Filed 2/16/16 P. v. Schlensker CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068799
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF39351)
                   v.

EMBER DAWN SCHLENSKER,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and Jeffrey Grant, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
                                                 INTRODUCTION
         In January 2013, the Tuolumne County District Attorney filed a 45-count
information charging Ember Dawn Schlensker (appellant) with committing various
sexual offenses against John Doe (John), between August 1, 2009, and March 1, 2012,
beginning when appellant was around 25 years old and John was around 15 years old.
       In July 2013, a jury convicted appellant of 27 of the 45 counts charged in the
information, acquitted her of five counts, and was unable to reach a verdict as to 13
counts. The majority of appellant’s convictions represented offenses alleged to have
occurred during specific months between August 1, 2009, and August 21, 2010. The
counts on which she was acquitted, or on which the jury was unable to reach a verdict,
represented offenses alleged to have occurred during specific months between August 22,
2010, and March 31, 2012. The trial court sentenced appellant to a total prison term of
six years.
       Appellant raises three contentions on appeal. First, she contends the trial court
abused its discretion in refusing to hold an evidentiary hearing on proffered evidence of
John’s sexual history. Second, appellant contends the trial court erred prejudicially in
unduly restricting the testimony of the defense expert regarding her opinion that appellant
suffered from posttraumatic stress disorder and rape trauma syndrome at the time of the
offenses. Finally, appellant contends the cumulative effect of these errors requires
reversal. For reasons discussed below, we agree with appellant’s second contention and
will reverse the judgment on that ground. In light of our conclusion that reversal is
required, we need not and do not address appellant’s other contentions on appeal.
                   FACTUAL AND PROCEDURAL BACKGROUND
I.     The Information
       Counts 1 through 26 of the information charged appellant with committing two
offenses per month—i.e., lewd act on a minor (Pen. Code,1 § 288, subd. (c)(1)) and
unlawful sexual intercourse with a minor under the age of 16 (§ 261.5, subd. (d))—



1      All statutory references are to the Penal Code unless otherwise specified.


                                               2.
between August 1, 2009, and August 21, 2010.2 Appellant was thus charged with 13
counts of lewd acts (counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25) and 13 counts of
unlawful sexual intercourse (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26).
       Counts 27 through 43 charged appellant with committing one count per month of
unlawful sexual intercourse with a minor more than three years her junior (§ 261.5, subd.
(c)). These offenses allegedly occurred between August 22, 2010, and March 31, 2012,
excluding the time period between September 1, 2011, and November 30, 2011, when
John was attending school in a different state.
       Finally, counts 44 and 45 charged appellant with oral copulation and sodomy with
a person under the age of 18 (§§ 288a, subd. (b)(1), 286, subd. (b)(1)), offenses allegedly
occurring sometime between August 1, 2009, and March 1, 2012.
II.    The Jury’s Verdict
       Appellant was tried by a jury and found guilty of all but two of the first 26 counts,
which covered the time period between August 1, 2009, and August 21, 2010. The jury
found appellant not guilty on counts 19 and 20, the lewd act and unlawful sexual
intercourse, which allegedly occurred in May 2010.
       With respect to counts 27 through 43, which covered the time period between
August 22, 2010, and March 31, 2012, the jury found appellant guilty on count 28, the
unlawful sexual intercourse which allegedly occurred in the month of September 2010.
The jury found appellant not guilty of the same offense in count 27, which allegedly
occurred between August 22, 2010, and August 31, 2010, and not guilty of the offenses
in counts 40 and 43, which allegedly occurred in the months of December 2011 and
March 2012, respectively. The jury was unable to reach a verdict on counts 29 through

2      For example, count 1 charged appellant with committing a lewd act, and count 2 charged
her with committing unlawful sexual intercourse, on or between August 1, 2009, and August 31,
2009. Likewise, count 3 charged her with committing a lewd act, and count 4 charged her with
committing unlawful sexual intercourse, on or about September 1, 2009, through September 30,
2009. Counts 5 through 26 followed suit.


