Filed 7/29/14 P. v. Mendez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058200

v.                                                                       (Super.Ct.No. FSB1002715)

RUBEN LOUIS MENDEZ,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

         Edward J. Haggerty, under appointment by the court of appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       A jury convicted defendant Ruben Louis Mendez of three counts of oral

copulation or sexual penetration of a child under 10 years of age (Pen. Code,1 § 288.7,

subd. (b); counts 1-3), 10 counts of lewd and lascivious conduct with a child under the

age of 14 years (§ 288, subd. (a); counts 4-13), and one count of lewd and lascivious

conduct with a child of 14 or 15 years who was more than 10 years younger than

defendant (§ 288, subd. (c); count 14). The jury also found true allegations with respect

to counts 4 through 13, that defendant committed those offenses against more than one

victim in the present case within the meaning of section 667.61, subdivision (b). The

court imposed an aggregate sentence of 195 years to life plus 8 months, including 13

consecutive indeterminate terms of 15 years to life (counts 1-13) and a consecutive

determinate term of eight months (count 14).

       On appeal, defendant contends: (1) CALCRIM No. 1110 violates his

constitutional rights by removing an essential element of the offense of lewd and

lascivious conduct from the jury’s consideration; (2) CALCRIM Nos. 1110 and 1112 are

“impermissibly argumentative”; (3) the modified CALCRIM No. 1191 instruction used

to instruct the jury unconstitutionally implied an aspect of the case had been proven to the

satisfaction of the court; (4) evidence of child sexual abuse accommodation syndrome

(CSAAS) should be deemed inadmissible for all purposes; (5) the court erred by not

giving a limiting instruction with respect to CSAAS evidence sua sponte; and



       1 All further statutory references will be to the Penal Code unless otherwise
indicated.

                                             2
(6) defendant’s trial counsel was ineffective for failing to request a limiting instruction

with respect to CSAAS evidence.2

       We reject each of defendant’s contentions, and affirm.

                   I. FACTS AND PROCEDURAL BACKGROUND

       Defendant’s two victims are most efficiently described as his stepdaughters,

though he never married either of their mothers. Counts 9 through 14 were committed

against victim 1, who was born in 1995, while counts 1 through 8 were committed

against victim 2, who was born in 2001.

       The mother of victim 1 began dating defendant in 1999, and he moved in with her

in 2000. Victim 1 is her daughter from a prior relationship. Victim 1’s mother had two

more children with defendant during their relationship. Defendant left her for the mother

of victim 2 in 2006. Soon after, defendant lost his job and began staying home as

caretaker for victim 2 and her younger sister (who was eight years old at the time of the

trial) while their mother worked. Eventually, the two mothers became friends, and both

developed relationships with the other’s children.

       Victim 1 testified defendant would touch her in various ways that made her

uncomfortable, including slapping her on the buttocks, holding her on his lap in such a

way that she could feel his “private area,” and rubbing her back with his hand under her


       2 Defendant has withdrawn another claim of instructional error in light of the
California Supreme Court’s holding in People v. Shockley (2013) 58 Cal.4th 400, 406
(Shockley), which issued after defendant’s opening brief was filed in this appeal, and
which forecloses defendant’s argument that battery (§ 242) is a lesser included offense of
lewd and lascivious conduct with a child (§ 288, subd. (a)).

                                              3
shirt, ostensibly as part of helping her to fall asleep, but in a manner that felt “sexual” to

her. She estimated defendant would touch her in a manner that made her uncomfortable

every couple of weeks. She recalled first being uncomfortable with defendant’s touching

when she was about eight years old. The final incident occurred in 2010, when victim 1

was about 15 years old, and defendant was already living with victim 2’s mother—victim

1’s half siblings would visit defendant in his new home, and victim 1 would sometimes

accompany them. Victim 1 stated that on this occasion, while victim 2’s mother was in

the shower, defendant hugged victim 1 from behind “like a girlfriend and boyfriend

would hug each other,” and “it felt like he was trying to hump [her].” Defendant then

turned her around to face him, touching her buttocks and breasts over her clothes. Victim

1 tried to move away, and was able to do so.

       Victim 2 testified she was first touched inappropriately by defendant soon after he

moved in with her mother, when she was six years old. On that occasion, defendant

pulled victim 2’s skirt down, she lay down on her back, and he lay on top of her. He got

up and apologized when she started crying, telling her they “won’t play like that

anymore.” Nevertheless, more than once after that, defendant would lay victim 2 on her

stomach, get on top of her, and rub against her in a manner she described as “humping.”

Victim 2 was clothed during these incidents; defendant wore boxers only, or boxers and a

T-shirt. Once, victim 2 noticed a wet spot on her clothing afterwards, which had not been

there before.




