Filed 6/10/16 P. v. Cruz CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069905

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1201534)

ROGELIO CRUZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Mac R.

Fisher, Judge. Affirmed.

         Torres & Torres and Tonja R. Torres, under appointment by the Court of Appeal,

for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Barry Carlton, Seth Friedman and Sharon L. Rhodes,

Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Rogelio Cruz guilty of one count of aggravated sexual assault of a

child under age 14 by means of forcible sodomy (Pen. Code § 269, subd. (a)(3));1 one

count of sodomy with a child 10 years old or younger (§ 288.7, subd. (a)); and three

counts of forcible lewd and lascivious conduct on a child under age 14 (§ 288, subd.

(b)(1)). Cruz admitted four prior prison terms, and the trial court sentenced him to a

determinate prison term of 28 years and an indeterminate prison term of 25 years to life.

       Cruz contends (1) the trial court violated his constitutional rights of confrontation

and due process by declaring the victim to be an unavailable witness and by admitting the

victim's preliminary hearing testimony; (2) the trial court improperly admitted evidence

about Child Abuse Accommodation Syndrome (CAAS); (3) jury instruction CALCRIM

No. 1193 improperly states the law regarding the jury's use of expert testimony on

CAAS; (4) the prosecutor committed misconduct during closing argument when

describing the presumption of innocence; and (5) the trial court erred in imposing a

consecutive sentence for one of the forcible lewd act counts (count 3). We conclude that

Cruz's arguments lack merit, and accordingly we affirm the judgment.

                                             I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The victim in this case, John Doe,2 was 10 years old at the time of the

molestation. Cruz dated Doe's mother (Mother) when Doe was nine and 10 years old,



1      Unless otherwise indicated, all further statutory references are to the Penal Code.
2      Consistent with the parties' practice in their briefing, we use a pseudonym to
protect Doe's privacy.
                                              2
and Cruz lived with Doe's family during the periods that he was out of custody. After a

domestic violence incident by Cruz against Mother in late 2010, Cruz no longer lived

with Doe's family and was again taken into custody.

       Mother noticed that Doe's behavior started changing around the end of 2010. Doe

cried often and was depressed, seemed to have low self-esteem, was very angry at

Mother, and misbehaved at school. Mother repeatedly tried to get Doe to tell her what

was wrong. In late January or early February 2011, Doe told Mother that he had been

abused by someone while he was on his way to the liquor store, in a house that had three

white pit bulls, a rocking chair and a smaller house in the backyard. Doe stated that the

person tried to get him to drink something and then put his penis in Doe's anus. Mother

called the police, but no suspect was ever identified.

       On Mother's Day 2011, Doe was angry with Mother for her correspondence with

Cruz in jail, and stated to her, "Are you that fucking stupid. It was [Cruz]."

       Mother called the police in late June 2011 as a result of Doe's disclosure to her on

Mother's Day and because Doe had tried to kill himself. During that time period, Doe's

misbehavior at school also escalated, and he was suspended and eventually expelled.

       Police officer Paul Miranda came to Doe's house on June 25, 2011, in response to

Mother's call and interviewed Doe in an audio-recorded conversation. After first being

reluctant to speak, Doe disclosed to Officer Miranda that Cruz had molested him on three

occasions. The first incident was in a car parked behind a donut shop. Cruz tried to grab

Doe's penis and tried to put a finger in Doe's anus. According to Doe, Cruz threatened to

kill Doe and Doe's grandmother if Doe told anyone about the molestation. Doe told

                                             3
Officer Miranda that the second incident took place in his bedroom. Cruz fondled Doe's

penis and scrotum and tried to put his penis in Doe's anus, but Doe evaded him. The

third incident Doe described to Officer Miranda took place in the living room. As Doe

described, Cruz fondled Doe's penis, and Cruz's penis was hard and "kind of" went into

Doe's anus.

      After the interview with Officer Miranda, Doe was taken three times to speak with

Detective Roberta Hopewell. During the first and second interviews, Doe was

uncooperative, but he did provide some information. During the third interview, Doe was

angry and said he was ashamed, but he did discuss the three incidents of molestation in

greater detail. As Doe described to Detective Hopewell, during the first incident, which

was behind the donut shop, Cruz grabbed Doe's penis, and Cruz tried to get Doe to suck

Cruz's penis. Doe described the second incident as occurring in the living room.

According to Doe, Cruz threw him down on the couch and tried to "hump" him, tried to

get Doe to sit on his lap, and tried to pull down Doe's pants. Doe denied any penetration

or ejaculation by Cruz. Doe told Detective Hopewell that the third incident occurred in

Doe's bedroom. Cruz pulled down Doe's pants and also tried to make Doe suck Cruz's

penis by putting him in a headlock.

      In April 2012, a complaint was filed against Cruz alleging three counts of forcible

lewd and lascivious conduct on a child under age 14. (§ 288, subd. (b)(1).)

      At the preliminary hearing in October 2012 (when Doe was 12 years old), Doe

testified about the three times that Cruz molested him when he was 10 years old.

According to Doe's preliminary hearing testimony, the first incident occurred in a car

                                            4
near the donut shop. Cruz touched Doe's penis and tried to pull Doe's head toward Cruz's

penis. Doe screamed, struggled and managed to get free. Doe did not tell anyone

because he was scared and Cruz threated to kill Doe's grandmother if Doe disclosed the

molestation.

