Filed 4/4/16
                        CERTIFIED FOR PARTIAL PUBLICATION*




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----




THE PEOPLE,

                 Plaintiff and Respondent,                           C073360

        v.                                                  (Super. Ct. No. 11F05343)

SANTIAGO SANCHEZ,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County,
Geoffrey A. Goodman, Judge. Affirmed in part and reversed in part.

      Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell,
Assistant Attorneys General, Stephen G. Herndon and Peter W. Thompson, Deputy
Attorneys General, for Plaintiff and Respondent.



*       Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts II through VI of the discussion.


                                              1
       Defendant Santiago Sanchez was convicted by jury of four sex offenses―one
count of sexual penetration (Pen. Code, § 288.7, subd. (b)),1 one count of attempted
sexual intercourse (§§ 664, 288.7, subd. (a)), and two counts of lewd or lascivious
conduct (§ 288, subd. (a))―committed against an eight-year-old girl, D.C.; he was
convicted of two additional sex offenses―two counts of lewd or lascivious conduct
(§ 288, subd. (a))―committed against D.C.‟s ten-year-old sister, M.C. The jury also
found defendant committed lewd or lascivious acts against more than one victim.
(§ 667.61, subd. (e)(4).) The trial court sentenced defendant to serve 65 years to life in
state prison and imposed other orders.
       On appeal, defendant contends: (1) the evidence was insufficient to establish the
corpus delicti of the crime of sexual penetration; (2) the trial court abused its discretion
and violated his constitutional right to due process by excluding certain evidence he
claims was admissible to impeach testimony from the victims‟ older brother, S.S., who
saw defendant‟s attempt to have sex with D.C. and called the police; (3) the trial court
abused its discretion and violated his confrontation, due process, and jury trial rights by
allowing testimony from an expert on Child Sexual Abuse Accommodation Syndrome
(CSAAS); (4) the prosecutor engaged in prejudicial misconduct in violation of
defendant‟s right to due process; (5) the trial court‟s imposition of three consecutive life
terms amounted to an unauthorized sentence and a denial of due process; and (6) the
cumulative effect of the foregoing assertions of error deprived defendant of his right to
due process.2




1      Undesignated statutory references are to the Penal Code.
2     Defendant also requests that we review certain sealed school records to determine
whether they contain any discoverable information that should have been made available


                                              2
       We affirm defendant‟s convictions and remand the matter for resentencing. As we
explain, while there was no direct evidence of the specific act of sexual penetration
defendant was convicted of committing, other than his confession during interrogation,
the circumstantial evidence was more than sufficient to establish the corpus delicti of the
crime. The trial court did not abuse its discretion in excluding the proffered evidence
purportedly relevant to impeach S.S. or by allowing the challenged CSAAS testimony.
Defendant‟s claim of prosecutorial misconduct is forfeited by his failure to object and
request a curative instruction. Nor did defense counsel‟s failure to so object amount to
constitutionally deficient performance. Defendant‟s assertion of cumulative prejudice
also fails.
       We do, however, agree the matter must be remanded for a new sentencing hearing.
While the trial court‟s imposition of three consecutive life terms is not unauthorized, and
therefore defense counsel‟s failure to object to this sentence below arguably forfeits the
issue on appeal, it is apparent from the record that the trial court believed it was required
to impose full, separate, and consecutive terms pursuant to section 667.6, subdivision (d),
and rule 4.426 of the California Rules of Court3 that were not applicable to this case.
Assuming the issue is forfeited, we conclude defense counsel‟s failure to object and
correct the trial court‟s misunderstanding amounted to ineffective assistance of counsel.
                                           FACTS
       Defendant was 19 years old and volunteering at an after-school program when he
met S.S. Despite the fact defendant was seven or eight years older than S.S., the two
became friends. About a month later, defendant met S.S.‟s mother, C.C., at the after-


to the defense. We have done so and conclude no additional information should have
been made available to the defense.
3      Undesignated rule references are to the California Rules of Court.


                                              3
school program and was invited over to their house to meet her husband, J.A., with whom
defendant shared an interest in automotive repair and body work. At the house,
defendant also met the other children in the household, D.C., M.C., and their younger
brother, E.C. Over the course of about a year, defendant and J.A. became friends and
worked on cars together. Defendant also routinely watched the children when their
parents went out.
       In August 2011, defendant committed the crimes involved in this case. He was 20
years old. His victims, D.C. and M.C., were eight years old and ten years old,
respectively.
                                   Crimes against M.C.
       Defendant stayed the night at the family‟s house on August 1, 2011. While
watching a movie with the children in the living room, defendant touched M.C. twice
with his hand on her vaginal area, over her clothes, removing it about “two seconds” after
M.C. told him to “stop.” The next morning, defendant was asked to watch the children
while C.C. went to work and J.A. went to Pick-n-Pull. He agreed. Before J.A. left, M.C.
told him defendant was “bothering” her; not understanding the seriousness of the
situation, J.A. told her to “just tell him to stop bothering you.” That day, the children had
various chores to do. Defendant contributed by helping S.S. with the yard work. As
defendant watered the front lawn, M.C. passed by him on her way to get a hedge trimmer
for S.S. Defendant reached out and briefly touched her chest with the back of his hand.
Believing defendant did so “on purpose” because “he was smiling,” M.C. told him to
“stop.” Defendant responded that “he wasn‟t doing anything wrong.” When she again
passed by defendant to get a shovel for S.S., defendant again reached out and briefly
touched her with the back of his hand, this time on her vaginal area. M.C. again told him
to “stop.” Defendant again said he “didn‟t do anything.” Defendant confirmed in his




                                              4
statement to police that he touched M.C.‟s chest “like one time” and he touched her
vaginal area “like twice,” always over her clothing.
         Based on these facts, as previously mentioned, defendant was convicted of two
counts of committing a lewd or lascivious act on M.C., a child under the age of 14 years.4
                                    Crimes against D.C.
         After defendant finished watering the lawn, the children asked to play in the
swimming pool. Defendant agreed. While he and S.S. finished up the yard work, the
other children went inside the house to change into swimming suits. After the children
had changed, defendant went into S.S.‟s bedroom to change into some shorts. The record
is unclear as to whether D.C. was already in the bedroom when defendant came in, or
whether she came into the room after defendant had changed. Either way, she began
playing with S.S.‟s guitar on the bottom bunk of the bunk beds S.S. shared with his
younger brother, E.C. Defendant took the guitar away and climbed on top of her. By his
own account, he pulled her swimming suit to the side to expose her vagina, and pulled up
one of the leg openings of his shorts to allow him to pull out his penis. He then attempted
to insert his penis into D.C.‟s vagina, but was unsuccessful because his penis was not
erect.
         Unbeknownst to defendant, S.S. had entered the house looking for D.C. Having
seen defendant touch M.C.‟s buttocks on two previous occasions, S.S. decided to keep “a




4       Defendant was charged with an additional count of committing a lewd or
lascivious act on M.C. based on her statement he touched her buttocks while pushing her
on a swing in the yard. She also testified to this event at trial. Defendant confirmed at
trial that he pushed M.C. on the swing, but denied touching her buttocks and instead
claimed to have pushed her back. The jury found defendant not guilty of this offense, but
guilty of the lesser included offense of simple battery. We shall discuss this offense no
further.