                                               4
       Victim 2 further testified that defendant would kiss her on the lips, and put his

tongue inside her mouth. On two occasions, he vaginally penetrated her using his

fingers. On two other occasions, he licked her vagina. On five occasions, he rubbed his

penis against her vagina over her underwear, and once or twice he touched his penis to

her vagina “skin to skin,” though he did not penetrate all the way inside her.

       Victim 1 first told her mother defendant was touching her inappropriately when

she was about 11 years old, but her mother did not believe her. She told her mother again

in June 2010, about two months after the groping incident at the home of victim 2’s

mother; she had told her boyfriend at the time what had happened, and he became angry

and said that if she did not say something, he would “deal with it [him]self.” She was

also concerned about the increasing intrusiveness of defendant’s touching: unless she told

her mother, she worried he would “[p]robably go underneath my clothes and touch me

more.” This time, her mother believed her.

       There was conflicting testimony as to how defendant’s abuse of victim 2 came to

light. Victim 2’s mother testified that, after she and victim 1’s mother returned from

confronting defendant together about his abuse of victim 1, victim 1 told her defendant

had also molested victim 2. Victim 1’s younger half brother—who is close in age but

slightly older than victim 2—had a different account. He testified that in June 2010,

when he was 10 years old, his mother (who is also victim 1’s mother) had told him

defendant (his father) had molested victim 1, and that had become the topic of discussion

when he, victim 2, and a friend were playing video games at the friend’s house. Victim 2

then revealed that she too had been molested by defendant. At that point, the children

                                             5
stopped playing video games and returned to victim 2’s house, where the friend told

victim 2’s mother. Victim 2’s testimony is largely consistent with victim 1’s half

brother’s account, though victim 2 denied that they had been talking about victim 1’s

abuse. In any case, it is undisputed that in June 2010, defendant’s abuse of both victims

became known to both mothers, who involved the police shortly thereafter, on the

evening of June 17, 2010.

       In addition to the two mothers, the two victims, victim 1’s half brother, several

police officers involved in the investigation, and a forensic pediatrician who examined

victim 2, were called to testify for the prosecution at trial. Defendant testified in his own

defense.3

       On November 20, 2012, the jury returned its verdicts. The trial court imposed

sentence on January 11, 2013.

                                     II. DISCUSSION

A. Standard of Review for Claims of Instructional Error

       “We determine whether a jury instruction correctly states the law under the

independent or de novo standard of review. [Citation.] Review of the adequacy of

instructions is based on whether the trial court ‘fully and fairly instructed on the

applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving

or not giving jury instructions, we must consider the instructions as a whole . . . [and]

assume that the jurors are intelligent persons and capable of understanding and

       3Additional facts are set forth as necessary in the discussion of the issues to
which they pertain.

                                              6
correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions

should be interpreted, if possible, so as to support the judgment rather than defeat it if

they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos

(2008) 163 Cal.App.4th 1082, 1088 (Ramos).)

B. Analysis

       1. CALCRIM No. 1110 Is Not Unconstitutional.

       The jury was instructed on the elements of the offense of lewd and lascivious

conduct on a child under 14 (§ 288, subd. (a)) using former CALCRIM No. 1110.4

Defendant argues the portion of the instruction stating that the touching “need not be

done in a lewd or sexual manner” contradicts the element of the offense that requires the

defendant “lewdly” commit the lewd or lascivious act. On this basis, defendant contends



       4  The version of the instruction given to the jury in this case was as follows:
       “The defendant is charged in Counts 4-13 with committing a lewd or lascivious
act on a child under the age of 14 years in violation of Penal Code section 288(a).
       “To prove that the defendant is guilty of this crime, the People must prove that:
       “1. The defendant willfully touched any part of a child’s body either on the bare
skin or through the clothing;
       “2. The defendant committed the act with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of himself or the child;
       “AND

        “3. The child was under the age of 14 years at the time of the act.
        “The touching need not be done in a lewd or sexual manner.
        “Someone commits an act willfully when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else, or gain any
advantage.
        “Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires
of the perpetrator or child is not required for lewd or lascivious conduct.
        “It is not a defense that the child may have consented to the act.”

                                              7
the instruction is “constitutionally flawed,” because it removes an essential element of the

offense from the jury’s consideration, or at least was confusing. We find no error.