       As described in Doe's preliminary hearing testimony, the second incident of

molestation occurred in the living room. Cruz grabbed Doe and pulled down both his

own pants and Doe's pants while Doe struggled to get away. Cruz then inserted his penis

into Doe's anus, stopping after "white" "sticky" stuff came out of Cruz's penis. After that

incident, Doe's anus hurt and blood would come out of Doe's anus when he went to the

bathroom.

       The third incident Doe described in his preliminary hearing testimony occurred in

Doe's bedroom. Cruz pulled down his own pants and Doe's pants and then started to

insert his penis in Doe's anus, but stopped before doing so. During the same incident,

Cruz put Doe in a headlock and pulled Doe's head toward his penis.

       During cross-examination at the preliminary hearing, Doe explained that he did

not tell Officer Miranda about everything because he "was embarrassed" and "felt nasty"

about what happened. Doe was very upset during his preliminary hearing testimony,

cried, asked to take a break several times, and vomited twice while on the stand.

       After the preliminary hearing, Cruz was charged in an information with one count

of aggravated sexual assault of a child under age 14 by means of forcible sodomy

(§§ 269, subd. (a)(3), 286, subds. (c), (d)); one count of sodomy with a child 10 years old



                                             5
or younger (§ 288.7, subd. (a)); and three counts of forcible lewd and lascivious conduct

on a child under age 14 (§ 288, subd. (b)(1)).

       After jury selection, the trial court became aware that Doe was unwilling to testify

at trial. The trial court examined Doe as to his unwillingness to testify and also gave

defense counsel the opportunity to do so. Doe, who was 13 years old at the time, stated

that he did not want to testify because "I feel like dying" and "because [Cruz] ruined my

life." Doe explained that he would not be able to testify even if the judge told him that he

had to do so, because "it's hard for me to testify" and "it's humiliation." The trial court

observed for the record that while Doe was on the stand, Doe was turned away from the

seated area of the courtroom, was looking to the back wall with a hooded sweatshirt on,

was bent over, and was sobbing throughout the entire course of questioning.

       The trial court formally ordered Doe to testify, and Doe replied that he would not

do so. Accordingly, the trial court found Doe to be in contempt of court. The trial court

observed that pursuant to Code of Civil Procedure section 1219, subdivision (b) a victim

of sexual assault cannot not be jailed after being found in contempt for refusing to testify

about the assault, and that because Doe was a minor who did not support himself, a

monetary fine would be ineffectual. However, the trial court directed the prosecutor to

arrange for Doe to meet with his therapist later in the day to see if that meeting would

change Doe's attitude toward testifying.

       The next morning, Detective Hopewell reported to the trial court that she had

driven Doe to see the therapist. On the way there, Doe stated that he wanted to die. After

the meeting with the therapist, Doe told Detective Hopewell that he was still not willing

                                              6
to testify. Detective Hopewell reported that she asked Doe "if there was anything we

could do to get him to testify, and he said 'No.' "

       Before making a ruling on Doe's unavailability as a witness, the trial court gave

counsel the opportunity to comment. Defense counsel stated, "I believe the Court did ask

yesterday a number of different ways and suggested different scenarios under which the

child may feel more comfortable testifying. The only scenario we did not cover was

whether [Doe] would be willing to testify via closed circuit in a different room without a

jury present, without Mr. Cruz present, just the attorneys. I think that was the only

avenue that the Court did not explore. And since there was no specific answer if [Doe]

was even willing to do that, that's what I base my objection on."

       The trial court then ruled that Doe was unavailable as a witness and, over defense

counsel's objection, ordered that pursuant to Evidence Code section 1291, Doe's

preliminary hearing testimony could be introduced at trial.

       At trial, the evidence included Doe's preliminary hearing testimony, the recording

of Doe's interview with Officer Miranda, and a description of the statements that Doe

made to Detective Hopewell. Cruz testified in his own defense and denied having

molested Doe. During the defense case, a witness testified about Doe's misbehavior at

school, including evidence that his teachers had described Doe as dishonest.

       The jury found Cruz guilty on all five counts. After Cruz admitted four prior

prison terms, the trial court imposed a determinate prison term of 28 years and an

indeterminate prison term of 25 years to life.



                                              7
                                              II.

                                        DISCUSSION

A.     The Trial Court Did Not Violate Cruz's Confrontation Clause and Due Process
       Rights by Declaring Doe Unavailable and Admitting His Preliminary
       Hearing Testimony

       Cruz's first argument is that the trial court violated his constitutional rights of

confrontation and due process by declaring Doe to be an unavailable witness and by

admitting Doe's preliminary hearing testimony.

       "A criminal defendant has the right, guaranteed by the confrontation clauses of

both the federal and state Constitutions, to confront the prosecution's witnesses. (U.S.

Const., 6th Amend.; Cal. Const., art. 1, § 15.) . . . [¶] Although important, the

constitutional right of confrontation is not absolute. . . . 'Traditionally, there has been

"an exception to the confrontation requirement where a witness is unavailable and has

given testimony at previous judicial proceedings against the same defendant [and] which

was subject to cross-examination . . . ." [Citations.]' [Citation.] Pursuant to this

exception, the preliminary hearing testimony of an unavailable witness may be admitted

at trial without violating a defendant's confrontation right." (People v. Herrera (2010) 49

Cal.4th 613, 620-621 (Herrera).)

       Here, Cruz contends that Doe's preliminary hearing testimony was not properly

admitted under the exception to the confrontation clause allowing for the admission of an

unavailable witness's former testimony because (1) the trial court did not take all

reasonable steps to ensure that Doe was actually unavailable to testify, as it did not

inquire whether Doe might agree to testify by closed circuit television; and (2) even if

                                               8
Doe was properly determined to be unavailable, Cruz's confrontation clause rights were

violated because he did not have an adequate opportunity to cross examine Doe during

the preliminary hearing.