                                              5
closer eye on him.” With this purpose in mind, S.S. entered the house quietly through the
back door, “snuck around the corner to check the living room,” and then “went down the
hallway a little.” From the hallway, S.S. saw defendant on top of D.C. on the bed.
Defendant‟s “hip area . . . was moving up and down.” D.C. told defendant to “[s]top.”
Defendant responded: “Just go with it.” S.S. “stood there for about a minute” trying to
decide what to do. He considered confronting defendant, but “figured if [he] did that,
that [defendant] would leave and would most likely, probably, get away with it.” Instead,
S.S. left the house “to go call the cops.” On his way out, S.S. told M.C. to “stay outside”
and that he “would be back.” He then got on his bicycle and rode to a neighbor‟s house.
When this neighbor was not home, S.S. rode to a nearby gas station and used a stranger‟s
cell phone to call 911.
       Meanwhile, according to defendant‟s statement to police, he stopped his assault on
D.C. shortly after it began and allowed her to go outside to play with her siblings.
Defendant also told police he penetrated D.C.‟s vagina with one of his fingers while
giving her a piggyback ride down the hallway. His statement is unclear as to when
exactly this took place, except that it happened before he tried having sex with her and
she was already wearing her swimming suit. Regardless of the precise timing, defendant
admitted: “I was tryin[g] to put it in there. My finger.” He also admitted he succeeded
in penetrating D.C.‟s vagina with his finger. When asked whether it turned him on,
defendant answered: “Uh, yes, a little.” When asked whether it probably caused him to
then try something more with D.C., defendant responded: “Yeah.”
       Based on these facts, as previously mentioned, defendant was convicted of one
count of sexual penetration, one count of attempted sexual intercourse, and two counts of
committing a lewd or lascivious act on D.C., a child under the age of 14 years.




                                             6
       Police arrived at the house a short time after S.S. made the call to 911. Defendant
was taken into custody, advised of his Miranda rights,5 and questioned. He eventually
admitted to touching M.C.‟s vagina and chest over her clothes, penetrating D.C.‟s vagina
with his finger while giving her a piggyback ride, and attempting to penetrate her vagina
with his penis while on the bed. Defendant also wrote down that he “made a mistake”
when he “tr[ied] to put something in [D.C.],” but he “was not thrusting” and stopped
when she told him to stop. He also wrote a letter apologizing to the family for his
actions.
                                       DISCUSSION
                                              I
    Sufficiency of the Evidence to Establish the Corpus Delicti of Sexual Penetration
       Defendant contends the evidence was insufficient to establish the corpus delicti of
the crime of sexual penetration. He is mistaken.
       “In every criminal trial, the prosecution must prove the corpus delicti, or the body
of the crime itself―i.e., the fact of injury, loss, or harm, and the existence of a criminal
agency as its cause. In California, it has traditionally been held, the prosecution cannot
satisfy this burden by relying exclusively upon the extrajudicial statements, confessions,
or admissions of the defendant. [Citations.] Though mandated by no statute, and never
deemed a constitutional guaranty, the rule requiring some independent proof of the
corpus delicti has roots in the common law. [Citation.] California decisions have applied
it at least since the 1860‟s. [Citation.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-
1169 (Alvarez).) “The purpose of the corpus delicti rule is to assure that „the accused is




5      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].


                                              7
not admitting to a crime that never occurred.‟” (People v. Jones (1998) 17 Cal.4th 279,
301 (Jones), quoting People v. Jennings (1991) 53 Cal.3d 334, 368 (Jennings).)
       “The independent proof may be circumstantial and need not be beyond a
reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a
noncriminal explanation is also plausible. [Citations.] There is no requirement of
independent evidence „of every physical act constituting an element of an offense,‟ so
long as there is some slight or prima facie showing of injury, loss, or harm by a criminal
agency. [Citation.] In every case, once the necessary quantum of independent evidence
is present, the defendant‟s extrajudicial statements may then be considered for their full
value to strengthen the case on all issues. [Citations.]” (Alvarez, supra, 27 Cal.4th at
p. 1171; People v. Robbins (1988) 45 Cal.3d 867, 885-886 (Robbins), superseded by
statute on another ground as stated in Jennings, supra, 53 Cal.3d at p. 387, fn. 13.)
       Defendant argues: “There was no evidence of count one, digital penetration of
[D.C.] when she was on [defendant‟s] back (§ 288.7, subd. (b)), other than [defendant‟s]
own admission, in the course of the police interrogation, that he had touched her in that
way while giving her a piggyback ride.” We agree defendant‟s admission is the only
direct evidence of the digital penetration. D.C. did not testify to this specific criminal act
and did not reveal it in the Special Assault Forensic Evaluation (SAFE) interview. Nor
did anyone else witness the crime. Nevertheless, we conclude the circumstantial
evidence is more than sufficient to establish the corpus delicti of sexual penetration. In
so concluding, we find three decisions of our Supreme Court to be particularly
instructive.
       In Jones, supra, 17 Cal.4th 279, the defendant and another man, Trone, abducted
the victim and committed various sex offenses against her, including forcible rape and
forcible oral copulation, before the defendant shot her in the head and left her to die on




                                              8
the side of an isolated road. (Id. at pp. 291-292.) The defendant admitted to police that
Trone forced the victim to orally copulate him in the backseat while the defendant drove.
Accordingly, in addition to murder and other crimes, the defendant was charged with
forcible oral copulation as an accomplice. (Id. at p. 300.) However, while semen was
found in and around the victim‟s vagina and rectal area, no semen was found in her
mouth. (Id. at p. 302.) The defendant argued at the preliminary hearing that the
prosecution had no independent evidence of the corpus delicti of forcible oral copulation.
The magistrate agreed and did not hold him to answer for that crime. The defendant then
filed a motion under section 995 to set aside the subsequent information that charged the
defendant with forcible oral copulation notwithstanding the magistrate‟s ruling. The trial
court denied the motion, finding the prosecution‟s corpus delicti burden had been met.
(Id. at pp. 300-301.)
       Our Supreme Court agreed with the trial court, explaining: the victim “was found
some 10 feet from the roadway on a dirt median. She had been shot in the head and was
alive when found, but died shortly thereafter. Medical experts found bruises on her
thighs, knees, legs, and perineal area. She also exhibited injuries on her hands. Results
from the sexual assault kit revealed the presence of semen inside her vagina, on her
external genitalia, and in her rectal area. No trace of semen was found in [the victim]‟s
mouth; an expert testified, however, that negative test results were not inconsistent with
oral copulation because the mouth‟s natural rinsing processes eliminate semen. [The
victim] was not wearing underpants, a brassiere, or shoes. Evidence showed she
customarily wore such clothing.” (Jones, supra, 17 Cal.4th at p. 302.) The court
continued: “Keeping in mind the low threshold of proof required to satisfy the corpus
delicti rule, we conclude that the magistrate erred in finding this low threshold was not
met by the evidence presented at the preliminary examination. The state of the victim‟s




                                             9
clothing (no underwear or shoes) and the forensic evidence (semen in the victim‟s vagina
and on her external genitalia and anus) indicates multiple sexual acts occurred. That the
victim was forcibly abducted, beaten, shot in the head, and left by the side of the road for
dead gives rise to an inference that the sexual activity that occurred was against the
victim‟s will. This circumstantial evidence of multiple forcible sexual acts sufficiently
establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii)
the involvement of a criminal agency.” (Ibid.) The court also rejected the defendant‟s
argument “that the lack of evidence of the specific loss or harm,” i.e., the fact that no
semen was found in the victim‟s mouth, “is fatal to the establishment of the corpus
delicti” of forcible oral copulation. (Ibid.) Relying on Jennings, supra, 53 Cal.3d 334,
and Robbins, supra, 45 Cal.3d 867, which we discuss immediately below, the court held
the corpus delicti requirement is “not so strict.” (Jones, supra, 17 Cal.4th at p. 302.)
       In Jennings, supra, 53 Cal.3d 334, the defendant, who was convicted of multiple
murders, challenged an accompanying rape conviction as unsupported by sufficient
evidence of the corpus delicti. (Id. at p. 366.) Our Supreme Court found the evidence,
although “minimal,” to be sufficient, explaining: “The evidence shows that the victim
. . . was found, unclothed, in an irrigation canal. She had been dead several weeks.
Although her body was badly decomposed, experts determined she had suffered a broken
jaw. While this evidence would satisfy the corpus delicti of murder (there being evidence
that she died through the involvement of a criminal agency), the evidence of rape was not
strong. For example, because of the advanced state of decay, there was no evidence of
seminal fluids on the body [citations], or evidence of penetration [citations]. Further,
there was no evidence that the victim‟s clothes were arranged in such a manner as to
suggest a sexual assault. [Citation.] [¶] Although the evidence of rape is thus minimal,
we nevertheless deem it sufficient to satisfy the corpus delicti rule. When the body of a




