Filed 8/28/20 P. v. Humes CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




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




 THE PEOPLE,                                                                                   C089264

                    Plaintiff and Respondent,                                    (Super. Ct. No. 17FE004862)

           v.

 JON EMERSON HUMES,

                    Defendant and Appellant.




         A jury found defendant Jon Emerson Humes guilty of four counts of committing
lewd and lascivious acts on a child under the age of 14, two counts of committing a
forcible lewd and lascivious act on a child under the age of 14, and one count of
aggravated sexual assault of a child under the age of 14. Defendant contends the trial
court denied him a fair trial when it admitted expert testimony about the relative
infrequency of false allegations in child sex abuse cases. We will affirm the judgment.




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                  FACTUAL AND PROCEDURAL BACKGROUND
        Defendant sexually abused the victim, his daughter, from the time she was three or
four years old to the time she was 14 or 15 years old. The victim lived with her mother
over this period and defendant would live with them intermittently. The family moved
frequently because of the mother’s schizophrenia and paranoia. When the victim was 14
or 15, she moved in with her grandmother. Defendant only lived with the victim for one
day after she moved in with her grandmother. After living with her grandmother for
some time, the victim entered inpatient psychiatric care on a 51501 hold and told her
treating physician about defendant’s sexual abuse. She then told Child Protective
Services.
        The Victim’s Testimony
        At the time of trial, the victim was 17 years old. She testified that one evening
when she was three or four years old, defendant had been drinking. The victim was in
bed when defendant entered the bedroom and told her he would be sleeping with her that
night. Once defendant was in bed with the victim, he touched her chest, first over her
clothes and then under her clothes. He then touched her thighs and her genitals under her
clothing with his hands. Defendant inserted his fingers into the victim’s vagina. He then
attempted to insert his penis into her vagina. Defendant inserted his penis into her anus.
The victim recalled that later that night, defendant went with her to the bathroom and
wiped her bottom with a wash cloth, and she saw a pinkish liquid in the toilet that she
later believed was a mixture of blood and ejaculate. The victim did not tell her mother
about the incident because defendant told her not to tell anyone.2



1   Welfare and Institutions Code section 5150.
2 Counts one through four of the amended information arose out of this incident. Count
one alleged a lewd or lascivious act involving contact between defendant’s fingers and
the victim’s genitalia. (Pen. Code, § 288, subd. (a); undesignated statutory references are

                                              2
       The victim testified that in a separate incident when she was three or four years
old, defendant put his hand on her hand and touched her vagina. In her testimony, she
characterized defendant’s actions as trying to teach her to masturbate. The victim did not
remember this incident when she was first asked about it, but later remembered it, saying
that it was “less significant” to her “than other memories.” The parties later stipulated
that defendant had previously made a call from county jail to his sister. In the call,
defendant claimed that he did not molest the victim, but he did “show her how to
masturbate” when she was four years old.3
       Later, when the victim was six years old, she was lying on a bed alone in the fetal
position. Defendant was in the room and talked with the victim for five or six minutes
and lied down on the bed against her back. Defendant touched the victim’s chest,
stomach, and vaginal area, at first over her clothing, then under her clothing. He also
inserted his fingers into the victim’s vagina.4
       When the victim was eight years old, she was playing by herself and pretending to
be a cat. Defendant joined her and pretended he was a cat owner. He told her that cats
did not wear clothes and that she should take her clothes off. She removed her clothes,




to the Penal Code.) Count two alleged a lewd and lascivious act involving contact
between defendant’s penis and the victim’s genitalia. (§ 288, subd. (b)(1).) Count three
alleged aggravated sexual assault (sodomy) of a child. (§ 269, subd. (a)(3).) Count four
alleged a lewd and lascivious act involving contact between defendant’s penis and the
victim’s anus. (§ 288, subd. (b)(1).)
3 Count five of the amended information, which alleges defendant “put his hand on [the
victim’s] hand and put it on her genitalia,” arose out of this incident. (§ 288, subd. (a).)
4 Count six of the amended information, which alleges defendant committed a lewd and
lascivious act involving contact between defendant’s fingers and the victim’s genitalia,
arose out of this incident. (§ 288, subd. (a).)

