 2.   Doe 2’s testimony

       At the time of trial, Doe 2 was nine years old and in the fourth grade. At trial, she

claimed defendant began inappropriately touching her when she was seven years old. On

one occasion, Doe 2 was wearing a shirt and defendant took her pants and underwear off.

Defendant took his clothes off. He then touched her with the part of his body that “pee”

comes out (his penis) on her body where “pee” comes out (her vagina). He put his penis

inside of her.

       When defendant was inside her, it hurt a “little.” Defendant did this almost every

time that she and Doe 1 had stayed with him for visitation. This stopped, at eight years

old, when she no longer had to stay with him. Doe 2 did not recall anything coming out

of his penis when this happened. She could not recall any touching that occurred where

her “poop” came out of her bottom.


                                             6
       Doe 2 thought that defendant might have touched her vagina with his fingers. She

had a hard time talking about what happened to her. She never told defendant to stop but

she knew that what he was doing was wrong.

       The jury heard a pretrial interview of Doe 2.3 Doe 2 told the interviewer that

defendant touched her in the “wrong place.” She described it as her private place where

she went to the restroom. Doe 2 told the interviewer that defendant touched her when she

was five years old. She only remembered this because Doe 1 told her.

       Doe 2’s preliminary hearing testimony was read to the jury. Doe 2 indicated that

the first time defendant touched her was while defendant was living with her aunt, when

she was five years old. Doe 2, defendant, and Doe 1 were in his bed. Doe 1 was

sleeping. Defendant put his penis in her vagina. It “sort of” hurt her. Defendant never

said anything to her, and she never told him to stop. She knew what he was doing was

“wrong.” She did not tell anyone because she was “afraid.” He continued to do this until

she was eight years old. Doe 2 also had testified at the preliminary hearing that he

sodomized her several times when she was seven years old. He also put his fingers in her

vagina. Yellow liquid came out of his penis when they had sex.




       3       Defendant agreed not to cross-examine Doe 2, and the parties stipulated
that her entire pretrial interview would be played for the jury and that the preliminary
hearing testimony would be read to the jury. Doe 2 had come to court that morning and
did not want to testify.



                                             7
              3.     Investigation

       On January 28, 2011, County Sheriff’s Detective Fred Collazo set up a pretext

telephone call between defendant and Doe 1. Doe 1 told defendant that she had received

good grades. She then told him that they were studying how babies were made in science

class. She asked defendant why she never had a baby when they had sex together. At

first, defendant responded that he did not know what she was talking about. He then told

her he would talk to her in person. Doe 1 told him it was too awkward to talk to him in

person. Doe 1 again asked him why she did not get pregnant, and he responded that they

didn’t do anything. She told him that she was having flashbacks about having sex with

him.

       Defendant then told her she was too young to get pregnant. He then confirmed

that she had now started menstruating. Doe 1 asked him if that is why he stopped having

sex with her, and he again said he would talk to her about it in person. Doe 1 then asked

him if he was sorry “this has happened?” Defendant responded that he was sorry. She

asked him if he would do it again and he promised he would not. She then asked if he

ever did it to Doe 2, and he responded, “No, no, no, no, no, no.”

       After the call, defendant was arrested and interviewed. Defendant admitted he had

rubbed his penis against Doe 1’s vagina but claimed it was only once. He never put his

penis in her vagina and did not ejaculate. He claimed they were wearing clothes, and he

was just “dry humping” her. He later said they were naked but he denied he ever

penetrated her vagina. He denied ever having sex with Doe 2.




                                             8
       Defendant wrote an apology letter to Doe 1. In it, he asked her to forgive him for

what he had done to her. He told her that he loved her and would never do anything to

her again. He said he was sorry, and he loved her. He also told Doe 1 to tell Doe 2 that

he loved her.

       Does 1 and 2 were given sexual assault examinations on February 1, 2011, by a

forensic pediatrician. Doe 1 had evidence of cutting on her arms. There were no findings

of abuse or injury in her genital and anal regions. The pediatrician opined that it was

common for no injury to appear, especially if some time had passed since the last abuse.

Her hymen was intact, but that was not conclusive as to whether there was penile

penetration. There was no conclusive test to determine if a person was a virgin. There

were no findings of abuse or injury on Doe 2’s genital or anal area. The pediatrician

again stated that any injury would heal quickly. Doe 2 had no injury to her hymen.