                                             10
young woman is found unclothed in a remote locale, an inference arises that some sexual
activity occurred, thus satisfying the requirement that there be some showing of a loss,
injury, or harm. . . . [¶] While the inference of sexual activity is by no means the only, or
even the most compelling, one in this case [citation], it nevertheless remains a reasonable
one, at least for corpus delicti purposes. Further, it is important that the victim was found
in a location where her lack of clothing was not easily explainable, that she was dead, and
that she had suffered a broken jaw. From these factors, we may infer that whatever
sexual activity occurred, it occurred against the victim‟s will. The evidence thus satisfies
the second prong of the corpus delicti rule, i.e., the involvement of a criminal agency.”
(Id. at pp. 367-368.)
       Similarly, in Robbins, supra, 45 Cal.3d 867, another murder case, our Supreme
Court held the following to be sufficient independent evidence of the corpus delicti of
lewd or lascivious conduct with a child: “Defendant was seen by one witness riding a
motorcycle in the area of (and on the date of) the victim‟s disappearance, and the victim
was last seen by another witness riding a motorcycle with a man matching defendant‟s
description; no clothes were found at the scene of the crime; defendant‟s own experts
described his „primary diagnosis‟ as pedophilia; his admission of similar sexual conduct
as to the very similar Texas crimes was confirmed by scientific evidence; and finally, the
physical evidence of the homicide lends reliability to other aspects of defendant‟s
confession, namely, his description of the lewd and lascivious conduct. In view of the
nature of the offense and the circumstances of this case (i.e., the body was not discovered
for some time, hence it was impossible to verify the sexual conduct by scientific
evidence, and there were apparently no eyewitnesses to the crime) we do not believe the
corpus delicti rule can be interpreted to call for more; the law does not require impossible
showings.” (Id. at p. 886.)




                                             11
       Returning to Jones, supra, 17 Cal.4th 279, our Supreme Court stated: “As
Jennings and Robbins demonstrate, we have never interpreted the corpus delicti rule so
strictly that independent evidence of every physical act constituting an element of an
offense is necessary. Instead, there need only be independent evidence establishing a
slight or prima facie showing of some injury, loss or harm, and that a criminal agency
was involved.” (Id. at p. 303.)
       Here, defendant challenges the sufficiency of the evidence, independent of his
confession, to establish the corpus delicti of sexual penetration with a child who is 10
years of age or younger. (§ 288.7, subd. (b).) Conviction of this crime requires proof
that (1) the defendant engaged in “the act of causing the penetration, however slight, of
the genital or anal opening of any person or causing another person to so penetrate the
defendant‟s or another person‟s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or device, or by any
unknown object” (§ 289, subd. (k)(1)), and (2) the defendant did so “with a child who is
10 years of age or younger” (§ 288.7, subd. (b)). There can be no doubt the crime is
sufficiently established, beyond a reasonable doubt, when his confession is considered.
He admitted to intentionally penetrating D.C.‟s vagina with his finger. There is no
dispute D.C. was eight years old at the time. And based on defendant‟s statements in his
confession and his conduct both before and after the penetration, i.e., touching M.C.
inappropriately before the penetration and attempting to have sex with D.C. immediately
thereafter, the jury could have reasonably inferred defendant‟s purpose in so penetrating
was sexual arousal.
       However, in order for defendant‟s confession to be considered for its full value to
strengthen the case on all issues (see Alvarez, supra, 27 Cal.4th at p. 1171), there must
be, independent of defendant‟s confession, “some slight or prima facie showing of injury,




                                             12
loss, or harm by a criminal agency.” (Ibid.) As in Jones, supra, 17 Cal.4th 279,
Jennings, supra, 53 Cal.3d 334, and Robbins, supra, 45 Cal.3d 867, there is no direct
evidence, aside from defendant‟s confession, that the specific prohibited act occurred.
But that is not required. In Jones, the prima facie showing of injury, loss, or harm was
supplied by circumstantial evidence that other sexual acts occurred, i.e., semen in and
around the vagina and rectal area and the absence of underwear and shoes on the body.
(Jones, supra, 17 Cal.4th at p. 302.) In Jennings, the fact that the victim‟s body was
found unclothed in a remote location supplied the requisite circumstantial evidence that
“some sexual activity occurred, thus satisfying the requirement that there be some
showing of a loss, injury, or harm.” (Jennings, supra, 53 Cal.3d at p. 367, italics added.)
And in Robbins, the lack of clothing on the body, evidence of the defendant‟s pedophilia
diagnosis, and evidence substantiating his admission to other similar crimes supplied the
prima facie showing of injury, loss, or harm. (Robbins, supra, 45 Cal.3d at p. 886.) In
each case, circumstantial evidence that some sexual activity occurred, coupled with
circumstantial evidence the activity was criminal, satisfied the corpus delicti requirement;
the defendant‟s statement could then be considered for its full value to fill in the precise
nature of the activity.
       Here, there is a much greater showing. Unlike the foregoing murder cases, where
the evidence of sexual activity was circumstantial, here, D.C. testified defendant touched
her vagina on the bed. S.S. testified defendant was on top of D.C. on the bed, moving his
hips up and down, while D.C. told him to “stop” and defendant responded: “Just go with
it.” M.C. testified defendant also touched her inappropriately, supplying direct evidence
of the crimes committed against her and circumstantial evidence defendant also engaged
in sexual conduct with D.C. (See Evid. Code, § 1108, subd. (a); see also People v.
Merriman (2014) 60 Cal.4th 1, 40 [evidence of sexual assault cross-admissible under




                                             13
Evidence Code section 1108 to show the defendant‟s propensity to commit rape and
forcible oral copulation]; see, generally, People v. Catlin (2001) 26 Cal.4th 81, 145 [other
crimes evidence admissible to prove corpus delicti].) Thus, we have both direct and
circumstantial evidence of sexual activity engaged in by defendant against D.C., and
since she was eight years old at the time, there can be no dispute the activity was criminal
in nature. We hold this evidence is more than sufficient to provide a prima facie showing
of injury, loss, or harm by a criminal agency, such that defendant‟s confession may be
considered for its full value to fill in the precise nature of the crimes committed against
D.C.
       Nor are we persuaded by defendant‟s assertion D.C. “repeatedly denied that any
such event occurred.” In the SAFE interview, D.C. stated defendant “tried touching” her
“private part,” which she indicated was her vagina, in the bedroom while she sat on the
bed. While he did so, defendant said, “just let me, just let me,” to which D.C. said, “no”
and was eventually able to run outside. D.C. then stated S.S. went to the gas station to
call the police because defendant “kept on touching [her] there.” She then said defendant
was “trying to touch [her].” A short time later, D.C. said he did touch her vagina on top
of her swimming suit three times while she told him to “stop” and tried to get away from
him. The interviewer then asked D.C. whether defendant had done “anything else,”
whether he had touched her “any other time besides that time,” and whether “anything
else ever happened.” To each question, D.C. answered: “No.” She also said defendant
did not use “any other part of his body,” other than his hand, to touch her vagina. At
trial, D.C. clarified defendant did not simply “try to touch” her vagina with his hand
while she was on the bed; he did so, and continued to touch her despite her demand for
him to stop. D.C. did not remember much of what she had previously told the SAFE
interviewer. She did, however, agree with defense counsel‟s leading questions: “And




                                             14
[defendant] never did anything else to you; isn‟t that correct?” and, “[i]sn‟t it true, [D.C.],
[defendant] never put his finger in you, did he?” and “[Defendant] never gave you a
piggy-back ride, correct?” When the prosecutor asked whether she understood what it
meant to have something inside of her, D.C. answered: “No.”
       From the foregoing, it is apparent D.C. did not fully understand what defendant
was doing to her on the bed. However, her testimony and statements in the SAFE
interview, along with S.S.‟s eyewitness testimony, provide more than enough
independent evidence that she suffered some injury, loss, or harm by a criminal agency.
Her description of being touched on the bed corroborated defendant‟s statement to police
concerning the same conduct, although we know from his statement that he actually
pulled her swimming suit to the side and tried to insert his penis in her vagina. In turn,
this corroboration lent reliability to defendant‟s additional confession that he also
penetrated D.C.‟s vagina while giving her a piggyback ride down the hallway, which he
admitted turned him on and probably caused him to then try to have sex with her in the
bedroom. Based on this corroboration, we are confident defendant confessed to the
penetration, not because of “improper police activity or [his] mental instability”
(Jennings, supra, 53 Cal.3d at p. 368), but because it actually happened. Nor are we
troubled by the fact D.C. did not remember the piggyback ride. She was eight years old
at the time of these crimes. By defendant‟s own statement, the actual penetration while
D.C. was on his back was a fleeting event and the penetration was slight.
       We conclude there was sufficient evidence, independent of defendant‟s confession
to police, to establish the corpus delicti of sexual penetration.