       The jury was instructed that to satisfy the elements of the lewd and lascivious

conduct offense, the touching “need not be done in a lewd or sexual manner.” Defendant

argues this language contradicts section 288, subd. (a), which requires that the defendant

“willfully and lewdly” commit the lewd or lascivious act. (See § 288, subd. (a) [“Any

person who willfully and lewdly commits any lewd or lascivious act . . . .” (Italics

added.)].) Not so. The language of the instruction conforms with section 288,

subdivision (a), as it has been interpreted by the California Supreme Court. Most

recently, in Shockley, supra, 58 Cal.4th at p. 400, the Court reiterated that “‘[a]ny

touching of a child under the age of 14 violates this section [(§ 288, subd. (a))], even if

the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to

arouse or gratify the sexual desires of either the perpetrator or the victim.’ [Citation.]”

(Id. at p. 404.) The challenged language in the instruction reflects an earlier articulation

of the same principle: “[T]hroughout the statute’s history, the cases have made clear that

a ‘touching’ of the victim is required, and that sexual gratification must be presently

intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or

nature of the offending act is not otherwise restricted.” (People v. Martinez (1995) 11

Cal.4th 434, 444 (italics added).) Thus, the challenged language in the instruction is an

accurate statement of the law.




                                              8
       Defendant acknowledges in his briefing that People v. Sigala (2011) 191

Cal.App.4th 695 (Sigala) rejected an argument similar to the one he makes here, but

argues Sigala was wrongly decided. We disagree. In Sigala, the court considered a

challenge to identical language in CALCRIM 1120, the standard instruction for section

288.5 (continuous sexual abuse), which may be violated by committing three or more

violations of section 288, subd. (a).5 (Sigala, supra, at p. 699.) The Sigala court found

the phrase at issue to be an accurate statement of the law, as we do above. (Id. at p. 701.)

Nevertheless, defendant argues that Sigala was wrongly decided because it relies on

Supreme Court precedent—specifically, People v. Lopez (1998) 19 Cal.4th 282 (Lopez),

and People v. Martinez (1995) 11 Cal.4th 434 (Martinez)—discussing not CALCRIM

instructions, but rather predecessor CALJIC instructions containing different language.

We reject the notion that reliance on Lopez and Martinez was inappropriate. The

propositions for which Sigala cites to Lopez and Martinez are those recently reaffirmed in

Shockley, namely, interpretations of section 288 that would apply to any instruction

regarding the same offense. (See Shockley, supra, 58 Cal.4th at p. 404; Sigala, supra, at

pp. 698-699.) Sigala was not wrongly decided.

       Nor does the Second District Court of Appeal’s decision in People v. Cuellar

(2012) 208 Cal.App.4th 1067 (Cuellar) addressing the same argument, require a different

result. Cuellar found the same challenged language in CALCRIM No. 1120 to be


       5  Sigala explicitly notes that its reasoning applies equally to the identical
definition of lewd or lascivious conduct in CALCRIM 1110. (Sigala, supra, 191
Cal.App.4th at p. 701, fn. 5.)

                                              9
“unfortunate and possibly confusing,” agreeing with the defendant that, “[t]aken by itself,

that sentence is capable of the construction defendant suggests.” (Cuellar, supra, at pp.

1071-1072.) But the Cuellar court did not conclude that it was error to have given the

instruction. (Ibid.)

       Moreover, a jury instruction, or portion thereof, is not reviewed “by itself,” but

rather in the context of the instructions as a whole. (Ramos, supra, 163 Cal.App.4th at p.

1088.) Here, the instructions as a whole properly explained, consistent with the long line

of cases reaffirmed in Shockley, that the prosecution bore the burden of proving, inter

alia, defendant “willfully touched any part of a child’s body” and the touching was done

with the requisite intent “of arousing, appealing to, or gratifying the lust, passions, or

sexual desires of himself or the child.” (See Shockley, supra, 58 Cal.4th at p. 404.) Any

possible ambiguity in the instruction’s language, when that language is examined in

isolation, is resolved when that language is viewed in the context of the remainder of the

instructions, and the other instructions given to the jury.6

       In short, the version of CALCRIM No. 1110 used to instruct the jury was not

constitutionally infirm, but rather accurately instructed on the elements of the offense,

and appropriately placed the burden of proving those elements on the prosecution.

       6 The Cuellar court’s point that the challenged language does not add much in the
way of useful information not already stated or implicit in the bare elements of the
offense is well taken. (See Cuellar, supra, 208 Cal.App.4th at p. 1071.) Indeed,
apparently in response to Cuellar, the Judicial Council of California has since amended
CALCRIM No. 1110 to omit the challenged sentence. (See CALCRIM No. 1110 (Feb.
2013 rev.).) Nevertheless, the instruction as given by the trial court, based on former
CALCRIM No. 1110, was not erroneous.