                                              3.
39, 41, and 42, which represented offenses allegedly occurring in the months of October
through December 2010, January through August 2011, January and February 2012. The
trial court declared a mistrial as to these counts and later dismissed them on the
prosecution’s motion.
       Finally, the jury found appellant guilty on counts 44 and 45, the oral copulation
and sodomy offenses allegedly occurring sometime between August 1, 2009, and March
1, 2012.
III.   Sentencing
       The trial court sentenced appellant to a total prison term of six years as follows:
three years for count 2 (§ 261.5, subd. (d)), plus one year for count 18 (ibid.), eight
months for count 28 (§ 261.5, subd. (c)), eight months for count 44 (§ 288a, subd. (b)(1)),
and eight months for count 45 (§ 286, subd. (b)(1)). The terms appellant received for her
other convictions were ordered to run concurrently or stayed under section 654.
IV.    Evidence Presented at Trial
       The prosecution
       John, who was 18 years old at the time of trial, testified he first met appellant
when he was around 13 years old, at a church camp in Santa Cruz. According to John’s
testimony, appellant came up and introduced herself and her husband, Phillip Schlensker
(Phil), to John and a friend sitting with him. Appellant told them she was going to be the
new youth pastor at the Lutheran church that John and his mother attended in Sonora,
where they lived. Appellant asked John if he wanted to be invited to youth group events
and he said yes.
       When John returned to Sonora after the church camp, he began to attend youth
group functions on a regular basis. At first, he mainly just hung out with the other kids
and his perception of appellant did not change. His perception of her changed later,
however, after they started “flirting” with each other. John recalled the first time
appellant flirted with him was at her apartment, when he was not quite 14 years old.

                                              4.
John’s mother and Phil were in the kitchen and John was sitting on the couch. As
appellant was walking to the kitchen, she winked at him. After this incident, John started
“flirting back” with appellant and their flirting became more frequent.
       John returned to the same church camp the following summer when he was 14
years old. He recalled an incident at the camp in which appellant hurt her knee at the
beach and he gave her a piggyback ride. When they reached the stairs, appellant
whispered in his ear, “I like having my legs wrapped around you.”
       After John’s parents split up, his mother started working more hours and would
bring him to appellant’s apartment for appellant to watch him while his mother was at
work. During this time, John’s feelings towards appellant continued to change as their
flirting became more intense. John would stay at appellant’s apartment the whole time
his mother was gone, which was from around 7:30 a.m. to 5:30 p.m. Phil was usually at
work during this time.
       John recalled his first kiss with appellant took place when they were sitting on the
couch in her apartment, watching the movie “Resident Evil Distinction.” It was during
the summer, less than a week after they returned from church camp. John had his arm
around appellant and leaned over and tried to kiss her. She told him “no,” and he said
“okay.” About five minutes later, John tried to kiss appellant again and she kissed him
back this time.
       A few weeks after their first kiss, John and appellant started engaging in what
John referred to in his testimony as “dry sex” with their clothes on. They engaged in “dry
sex” more than 10 times.
       The first time John and appellant had sexual intercourse was at John’s house on
Buena Oaks. John recalled that appellant and Phil started staying at their house when
both John and appellant had the Swine Flu and, after that, appellant and Phil decided to
move in with John and his mother.



                                             5.
       John testified that the first time he had sex with appellant, she came into his
bedroom wearing “lingerie” consisting of a “white bra with lace” and “white pants with
lace.” After she lay down on the bed next to him, they began to have “dry sex” like they
“normally” did. John then asked appellant whether “she fully wanted to go all the way
this time.” Appellant said she wanted to, but she did not want to betray her husband.
       John testified that they “ended up … partially having sex.” John explained he did
not “penetrate her all the way.” He denied that he forced himself on appellant. After
they stopped, appellant left the room, sat on the stairs, and cried. John went to sit with
her and started crying too because she was crying.
       John could not recall specifically how long it was after their first time that he and
appellant had sex again but recalled they “did it quite a bit.” At first they had sex around
three times a week but “eventually it was almost every day.”
       At some point, John, his mother, appellant, and Phil moved into a house on
Arbona. They were only at the Arbona house for a month while they were looking for
another house that they could all move into together.
       John recalled one incident at the Arbona house when his mother returned home
after forgetting something for work. His mother saw him lying in bed with appellant and
got upset with him. John and appellant were not having sex when his mother saw them,
and he responded to his mother by becoming angry and defensive. John’s mother spoke
with him later about the incident and told him it was inappropriate and she did not want
to see it again.
       During the month they were living in the Arbona house, John’s feelings for
appellant had developed to the point where he thought that he loved her and he told her
so. At some point, appellant told John she loved him too. He could not remember when
but thought it was during the same month.
       After they moved out of the Arbona house, John, his mother, appellant, and Phil
moved into a two-story house on Lakeside. At the Lakeside house, there was one