                                              3
and defendant watched her “intensely” as she continued to play. She remembered that
defendant then touched the outside and inside of her thighs, but did not touch her vagina.5
       The victim testified that when she was 11 or 12 years old, she was cooking
something on the stove. She was wearing a long t-shirt that came down to mid-thigh
level and was not wearing any underwear. Defendant came up behind her, lifted the back
of her shirt, and slapped her buttocks with his hand. She did not recall defendant ever
spanking her to discipline her at that age.
       In a separate incident, the victim recalled waking up in the middle of the night
with defendant standing over her and a phone in his hand. Although she had gone to
sleep that night wearing clothes, when she awoke her pants were unbuttoned, unzipped,
and had been pulled down, along with her underwear. She heard a click from the phone
and saw a light flash, and noticed the phone was aimed below her stomach.
       The victim also recalled an incident where defendant was giving her a massage
and would touch the side of her breasts and buttocks. He also bought her two pairs of
underwear—one pair was see-through and the other was a g-string—and told her he
wanted to “see how they looked.” He bought her two vibrators and told her he was
reading an article about a stepdaughter who wanted to sleep with her father, which
involved the father walking in on the stepdaughter while she was masturbating. He also
offered her alcohol, marijuana, and methamphetamine, telling her “alcohol generally
makes women act looser.”
       Defendant would also send the victim inappropriate images on her Facebook
account, including pictures of naked children or teenagers. He sent her a picture of an




5 Count seven of the amended information, which alleges defendant committed a lewd
and lascivious act involving rubbing the victim’s thighs “after telling her to take her
clothes off and be a cat,” arose out of this incident. (§ 288, subd. (a).)

                                              4
erect penis, which she believed to be defendant’s, based on the clothes and the
background of the picture.
       The victim stated that she told her mother multiple times about defendant’s
conduct, but that nothing changed. Her mother also told her not to tell Child Protective
Services because foster care “would be a worse situation” than her current living
conditions. The victim conceded that she had denied any sexual abuse when speaking
with Child Protective Services until she was 15 years old.
       M.D.’s Testimony
       Defendant was 29 years old when he met M.D., a 13-year-old girl. At the time of
trial, M.D. was 34 years old. When she was 13 years old, she signed up for a voicemail
dating service, stating that she was 18 years old. M.D. received a message from
defendant and spoke with him several times on the phone. In the conversations, M.D.
told defendant that she was only 13 years old, but he told her “it wasn’t a problem and
that he liked younger girls.” Defendant told M.D. he was 21 years old. Defendant and
M.D. made plans to go to the mall. Defendant picked her up, but drove in a direction
away from the mall. As they were driving, he started touching her breasts and thighs
under her clothing. Defendant then pulled off the road and M.D. performed oral sex on
him. Defendant forced M.D.’s head lower onto his penis, then told her to remove her
pants. He told her to recline her seat, pulled down his own pants, and inserted his penis
into M.D.’s vagina. Defendant ejaculated in M.D., drove to a gas station for cigarettes,
and drove her home.
       After the encounter, M.D. told people at a group home where she had previously
lived about the encounter and went to a hospital for a rape examination. Police enlisted
M.D.’s father to make a recorded pretextual call to defendant. In the call, which was
played for the jury, defendant admitted he knew M.D. was 13 years old, but that he had
not forced her to do anything. Defendant stated that “if we did - if we had, uh, sex it was
totally consens [sic] - in fact, uh, it really - she was the aggressor, you know?”