                                              10
Additionally, we note that defendant did not object to the giving of this instruction in the

trial court, nor did he request any clarifying instruction. As such, the issue of whether the

potential ambiguity identified in Cuellar should have been ameliorated by an additional

clarifying instruction was forfeited.7 (People v. Kelly (1992) 1 Cal.4th 495, 535 [trial

court has no sua sponte duty to revise or improve accepted and correct jury instructions].)

       2. CALCRIM Nos. 1110 and 1112 Are Not Impermissibly Argumentative.

       Defendant contends that certain language in the versions of CALCRIM Nos. 1110

(lewd act on a child under age 14) and 1112 (lewd act on a child 14 or 15 years of age)

given to the jury is impermissibly argumentative.8 Specifically, defendant objects to the

following sentence, which appears in both instructions: “Actually arousing, appealing to,

or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not

required.” He argues that this language is biased in favor of the prosecution, duplicative,

and improperly suggests to the jury that evidence of the lack of actual arousal should be

given no weight at all. These arguments are without merit.



       7  In light of our conclusion finding no error, we need not and do not consider the
parties’ arguments regarding prejudice from any error.

       8  CALCRIM No. 1112 is substantially similar to CALCRIM No. 1110, except
with respect to the age of the child, and an additional element that the child must have
been at least 10 years younger than the defendant at the time of the act. Also, the version
of CALCRIM No. 1112 given in this case omitted the phrase “The touching need not be
done in a lewd or sexual manner,” discussed above, though it was a part of the standard
instruction at the time of trial. (See CALCRIM No. 1112 (Aug. 2012 rev.).) Indeed, that
phrase still is included in CALCRIM No. 1112: for reasons unknown, the Judicial
Council of California did not also revise CALCRIM No. 1112 when it revised
CALCRIM No. 1110 in response to Cuellar. (CALCRIM No. 1112.)

                                              11
       An argumentative instruction is one that invites the jury to draw inferences

favorable to the prosecution from specified items of evidence. (People v. Wright (1988)

45 Cal.3d 1126, 1135.) Neither instruction at issue does so. No specific items of

evidence are discussed; rather, the challenged language clarifies the elements the jury

needs to find to convict. Defendant’s authority—which deals with judicial comments to

the jury about the evidence, not instructions clarifying the elements of the offense—is

inapposite.

       We disagree with defendant’s assertions, unsupported by authority, that the “tone”

of the instructions suggests the prosecution’s burden of proof is any lower than it actually

is, or that clarifying language regarding what need not be proven “distracts the jury from

the elements the prosecution is required to establish.” The tone of the challenged

instructions is neutral, and suggests nothing inconsistent with the explanations of the

burden of proof elsewhere in the instructions. And our presumption that the jurors

understood the instructions and applied them to the facts of the case is not rebutted by

defendant’s speculation regarding possible distraction. (See Ramos, supra, 163

Cal.App.4th at p. 1088.)

       Moreover, the challenged language is a correct statement of the law. Actual

sexual arousal is not an element of the offense. (People v. McCurdy (1923) 60

Cal.App.499, 502-503.) The instructions properly inform the jury that it could convict

defendant only if it found he acted with the intent of “arousing, appealing to, or gratifying

the lust, passions, or sexual desires of [himself] or the child.” But, defendant’s assertions

to the contrary notwithstanding, nothing in the instructions forbids the jury from

                                             12
considering lack of actual sexual arousal as circumstantial evidence of a lack of culpable

intent, or otherwise “diminishes” the weight of such evidence. Again, we presume that

the jurors understood the instructions and applied them to the facts of the case, giving the

evidence presented at trial the weight they felt it deserved. (See Ramos, supra, 163

Cal.App.4th at p. 1088.)

       Finally, the challenged language is not duplicative of any other language in either

instruction. Duplicative language would provide the jury with the same information

previously given. The language at issue does not do so. Defendant asserts—without any

supporting reasoning, let alone legal authority—that when a “jury has already been

instructed on what must be proved, further instruction on what need not be proved is

duplicative.” This assertion is overbroad, at best. Nothing in the law or logic necessarily

prohibits instructions on elements of an offense being clarified by specification of what

need not be proved. Indeed, such clarification may well be helpful to the jury in

understanding legal concepts that otherwise could be confusing to nonlawyers. Thus,

distinguishing the defendant’s intent of arousing or gratifying either himself or the child

from actually achieving arousal or gratification is appropriate to assist the jurors in

understanding what is meant by the intent element of the offense.

       We find no error with respect to the challenged language in the versions of

CALCRIM Nos. 1110 and 1112 used by the trial court.9


       9  Again, in light of this conclusion finding no error, we decline to address the
parties’ arguments regarding prejudice from any error.