                                              15
                                              II
                           Exclusion of Impeachment Evidence
       Defendant also claims the trial court abused its discretion and violated his right to
due process by excluding evidence certain school records pertaining to S.S. indicated he
exhibited oppositional, defiant, and atypical behaviors purportedly relevant to his
credibility as a witness. We disagree.
                                             A.
                                  Additional Background
       Defendant subpoenaed S.S.‟s school records that the trial court reviewed in
camera. Certain of these records were made available to defense counsel. The
prosecution then asked the trial court to limit cross-examination of S.S. concerning a
psychoeducational study (PS) prepared in May 2011. The prosecution asked the trial
court to preclude, as “irrelevant and unduly prejudicial,” any questioning concerning the
following contents of the study: “[R]eferrals for „[in]subordinate and defiant‟ behavior;
[¶] Anger outburst when frustrated over academics or social injustices; [¶] Demonstrating
victimizing behaviors; [¶] Seizures, setting fires, and thoughts of suicide; [¶] Prior
diagnoses and use of medication to control behavior; [¶] Conclusions based on limited
hearsay that suggest potential for maladjustment including: cruelty to animals, threats to
hurt others . . . , bullying classmates, and other aggression and conduct problems.” The
prosecution did not, however, object to cross-examination concerning two reported
incidents of theft at school and requested a hearing under Evidence Code section 402 to
determine whether a reported statement made by S.S. to the school psychologist, i.e., that
he sometimes heard voices in his head that no one else could hear, would be relevant to
his perception of defendant‟s behavior on August 2, 2011.




                                             16
       Prior to defense counsel‟s cross-examination of C.C., the first witness called by
the prosecution, defense counsel raised the issue of addressing the foregoing subjects
with this witness. The trial court ruled S.S.‟s “oppositional, defiant behavior at school
that is reflected in the [PS] doesn‟t seem to me to have any bearing on his truth or
veracity.” The court also ruled such evidence inadmissible under Evidence Code section
352 as an “unduly prejudicial” attack on S.S.‟s character. The trial court did, however,
indicate that defense counsel might be able to cross-examine S.S. concerning “his self-
report of hearing things that might not be there” and the “specific incidents of . . . theft.”
       During S.S.‟s testimony, defense counsel again raised the issue of questioning him
concerning his oppositional and defiant behavior at school. Defense counsel argued: “I
suspect [defendant] is going to get on the stand, deny that any of this happened,
absolutely deny it. And so ultimately, I have got to come up with a theory for the jury as
to why these children would make up allegations against their babysitter who they had no
problems with in the past. [¶] And certainly seems to me with [S.S.], who is the oldest
of the children and the only one that‟s allowed to leave the property on a bicycle -- the
rest of the children weren‟t -- it seems to me I should be able to ask that, if the response is
merited, about the fact he was defiant to authority and didn‟t like to listen to other people,
especially people in position[s] of authority.” The trial court again ruled the evidence
inadmissible as irrelevant to the question of “whether this witness is telling the truth or
not” and also barred by Evidence Code section 352.
       S.S. was then questioned about the two reported thefts. He admitted one of them.
He was also questioned about his reported statement that he was hearing voices no one
else could hear. He denied making this statement. The parties stipulated the school
psychologist would testify that S.S. made the statement.




                                              17
                                             B.
                                          Analysis
       Defendant asserts the jury should have heard that S.S. “„had numerous referrals
and suspensions for [in]subordina[te] and defiant behavior‟” at school, a teacher noted he
“„will have anger outbursts when he becomes frustrated over academics or social
injustices[,] struggles on the yard and in small group situations[,] and he often
demonstrates victimizing behaviors,‟” his “„primary disability is Emotional
Disturbance,‟” he was “identified as showing „Oppositional Defiant Disorder and Bipolar
Disorder,‟” his mother was “„recently having more difficulty helping [him] control his
behavior,‟” he had been “„receiving therapy for one month . . . but [was] not presently
taking medication,‟” “parent and teacher responses suggested „a high level of
maladjustment for . . . aggression‟ [and] that he „often threatens to hurt others and bullies
others,‟” he “sets fires,” he “„almost always is easily annoyed by others‟ and „threatens to
hurt others,‟” and parent and teacher responses also suggested “„a high level of
maladjustment for . . . atypicality (seems out of touch with reality, has strange ideas, says
things that make no sense, acts strangely, seems unaware of others).‟” He argues the
foregoing evidence “was highly relevant to the jury‟s assessment of whether his report of
what he saw in the bedroom was one of his „strange actions‟―a product perhaps of his
anger, defiance, or lack of contact with reality.” We are not persuaded.
       We first note the foregoing evidence falls into two categories: (1) evidence of
S.S.‟s past misconduct, i.e., insubordinate, oppositional, defiant, aggressive, threatening,
and victimizing behavior; and (2) evidence S.S. appeared to be out of touch with reality.
With respect to the second category, aside from the report of S.S. hearing voices no one
else could hear, which was admitted into evidence, defense counsel did not ask the trial
court to admit this evidence. Accordingly, any claim of error based on this category is




                                             18
forfeited.6 (Evid. Code, § 354, subd. (a); see, e.g., People v. Panah (2005) 35 Cal.4th
395, 481.) We therefore address only the first category.
       1.     Relevance of the Proffered Evidence
       “No evidence is admissible except relevant evidence” and, “[e]xcept as otherwise
provided by statute, all relevant evidence is admissible.” (Evid. Code, §§ 350, 351.)
Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
       “Not all past misconduct has a „tendency in reason to prove or disprove‟ a
witness‟s honesty and veracity.” (People v. Wheeler (1992) 4 Cal.4th 284, 295.)7 It is
misconduct “involving moral turpitude” that “may suggest a willingness to lie [citations],
and this inference is not limited to conduct which resulted in a felony conviction.” (Id. at
pp. 295-296.) Thus, “the admissibility of any past misconduct for impeachment is




6       In any event, even if properly preserved for review, while evidence S.S. seemed
out of touch with reality about three months before defendant tried to have sex with his
sister would be relevant to his ability to perceive the event (see Evid. Code, §§ 210, 780),
and further assuming the evidence was not subject to exclusion as inadmissible hearsay
or under Evidence Code section 352, we would nevertheless conclude any error was
harmless since the jury heard evidence S.S. reported hearing voices no one else could
hear. This additional, non-specific, evidence that parent and teacher responses revealed
S.S. seemed out of touch with reality, had strange ideas, said strange things, acted
strangely, and seemed unaware of others would have added little to the jury‟s assessment
of his ability to perceive the event that occurred on his bed. Moreover, the evidence
against defendant was overwhelming. Indeed, defendant‟s admission to trying to have
sex with D.C. on the bed corroborated S.S.‟s testimony and confirmed he accurately
perceived the event.
7      Evidence Code section 786 “prohibits the use of evidence showing traits of a
witness‟s character „other than honesty or veracity.‟” (People v. Wheeler, supra, 4
Cal.4th at p. 290.)