                                              5
       The parties stipulated defendant was convicted of unlawful sexual intercourse with
a minor (§ 261.5) in 1999 for his conduct with M.D.
       G.S.’s Testimony
       In 2004, G.S., an adult male, subscribed to a voicemail dating service. Defendant
left multiple messages for G.S. The messages asked about G.S.’s children, and G.S.
understood the questions to imply a sexual context. Defendant told G.S. that he had a
three-year-old girl that he wanted G.S. to meet. Defendant stated that his daughter was
“soft” and G.S. could “touch her.” Defendant told G.S. that G.S. could have sex with
defendant’s daughter, and that defendant had touched her. Defendant told G.S. that
defendant “had a shaved ass like a 12-year-old boy.” Defendant said he wanted to meet
G.S. before introducing G.S. to his daughter, saying “[w]e need to get this done now
because my wife is about to come home, and I don’t want her to interrupt us.” Defendant
instructed G.S. to “shave his dick” before they met.
       While G.S. was speaking with defendant, G.S. drove to a pay phone and called
911. The police instructed G.S. to meet defendant at a car wash and contact a nearby
police officer by phone after he had made contact. Once they met at the car wash, a
police officer arrested defendant, who told the officer that he “might have had some child
porn on his computer.” A police detective conducted a search of defendant’s apartment
and found nude pictures of four different girls between the ages of nine and 13 years old.
While the detective was searching the apartment, the victim, who was then three years
old, and her mother came home to the apartment.
       The parties stipulated defendant was convicted of annoying or molesting a child
(§ 647.6, subd. (a)) and possession of child pornography (§ 311.11, subd. (a)) as a result
of this incident.
       Sergeant Shane Spence’s Testimony
       At trial, Sergeant Shane Spence of the Sacramento County Sheriff’s Department
testified about a search warrant he executed on defendant’s Facebook account in 2017.

                                             6
Sergeant Spence found defendant had sent Facebook messages to his daughter’s (the
victim’s) boyfriend in 2015, including one with a link to a Google search for “nufdist
[sic] little girl vagina.” Defendant sent a message after the link saying, “Excuse me, that
ain’t no little girl. 35 if she’s a day. Good lord[!]”
       Sergeant Spence also found several messages defendant had sent to a Facebook
friend, B.H. The first message was a picture of a nude prepubescent female with other
young females in the background. The second message was a picture of a young girl
crying, with accompanying text saying “Just lie back and enjoy. It won’t hurt. I promise.
You’ll love it.” This picture was then sent a second time, with text saying, “Is it my fault
males get high and . . . wanna suck the goo out of all the peepees, sheesh. Come to CA
. . . Me and Julie are over, and I got the best Kristina friends. Come and let me finish
deep in you. You will get HIV dating in Vegas. Come and heal [sic] me run a family
nudism escort in our apartment . . . Shh, our secret.” The third message was a screenshot
of a video showing an infant girl getting her diaper changed and showing her vaginal
area. The message was accompanied by text saying, “SLLLURP[!]” The fourth message
was a picture of a nude prepubescent girl on a beach, and a text message saying, “Let’s
get baked and play babysitter takes a nap as the wolf pleases the chickeletxs [sic].”
       Dr. Anna Washington’s Testimony
       Dr. Anna Washington, a psychologist, testified as an expert about child sexual
abuse accommodation syndrome (CSAAS) and the effects of sexual abuse on children.
CSAAS is an educational tool to explain why children who have been sexually abused
react to abuse in particular ways and “to help dispel some common myths regarding child
sexual abuse.” CSAAS is not meant to diagnose child sexual abuse.
       Dr. Washington testified about the concepts of secrecy and grooming in child
sexual abuse, or the idea that abusers cultivate a positive relationship with their victims
before gradually introducing elements of sexual abuse into the relationship. Most abuse