                4.   CSAAS

       Dr. Veronica Thomas was a clinical psychologist. Dr. Thomas explained that

there were five components of CSAAS. The first component was secrecy, which could

be either implicit or explicit actions by the perpetrator to the victim not to tell anyone. A

young child could be intimidated by fear or not understand what is happening. The

second component was helplessness and depression, which was due to the confusing

experience of being sexually assaulted by a trusted person. It could take a child a long

time to figure out that the sexual molestation by this trusted person was wrong. The third

component was called entrapment and accommodation. This occurred when a child

recognized that there was nothing she could do about the abuse and just


                                              9
compartmentalized it in her life. Further, the child might realize that she was dependent

upon the abuser for shelter and food. The fourth element was disclosure; the child finally

disclosing what was happening to her. It was common for children who were molested to

delay disclosing the molestation when it was by a trusted person, as opposed to a

stranger. Even young children could feel a responsibility to not upset the family.

       The final component of CSAAS was recantation. Once the child discloses the

molestation, she will have to answer very personal sexual questions from social services

and the police. Further, there are consequences, such as being removed from the home.

It would be easier to recant in order to stop the consequences. The victim might try to

minimize what had occurred. A child’s memory of the event might be inconsistent. A

child might repress the memory of what happened, and something may trigger a memory

of what happened.

       Dr. Thomas had not met anyone involved in the instant case and had not reviewed

the records.

       B.      Defense

       Defendant’s brother and sister both testified that they had been with defendant

throughout the years while he was with Does 1 and 2. Does 1 and 2 did not appear afraid

of defendant. They acted like normal, happy children.

       One witness, B.B. was friends with M.K. M.K. called B.B. after Doe 1 disclosed

the abuse by defendant. B.B. went to M.K.’s house the following day. She talked to Doe

1 and told her to be strong and tell the police officer everything that had happened to her.

She also talked to Doe 2. She asked her if anyone had ever touched her private parts, and


                                             10
Doe 2 was confused. B.B. then pointed to her own vagina and breasts. Doe 2 dropped a

cup that she had in her hand, said “yes,” and then ran out of the room.

       Dr. Mitchell Eisen was a psychologist who specialized in suggestibility and

memory of victims after tragic events or sexual abuse. Dr. Eisen indicated that there was

research that supported a child having a dream about being sexually molested and

incorporating it into a genuine memory. Dr. Eisen also indicated that a child could be

influenced by family members, especially if another sibling is being abused, to state that

abuse has occurred when it had not.

                                               III

DEFENSE OF REASONABLE, GOOD FAITH BELIEF IN CONSENT BY A MINOR

               UNDER THE AGE OF 14 TO FORCIBLE SEXUAL ACTS

       Defendant contends that the trial court erred by omitting from the jury instructions

on aggravated assault –– rape and forcible sexual penetration –– that a reasonable, good

faith belief in consent was a defense to the crimes. Such error violated his federal

constitutional rights to a fair trial and due process.

       A.     Additional Factual Background

       During discussion of the instructions, there was no objection by either party to the

standard instructions to be given for aggravated sexual assault for rape and sexual

penetration by force. These instructions (CALCRIM Nos. 1000, 1045) included that the

People had to prove that the acts were accomplished against the will of Does 1 and 2, and

that the “female did not consent to the intercourse,” and it instructed the jury that “[t]o

consent, a female must act freely and voluntarily and know the nature of the act.” It did


                                               11
not include language that a defense to the crime was that a defendant could have a

reasonable, good faith belief that the victim consented even if there was no actual

consent.

       During the People’s opening argument, the prosecutor argued that Doe 1 did not

consent to the rape. When Doe 1 was first being raped, she was only four to six years old

and did not understand what was happening to her. She also testified that she would try

to squirm away from defendant. As to Doe 2, the prosecutor argued there was no consent

because she was too young and did not know what was happening to her. Defendant

argued during closing that, “[i]f [defendant]’s reasonably believing that she is not

objecting to this, that she is consenting to this, even though that’s not the case, that’s a

complete defense to rape.”

       Prior to the People’s closing argument, the trial court noted that it had not included

in the instructions that defendant could have a good faith, reasonable belief that Does 1

and 2 consented because “society will not tolerate, even if it’s a actual belief that a child

13 or under consented.” The trial court stated that there was no evidence of reasonable

belief. Defendant’s counsel argued there was sufficient evidence because Does 1 and 2

were not protesting. The trial court ruled that it did not believe that a defendant could

reasonably believe that a child under the age of 13 years could consent. However, a child

could actually consent, which would be a defense.