       1.     Doe Was Properly Found Unavailable to Testify

       Doe's preliminary hearing testimony was admitted because the trial court found

that Doe was unavailable to testify pursuant to Evidence Code section 240, subdivision

(a)(6). Under that provision, a witness is unavailable if he or she is "[p]ersistent in

refusing to testify concerning the subject matter of the declarant's statement despite

having been found in contempt for refusal to testify."

       "The proponent of the evidence has the burden of showing by competent evidence

that the witness is unavailable." (People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).)

We apply a substantial evidence review to any factual findings relevant to the

unavailability determination (Herrera, supra, 49 Cal.4th at p. 628), but we independently

review the trial court's determination that a sufficient showing of unavailability has been

made "to justify an exception to the defendant's constitutionally guaranteed right of

confrontation at trial." (People v. Cromer (2001) 24 Cal.4th 889, 901.)

       "A witness who is absent from a trial is not 'unavailable' in the constitutional sense

unless the prosecution has made a 'good faith effort' to obtain the witness's presence at

the trial. . . . The United States Supreme Court has described the good faith requirement

this way: 'The law does not require the doing of a futile act. Thus, if no possibility of

procuring the witness exists (as, for example, the witness'[s] intervening death), "good

faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that

                                              9
affirmative measures might produce the declarant, the obligation of good faith may

demand their effectuation. "The lengths to which the prosecution must go to produce a

witness . . . is a question of reasonableness." [Citation.] The ultimate question is whether

the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and

present that witness.' " (Herrera, supra, 49 Cal.4th at p. 622.)

       Further, when, as here, the prosecution has exercised due diligence to make a

witness physically available in the courtroom, but the witness nevertheless refuses to

testify, the witnesses is properly determined to be unavailable for the purpose of

admitting the witness's prior testimony " 'if the court makes a finding of unavailability

only after taking reasonable steps to induce the witness to testify unless it is obvious that

such steps would be unavailing.' " (Smith, supra, 30 Cal.4th at p. 624, italics added.)

"Trial courts 'do not have to take extreme actions before making a finding of

unavailability.' " (Ibid.) Therefore, the specific question before us is whether the trial

court's finding of Doe's unavailability was made after it took reasonable steps to induce

Doe to testify.

       As we have explained, the trial court took two specific actions in an attempt to

induce Doe to testify, namely, (1) finding him in contempt of court; (2) arranging for him

to meet with his therapist. Cruz argues that despite having done this, the trial court

nevertheless did not take reasonable steps to induce Doe to testify because it did not

ascertain whether Doe would agree to testify via closed circuit television outside the




                                             10
presence of the jury and the defendant.3 Specifically, Cruz argues that "[i]t was not

obvious that Doe would have rejected [a closed circuit television] option." Cruz

accordingly contends that "the failure to present this option to Doe meant that the trial

court failed to pursue all reasonable options to ensure Doe testified before declaring him

unavailable" and that Cruz's constitutional confrontation and due process rights were

violated as a result. As we will explain, we disagree.

       Doe's comments gave no indication that his reluctance to testify stemmed from the

prospect of being in the physical presence of Cruz or other courtroom participants during

his testimony. Instead, Doe explained that it was humiliating and embarrassing for him

to talk about what Cruz did to him. His comments and emotional demeanor made clear

that it was the act of recalling and speaking about the molestation that would cause Doe

to be emotionally devastated, regardless of where he would be physically located when

testifying. Further, although the trial court did not specifically explore with Doe whether

any arrangements could be made so that he would be more comfortable testifying,

Detective Hopewell reported to the court that she directly asked Doe "if there was

anything we could do to get him to testify, and he said 'No.' "




3     Section 1347, subdivision (b) allows the trial court to order a minor age 13 or
younger to testify by means of closed circuit television when certain prerequisites are
met. Specifically, as relevant here, the use of closed circuit television is available when
the minor's testimony will involve a recitation of the facts of "[a]n alleged sexual offense
committed on or with the minor" and "[t]estimony by the minor in the presence of the
defendant would result in the child suffering serious emotional distress so that the child
would be unavailable as a witness." (§ 1347, subds. (b)(1)(A), (2)(A).)
                                             11
       Under the circumstances, we conclude that the trial court took reasonable steps to

try to induce Doe to testify, regardless of the fact that it did not explore with Doe whether

he would agree to testify via closed circuit television. Accordingly, the trial court

properly determined that Doe was unavailable for purposes of admitting his preliminary

hearing testimony at trial.

       2.     Cruz Had an Adequate Opportunity to Cross Examine Doe at the
              Preliminary Hearing

       Next, Cruz argues that even if Doe was properly determined to be unavailable, the

admission of Doe's preliminary hearing testimony violated Cruz's constitutional right to

confrontation because Cruz did not have an adequate opportunity to cross-examine Doe

at the preliminary hearing.

       Under Evidence Code section 1291, subdivision (a)(2), when a witness is

unavailable, the testimony of that witness at a former proceeding is admissible, despite

the hearsay rule, if "[t]he party against whom the former testimony is offered was a party

to the action or proceeding in which the testimony was given and had the right and

opportunity to cross-examine the declarant with an interest and motive similar to that

which he has at the hearing." (Evid. Code, § 1291, subd.(a)(2).) "[W]hen the

requirements of [Evidence Code] section 1291 are met, the admission of former

testimony in evidence does not violate a defendant's constitutional right of

confrontation." (Herrera, supra, 49 Cal.4th at p. 621.)