                                             13
       3. The Modified CALCRIM No. 1191 Did Not Interfere with Defendant’s

Presumption of Innocence.

       The standard pattern instruction CALCRIM No. 1191 addresses the use of

uncharged sex offenses as evidence the defendant was likely to have committed the

charged offenses. (See CALCRIM No. 1191.) Following People v. Villatoro (2012) 54

Cal.4th 1152 (Villatoro), the trial court modified this instruction to allow other charged

offenses to be used as propensity evidence. The modified instruction begins: “The

People presented evidence that the defendant committed the crimes of lewd act on a

minor and oral copulation on a minor, as charged in this case.”10 Defendant contends

this phrase conveyed the impression the court believed the evidence, effectively reducing

       10   The entire modified instruction (CALCRIM No. 1191), as read to the jury, is as
follows:
       “The People presented evidence that the defendant committed the crimes of lewd
act on a minor and oral copulation on a minor, as charged in this case. These crimes are
defined for you in these instructions.
       “If you decide that the defendant committed any of the charged offenses, you may,
but are not required to, conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision, also conclude that the
defendant was likely to commit lewd act on a minor and oral copulation on a minor, as
charged here. If you conclude that the defendant committed the charged offenses, that
conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of other charges of lewd act on a
minor and oral copulation on a minor. The People must still prove each charge and
allegation beyond a reasonable doubt.
       “You may consider this evidence only if the People have proved beyond a
reasonable doubt that the defendant in fact committed the charged offenses. If the People
have not met this burden of proof, you must disregard this evidence entirely.”
       We note that the charged crimes for counts 1 through 3 were actually oral
copulation or sexual penetration of a child. This mistake was corrected in the instruction
regarding the offense itself, but not the modified CALCRIM No. 1191 regarding
propensity evidence. Nevertheless, the mistake is not relevant to defendant’s claim of
error on appeal regarding this instruction.

                                            14
the prosecution’s burden of proof by raising an inference that the prosecution had proved

its case. We disagree.

       In Villatoro, the California Supreme Court considered the propriety of a similarly

modified version of CALCRIM No. 1191. (Villatoro, supra, 54 Cal.4th at p. 1167.) The

instruction at issue in Villatoro began with language virtually identical to that of the

instruction at issue in this case: “‘The People presented evidence that the defendant

committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of

sodomy as alleged in count 14. . . .’” (Ibid.) The Court noted that the remainder of the

instruction “clearly told the jury that all offenses must be proven beyond a reasonable

doubt, even those used to draw an inference of propensity,” and reasoned on that basis

that “there was no risk the jury would apply an impermissibly low standard of proof.”

(Id. at p. 1168.) The Court also noted that the jury was instructed using CALCRIM No.

220, defining the reasonable doubt standard and reiterating that the defendant is

presumed innocent. (Villatoro, supra, at p. 1168.) On this basis, the Court concluded the

modified instruction “did not impermissibly lower the standard of proof or otherwise

interfere with the defendant’s presumption of innocence.” (Ibid.)

       There is no relevant distinction between Villatoro and this case on the facts. As in

Villatoro, the remainder of the instruction given here specifically instructed, repeatedly,

that all charged offenses must be proven beyond a reasonable doubt: “The People must

still prove each charge and allegation beyond a reasonable doubt. [¶] You may consider

this evidence only if the People have proved beyond a reasonable doubt that the

defendant in fact committed the charged offenses.” And the jurors were additionally

                                             15
instructed on the reasonable doubt standard using CALCRIM No. 220. Thus, the same

reasoning that led the California Supreme Court to conclude that the modified instruction

at issue in Villatoro did not impermissibly lower the standard of proof or otherwise

interfere with the defendant’s presumption of innocence applies equally to the modified

instruction at issue here.

       Defendant attempts to distinguish Villatoro on the basis that in Villatoro, “the

issue was the application of the propensity instruction to charged offenses in addition to

uncharged bad acts.” (Italics added.) This is simply inaccurate. In Villatoro, as here,

the modified version of CALCRIM No. 1191 at issue “permitted the jury to use evidence

of defendant’s guilt of one of the charged sexual offenses as evidence of his propensity to

commit the other charged sexual offenses.” (Villatoro, supra, 54 Cal.4th at p. 1158; see

id. at p. 1167 [text of instruction].) Defendant also contends that the focus of the

challenge in Villatoro “was not to the initial sentence of the instruction,” as it is here.

But this is a distinction without a difference. The bottom line is that the Supreme Court

considered and approved an instruction with wording that is identical in all relevant

respects to the one at issue here, on the basis of reasoning that applies equally well here.