       The trial court informed the jury that it had inadvertently failed to advise

defendant’s counsel of the proper instructions on consent. It then instructed the jury as

follows: “[R]egarding the law of rape, sodomy, and sexual penetration. [¶] In a case in


                                              12
which the alleged victim is an adult, a defendant is not guilty of rape if he actually and

reasonably believed the alleged victim consented to the intercourse, sodomy, or sexual

penetration. [¶] However, in a case in which the alleged victim is a minor, that is a

person under 18 years of age, it is not a defense to rape, sodomy, and sexual penetration

that the defendant reasonably believed the alleged victim consented to the intercourse,

sodomy, or sexual penetration. [¶] However, the People still must prove beyond a

reasonable doubt that the alleged victim did not actually consent to the intercourse,

sodomy or sexual penetration.”

       B.     Analysis

       The crime of an aggravated sexual assault on a child by means of rape requires an

act of “[r]ape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.” (§

269, subd. (a)(1).) Subdivision (a)(2) of section 261 requires that the act of rape be

“accomplished against a person’s will by means of force, violence, duress, menace, or

fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd.

(a)(2).) The crime of aggravated sexual assault of a child by means of sexual penetration

also requires that the act be committed against the victim’s will and through the use of

force, violence, duress, menace, or fear. (§ 289, subd. (a)(1).)

       Defendant contends that he was entitled to instruction to the jury that he had a

reasonable, good faith belief that Does 1 and 2 consented to the acts. The People contend

that the California Supreme Court made it clear in People v. Soto (2011) 51 Cal.4th 229,

233, 248 that no child under the age of 14 years of age can consent to any lewd act under

any circumstance. However, in Soto, the crime committed (forcible lewd act) did not


                                             13
require that it be committed against the will of the victim. (Id. at p. 237.) The aggravated

rape and sexual penetration here both required that the acts be committed against the will

of the victim. For purposes of this case, we need not decide whether a defendant is

entitled to instruction on a reasonable, good faith belief in consent for aggravated sexual

assault involving a minor. We will assume, without deciding, that the trial court did err

by ruling that a reasonable, good faith belief of consent was not a defense. As we will

discuss, the error was harmless.

       “The trial court has a sua sponte duty to instruct on defenses where there is

substantial evidence to support the instruction. [Citation.]” (People v. Felix (2001) 92

Cal.App.4th 905, 911.) Under People v. Mayberry (1975) 15 Cal.3d 143, a defendant

charged with a forcible sex offense is not guilty if he or she had a mistaken but good faith

and reasonable belief that the adult victim consented. (Id. at pp. 153-158.) “If a

defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily

consented . . . to engage in sexual intercourse, it is apparent he does not possess the

wrongful intent that is a prerequisite . . . to a conviction of . . . rape by means of force or

threat [citation].” (Id. at p. 155.)

       “[T]he Mayberry defense ‘has two components, one subjective, and one objective.

The subjective component asks whether the defendant honestly and in good faith, albeit

mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy

this component, a defendant must adduce evidence of the victim’s equivocal conduct on

the basis of which he erroneously believed there was consent. [¶] In addition, the

defendant must satisfy the objective component, which asks whether the defendant’s


                                               14
mistake regarding consent was reasonable under the circumstances. Thus, regardless of

how strongly a defendant may subjectively believe a person has consented to sexual

intercourse, that belief must be formed under circumstances society will tolerate as

reasonable in order for the defendant to have adduced substantial evidence giving rise to

a Mayberry instruction.’ [Citation.]” (People v. Dominguez (2006) 39 Cal.4th 1141,

1148.)

         The test for prejudice from the court’s failure to instruct the jury on a defense is

not entirely clear. (See, e.g., People v. Gonzales (1999) 74 Cal.App.4th 382, 391, [“[w]e

need not determine whether the applicable standard of prejudice is whether the error in

failing to instruct regarding the defense of accident was harmless beyond a reasonable

doubt or the less stringent standard articulated in People v. Watson (1956) 46 Cal.2d 818,

836”]; People v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16 [an exception to the Watson

standard may exist “when the error deprives the defendant of the federal due process right

to present a complete defense”]; People v. Russell (2006) 144 Cal.App.4th 1415, 1431

[“[e]rror in failing to instruct on the mistake-of-fact defense is subject to” Watson test].)