                                             12
          Cruz argues that contrary to the requirements of Evidence Code section 1291, he

did not have "the right and opportunity to cross-examine the declarant with an interest

and motive similar" to that which he had at trial. (Evid. Code, § 1291, subd. (a)(2).)

Specifically, Cruz argues that at the outset of the preliminary hearing, he was charged in

the complaint with three counts of lewd and lascivious conduct, but was not facing

indeterminate life terms for the sodomy and aggravated sexual assault charges that were

later added. As Cruz points out, those more serious charges were first identified during

the course of the preliminary hearing, when, in the middle of Doe's testimony, the

prosecutor notified the trial court that it intended to seek an order holding Cruz to answer

on a charge of aggravated sexual assault (§ 269) and when near the end of the preliminary

hearing, the prosecutor also requested that Cruz be held to answer on a count of sodomy

(§ 288.7, subd. (a)). Cruz argues that defense counsel's cross-examination at the

preliminary hearing "was to prevent those new charges from being added and to confirm

Doe's statements. . . . Doe's credibility was secondary at that point." Cruz also argues

that "[g]iven the lower standard of proof at the preliminary hearing stage, the interest and

motive for cross-examination at that point was very different than it would have been at

trial."

          Our Supreme Court has repeatedly rejected similar arguments. Specifically,

rejecting the argument that "a defendant has less incentive to cross-examine at the

preliminary hearing than at trial," our Supreme Court explained that it has "routinely

allowed admission of the preliminary hearing testimony of an unavailable witness."

(Smith, supra, 30 Cal.4th at p. 611.) "Frequently, a defendant's motive for cross-

                                              13
examining a witness during a preliminary hearing will differ from his or her motive for

cross-examining that witness at trial. For the preliminary hearing testimony of an

unavailable witness to be admissible at trial under Evidence Code section 1291, these

motives need not be identical, only 'similar.' . . . Admission of the former testimony of

an unavailable witness is permitted under Evidence Code section 1291 and does not

offend the confrontation clauses of the federal or state Constitutions—not because the

opportunity to cross-examine the witness at the preliminary hearing is considered an

exact substitute for the right of cross-examination at trial . . . , but because the interests of

justice are deemed served by a balancing of the defendant's right to effective cross-

examination against the public's interest in effective prosecution." (People v. Zapien

(1993) 4 Cal.4th 929, 975, citations omitted.) Although Cruz contends that he would

have asked different questions of Doe during trial than he did at the preliminary hearing

because his counsel was focused on different priorities at that time, "[t]his argument can

always be made, as one can always think of additional questions. However, it is the

opportunity and motive to cross-examine that matters, not the actual cross-examination.

'As long as defendant was given the opportunity for effective cross-examination, the

statutory requirements were satisfied; the admissibility of [the preliminary hearing

testimony] did not depend on whether defendant availed himself fully of that

opportunity.' " (Smith, at pp. 611-612.)

       Cruz also argues that because Doe's school records suggesting that Doe was

dishonest were first made available after the preliminary hearing, Cruz did not have an

adequate opportunity to attack Doe's credibility at the preliminary hearing. The argument

                                               14
is not persuasive. "[A] defendant's interest and motive at a second proceeding is not

dissimilar to his interest at a first proceeding within the meaning of Evidence Code

section 1291, subdivision (a)(2), simply because events occurring after the first

proceeding might have led counsel to alter the nature and scope of cross-examination of

the witness in certain particulars. . . . 'Both the United States Supreme Court and this

court have concluded that "when a defendant has had an opportunity to cross-examine a

witness at the time of his or her prior testimony, that testimony is deemed sufficiently

reliable to satisfy the confrontation requirement [citation], regardless whether subsequent

circumstances bring into question the accuracy or the completeness of the earlier

testimony." ' " (People v. Harris (2005) 37 Cal.4th 310, 333, italics added.) " '[A]

defendant's interest and motive at a second proceeding is not dissimilar to his interest at a

first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2),

simply because events occurring after the first proceeding might have led counsel to alter

the nature and scope of cross-examination of the witness in certain particulars.' " (People

v. Valencia (2008) 43 Cal.4th 268, 293-294, italics added.)

       Here, Cruz had an interest in attacking Doe's credibility throughout the

proceedings, as the prosecution's case was consistently based on Doe's disclosure that he

was molested by Cruz. Further, defense counsel took advantage of the opportunity to

attack Doe's credibility during cross-examination by, among other things, pointing out the

inconsistencies between Doe's preliminary hearing testimony and his statements in earlier

interviews. Under these circumstances, we are satisfied that Cruz's lack of access to

Doe's school records at the time of the preliminary hearing did not deprive Cruz of a

                                             15
meaningful opportunity to cross-examine Doe. (See People v. Gonzales (2012) 54

Cal.4th 1234, 1262 [unavailable child witness's therapy records suggesting he was

dishonest were not available at the preliminary hearing, but defendant still had an

adequate opportunity for cross-examination at the preliminary hearing because defense

counsel questioned the child's credibility by examining him about inconsistent

statements].)

B.     The Trial Court Did Not Err in Admitting Evidence of Child Abuse
       Accommodation Syndrome

       Over defense counsel's objection, the trial court admitted testimony by

psychologist Jody Ward about CSAAS. As explained by Ward, CSAAS describes "a

pattern of behaviors" that many children exhibit who have been sexually abused, and it is

used by psychologists to "understand how children respond to sexual abuse" because

"children respond to these events differently than do adults." According to Ward,

CSAAS is sometimes helpful in understanding "why children keep things secret and why

they do what they do in response to that abuse." The five categories identified in

CSAAS, as Ward explained, are secrecy, helplessness, entrapment and accommodation,

delayed unconvincing disclosure, and recantation or retraction. Ward testified about

CSAAS generally, as she had no knowledge about the specifics of this case.