       Defendant relies heavily on People v. Owens (1994) 27 Cal.App.4th 1155, 1158-

1159 (Owens). The instruction at issue in Owens, however—unlike the instruction in

Villatoro—is different from the one at issue here. In Owens, the Court of Appeal found

erroneous an instruction based on former CALJIC No. 10.42.6, which stated in part:

“‘The People have introduced evidence tending to prove that there are more than three

acts of substantial sexual conduct or lewd and lascivious conduct upon which a

                                              16
conviction [for continuous sexual abuse of a child, in violation of section 288.5] may be

based.’” (Owens, supra, at p. 1158, italics added.) The Owens court concluded that the

phrase “‘tending to prove’ conveyed the impression that the court believed the evidence

showed that more than three acts were committed, relieving the prosecution of its burden

of proof beyond a reasonable doubt.” (Ibid.) But no such language appears in the

instruction at issue in this case.

       Furthermore, the Owens court found the error harmless, in light of the entire body

of instructions. (Owens, supra, 27 Cal.App.4th at p. 1159.) We would reach the same

conclusion here, if we found any error. We disagree with defendant’s contention that the

first sentence of the instruction at issue here is “even more inappropriate than the

instruction in Owens,” because its first sentence “strongly implied that the trial court had

determined that the prosecution had proved the elements of the charged offenses.” In the

context of the remainder of the instruction—emphasizing that the charged offenses must

be proven beyond a reasonable doubt, and that the permissive inference allowed by the

instruction only applied “[i]f you decide that the defendant committed any of the charged

offenses . . .”—the most natural reading of the first sentence of the instruction is to make

the obvious point that the prosecution presented evidence in support of or for the purpose

of showing defendant committed the crimes at issue. Additionally, as noted, the jury was

separately instructed on the reasonable doubt standard using CALCRIM No. 220. And

the jury was specifically cautioned against reading into the instructions any opinion of the

court regarding the facts: “Do not assume just because I give a particular instruction that I

am suggesting anything about the facts. After you have decided what the facts are,

                                             17
follow the instructions that do apply to the facts as you find them.” Thus, there is no

reasonable possibility that the jury was misled in the manner defendant suggests, so to the

extent there was any error, it was harmless, on any standard of review. (See Chapman v.

California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818,

836 (Watson).)

       In Villatoro, the California Supreme Court explicitly refrained from deciding

“whether courts should give such an instruction in the future,” as do we. (See Villatoro,

supra, 54 Cal.4th at p. 1169). Nevertheless, we are persuaded, for the same reasons as

expressed in Villatoro, that it was not error for the trial court to give the modified version

of CALCRIM No. 1191 under the facts of this case. (See Villatoro, supra, at p. 1169.)

To the extent the instruction could have been worded more artfully to avoid any possible

ambiguity, any error was harmless.

       4. Testimony Regarding Reasons for Delayed Reporting of Abuse Was

Properly Admitted.

       Defendant objects to the admission of expert testimony regarding the victims’

delayed reporting of their abuse. He characterizes this evidence using the term “child

sexual abuse accommodation syndrome” (CSAAS), although this term was not used at

trial by any party or witness. As a general matter, expert testimony concerning CSAAS

is used to describe and explain how children commonly react to sexual molestation. (See

People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).) Common stress reactions

of children who have been sexually molested “may include the child’s failure to report, or

delay in reporting, the abuse.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300

                                              18
(McAlpin).) “[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 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.” (Ibid.)

       Though the term CSAAS was not introduced at trial, the evidence presented to the

jury included some that falls within the description of permissible expert testimony on the

common reactions of child molestation victims in McAlpin, specifically, evidence

presented in rebuttal to defense suggestions that a delay in reporting is inconsistent with

testimony claiming molestation. (See McAlpin, supra, 53 Cal.3d at p. 1300; see Bowker,

supra, 203 Cal.App.3d at p. 392, fn. 8 [“An expert has little need to refer to the syndrome

in order to testify that a particular type of behavior is not inconsistent with a child having

been abused”].) On cross-examination of the victims, defense counsel repeatedly elicited

testimony about delay in reporting, suggesting that the allegations of abuse were recent

fabrications.11 In response, the prosecution elicited testimony from two witnesses—

Dr. Amy Young-Snodgrass, a forensic pediatrician who examined victim 2, and

Detective Chris Gray, one of the investigating police officers—about delayed reporting.

Dr. Young-Snodgrass testified children commonly delay disclosure of sexual abuse, and

offered her understanding of the many reasons why. Detective Gray confirmed that in his



       11 In closing, the defense made the suggestion explicit, arguing that the delay in
reporting indicated the allegations were recently fabricated.