In an abundance of caution, we apply the more stringent beyond a reasonable doubt

standard of Chapman v. California (1967) 386 U.S. 18, 24 especially in light of

defendant’s argument that his federal constitutional rights were violated.

         Here, defendant did not take the stand; thus, he did not testify that he subjectively

believed that the victim consented. When he spoke with Detective Collazo, he admitted

that he touched his penis to Doe 1’s vagina but denied penetration. He claimed it only

happened once. He never implicitly or explicitly stated that she consented to the act. In


                                               15
fact, he apologized for his actions. Defendant completely denied that he ever touched

Doe 2. Defendant’s counsel argued in closing that the decision the jury had to make was

to what extent Doe 1 was molested and whether Doe 2 was molested at all. There simply

was no evidence to support an instruction that defendant was claiming he had a

reasonable, good faith belief that Does 1 and 2 consented to the sexual assaults. As such,

he was not entitled to the Mayberry instruction, even if it was applicable.

       Additionally, Doe 1 testified that in the beginning she would try to squirm away

from defendant in order to get him to stop. She was unable to get away. This was not

“equivocal conduct” upon which defendant could base his belief that there was consent.

Doe 1’s attempts to squirm away from defendant could be interpreted only one way: she

did not want to have sex with him.

       Moreover, there was no evidence of a mistaken belief in consent that society

would tolerate as reasonable under the circumstances. Defendant was the victims’ father,

giving him an unparalleled level of control over the children, along with their having

complete trust in him. Moreover, Doe 2 was between five and seven years old when the

abuse occurred. She was completely unaware of what was happening to her. Based on

Doe 2’s age when these acts were committed, even if the jury was instructed as averred

by defendant, it is clear beyond a reasonable doubt that it would have rejected that such a

reasonable belief in consent could exist.

       Moreover, based on the instructions, the jury had to conclude that defendant used

force or duress in committing the acts, which is further evidence that it would reject that




                                             16
defendant believed Does 1 and 2 were consenting to the acts. Finally, the jury

necessarily rejected that Does 1 and 2 actually consented.

        We are convinced beyond a reasonable doubt that, even if the jury had been given

a Mayberry instruction, it would have found that defendant did not actually entertain an

objectively reasonable belief in consent. As such, any conceivable error was harmless.

                                             IV

                                   CSAAS TESTIMONY

        Defendant contends that CSAAS testimony should not be admitted in any trial in

California. He further argues that the admission of the evidence was prejudicial in this

case.

        In California, when a defendant avers that a child’s allegation of sexual abuse is

inconsistent with her actions, expert testimony on CSAAS has been held admissible to

disabuse jurors of commonly held misconceptions about how child sexual abuse victims

behave. (See, e.g., People v. Yovanov (1999) 69 Cal.App.4th 392, 406-407; People v.

Housley (1992) 6 Cal.App.4th 947, 954-957.) Defendant relies on cases in other states

that limit or exclude CSAAS evidence, and urges this court to follow these other states.

        In People v. Perez (2010) 182 Cal.App.4th 231, the court rejected a similar

challenge to the admissibility of CSAAS evidence, and we find it is well reasoned. It

found “no reason to depart from recent precedent, to wit: ‘CSAAS cases involve expert

testimony regarding the responses of a child molestation victim. Expert testimony on the

common reactions of a child molestation victim is not admissible to prove the sex crime

charged actually occurred. However, CSAAS testimony “is admissible to rehabilitate


                                             17
[the molestation victim’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. [Citations.]”’ [Citations.] Moreover, it appears that our

Supreme Court reached the same conclusion in People v. Brown (2004) 33 Cal.4th 892,

906, in which case we are bound by its reasoning (Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455).” (Id. at p. 245.)

       The CSAAS evidence was relevant in this case. Does 1 and 2 delayed reporting

the molestation by defendant. They never told M.K., despite having to attend weekend

visitation with defendant. Additionally, Doe 2 disclosed the abuse at the preliminary

hearing, but had failed to do so during a pretrial interview. Further, Doe 2’s trial

testimony was inconsistent with her previous testimony. It was clear that Doe 2 was

terrified to be face-to-face with defendant.