       Cruz contends that the trial court improperly admitted the testimony about CSAAS

because (1) it constituted scientific opinion evidence without reliable foundation; and (2)

the evidence was more prejudicial than probative pursuant to Evidence Code section 352.

Cruz further contends that because the evidence was unreliable and not probative, its


                                            16
admission deprived him of due process of law. We review the court's decision to admit

the expert testimony for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th

1114, 1147.)

       1.      The Evidence Was Not Required to be Excluded as an Unreliable Scientific
               Opinion

       Cruz's first contention is that expert testimony about CSAAS is inadmissible

because it constitutes unreliable scientific opinion under the Kelly/Frye test. (People v.

Kelly (1976) 17 Cal.3d 24, 30; Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014.)

       " 'Under Kelly, the proponent of evidence derived from a new scientific technique

must establish that (1) the reliability of the new technique has gained general acceptance

in the relevant scientific community, (2) the expert testifying to that effect is qualified to

give an opinion on the subject, and (3) the correct scientific procedures were used.' "

(People v. Jones (2013) 57 Cal.4th 899, 936.) Under the Kelly/Frye test " '[r]eliability of

the evidence is established by showing "the procedure has been generally accepted . . . in

the scientific community in which it developed." ' " (People v. Harlan (1990) 222

Cal.App.3d 439, 448 (Harlan).)

       Cruz argues that People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe) established

that the Kelly/Frye test applies to testimony about CSAAS, but that the trial court here

failed to apply that test to determine whether CSAAS was a reliable scientific theory.

Cruz's argument fails because, as we will explain, it is well established that expert

testimony describing CSAAS in a general sense to dispel misconceptions about typical

reactions to sexual abuse is not subject to Kelly/Frye.


                                              17
       As Cruz points out, CSAAS is a similar type of psychological syndrome to rape

trauma syndrome, and in Bledsoe our Supreme Court applied the Kelly/Frye test in ruling

expert testimony that the victim was suffering from rape trauma syndrome was

inadmissible for the purpose of establishing that a rape had in fact occurred based on the

trauma that the victim was exhibiting. (Bledsoe, supra, 36 Cal.3d at p. 251.)

Importantly, however, Bledsoe pointed out that evidence of rape trauma syndrome might

properly be admitted for a different purpose, namely "to rebut misconceptions about the

presumed behavior of rape victims" (id. at p. 299, italics added), such as the

misconception that a victim's "delay in reporting the sexual assault . . . is inconsistent

with her claim of having been raped." (Id. at p. 298.)

       Later, in People v. Stoll (1989) 49 Cal.3d 1136, our Supreme Court explained that

its application of the Kelly/Frye test in Bledsoe was not meant to establish that Kelly/Frye

should always be used to determine whether any type of expert testimony about

psychological syndromes was admissible. (People v. Stoll, at p. 1161.) Rejecting the

argument that "use of 'syndrome' or 'profile' terminology by a mental health professional

makes the diagnosis seem 'scientific' to a jury, and thus invokes Kelly/Frye," Stoll

explained, "[w]e adopted no such per se rule in Bledsoe," and "[w]e are not persuaded

that juries are incapable of evaluating properly presented references to psychological

'profiles' and 'syndromes.' " (People v. Stoll, at p. 1161, fn. 22.)

       Case law decided after Bledsoe concludes that the admissibility of expert

testimony about CSAAS is not governed by the Kelly/Frye test if the CSAAS evidence is

admitted to rebut misconceptions about how children typically react to sexual abuse. In

                                              18
People v. Bowker (1988) 203 Cal.App.3d 385, 393, the court concluded that based on

Bledsoe, under Kelly/Frye "expert reference to CSAAS" is prohibited "for the purpose of

demonstrating abuse," but can be used "for the limited purpose of disabusing the jury of

misconceptions as to how child victims react to abuse." (Bowker, at p. 392.) In Harlan,

supra, 222 Cal.App.3d at p. 449, after reviewing Bledsoe and Stoll, the court concluded

that the Kelly/Frye test does not apply to expert testimony describing the typical reactions

of child molestation victims. We follow those authorities in rejecting Cruz's contention

that the trial court erred in admitting expert testimony about CSSAS without first

determining its reliability under the Kelly/Frye test.

       In arguing that CSAAS evidence should be excluded for all purposes, Cruz is

asking us to reject the holdings of numerous California courts that CSAAS evidence is

admissible to disabuse jurors of commonly held misconceptions about child sexual abuse.

(See, e.g., People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Wells (2004) 118

Cal.App.4th 179, 187-188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745

(Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956 (Housley); People v.

Gilbert (1992) 5 Cal.App.4th 1372, 1383–1384; People v. Stark (1989) 213 Cal.App.3d

107, 116.) Significantly, our Supreme Court has cited this case law with approval, stating

that in cases of alleged child sexual abuse, "expert 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. [Citations.]

                                             19
'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. . . . The great majority of courts approve such

expert rebuttal testimony.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn.

omitted (McAlpin) [discussing the admissibility of CSAAS evidence in the course of

ruling on the admissibility of expert testimony about the failure of the parents of a child

victim to report molestation].) More recently, in People v. Brown (2004) 33 Cal.4th 892,

906-907, our Supreme Court stated that expert testimony on CSAAS was similar to

expert testimony on the behavior of domestic violence victims in response to abuse and,

on that basis, among others, concluded that expert testimony on the behavior of such

victims was admissible in domestic violence cases.