                                              19
experience, too, children commonly delay reporting sexual abuse. Defense counsel

raised no objection to the testimony of Dr. Young-Snodgrass or Detective Gray.

       Despite having failed to object to the admission of CSAAS evidence at trial,

defendant argues at length that it should be inadmissible for all purposes. He

acknowledges, however, that this argument is contrary to existing California precedent.

This existing California precedent includes authority from the California Supreme Court,

which we are obliged under the doctrine of stare decisis to follow. (See Auto Equity

Sales, Inc. .v Superior Court (1962) 57 Cal.2d 450, 455; see also McAlpin, supra, 53

Cal.3d at p. 1300 [discussing with approval rules developed in court of appeal decisions

regarding admissibility of CSAAS evidence, and collecting cases].) As such, even if we

were to conclude defendant did not forfeit the argument by failing to raise it in the trial

court (see People v. Larson (2011) 194 Cal.App.4th 832, 836 [“Normally, the failure to

object [to the admission of evidence] forecloses consideration of the issue on appeal”]),

we would be obliged to reject it.

       Further, while defendant cites a Ninth Circuit opinion for the proposition that

CSAAS evidence has been “found wanting,” and draws our attention to several out-of-

state cases ruling CSAAS evidence inadmissible, he has not produced any authority for

the proposition that CSAAS evidence is no longer accepted in the scientific community,

or that California courts, including the Supreme Court, are prepared to reconsider their

opinions accepting such evidence. Accordingly, we find no error with respect to the

admission of the testimony of Dr. Young-Snodgrass and Detective Gray regarding

delayed reporting of abuse.

                                             20
       5. The Trial Court Did Not Prejudicially Err by Failing to Give a Limiting

Instruction Re CSAAS Evidence Sua Sponte.

       Defendant contends the trial court erred by failing to instruct the jury, on its own

motion, regarding the limited purposes for which it was appropriate to consider testimony

on delayed reporting of child abuse. He proposes that a modified version of CALCRIM

No. 1193 would have been appropriate.12 We conclude that if the court had such a duty,

the error was harmless.

       Generally, absent a request by the defendant, a trial court has no sua sponte duty to

give a limiting instruction. (People v. Smith (2007) 40 Cal.4th 483, 516.) Evidence Code

section 355 provides: “When evidence is admissible as to one party for one purpose and

is inadmissible as to another party or for another purpose, the court upon request shall

restrict the evidence to its proper scope and instruct the jury accordingly.” (Italics

added.) Nevertheless, there are exceptions to that general rule, including the trial court’s

obligation to give instructions regarding the “general principles of law relevant to the


       12 CALCRIM NO. 1193 reads as follows:
       “You have heard testimony from _____<insert name of expert> regarding child
sexual abuse accommodation syndrome.
       “_______’s <insert name of expert> testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant committed any of the crimes
charged against (him/her).
       “You may consider this evidence only in deciding whether or not ______’s <insert
name of alleged victim of abuse> conduct was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of (his/her)
testimony.”
       As noted, the term “child sexual abuse accommodation syndrome” was not
introduced in evidence in this case, so defendant proposes an instruction substituting in
the term “delayed disclosure.”

                                             21
issues raised by the evidence” (People v. St. Martin (1970) 1 Cal.3d 524, 531), and the

requirement to instruct the jury on the weight to be given expert testimony (Pen. Code,

§ 1127b). We independently determine whether the trial court had a duty to give a

particular jury instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)

       There is a split of authority in California as to whether there is a sua sponte duty to

instruct the jury that CSAAS testimony may not be used as evidence that the victim’s

claim of molestation is true. (See People v. Stark (1989) 213 Cal.App.3d 107, 116

[instruction required “if requested”]; People v. Sanchez (1989) 208 Cal.App.3d 721, 735

[same]; People v. Bothuel (1988) 205 Cal.App.3d 581, 588, overruled on other grounds

by People v. Scott (1994) 9 Cal.4th 331, 348 [same]; but see People v. Housley (1992) 6

Cal.App.4th 947, 957 (Housley) [sua sponte instruction required].) We note that since

Housley was decided, no other published decision has followed its conclusion that the

court must give a limiting instruction regarding CSAAS testimony sua sponte. Moreover,

in the same time period, the California Supreme Court has consistently reiterated its prior

holdings that cautionary instructions must be requested, except in the “‘“occasional

extraordinary case”’ in which the evidence at issue ‘“is a dominant part of the evidence

against the accused, and is both highly prejudicial and minimally relevant to any

legitimate purpose.”’ [Citations.]” (People v. Cowan (2010) 50 Cal.4th 401, 479

(Cowan).)