       Moreover, the court instructed the jury with the pattern instruction on CSAAS

evidence, CALCRIM No. 1193, as follows: “You have heard testimony regarding Child

Sexual Abuse Accommodation Syndrome. [¶] Testimony about Child Sexual Abuse

Accommodation Syndrome is not evidence that the defendant committed any of the

crimes charged against him. [¶] You may consider this evidence only in deciding

whether or not (Jane Doe 1)’s or (Jane Doe 2)’s conduct was not inconsistent with the

conduct of someone who has been molested, and in evaluating the believability of their

testimony.” The instruction clearly stated that the jury was not to consider the evidence

as showing defendant’s guilt but that it was only to assess credibility. The evidence is

properly admitted for this purpose.


                                               18
       Even if we were to consider that the CSAAS testimony should not have been

admitted, such error was harmless. Defendant claims that the testimony of Does 1 and 2

was the only evidence against him, and the CSAAS evidence bolstered their credibility.

Defendant discounts his admissions in both the pretext phone call and the police

interview that he had touched Doe 1. We find this was strong corroborating evidence

supporting the testimony of each of the girls. Further, it is clear that the jury carefully

considered the testimony of Does 1 and 2 and did not consider the CSAAS testimony as

evidence that defendant committed all of the crimes charged against him. The jury found

two of the charged aggravated assaults against Doe 1 not true, and it rejected the forcible

sodomy charge alleged as to Doe 2. Accordingly, any error in the admission of the

CSAAS evidence in this case did not constitute prejudicial error. (People v. Watson,

supra, 46 Cal.2d at p. 836; People v. Bowker (1988) 203 Cal.App.3d 385, 395[applying

Watson standard to improper use of CSAAS evidence].) Defendant has not shown a

violation of his rights to a fair trial and due process in the admission of the CSAAS

evidence, and its admission was not prejudicial.

                                              V

                                   CALCRIM NO. 1193

       Closely related to the previous argument, defendant contends the trial court erred

by instructing the jury with CALCRIM No. 1193 because it erroneously advised the

jurors that they could consider the CSAAS expert’s testimony in determining the

complaining witnesses’ credibility. We disagree.




                                              19
       As fully explicated, ante, CSAAS evidence is relevant because it can assist the

jury in assessing the credibility of the victim’s claim of abuse. (People v. Perez, supra,

182 Cal.App.4th at p. 245.) If the evidence demonstrates (as it did here) that the child

delayed reporting the alleged abuse, CSAAS evidence can be admitted to disabuse the

jury of the notion that a child who was really abused would have reported the abuse

immediately. Accordingly, the relationship between CSAAS evidence and the victim’s

credibility that is reflected in CALCRIM No. 1193 is not improper, and the trial court

here did not err in giving the instruction.

                                              VI

                                    CALCRIM NO. 330

       Defendant further contends that instruction to the jury with CALCRIM No. 330

violated his federal constitutional rights to due process and a jury trial because it unfairly

bolstered Doe 2’s credibility by telling the jury not to consider her level of cognitive

development, and that it could treat her testimony like any adult witness. In addition, it

violated his right to present a defense, as it unfairly impaired his ability to impeach Doe

2’s credibility.

       The jury was instructed with CALCRIM No. 330 as follows: “You have heard

testimony from a child who is age 10 or younger. As with any other witness, you must

decide whether the child gave truthful and accurate testimony. [¶] In evaluating the

child’s testimony, you should consider all of the factors surrounding that testimony,

including the child’s age and level of cognitive development. When you evaluate the

child’s cognitive development, consider the child’s ability to perceive, understand,


                                              20
remember, and communicate. [¶] While a child and adult witness may behave

differently, that difference does not mean that one is any more or less believable than the

other. You should not discount or distrust the testimony of a witness just because he or

she is a child.”

       Defendant’s exact argument was recently rejected in People v. Fernandez (2013)

216 Cal.App.4th 540. In Fernandez, the court approved of CALCRIM No. 330, finding

it “simply instructs the jury to take into account a child’s ability to perceive, understand,

remember and communicate when making a credibility determination. It does not

instruct the jury to subject a child’s testimony to a less rigorous credibility determination,

nor does it excessively inflate a child witness’s credibility. We reject appellant’s

constitutional challenge to CALCRIM No. 330.” (Fernandez, supra, 216 Cal.App.4th at

p. 559.) We find Fernandez well reasoned and follow it here. The trial court did not err

in instructing the jury with CALCRIM No. 330.