                                             19
limited at the outset by the relevance requirement of moral turpitude.” (Id. at p. 296; see
also People v. Clark (2011) 52 Cal.4th 856, 931.)
       Here, based on the offer of proof, we cannot conclude S.S.‟s prior conduct rises to
the level of moral turpitude, i.e., a “„general readiness to do evil.‟” (People v. Castro
(1985) 38 Cal.3d 301, 315.) While the assessment indicates S.S. “threatens to hurt
others, teases others, argues [w]hen denied own way, bullies others, seeks revenge, hits
and calls other adolescents names,” we do not know precisely what S.S. did to warrant
these comments. However, arguing, teasing, and name-calling certainly do not rise to the
level of moral turpitude. Nor does committing a battery. (See People v. Mansfield
(1988) 200 Cal.App.3d 82, 89.) Moreover, while the crimes of making a criminal threat
(§ 422) and arson (§ 451) have been held to involve moral turpitude (see People v.
Thornton (1992) 3 Cal.App.4th 419, 424; People v. Miles (1985) 172 Cal.App.3d 474,
482), S.S. was not convicted of these crimes. Instead, the school assessment simply
notes, based on parent and teacher responses, that S.S. “threatens to hurt others.” This
does not reveal “[t]he knowing infliction of mental terror” held to be “deserving of moral
condemnation” in People v. Thornton, supra, 3 Cal.App.4th at page 424. Similarly, the
parent response that S.S. “sets fires” does not reveal whether he set fire to “any structure,
forest land, or property,” as those terms are used in the arson statute, or whether he did so
“willfully and maliciously.” (§ 451.) At most, the school assessment reveals a troubled
young man who was acting out in school and at home, not a person possessing a general
readiness to do evil, such that the jury could reasonably infer a willingness to lie. We
agree with the trial court that this evidence was not relevant to S.S.‟s credibility as a
witness.




                                              20
       2.     Evidence Code Section 352
       Even assuming the evidence was relevant to S.S.‟s credibility, we would
nevertheless conclude the evidence was properly excluded under Evidence Code section
352. This section provides the trial court with discretion to exclude relevant evidence “if
its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
       We review the trial court‟s decision to exclude evidence under Evidence Code
section 352 for abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
However, while this provision “permits the trial judge to strike a careful balance between
the probative value of the evidence and the danger of prejudice, confusion and undue
time consumption,” it also “requires that the danger of these evils substantially outweigh
the probative value of the evidence. This balance is particularly delicate and critical
where what is at stake is a criminal defendant‟s liberty.” (People v. Lavergne (1971) 4
Cal.3d 735, 744; see People v. Holford (2012) 203 Cal.App.4th 155, 168 [section 352
objection should be overruled “unless the probative value is „substantially‟ outweighed
by the probability of a „substantial danger‟” of one of the statutory counterweights].)
Thus, Evidence Code section 352 “must bow to the due process right of a defendant to a
fair trial and his right to present all relevant evidence of significant probative value to his
defense. [Citations.] Of course, the proffered evidence must have more than slight
relevancy to the issues presented. [Citation.]” (People v. Burrell-Hart (1987) 192
Cal.App.3d 593, 599.)
       We have already concluded the proffered evidence was not relevant to the issues
presented. However, even if relevant, the probative value was slight. In People v.
Lightsey (2012) 54 Cal.4th 668, our Supreme Court upheld the trial court‟s decision,




                                              21
under Evidence Code section 352, to exclude evidence of a prosecution witness‟s
misdemeanor conviction for assault with a deadly weapon, explaining: “[E]vidence of
[the witness‟s] misdemeanor conduct―striking her ex-husband with a rock during a
dispute―does not strongly demonstrate moral turpitude, i.e., a „“general readiness to do
evil”‟ [citation], and thus would not have provided the jury much assistance in assessing
[her] credibility. „This was a routine matter of weighing the evidence‟s probative value
against the probability its admission would “necessitate undue consumption of time”
[citation], and the trial court‟s ruling was both reasoned and reasonable.‟ [Citation.]”
(Id. at p. 714.) The same reasoning applies here.
       The trial court did not abuse its discretion or violate defendant‟s right to due
process by excluding the proffered evidence.
                                             III
                             Admission of Expert Testimony
       Nor are we persuaded by defendant‟s assertion the trial court abused its discretion
and violated his confrontation, due process, and jury trial rights by allowing testimony
from Dr. Anthony Urquiza, an expert on CSAAS.
       In People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), our Supreme Court held
expert testimony concerning the behavior of rape victims to be admissible under
Evidence Code section 801 “to rebut misconceptions about the presumed behavior of
rape victims,” but not “as a means of proving—from the alleged victim‟s post-incident
trauma—that a rape in the legal sense had, in fact, occurred.” (Id. at pp. 248, 251.) In
People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our Supreme Court extended the
Bledsoe holding to a case involving the sexual abuse of a child, explaining: “[E]xpert
testimony on the common reactions of child molestation victims is not admissible to
prove that the complaining witness has in fact been sexually abused; it is admissible to




                                             22
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. [Citations.] „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 pp. 1300-1301; see also People v. Bowker (1988) 203 Cal.App.3d 385,
394; People v. Housley (1992) 6 Cal.App.4th 947, 955-956.)
       In accordance with these principles, Dr. Urquiza testified regarding CSAAS,
explaining the syndrome has five stages: (1) secrecy; (2) helplessness; (3) entrapment
and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction or
recantation. After going into each of the stages in some detail, with the exception of the
fifth, Dr. Urquiza testified he was not there to render an opinion as to whether or not the
alleged victims in this case were sexually abused, explaining: “That -- that would
presume that I actually know information about this case. And even if I did know
information about this case, I would not have an opinion about that because I‟m not a
member of the jury. So it is not my place to have any opinion about whether somebody
was abused or not or whether somebody was a perpetrator or not.” During cross-
examination, defense counsel elicited testimony from Dr. Urquiza that CSAAS “is not a
diagnostic tool,” i.e., “not to be used to make a determination as to whether a child was
abused or not,” and it would be “improper use” of his testimony to try to use it to make
such a determination. Dr. Urquiza then explained CSAAS is both “an educational tool
for therapists” and “often is used to educate jurors about sexual abuse and to dispel myths
or misunderstandings that they may have about sexual abuse.”
       Defendant argues, “the CSAAS testimony did not serve the purpose of
rehabilitating a victim‟s credibility, mistakenly impeached by myths and misconceptions




                                             23
about how child victims behave,” but instead, because D.C. “testified that [defendant]
never penetrated her and never brought his penis near her private part,” which “was
consistent with her pretrial statements,” “[t]he function of the CSAAS testimony was to
destroy [D.C.‟s] credibility, a use never contemplated by the judicial precedents.” We
disagree. While D.C. testified only to the incident on the bed and agreed with defense
counsel‟s suggestions that defendant “never did anything else,” and “never put his finger
in [her],” and “never gave [her] a piggy-back ride,” and while this testimony generally
conformed to the statements D.C. made during the SAFE interview, she still testified that
defendant molested her; specifically, she testified that he touched her vagina on the bed
and continued to do so despite her demand for him to stop, which defendant suggested
through cross-examination and argument to the jury was inconsistent with her conduct
after the incident. Use of CSAAS testimony to rehabilitate D.C. in these circumstances
falls within the dictates of McAlpin, supra, 53 Cal.3d 1289.
       For example, defense counsel asked D.C. whether she would have told somebody,
perhaps her parents, one of her siblings, a teacher, or a police officer, if defendant had
ever touched her inappropriately, to which she answered: “Yes.” Later, defense counsel
asked D.C. whether she remembered telling the police officer who spoke to her after the
incident that “nothing happened” between her and defendant, and that she was simply
“teaching [him] how to play the guitar.” She did not remember telling the officer that,
but admitted it would have been a lie. Defense counsel then asked whether defendant
was able to see or hear her while she was speaking to the officer, to which she admitted
defendant was not around. These questions were designed to, and did, elicit responses
suggesting D.C. had no reason to lie to the police officer following the incident. Dr.
Urquiza‟s testimony concerning secrecy and delayed disclosure was therefore needed to
inform the jurors that such behavior is common among abused children―not to prove