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occurs in the context of preexisting or positive relationships, and it is common for victims
to rely on the abuser for love or affection.
       Children may feel entrapped in the situation or helpless to prevent the abuse and
react by keeping the abuse secret. Because of these feelings, children may also attempt to
accommodate the relationship using disassociation, avoidance, shame, substance abuse,
depression, anxiety, or self-harm. They may demonstrate sexual behavior problems or
age-inappropriate sexual activity. These behaviors may occur while the abuse is ongoing,
at the time the abuse is disclosed, or even after the abuse has stopped.
       Because of the close relationships between children and their abusers, delayed or
incremental disclosure of child sexual abuse is common. Delayed disclosure describes
the phenomena that the majority of children do not immediately report sexual abuse at the
time it occurs. Incremental disclosure means that children disclose only small pieces of
their abuse at a time, rather than explaining everything that happened all at once. Victims
may be vague and unclear when disclosing the abuse. They may share salient details, but
forget context such as dates, times, and the sequence of events. This occurs because such
abuse is overwhelming to children and may happen over a long period of time. It can
also be the result of the conflicted feelings the child has for the abuser. Such delays,
however, do not necessarily impact the accuracy of the disclosures.
       On cross-examination, Dr. Washington acknowledged that she did not know
anything about the facts or parties in this particular case and was only giving general
information that could apply to child sexual abuse victims. Moreover, she could not
“provide an opinion that any particular child was abused or not abused.” She also noted
that child sexual abuse accommodation syndrome would not apply to false allegations of
child sexual abuse. She explained that “child sexual abuse” was not a specific diagnosis,
but a legal term “that would be determined by the jury.”
       After questioning Dr. Washington about academic articles discussing child sexual
abuse, defense counsel had the following exchange with Dr. Washington:

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       “Q. And would you agree also that the rate for false allegations tends to be higher
when there is a child custody dispute or some issue with the child in the range of 30 to 40
percent, are you aware of that?
       “A. So false allegations of child sexual abuse are exceedingly rare in general.
There are some different studies, and depending on the methods that they have used, they
find a different range of those studies. Typically, I would give a ballpark number more
so of four percent, slightly higher in child custody cases, maybe up to 12 percent. The 30
percent sounds like it is a little bit of an outlier and not consistent with the majority of the
research in that area.
       “Q. I apologize. Have you reviewed those articles that talk about the higher rate
of false allegations in child custody cases, have you read those articles?
       “A. I have read some articles in that area, yes. And I think something that could
be important to add on to there is that there has been some subanalysis there of who is
making those reports, and we know that those false allegations tend to be made by
someone other than the child.”
       On redirect examination, Dr. Washington explained that false memories of sexual
abuse were typically the “result of some inappropriate type of forensic interviewing with
a vulnerable child that sometimes occurred in the past” and that such a situation would be
“unlikely to occur in today’s -- with today’s standards.”
       Closing Arguments
       Defendant did not testify and did not call any witnesses for the defense case-in-
chief. In closing arguments, the prosecutor emphasized the victim’s credibility. The
closing argument also discussed Dr. Washington’s testimony, arguing that her testimony
explained the victim’s delayed and intermittent disclosure of the abuse. The prosecutor
also highlighted evidence corroborating the victim’s testimony, including the
pornographic images found on defendant’s Facebook profile, defendant’s attempt to offer
the victim up on a dating service to G.S., and defendant’s jail call admitting one of the