                                             VII

   15-YEARS-TO-LIFE SENTENCE UNDER SECTION 667.61, SUBDIVISON (C)

       Defendant contends that the trial court erred by sentencing him to a consecutive

15-years-to-life sentence on count 8, his conviction of committing a lewd act upon Doe 2

(§ 288, subdivision (a)). Defendant was convicted of violating section 288, subdivision

(a) against Doe 2 and multiple violations of section 269, subdivision (a)(1) against Doe 1.

Thus, the court sentenced defendant using the multiple victim enhancement of section

667.61, subdivisions (b) and (e)(5), apparently on the theory that convictions under

section 288 and 269 constituted crimes against more than one victim for purposes of


                                              21
section 667.61, subdivision (c). However, section 269 is not listed in section 667.61,

subdivision (c).

       Section 667.61 is known as the one strike law. Section 667.61, subdivision (b)

provides as follows: “Except as provided in subdivision (a), any person who is convicted

of an offense specified in subdivision (c) under one of the circumstances specified in

subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.”

Subdivision (c) of section 667.61 includes numerous sex crimes, including “[r]ape, in

violation of paragraph (2) or (6) of subdivision (a) of Section 261.” Subdivision (e)(5)

provides for the increased sentence if “[t]he defendant has been convicted in the present

case or cases of committing an offense specified in subdivision (c) against more than one

victim.”4 Section 288 is expressly enumerated in subdivision (c) of section 667.61, but

section 269 is not.

       Section 667.61, subdivision (e)(5) requires a conviction of an offense that is

specified in the statute, and section 269 is not a specified offense. In construing the

relevant provisions of section 667.61, “‘as with any statute, we strive to ascertain and

effectuate the Legislature’s intent.’ [Citation.] Because statutory language generally

provides the most reliable indicator of that intent [citation], we turn to the words

themselves, giving them their ‘usual and ordinary meanings’ and construing them in


       4       Section 667.61 was amended prior to the convictions (but after defendant
committed the offenses) in this case, renumbering subdivision (e)(5) as (e)(4). (Stats.
2010, ch. 219.) However, since there was no change in the wording, we need not address
the statutory amendment and will refer to section 667.61 as it existed when defendant
committed his offenses.


                                             22
context. [Citation.] ‘“If there is no ambiguity in the language of the statute,’ . . . the

Legislature is presumed to have meant what it said, and the plain meaning of the statute

governs.’’”’ [Citation.]” (People v. Lawrence (2000) 24 Cal.4th 219, 230-231.) “If the

ordinary meaning of the language is ‘clear and unambiguous’ then we need look no

further.” (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.)

       We need not look past the clear language of section 667.61 to conclude that

section 269 is not an offense listed in subdivision (c). Therefore, conviction of this crime

does not trigger the multiple victims’ provision of the one strike law.

       The People rely on this court’s case of People v. Figueroa (2008) 162 Cal.App.4th

95 [Fourth District, Div. Two] (Figueroa) to support their claim that rape, a violation of

section 261, subdivision (a)(2), is necessarily included in a violation of section 269,

subdivision (a)(1).

       In Figueroa, this court agreed with the reasoning in People v. Jimenez (2000) 80

Cal.App.4th 286 (Jimenez). (People v. Figueroa, supra, 162 Cal.App.4th at p. 100.) The

court in Jimenez held that a conviction for committing the offense of aggravated sexual

assault of a child in violation of former section 269 was subject to the mandatory

consecutive sentencing provision of section 667.6, subdivision (d) if the predicate crime

for the aggravated sexual assault of a child offense is one of the crimes listed in section

667.6, subdivision (d). (People v. Jimenez, supra, 80 Cal.App.4th at p. 291.) The court

reasoned that because the defendant was convicted of aggravated sexual assault of a child

by means of forcible sodomy, and because forcible sodomy is listed in section 667.6,

subdivision (d), the mandatory consecutive sentencing provision of section 667.6,


                                              23
subdivision (d) applied. (Ibid.) The Jimenez court rejected the defendant’s argument that

section 667.6, subdivision (d) did not apply because it did not specifically mention

section 269, stating: “Defendant correctly points out that section 667.6, subdivision (d)

does not explicitly provide that it applies to violations of section 269. However, he

makes too much of this omission, ignoring the fact that violation of section 286 is one of

the predicate offenses of section 269.” (Ibid.)