        Cruz relies on several out-of-state cases to argue that CSAAS evidence should be

determined to be unreliable and therefore inadmissible. (Commonwealth v. Dunkle (Pa.

1992) 602 A.2d 830, 834; Bussey v. Commonwealth (Ky. 1985) 697 S.W.2d 139, 141;

Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690, 693-694; Sanderson v.

Commonwealth (Ky. 2009) 291 S.W.3d 610, 614; State v. Ballard (Tenn. 1993) 855

S.W.2d 557, 562.) However, to the extent our Supreme Court approves the admissibility

of CSAAS evidence to rebut general misconceptions about the behavior of child sexual

abuse victims, we are required to follow that precedent and not look to the case law of

other jurisdictions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.)



                                             20
       2.     The Evidence Was Not Required to be Excluded Under Evidence Code
              Section 352

       Cruz next argues that the trial court erred in denying his request to exclude Ward's

testimony about CSAAS under Evidence Code section 352.

       Evidence Code section 352, provides that "[t]he court in its discretion may exclude

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." Premised on his

contention that CSAAS evidence is scientifically unreliable under the Kelly/Frye test,

Cruz contends that unreliable evidence has no probative value and thus should have been

excluded under Evidence Code section 352.

       We reject Cruz's argument because, as we have explained, the Kelly/Frye test does

not apply and Cruz accordingly has not established that the CSAAS evidence is without

probative value. Indeed, our Supreme Court specifically observed that expert testimony

about CSAAS has significant probative value in a case involving allegations of child

molestation, as " '[s]uch 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.' " (McAlpin, supra, 53 Cal.3d at

p. 1300.)

       Moreover, any possible prejudice to Cruz from the jury impermissibly using

Ward's testimony about CSAAS as evidence that Cruz molested Doe was obviated by

trial court's instruction to the jury that "Dr. Ward's testimony about [CSAAS] is not


                                             21
evidence that the defendant committed any of the crimes charged against him."

(CALCRIM No. 1193, as modified.) Such an instruction is required by case law and was

given here because it prevents the potential for misuse of CSAAS evidence. (Housley,

supra, 6 Cal.App.4th at p. 959.)

       3.     Cruz Has Not Established Any Violation of His Rights to Due Process

       In an argument we understand to be premised on his contention that the CSSAS

evidence was scientifically unreliable and therefore irrelevant, Cruz argues that

"presentation of this irrelevant and inflammatory testimony to the jury violated [Cruz's]

right to due process."

       We reject this argument because its premise fails. As we have explained, Cruz has

not established that the CSAAS evidence was scientifically unreliable and therefore

irrelevant.

       Further, case law specifically rejects the contention that the admission of CSAAS

evidence, in itself, violates a defendant's right to due process. (Patino, supra, 26

Cal.App.4th at p. 1747 [observing that "[t]he United States Supreme Court has held the

admission of relevant evidence of the battered child syndrome does not violate the due

process clause of the Fourteenth Amendment," and that "[b]attered child syndrome

evidence is analogous to CSAAS evidence" so that "introduction of CSAAS testimony

does not by itself deny appellant due process"].) We see no reason to depart from that

authority.




                                             22
C.     The Trial Court Did Not Err in Instructing With CALCRIM No. 1193

       Cruz next argues that the trial court erred in instructing the jurors with CALCRIM

No. 1193 about the limits on their use of the CSAAS evidence. He contends that the

instruction, as approved by the Judicial Council of California, is contrary to law.

"[A]ssertions of instructional error are reviewed de novo." (People v. Shaw (2002) 97

Cal.App.4th 833, 838.)4

       Following the text of CALCRIM No. 1193, the trial court instructed the jury,

              "You have heard testimony from Dr. Jod[y] Ward regarding child
       sexual abuse accommodation syndrome.

             "Dr. Ward'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
       [Doe's] conduct was not inconsistent with the conduct of someone who has
       been molested, and in evaluating the believability of his testimony."

       As Cruz correctly points out, "[i]t is beyond dispute that CSAAS testimony is

inadmissible to prove that a molestation actually occurred." (Patino, supra, 26

Cal.App.4th at p. 1744, italics added.) Therefore, case law establishes that "in all cases in

which an expert is called to testify regarding CSAAS . . . the jury must sua sponte be



4       Because Cruz did not object to CALCRIM No. 1193 at trial, he has forfeited the
claim on appeal unless the instructional error amounted to an incorrect statement of law
that affected his substantial rights. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50,
64.) "In this regard, '[t]he cases equate "substantial rights" with reversible error' under
the test stated in People v. Watson (1956) 46 Cal.2d 818." (People v. Felix (2008) 160
Cal.App.4th 849, 857.) As we will conclude that Cruz's claim of instructional error lacks
substantive merit, Cruz has not identified any impact on his substantial rights.

                                             23
instructed that (1) such evidence is admissible solely for the purpose of showing the

victim's reactions as demonstrated by the evidence are not inconsistent with having been

molested; and (2) the expert's testimony is not intended and should not be used to

determine whether the victim's molestation claim is true." (Housley, supra, 6

Cal.App.4th at p. 959, italics added.)