                                             24
D.C. was in fact abused by defendant, but to disabuse jurors of any misconception that a
child‟s initial denial that any abuse occurred is inconsistent with that child having been
abused. As Dr. Urquiza put it: “So the misperception that people have about sexual
abuse is, if you are sexually abused, you will tell somebody right away. And while that
does happen, it is not common for it to happen.”
       Moreover, contrary to defendant‟s argument on appeal, the fact D.C. did not reveal
the sexual penetration during the piggyback ride or the fact defendant used his penis to
try to penetrate her vagina, does not mean the CSAAS testimony was improperly used to
“destroy her credibility.” Instead, it was properly used to rehabilitate her credibility as to
the abuse to which she did testify.
       Defendant also takes issue with the following exchange between the prosecutor
and Dr. Urquiza. The prosecutor asked: “What if an abuser sexually abused a child but
did so in a playful or in a way that appeared loving to the child? Would that in any way
possibly [a]ffect the way that child could disclose?” Dr. Urquiza answered: “I think it
could. It may leave them with the notion about the question as to whether they were
abused or some self-doubt about what the behavior was. I mean, some types of sexual
behavior is difficult to mistake for anything else, at least for us as adults. But sometimes
you can be wrestling, or you can be goofing around; and your hand can go someplace
where it‟s not supposed to, and that is harder to figure out if you are a child. [¶] . . . So if
it‟s not a clear-cut behavior, sexually inappropriate behavior, it may not be easily
understood by the victim.”
       Relying on People v. Gilbert (1992) 5 Cal.App.4th 1372, defendant argues: “The
prosecutor‟s questioning and the expert‟s responses offered the profile of a child sexual
abuser who disguises his abuses in playfulness or shows of affection and who exploits the
child‟s inability to understand that such ambiguous behavior is in fact sexually abusive,




                                              25
and a profile of a victim incapable of recognizing the full sexual meaning of the disguised
act. This is not a permissible use of CSAAS testimony.” We are not persuaded. Indeed,
the expert testimony in Gilbert was held to be properly admitted and not outside the
permissible scope of such testimony. (Id. at pp. 1384-1386.) However, the Gilbert court
did explain: “Because the line between impermissible use of expert testimony to prove
the child was abused, and permissible use of such testimony to „“explain the emotional
antecedents of abused children‟s seemingly self-impeaching behavior . . . ”‟ [citation], is
by no means a bright one, the better practice is to limit the expert‟s testimony to
observations concerning the behavior of abused children as a class and to avoid testimony
which recites either the facts of the case at trial or obviously similar facts. [Citations.]”
(Id. at pp. 1383-1384, italics added.)
       Here, Dr. Urquiza limited his testimony to the behavior of abused children in
general. Nor can we conclude the prosecutor‟s questions concerning abusers who use
apparently playful or loving touches to disguise their abuse, or Dr. Urquiza‟s testimony
that such behavior could confuse the abused child and cause the child to doubt whether
he or she was actually abused, dealt with facts that were obviously similar to the facts of
this case. Instead, this testimony was “targeted to a specific „myth‟ or „misconception‟
suggested by the evidence” (People v. Bowker, supra, 203 Cal.App.3d at p. 393), i.e., that
a victim of child sexual abuse will both understand and immediately report such abuse.
As we have already noted, D.C. did not immediately report the incident on the bed. And
as defendant has repeatedly observed, she did not report the penetration during the
piggyback ride. While the jury could not use Dr. Urquiza‟s testimony to conclude
defendant abused D.C., and was so instructed, if the jury concluded from other evidence,
e.g., his confession, that he did abuse the child, the challenged testimony could have
helped the jury understand the reasons behind the delayed and incomplete disclosure.




                                              26
This falls within the permissible purpose of such testimony, i.e., “showing that the
victim‟s reactions as demonstrated by the evidence are not inconsistent with having been
molested.” (Ibid.)
       We also reject defendant‟s assertions that Dr. Urquiza‟s testimony invaded the
province of the jury, contradicted Evidence Code section 780 and CALCRIM No. 226,
and was not needed to dispel any myths. We have already concluded the testimony was
admissible to dispel the myth, which defense counsel attempted to exploit, that a child‟s
initial denial any abuse occurred is inconsistent with that child having been abused. And
while defense counsel‟s attack on D.C.‟s credibility in this regard is supported by
Evidence Code section 780, subdivision (h), allowing the jury to “consider” prior
inconsistent statements “in determining the credibility of a witness,” and while the jury
was so instructed pursuant to CALCRIM No. 226, this does not mean expert testimony
explaining that prior inconsistent statements are common in child sexual abuse
cases―the implication being such statements may be of limited value in determining
credibility in such a case―contradicts Evidence Code section 780 and CALCRIM No.
226. Indeed, both provide that the jury may consider anything that has any tendency in
reason to prove or disprove the truthfulness of a witness‟s testimony. (Evid. Code, §
780; CALCRIM No. 226.) Prior inconsistent statements in general tend to disprove
truthfulness, while CSAAS testimony explains the emotional antecedents of an abused
child‟s prior inconsistent statement, and thus, tends to rehabilitate the witness, assuming,
of course, the jury concludes from other evidence the witness was in fact abused. Nor did
Dr. Urquiza‟s testimony invade the province of the jury. Indeed, he specifically stated he
had no opinion as to whether the alleged victims in this case were abused or whether
defendant committed any acts of abuse.




                                             27
       Finally, Dr. Urquiza‟s testimony did not violate defendant‟s confrontation, due
process, or jury trial rights. Similar arguments were raised and rejected in People v.
Patino (1994) 26 Cal.App.4th 1737, at pages 1746-1747. We agree with that decision.
                                             IV
                                Prosecutorial Misconduct
       Defendant further asserts the prosecutor engaged in prejudicial misconduct in
violation of his right to due process by (1) misleading the jury about the evidence, (2)
misleading the jury about a stipulation and suggesting facts not in evidence, (3) assuring
the jury the case would not have been brought if the evidence was lacking, (4) implying
defendant was not human, except for the moment when he confessed to police, and (5)
appealing to the passions of the jury and disparaging defense counsel in front of the jury.
This assertion of error is forfeited because defendant did not object to the prosecutor‟s
alleged misconduct or request curative admonitions. (People v. McDowell (2012) 54
Cal.4th 395, 436.) Anticipating forfeiture, defendant argues reversal is nevertheless
required because defense counsel‟s failure to object and request admonitions amounted to
ineffective assistance of counsel. We disagree. Because the asserted instances of alleged
misconduct were either not misconduct or not prejudicial, we conclude counsel‟s failure
to object and request admonitions did not fall below an objective standard of
reasonableness.
       A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the
defendant not to some bare assistance but rather to effective assistance. [Citations.]
Specifically, it entitles him [or her] to „the reasonably competent assistance of an attorney
acting as his [or her] diligent conscientious advocate.‟ [Citations.]” (Ibid., quoting




                                             28
United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) “„In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel‟s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel‟s performance or lack
thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but
for counsel‟s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”‟” (In re Harris (1993) 5 Cal.4th 813, 832-833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) The burden of proving a
claim of ineffective assistance of counsel is squarely upon the defendant. (People v.
Camden (1976) 16 Cal.3d 808, 816.)
       We must first determine whether defense counsel‟s failure to object to the specific
instances of alleged misconduct fell below an objective standard of reasonableness.
“Under the federal Constitution, a prosecutor commits reversible misconduct only if the
conduct infects the trial with such „“unfairness as to make the resulting conviction a
denial of due process.”‟ [Citation.] By contrast, our state law requires reversal when a
prosecutor uses „deceptive or reprehensible methods to persuade either the court or the
jury‟ [citation] and „“it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct”‟ [citation].” (People v.
Davis (2009) 46 Cal.4th 539, 612.)
       The first instance of alleged misconduct occurred during the prosecutor‟s closing
argument. Describing defendant‟s interview with police, the prosecutor stated: “This is
when the officers are saying, [D.C.] is going to get examined; did you give her any STDs.
Did anything go into her vagina that we need to know about when her hymen broke?