                                             22
       Nevertheless, we need not decide whether Housley is correctly decided. Even

assuming, for purposes of discussion only, that it was error for the trial court to fail to

give such a limiting instruction sua sponte, defendant’s convictions may not be reversed

unless he can demonstrate prejudice. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.)

The standard set forth in Watson, supra, 46 Cal.2d at page 836, applies for assessing

whether defendant suffered any prejudice. 13 (Housley, supra, 6 Cal.App.4th at p. 959;

Bowker, supra, 203 Cal.App.3d at p. 395.) Thus, we examine whether it is reasonably

probable that a result more favorable to defendant would have been reached had the

instruction been given. (Watson, supra, at p. 836.)

       We find no reasonable probability that the result at trial would have been any

different had the jury been specifically instructed regarding the appropriate uses of

CSAAS evidence. First, the evidence at issue was limited in scope. It was not a

“‘“dominant part of the evidence against the accused,”’” but rather brief rebuttal

evidence. (See Cowan, supra, 50 Cal.4th at p. 479.) Both witnesses who provided the

testimony couched their discussion in general terms, describing the behaviors of

molestation victims as a class. The jury was aware that Dr. Young-Snodgrass had

       13   Defendant argues that his federal constitutional rights are implicated, so any
error should be assessed under the stricter standard described in Chapman, supra, 386
U.S. at p. 24. We disagree. The Chapman test would apply only if the lack of such an
instruction constituted an error that “‘so infected the entire trial that the resulting
conviction violates due process.’ [Citations.]” (Estelle v. McGuire (1991) 502 U.S. 62,
72.) Here, even if the court could be faulted for failing to instruct sua sponte regarding
the limited purpose for which evidence of delayed reporting was admissible, we see no
violation of fundamental fairness implicating defendant’s federal constitutional rights.
(Id. at p. 73.) In any case, however, we would reach the same conclusion regarding
prejudice under either standard of review.

                                              23
examined victim 2, but the examination was for physical signs of sexual abuse, not an

assessment of her credibility. Similarly, Detective Gray interviewed the victims as part

of the police investigation, but was not asked to opine, and in fact offered no opinion,

regarding whether her allegations were true. Defendant’s assertion to the contrary

notwithstanding, such testimony does not naturally lend itself to use in determining

whether molestation occurred (an improper use), but only to evaluating whether the

children’s conduct was or was not consistent with the conduct of someone who has been

molested, and in evaluating the believability of their testimony (a proper use). (See

CALCRIM No. 1193.)

       Second, the instructions that were given properly instructed the jury how to

consider witness testimony, including expert witness testimony, even though no specific

instruction regarding CSAAS testimony was given. The jurors were instructed, among

other things, that they, and they alone, must decide the facts based on the evidence, and

that they, and they alone, must judge the credibility or believability of witnesses. The

jurors were further instructed they were not required to accept any opinions that

witnesses (whether qualified as experts or not) might have offered. Defendant’s authority

involving jury instructions that “‘improperly invaded the province of the jury to

determine the facts and assess the credibility of witnesses,’” is inapposite.

       Finally, the children themselves both testified at trial, and each explained their

own reasons for not immediately reporting the sexual abuse they had suffered. Thus, this

is not a circumstance where the jurors had to rely on secondhand accounts of a child’s

statements and demeanor to determine the credibility of the child’s allegations. Rather,

                                             24
the jurors had an opportunity to judge those issues for themselves, based on victim 1’s

and victim 2’s responses on the witness stand. In light of the instructions given,

emphasizing that the determination of the facts and assessing witness credibility are

solely the province of the jury, we find it highly unlikely jurors placed undue weight on

any opinions in that regard that might arguably be inferred from the testimony of Dr.

Young-Snodgrass or Detective Gray.

       In short, under these circumstances, we find no reasonable probability that the jury

would have returned a verdict more favorable to defendant, had a limiting instruction

been given. Reversal is therefore not required, even assuming that the failure to give

such an instruction sua sponte constituted error.

       6. Defendant Suffered No Prejudice From Trial Counsel’s Failure to Request

a Limiting Instruction on CSAAS Evidence.

       Having concluded that any error for failing to instruct the jury with a limiting

instruction was harmless, we need not discuss at length defendant’s ineffective assistance

of counsel claim, which is based on lack of any request for such an instruction. Even

assuming counsel’s failure to make the request was professionally deficient, defendant’s

inability to show prejudice is fatal to the claim. (People v. Ledesma (1987) 43 Cal.3d

171, 217.)




                                             25
                                  III. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     HOLLENHORST
                                                                   J.
We concur:


     RAMIREZ
                           P.J.

     RICHLI
                             J.




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