                                               9
incidents the victim recalled. The prosecutor did not cite Dr. Washington’s testimony
about the rate of false allegations in child sexual abuse cases.
       Defense counsel questioned the credibility of the prosecution witnesses in his
closing argument. In particular, he questioned the victim’s credibility because of her
delayed disclosures and other behavioral problems, including lies she had told to a foster
parent about doing her homework and drinking alcohol. Defense counsel emphasized the
facts that Dr. Washington’s testimony should not be used as a diagnostic tool to assess
whether any given person had been abused and, in any case, CSAAS does not apply in
cases involving false allegations. Moreover, Dr. Washington did not have any specific
knowledge “about this case, not the facts, not the witnesses, nothing.”
       The prosecutor briefly mentioned Dr. Washington’s testimony in her rebuttal,
saying that “the arguments and myths regarding child sexual assault” were the reason Dr.
Washington’s testimony was needed, and why the court would read a specific jury
instruction about the expert testimony to use in evaluating the victim’s credibility.
       Jury Instructions
       The trial court instructed the jury with CALCRIM No. 226, which instructed the
jury, in relevant part: “You alone, must judge the credibility or believability of the
witnesses.” The court also read CALCRIM No. 1193, which read, in relevant part: “Dr.
Washington’s 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 [the victim’s] conduct was
not inconsistent with the conduct of someone who has been molested, and in evaluating
the believability of her testimony.” The jury deliberated for approximately two hours
across two days before finding defendant guilty of all charged counts.
                                       DISCUSSION
       Defendant contends Dr. Washington’s testimony that only four to 12 percent of
child sexual abuse allegations are false denied him a fair trial because it essentially

                                             10
instructed the jury that there was a 96 percent chance the victim was telling the truth
about defendant’s conduct. In support of his argument, defendant relies on two recent
cases—People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson) and People v. Julian (2019)
34 Cal.App.5th 878 (Julian)—both of which concluded that statistical evidence about
false allegations of child sexual abuse is inadmissible evidence. (Wilson, at pp. 569-571;
Julian, at p. 886.) Both cases were decided after defendant’s trial.
       The People argue defendant forfeited his claim because defense counsel did not
object or move to strike Dr. Washington’s testimony at trial. Anticipating this argument,
defendant asserts he received ineffective assistance of counsel. Assuming without
deciding the argument was not forfeited, we conclude any error was harmless.
       Expert testimony about the probability of a false accusation in a child sexual abuse
case is generally inadmissible. (Julian, supra, 34 Cal.App.5th at p. 887; Wilson, supra,
33 Cal.App.5th at p. 571.) In Wilson, the expert witness “testified that there was a
limited amount of research on the topic of false allegations of child sexual abuse, but that
false allegations occur ‘very infrequently or rarely,’ most often during a child custody
dispute. He continued, ‘There are a number of studies that talk about the pressures put on
children to make a false allegation.’ He referred to a ‘classic’ Canadian study that found
‘about 4% of cases in which there was an allegation that was determined to be false,’
remarking that ‘[w]hat was notable [about the study] was that in none of those cases was
it a child who made the allegation that was false, it was somebody else,’ such as a parent
disputing custody.” (Wilson, at p. 568.) On cross-examination, the expert also noted that
the 12 to 15 other studies on the subject showed false allegations in a range of 1 to 6
percent of cases. (Ibid.)
       The Court of Appeal concluded the admission of the testimony was an abuse of
discretion, but not prejudicial using the People v. Watson (1956) 46 Cal.2d 818 (Watson)
standard. (Wilson, supra, 33 Cal.App.5th at pp. 571-572.) In particular, the Wilson court
cited the brevity of the improper expert testimony and the acknowledgement by the

                                             11
expert it was difficult to determine whether an allegation was false. (Id. at p. 572.) The
Court of Appeal also noted expert evidence submitted by the defense to rebut the
improper expert testimony. (Ibid.) The defense expert noted there were many specific
examples of false memories where children were influenced by adults investigating the
alleged crimes or through interviewers using unreliable methods, and that “false
accusations are more likely to be the result of outside influences.” (Ibid.) The prosecutor
did not mention the statistical evidence in closing argument and “the jury was instructed
that it was the sole judge of the facts and the credibility of witnesses.” (Ibid.) Thus,
where the two victims “testified extensively and the jurors could assess their credibility,
other percipient witnesses were called, and the defense offered effective rebuttal expert
testimony,” the Court of Appeal saw “no reasonable probability defendant would have
achieved a more favorable result in the absence of the challenged testimony.” (Ibid.)
       In Julian, the expert witness offered similar testimony regarding statistical data on
false allegations, presented a similar percentage range of false allegations, and
highlighted the fact that children were not the source of false allegations. (Julian, supra,
34 Cal.App.5th at pp. 883-884.)
       Assessing whether defense counsel had offered ineffective assistance of counsel,
the Court of Appeal noted that the trial in Julian “was a heavily contested case with
strong defense evidence.” (Julian, supra, 34 Cal.App.5th at p. 888.) The defendant
cooperated with police and testified credibly at trial. (Ibid.) A nanny testified that she
saw the defendant interact with the victim and her sisters and never saw the defendant act
inappropriately. (Ibid.) Police did not find any evidence that the defendant possessed
child pornography and the defendant did not make any incriminating phone calls from
jail. (Ibid.) The victim’s young sisters also testified that they did not see any
inappropriate behavior from the defendant and thought that the victim “was lying.”
(Ibid.) “[I]n closing argument, the prosecutor asked the jury to rely on [the expert’s]
statistical evidence that ‘children rarely falsify allegations of sexual abuse.’ He reminded