       Cruz contends that CALCRIM No. 1193 contravenes this authority because it

purportedly instructs the jury that it may use the CSAAS evidence to decide whether the

victim's claim of molestation is true. Specifically, Cruz focuses on the last phrase in the

instruction, which states that the jury may use the CSAAS evidence "in evaluating the

believability of [Doe's] testimony." As Cruz contends, "[b]y allowing the jurors to

consider the CSAAS testimony in evaluating the complaining witness's credibility, the

CALCRIM No. 1193 instruction . . . permits the jurors to consider this expert testimony

as supportive of the truth of the allegations made against the defendant." We disagree.

       Cruz's argument improperly conflates two distinct types of evidence: (1) evidence

relevant to a victim's credibility; and (2) evidence that the defendant committed the

offense. Case law discussing the admissibility of CSAAS evidence consistently

recognizes that the two types of evidence are different. For example, Housley explains

that although CSSAS evidence cannot be used to prove that molestation occurred, such

evidence was "properly admitted" in that case "to rehabilitate [the victim's] credibility

and to explain the pressures that sometimes cause molestation victims to falsely recant

their claims of abuse." (Housley, supra, 6 Cal.App.4th at p. 956). Similarly, Bowker

explains that although CSAAS evidence may not be "used to determine whether the

                                             24
victim's molestation claim is true," it may be used "to rebut defense attacks on the

victim's credibility." (Bowker, supra, 203 Cal.App.3d at p. 394.) Most significantly, our

Supreme Court expressly stated that although CSAAS evidence is "not admissible to

prove that the complaining witness has in fact been sexually abused," "it is admissible to

rehabilitate such witness's credibility." (McAlpin, supra, 53 Cal.3d at p. 1300.) In light

of these authorities — each of which recognizes that evidence of a witness's credibility is

different from evidence that the molestation occurred — there is no merit to Cruz's

contention that by mentioning the jury's use of CSAAS evidence "in evaluating the

believability of [the victim's] testimony," CALCRIM No. 1193 impermissibly instructs

the jury that it may use CSAAS evidence as evidence that Cruz committed the

molestation.

D.     The Prosecutorial Misconduct Argument Is Not Preserved for Appeal

       Cruz contends that the prosecutor committed misconduct during closing argument

when discussing the presumption of innocence. Specifically, the prosecutor made the

following statement during rebuttal closing argument:

       "Now, during jury selection, I think it was clear to everyone . . . that we
       were trying to make sure that this was a fair trial, and that the defendant got
       a fair trial. I think everyone would agree with that.

       "And it should be fair. It should be fair for both sides. For the defendant.
       It's my burden, and I told you I accept that burden. And it starts with the
       presumption of innocence.

       "Once you go back there, that presumption leaves. You deliberate. And
       I'm confident that you're going to find him guilty. But he starts with the
       presumption of innocence. The rules are set up to favor him." (Italics
       added.)


                                             25
       Cruz argues that by stating that the presumption of innocence leaves once the

jurors go into the deliberation room, the prosecutor misstated the law and misled the jury

about a defendant's presumption of innocence until found guilty.

       Prosecutorial misconduct exists " 'under state law only if it involves " 'the use of

deceptive or reprehensible methods to attempt to persuade either the court or the

jury.' " ' " (People v. Earp (1999) 20 Cal.4th 826, 858.) In more extreme cases, a

defendant's federal due process rights are violated when a prosecutor's improper remark

" ' " 'infect[s] the trial with unfairness,' " ' " making it fundamentally unfair. (Ibid.)

However, " '[t]o preserve for appeal a claim of prosecutorial misconduct, the defense

must make a timely objection at trial and request an admonition . . . .' " (Ibid.) As an

exception to this rule, "[a] defendant will be excused from the necessity of either a timely

objection and/or a request for admonition if either would be futile. [Citations.] In

addition, failure to request the jury be admonished does not forfeit the issue for appeal if

' "an admonition would not have cured the harm caused by the misconduct." ' " (People

v. Hill (1998) 17 Cal.4th 800, 820.)

       Here, defense counsel did not object to the statement that Cruz now claims to

constitute prosecutorial misconduct, and nothing in the record suggests that an objection

would have been futile. Further, if defense counsel had objected and asked for an

admonition, the jury could have been admonished to disregard the prosecutor's alleged

misstatement. Accordingly, we conclude that because defense counsel did not object to

the statements that Cruz now assigns as prosecutorial misconduct, the issue is not

preserved for appeal.

                                               26
E.     The Trial Court Did Not Err in Imposing a Mandatory Consecutive Sentence for
       Count 3

       The final issue is whether the trial court erred in imposing a consecutive sentence

for the forcible lewd act conviction in count 3.

       In imposing a determinate term of 28 years, the court concluded that the eight-year

upper term sentence for each of the three lewd act counts (counts 3, 4 and 5) (§ 288,

subd. (b)) should run consecutively to each other and consecutively to the indeterminate

term imposed for the sodomy counts (counts 1 and 2).

       Under section 667.6, subdivision (d), a court is required to impose consecutive

sentences for certain sex offense convictions (including, as relevant here convictions for

the commission of forcible lewd acts (§ 288, subd. (b)) when "the crimes involve separate

victims or involve the same victim on separate occasions." (§ 667.6, subds. (d), (e)). In

contrast, when the crimes do not involve separate victims or the same victim on separate

occasions, section 667.6 subdivision (c) gives a trial court the discretion to impose a

consecutive sentence if it chooses to do so.

       Here, although the trial court was not completely clear, it appears that the court

believed that the sentences for count 3, 4 and 5 were required by law to be served

consecutively to the sentence for the sodomy counts pursuant to section 667.6,

subdivision (d) because they involved the same victim on separate occasions.