                                             29
They explained that to him.” (Italics added.) Defendant complains the prosecutor misled
the jury about the evidence because there was no evidence D.C.‟s hymen broke. While
“mischaracterizing the evidence is misconduct” (People v. Hill (1998) 17 Cal.4th 800,
823), where the prosecutor‟s comments are ambiguous, the question is “whether there is a
reasonable likelihood that the jury misconstrued or misapplied” the comments. (People
v. Clair (1992) 2 Cal.4th 629, 663.) Here, “when her hymen broke” could be construed
to indicate it did actually break, while the doctor who performed the sexual assault
examination on D.C. testified there were no findings of sexual trauma. However, the
prosecutor was clearly referring to defendant‟s police interview, in which defendant was
asked whether he penetrated D.C.‟s vagina “however slight,” because any such
penetration “breaks the hymen.” Viewed in context, we conclude the jury likely
understood the challenged language to refer to the detective‟s suggestion to defendant
that D.C.‟s hymen broke, and not that the hymen was in fact perforated. So viewed, the
challenged statement did not mischaracterize the evidence and defense counsel was not
ineffective for failing to object.
       Second, defendant claims the prosecutor misled the jury about the stipulation
entered into between the parties, i.e., the school psychologist would testify S.S. told her
on one occasion in May 2011 that “sometimes he heard voices in his head that no one
else could hear.” The prosecutor stated during her closing argument: “[S.S.] told --
allegedly told a school psychologist -- a school counselor that he heard things that no one
else could hear. And, first of all, there is a stipulation that, if she were to take the stand,
she would have said that. But you can‟t just assume that it is true just because she would
say that. She was not subject to cross-examination. She did not give you the context
under which that statement was said. She didn‟t tell you any of the good things that
possibly she knows about him either. The fact that that fact was given -- that she would




                                               30
testify to that single fact in isolation doesn‟t tell you you have to believe it. It is just a
fact that you can consider [of a statement] that he made in 2011.”
       Defendant argues the prosecutor “implied to the jury that defense counsel was
preventing cross-examination and the elicitation of testimony helpful to the prosecution”
and “suggested there were facts not in evidence, favorable to the prosecution, to which
the absent witness would have testified.” We disagree. A prosecutor “should not, of
course, argue facts not in evidence” (People v. Osband (1996) 13 Cal.4th 622, 698), and
“[w]here the circumstances do not indicate suppression of material evidence or any other
impropriety in failing to call a witness, it may be misconduct for the prosecutor . . . to
assert that a particular person, if called, would give certain testimony.” (5 Witkin, Cal.
Criminal Law (4th ed. 2012) Criminal Trial, § 762, p. 1186.) Here, however, the
prosecutor informed the jury that, while the stipulation created a conflict in the evidence
as to whether S.S. told the school psychologist he heard voices no one else could hear,
the stipulation did not resolve that conflict. If called as a witness, the psychologist would
have testified S.S. made the statement; S.S. testified he did not. The parties did not
stipulate that the psychologist‟s testimony would have been true. It was for the jury to
decide who was (or would have been) telling the truth. Pointing this out to the jury was
not misconduct. Nor was the prosecutor‟s subsequent comment that the stipulation
provided limited information from which the jury could assess the psychologist‟s
credibility. The only arguable suggestion of facts not in evidence was the comment that
the psychologist might “possibly” know “good things” about S.S. But anyone might
possibly know good things about anyone. This statement does not assert the psychologist
actually had good things to say about S.S., or defendant somehow prevented her from
sharing these good things with the jury. Defense counsel was not ineffective for failing
to object to these comments.




                                               31
       Third, defendant complains the prosecutor stated during her rebuttal argument:
“No evidence at all? I promise you, I would not be arguing in front of you that there
was.” Defendant argues: “The prosecutor‟s statement that she would not be arguing to
the jury if she did not have sufficient evidence invites the jury to rely on the prosecutor‟s
personal probity rather than on the evidence in the case and may be understood by the
jury as an assurance that the prosecutor is relying on additional evidence.” A prosecutor
may not “express a personal opinion or belief in a defendant‟s guilt, where there is
substantial danger that jurors will interpret this as being based on information at the
prosecutor‟s command, other than evidence adduced at trial. The danger is acute when
the prosecutor offers his [or her] opinion and does not explicitly state that it is based
solely on inferences from the evidence at trial.” (People v. Bain (1971) 5 Cal.3d 839,
848.) However, viewed in context, we cannot agree with defendant‟s characterization of
the challenged statement as an assurance to the jury that there is sufficient evidence,
perhaps outside that adduced at trial, to support defendant‟s guilt. The challenged
statement was made in response to defense counsel‟s argument there was no evidence of
sexual penetration, or that a piggyback ride took place. The prosecutor responded:
“[W]hat are you expecting? A picture of the piggy-back ride? [¶] I -- at this point, you
have the defendant‟s statement, and you have [the doctor‟s] exam; and, ladies and
gentlemen, you need evidence that a crime occurred, however slight that evidence is.
You got -- you‟ll get the instructions in the deliberation room. You have a lot of
evidence that a crime occurred: Touching breasts, touching butt, touching vagina, being
in a room with [D.C.], [S.S.] seeing him on top of her. . . . No evidence at all? I promise
you, I would not be arguing in front of you that there was.” Viewed in context, we
conclude the jury likely understood the challenged statement to refer to the evidence the




                                              32
prosecutor recited immediately before the statement. So viewed, there was no
misconduct and defense counsel was not ineffective for failing to object.
       Fourth, defendant takes issue with the following statement made during the
prosecutor‟s closing argument, again referring to defendant‟s police interview: “And for
a moment, the defendant becomes a human, and he starts to talk and gives this
information up.” Defendant argues: “By suggesting that [defendant] was human only for
a moment, when he responded with admissions of wrongdoing to the officers‟
expressions of concern for the family, the prosecutor implied that [defendant] has
behaved inhumanly since then. The prosecutor implied that, after that fleeting moment of
humanity, [defendant] reprehensibly reverted to inhumanity by denying the truth of his
admissions and demanding a trial, and thus implicitly invited the jury to chastise
[defendant‟s] presumptuousness in demanding a trial. The argument thus infringed on
[defendant‟s] constitutional trial right.” The foregoing quote, with a single citation to the
Sixth Amendment to the federal Constitution, is the entirety of defendant‟s argument. It
is insufficient to raise the issue. (See In re S.C. (2006) 138 Cal.App.4th 396, 408
[appellate brief must contain “meaningful legal analysis supported by citations to
authority and citations to facts in the record that support the claim of error”].)
       In any event, we disagree with defendant‟s characterization of the prosecutor‟s
argument. No reasonable juror would have taken it as an invitation to hold defendant‟s
decision to demand a trial against him. Moreover, while stating defendant was human
only when he confessed does imply he was otherwise inhuman, we do not view this as
misconduct. “Argument may be vigorous and may include opprobrious epithets
reasonably warranted by the evidence. [Citations.]” (People v. Edelbacher (1989) 47
Cal.3d 983, 1030; see also People v. Terry (1962) 57 Cal.2d 538, 561-562 [reference to
the defendant as an “animal”]; People v. Jones (1970) 7 Cal.App.3d 358, 362 [reference