                                             12
jurors that [the expert] ‘quoted a Canadian study for over 700 cases, not a single one
where there was a false allegation.’ ” (Id. at p. 889.) The Court of Appeal concluded the
admission of the expert testimony was prejudicial under any standard of harmless error
and reversed. (Id. at p. 890.)
       We agree with Wilson that Watson provides the most appropriate standard for
assessing harmless error in this instance. (Wilson, supra, 33 Cal.App.5th at p. 571 [“In
similar situations, however, our high court has applied instead the standard of People v.
Watson (1956) 46 Cal.2d 818, 836, under which we reverse only if it is reasonably
probable the defendant would have reached a more favorable result in the absence of the
error”].) “The erroneous admission of expert testimony only warrants reversal if ‘it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 247.)
Our Supreme Court has previously concluded, for example, that the admission of expert
testimony from a rape trauma syndrome expert for the purpose of proving a rape actually
occurred is analyzed using the Watson standard. (People v. Bledsoe (1984) 36 Cal.3d
236, 251-252.) Similarly, the Watson standard applies to improper admission of evidence
regarding the mathematical probability of the defendant’s guilt. (People v. Collins (1968)
68 Cal.2d 319, 320, 332.)
       As in Wilson, the error here is harmless. The improper expert testimony took
comparatively little time in the context of the entire trial; the objectionable portion of Dr.
Washington’s testimony comprises less than one page out of more than 800 pages of trial
transcript. Defense counsel and the prosecutor elicited other testimony from Dr.
Washington mitigating the impact of the improper testimony, including her statements
that she could not determine whether any given child had been abused or not abused, and
that any such determination “would be determined by the jury.” She presented
alternative theories to account for false allegations without implicating the victim as a
liar, such as improper influence by outside forces or complaints by third parties. Just as

                                              13
in Wilson, the prosecutor here did not use any of the improper testimony in her closing
argument. Rather, she directed the jury to the jury instructions advising the jurors how to
use Dr. Washington’s testimony to make their own determinations about the victim’s
believability. The victim also testified at length across three separate days, allowing the
jury an adequate opportunity to assess her credibility.
       Finally, unlike in Julian, there was significant evidence corroborating the victim’s
testimony such that Dr. Washington’s testimony did not tip the scales against defendant.
Witnesses unrelated to the victim, including M.D. and G.S., testified to defendant’s
sexual offense conduct, including an apparent attempt to offer the three-year-old victim
to G.S. for sex. Police found child pornography in defendant’s possession, both at the
time of his encounter with G.S. and after his arrest in this case. And, in a jail phone call,
defendant admitted one of the incidents the victim described. Based on the weight of the
evidence, we conclude it is not reasonably probable defendant would have received a
more favorable result absent the error. (Watson, supra, 46 Cal.2d at p. 836.)
                                      DISPOSITION
       The judgment is affirmed.


                                                      /s/
                                                  RAYE, P. J.


We concur:


    /s/
BLEASE, J.


   /s/
MURRAY, J.




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