Specifically, the court appeared to indicate that consecutive sentences were required by

stating that as to the section 288, subdivision (b)(1) convictions, "my understanding of




                                               27
the law is that each would be full and consecutive to each other . . . . by law." (Emphasis

added.)

       Assuming that the trial court believed consecutive sentencing was mandatory,

Cruz contends that the trial court erred as to count 3 because the lewd act in count 3 did

not occur on a separate occasion from the sodomy charged in counts 1 and 2.

       To analyze the argument, we must look more closely at the conduct that was

charged in counts 1, 2 and 3. The prosecutor stated at trial that counts 1, 2, and 3 all

occurred in the living room on a single day. Specifically, counts 1 and 2 were alternate

charges for the same conduct of anal penetration that Doe described as having occurred in

the living room. Count 1 charged aggravated sexual assault of a child under age 14 by

means of forcible sodomy based on that conduct (§§ 269, subd. (a)(3), 286 subds. (c),(d)),

and count 2 charged sodomy with a child 10 years old or younger based on that same

conduct (§ 288.7, subd. (a)).5 Regarding count 3, the prosecutor explained that it was

based on other forcible lewd acts that occurred in the living room on the same day as the

anal penetration. During closing argument the prosecutor described those lewd acts as

"touching." At sentencing, the prosecutor explained that the lewd acts charged in count 3

consisted of the "forced foreplay" and the fondling of Doe's penis that preceded the anal

penetration.6




5       At sentencing, because counts 1 and 2 were based on the same conduct, the trial
court stayed the sentence on count 1 pursuant to section 654.
6       Count 4 involved the conduct at the donut shop, and count 5 involved the conduct
in the bedroom.
                                             28
       Cruz contends that based on the evidence presented at trial, the fondling of Doe's

penis and other lewd acts that preceded the anal penetration did not occur on a separate

occasion. To evaluate this argument, we turn first to the statutory language. Section

667.6, subdivision (d) states that "[i]n determining whether crimes against a single victim

were committed on separate occasions under this subdivision, the court shall consider

whether, between the commission of one sex crime and another, the defendant had a

reasonable opportunity to reflect upon his or her actions and nevertheless resumed

sexually assaultive behavior. Neither the duration of time between crimes, nor whether

or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of

itself, determinative on the issue of whether the crimes in question occurred on separate

occasions."

       Case law provides additional clarification that separate occasions of sexual assault

may take place during the same encounter, as long as the evidence supports a finding that

the defendant had a reasonable opportunity to reflect and then resumed his actions. As

our Supreme Court stated in People v. Jones (2001) 25 Cal.4th 98, 104, "[u]nder the

broad standard established by . . . section 667.6, subdivision (d), the Courts of Appeal

have not required a break of any specific duration or any change in physical location" for

a finding that sexual assaults occurring during a continuous encounter with a victim

constituted separate occasions. Thus, for example, People v. Irvin (1996) 43 Cal.App.4th

1063, 1070 stated that "a finding of 'separate occasions' " does not "require[ ] a change of

location or an obvious break in a perpetrator's behavior." Similarly, People v. Plaza

(1995) 41 Cal.App.4th 377 concluded that three counts of forcible oral copulation, one

                                             29
count of rape and one count of forcible vaginal penetration with a foreign object that all

occurred during the same encounter in the victim's apartment, with no break in the

defendant's control over the victim, were all separate occasions for the purposes of

section 667.6. (Plaza, at pp. 381, 385.) Each case depends on unique facts, however, and

in some contexts courts conclude that the evidence does not support a finding that the

defendant had a reasonable opportunity to reflect between sex acts that were committed

in quick succession. (People v. Pena (1992) 7 Cal.App.4th 1294, 1316; People v. Corona

(1988) 206 Cal.App.3d 13, 18.)

       "Once a trial judge has found under section 667.6, subdivision (d), that a

defendant committed offenses on separate occasions, we may reverse only if no

reasonable trier of fact could have decided the defendant had a reasonable opportunity for

reflection after completing an offense before resuming his assaultive behavior." (People

v. Garza (2003) 107 Cal.App.4th 1081, 1092.)

       Cruz argues that "there was no appreciable interval between the penetration and

touching" based on any of the evidence at trial, and that Cruz "likely touched Doe's penis

during the course of the sodomy." As we will explain, we disagree.

       During Doe's preliminary hearing testimony, he did not recount specific details of

what happened in the living room apart from the sodomy itself, other than stating that

Cruz grabbed him, Doe struggled to get away, and Cruz pulled down both his and Doe's

pants. However, Doe provided additional details of the living room incident during his

interview with Officer Miranda. Doe told Officer Miranda that during the living room

incident, Cruz was "kind of messing with" him and fondled Doe's penis. Because the act

                                            30
of fondling a victim's penis is a separate type of sexual activity from sodomizing a

victim, and because Doe described the incident as including Doe's struggle to get away

from Cruz, the trial court could reasonably find that the fondling of Doe's penis did not

take place simultaneously with the sodomy and that Cruz had an opportunity to reflect on

his actions between the act of fondling Doe's penis and gaining control over Doe to

commit the sodomy. Accordingly, the trial court properly concluded that the lewd act

that formed the basis of count 3 and the sodomy that formed the basis of counts 1 and 2

took place on separate occasions within the meaning of section 667.6, subdivision (d),

subjecting Cruz to a mandatory consecutive sentence for count 3.

                                      DISPOSITION

       The judgment is affirmed.




                                                                                  IRION, J.

WE CONCUR:


McCONNELL, P. J.


PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            31