                                              33
to the defendant‟s “animalistic tendencies”].) Merriam-Webster defines “inhuman” to
mean “lacking pity, kindness, or mercy.” (Merriam-Webster‟s Collegiate Dict. (11th ed.
2003) p. 643, col. 2.) Defendant‟s crimes against D.C. and M.C. certainly qualify. We
therefore conclude the prosecutor‟s comments were warranted by the evidence and
amounted to vigorous but fair argument. Defense counsel was not ineffective for failing
to object.
       Finally, defendant asserts the prosecutor committed misconduct by appealing to
the passions of the jury and disparaging defense counsel. The prosecutor stated during
her rebuttal argument: “Can you imagine what that must feel like, to be an eight-year-old
kid, with 12 adults -- 14 staring at her; and the most important person in her life on
August 2, 2011, looking right at her. But, yet, [defense counsel], with his many years of
experience, was able to twist her up. And how hard is that, to twist up an eight-year-old
girl to the point where she is crumpled in her seat, unable to even talk about anything?”
Additionally, defendant complains the prosecutor asked M.C. “how she felt there on the
stand” and whether defense counsel‟s questions about her body made her “feel
embarrassed,” stated in her closing argument that the SAFE interview is different from
trial, “where you have an experienced defense attorney doing leading questions and
getting answers that they want out of a kid who is oftentimes trained to obey adults,” and
stated in her closing and rebuttal arguments that defense counsel went “on the attack” in
cross-examining the children and also “attacked” their parents and the police.
       It is improper for a prosecutor “to portray defense counsel as the villain in the
case”; this is because a “defendant‟s conviction should rest on the evidence, not on
derelictions of his [or her] counsel. [Citations.] Casting uncalled for aspersions on
defense counsel directs attention to largely irrelevant matters and does not constitute
comment on the evidence or argument as to inferences to be drawn therefrom.” (People




                                             34
v. Thompson (1988) 45 Cal.3d 86, 112.) In People v. Turner (1983) 145 Cal.App.3d 658,
disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422-423,
footnote 6, and People v. Majors (1998) 18 Cal.4th 385, 410-411, the Court of Appeal
held the prosecutor “overreacted” to defense counsel‟s cross-examination of the victim
and engaged in misconduct by portraying defense counsel as “an additional villain who
was attacking the victim.” (Turner, supra, 145 Cal.App.3d at p. 674.) The same can be
said of the prosecutor‟s argument here. However, as in Turner, we conclude the
misconduct was harmless. (Ibid.) In light of the overwhelming evidence of defendant‟s
guilt, there is no reasonable probability a result more favorable to the defendant would
have been reached without the misconduct. (See People v. Davis, supra, 46 Cal.4th at p.
612.) For the same reason, even if we were to conclude defense counsel‟s failure to
object to the foregoing statements fell below an objective standard of reasonableness,
there would be no prejudice.
                                              V
                          Imposition of Consecutive Life Terms
       We do agree the matter must be remanded for resentencing. As defendant
correctly observes, the trial court abused its discretion in imposing three consecutive life
sentences pursuant to section 667.6 and rule 4.426 despite the fact he was not convicted
of any “violent sex offenses as defined in section 667.6.” (Rule 4.426(a); see § 667.6,
subds. (d) & (e).)
       Section 667.6, subdivision (d), provides: “A full, separate, and consecutive term
shall be imposed for each violation of an offense specified in subdivision (e) if the crimes
involve separate victims or involve the same victim on separate occasions.” Subdivision
(e) of this section lists the violent sex offenses for which full, separate, and consecutive




                                              35
terms are required where separate victims or separate occasions are involved. (§ 667.6,
subd. (e).)
       Implementing this section, rule 4.426(a) provides: “Multiple violent sex crimes
[¶] When a defendant has been convicted of multiple violent sex offenses as defined in
section 667.6, the sentencing judge must determine whether the crimes involved separate
victims or the same victim on separate occasions. [¶] (1) Different victims [¶] If the
crimes were committed against different victims, a full, separate, and consecutive term
must be imposed for a violent sex crime as to each victim, under section 667.6(d). [¶]
(2) Same victim, separate occasions [¶] If the crimes were committed against a single
victim, the sentencing judge must determine whether the crimes were committed on
separate occasions. In determining whether there were separate occasions, the sentencing
judge must consider whether, between the commission of one sex crime and another, the
defendant had a reasonable opportunity to reflect on his or her actions and nevertheless
resumed sexually assaultive behavior. A full, separate, and consecutive term must be
imposed for each violent sex offense committed on a separate occasion under section
667.6(d).”
       Defendant was not convicted of any violent sex offenses defined in section 667.6.
Thus, rule 4.426 was not applicable in this case. Instead, rule 4.425 applied. This rule
states: “Criteria affecting the decision to impose consecutive rather than concurrent
sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating to the crimes,
including whether or not: [¶] (1) The crimes and their objectives were predominantly
independent of each other; [¶] (2) The crimes involved separate acts of violence or
threats of violence; or [¶] (3) The crimes were committed at different times or separate
places, rather than being committed so closely in time and place as to indicate a single
period of aberrant behavior. [¶] (b) Other criteria and limitations [¶] Any




                                            36
circumstances in aggravation or mitigation may be considered in deciding whether to
impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to
impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant‟s prison
sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose
consecutive sentences.” (Rule 4.425.)
       While the trial court did not state during the sentencing hearing that it was using
rule 4.426 to impose consecutive terms, it did state it was “going to follow the
recommendation of the probation report,” which erroneously stated rule 4.425 was not
applicable and analyzed the question of imposing consecutive sentences under rule 4.426.
The trial court‟s analysis on the record also mirrored that of the probation report,
analyzing only whether the crimes involved separate victims or the same victim on
separate occasions. Indeed, the Attorney General concedes the trial court did not appear
to exercise its discretion to impose consecutive rather than concurrent sentences under
rule 4.425, rather than rule 4.426. We agree with this concession.
       Notwithstanding the conceded error, the Attorney General argues defendant has
forfeited the issue because he failed to object at the sentencing hearing. Anticipating this
argument, defendant argues an objection was not required to preserve the issue because
“the error is not in the manner of exercising but in the failure to exercise discretion.” We
need not determine who is correct on the forfeiture issue. Assuming the contention is
forfeited, we agree with defendant‟s alternative claim that his trial counsel was
ineffective for failing to object to the trial court‟s use of an inapplicable rule in
determining whether to impose consecutive rather than concurrent sentences. Our
Supreme Court has explained that “a defense attorney who fails to adequately understand
the available sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his [or her] client may be found incompetent.” (People v.




                                               37
Scott (1994) 9 Cal.4th 331, 351.) Here, defense counsel did not object to the trial court‟s
use of an inapplicable rule to sentence defendant to serve three consecutive life terms.
This failure to object fell below an objective standard of reasonableness under prevailing
professional norms. And while the record would support the trial court‟s consecutive
imposition of these terms under rule 4.425, we also conclude there to be a reasonable
probability, i.e., a probability sufficient to undermine our confidence in the outcome, that
one or more of these terms would have been imposed concurrently had the correct rule
been applied. (See generally Strickland v. Washington, supra, 466 U.S. at p. 687.)
       We therefore remand the matter to the trial court for resentencing with directions
to exercise its discretion under rule 4.425 to impose consecutive or concurrent sentences
for defendant‟s convictions.
                                             VI
                                  Cumulative Prejudice
       Aside from the sentencing error noted immediately above for which remand is
required, we have rejected each of defendant‟s assertions of error. Accordingly, his claim
of cumulative prejudice requiring reversal of his convictions also fails.
                                      DISPOSITION
       Defendant‟s convictions are affirmed. The matter is remanded to the trial court for
resentencing with directions to exercise its discretion under rule 4.425 of the California
Rules of Court in deciding whether to impose consecutive or concurrent sentences for
defendant‟s crimes. Following resentencing, the trial court shall amend the abstract of
judgment and forward a certified copy thereof to the Department of Corrections and
Rehabilitation.
       Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the
clerk of this court is ordered to forward a copy of this opinion to the State Bar upon




                                             38
finality of this appeal.8 Further, pursuant to Business and Professions Code section
6086.7, subdivision (b), the clerk of this court shall notify defendant‟s trial counsel that
the matter has been referred to the State Bar.



                                                                /s/
                                                   HOCH, J.



We concur:



        /s/
MAURO, Acting P. J.



       /s/
MURRAY, J.




8       Business and Professions Code section 6086.7, subdivision (a)(2), requires the
court to notify the State Bar “[w]henever a modification or reversal of judgment in a
judicial proceeding is based in whole or in part on the misconduct, incompetent
representation, or willful misrepresentation of an attorney.” (Italics added.) Here, the
trial court and counsel seemed to be unaware the wrong rule was being applied at the
sentencing hearing.


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