       This same analysis does not apply to the plain language of section 667.61. Section

667.6, subdivision (d) provides that the section is applicable for every violation of an

offense listed in subdivision (e) of section 667.6. Section 667.6, subdivision (d) does not

require a conviction of a qualifying offense, while section 667.61, subdivision (e)(5)

clearly provides for a conviction. Therefore, our decision in Figueroa (and the decision

in Jimenez) did not address the requirement in section 667.61, subdivision (e)(5) that a

defendant must be convicted of a qualifying offense in order to make sentencing under

that scheme appropriate. The Legislature’s choice to use the word “convicted” in

subdivisions (b) and (e) of section 667.61 cannot simply be read out of the statute.

       We are concerned with the inequity of this conclusion, as it provides further

punishment for those who commit forcible rape against an adult, but excludes those

whose victim is a child under the age of 14. However, it is for the Legislature to fix this

clear drafting error. As such, we find the trial court erred by imposing an indeterminate

sentence of 15 years to life under section 667.61, subdivisions (b) and (e)(5) for the lewd




                                             24
act conviction in count 8. We will remand the matter so the trial court can properly

sentence defendant for count 8.5

                                            VIII

                                   RESTITUTION FINE

       Defendant contends that the trial court erroneously relied upon the amended

version of section 1202.4, effective after his crime was committed, to impose a $240

restitution fine. Such imposition of the fine violated his federal constitutional right

against ex post facto laws.

       At sentencing, the trial court noted that the probation report recommended a

$10,000 restitution fine pursuant to section 1202.4, and defendant agreed that the current

law supported such a fine. However, the trial court chose to impose a restitution fine

under section 1202.4 in the amount of $240. The only statement regarding the imposition

of the fine was as follows: “I did not impose the fines as requested by [the] probation

officer, or recommended or impose maximum fines, because it’s my belief that as much

money as you can make in prison ought to go to pay restitution.”

       Previously, section 1202.4 provided as follows: “The restitution fine shall be set

at the discretion of the court and commensurate with the seriousness of the offense, but

shall not be less than two hundred dollars ($200). . . .” (Former § 1202.4, subd. (b)(1),

       5         Defendant has not raised that the jury improperly found the section 667.61,
subdivision (e)(5) allegations true. We need not address the issue as mandatory,
consecutive sentences of 15 years to life were warranted under section 269, subdivision
(e). It is additionally apparent that a mandatory, consecutive sentence on count 8 could be
imposed under section 667.6, subdivision (d). (People v. Mahara (2012) 204
Cal.App.4th 641, 650.)


                                             25
Stats. 2011, ch. 45, § 1.) Effective January 1, 2012, the minimum restitution fine was

increased to $240. (Stats. 2011, ch. 358, § 1.) “It is well established that the imposition

of restitution fines constitutes punishment, and therefore is subject to the proscriptions of

the ex post facto clause and other constitutional provisions. [Citations.]” (People v.

Souza (2012) 54 Cal.4th 90, 143.) Defendant committed his crimes prior to the

amendment to the statute. As such, application of the increased minimum fine would

violate the prohibition against ex post facto laws.

       However, under the language of former section 1202.4, subdivision (b)(1), $200

was the minimum amount the trial court could impose. There is no dispute that the court

had the discretion to lawfully impose a greater fine of $240; therefore, there was no ex

post facto error because the court imposed a lawfully authorized fine.

       Defendant claims that circumstantial evidence supports that the trial court imposed

the $240 fine based on the new statute. However, the existence of “[e]rror is never

presumed, but must be affirmatively shown, and the burden is upon the appellant to

present a record showing it, any uncertainty in the record in that respect being resolved

against him.” (People v. Clifton (1969) 270 Cal.App.2d 860, 862.) Defendant has failed

to provide anything in the record before us supporting that the trial court based the

restitution fine on the newly amended statute. We will not presume error.




                                             26
                                            IX

                                       DISPOSITION

       The sentence on count 8 is vacated, and the matter is remanded to the trial court

for resentencing consistent with this opinion. In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                         RICHLI
                                                                                Acting P. J.

We concur:


KING
                                  J.


CODRINGTON
                                  J.




                                             27