                                             6.
upstairs bedroom, which was where appellant and Phil stayed, and John’s bedroom was
at the bottom of the stairs.
       John and appellant continued to have sex almost every night after moving to the
Lakeside house. They would have sex in John’s bedroom while Phil was upstairs. When
asked how this was possible, John testified, “Well, she would lay in bed with me at night
… and tell my mom and Phil that we were doing Bible study or we were reading or we
were talking, and she would lie in bed with me, and that’s when we would do that.” The
door to his bedroom was usually “cracked open, but sometimes it was closed.”
       John recalled two occasions at the Lakeside house where he and appellant almost
got caught by his mother. On the first occasion, it was late at night and appellant was
under the covers with him. They were about to have sex when his mother came in his
room. His mother “wasn’t happy” and directed him to come out and talk to her. John
again reacted by getting upset with his mother because he did not want anyone to know
or find out what was going on between him and appellant.
       On the second occasion, John’s mother came home early from work. John and
appellant were upstairs in her room having sex when they heard his mother pull into the
garage. Appellant went into the bathroom and John locked the door because he knew his
mother was coming up and he needed time to put on his clothes. When John opened the
door, his mother was upset about him being behind a closed door with appellant. John
again responded by getting angry with his mother.
       During the time they were living at the Lakeside house, appellant and John also
had sex two or three times in his mother’s car. This was when he was close to 17 years
old and had just gotten his driver’s license. During the same timeframe, they also had sex
at the church two or three times. John recalled having sex in the youth group room in the
afternoon and also in the “attic room” at night during a “lock in” which was when youth
group kids would spend the night at the church.



                                            7.
       John further testified that he and appellant engaged in anal sex three times when
they lived at the Lakeside house. It had been his idea to have anal sex, but he did not
force her. They also engaged in oral sex more than 10 times during the course of their
relationship, and they touched each other’s private parts just about every time they
engaged in sexual activity.
       John recalled that appellant once gave him a note before she left on a trip for Hong
Kong. In the note, she wrote “You’re always in my thoughts” and that she would see him
again soon. Appellant and Phil also gave John a card for his 16th birthday, and appellant
gave him a separate birthday card that she signed as being from the dog and to be funny.
       Sometime during the winter after John turned 16 years old, John and appellant
bought rings as a token of their love for each other at an event called “Spirit West Coast”
near Santa Cruz. John had planned to buy appellant’s ring for her, but, because he did
not have any money, she bought both of their rings. John thought the rings represented a
promise that someday they would get married and be together, which was something they
had previously talked about.
       John acknowledged he and appellant would occasionally fight. He explained that
she would sometimes get upset with him when he had a girlfriend, and he would get
upset because she was married, which was difficult for him to see every day. John
wanted appellant for himself and told her so.
       John described an incident at the Lakeside house, in which he fired his nine-
millimeter handgun in anger at appellant during a fight. According to John, he bought
the gun with money he earned from his job but it was registered in his mother’s name.
For a long time, he kept the gun in his room in a safe and occasionally took the gun out
when he went shooting with appellant.
       John could not remember what he and appellant had been fighting about during
the incident but recalled the fight had become “pretty heated” and appellant slapped him
and ran upstairs. John pulled out his gun and fired it up the stairs and the bullet went

                                             8.
through the bedroom wall. Realizing what he had done, John dropped the gun and went
into the bedroom to apologize and ask for appellant’s forgiveness for losing his cool and
firing a gun because he was angry.
       John also testified regarding a time when his father came to the Lakeside house
looking for him. He recalled being upstairs with appellant and Phil. They were still in
their pajamas and just playing around like they often did. Appellant was giving John a
“wet Willie” when Phil walked by the doorway and said, “Your dad’s here.” John
walked downstairs and saw his father. His father was upset with him and asking things
like, “What was going on up there? What’s a wet Willie?”
       In September 2011, after John turned 17 years old, his mother sent him to attend a
school in Missouri, where he stayed until around Christmas. Days before John left for
Missouri, he had sex with appellant in the church room. When John returned from
Missouri, appellant and Phil had moved to Twain Harte and were no longer living at the
Lakeside house where John’s mother still lived.
       At some point before John went to Missouri, his mother set up counseling
appointments for him to talk to a pastor to find out what was going on between him and
appellant. John lied and did not tell the pastor anything. On another occasion, to deflect
his mother’s suspicion from appellant, John told his mother, in front of appellant and
Phil, that he had sex with appellant’s sister, who was two years younger than appellant. 3
       In January 2012, about one or two weeks after his return from Missouri, John had
sex with appellant at her house in Twain Harte. He could not remember how many times
they had sex when she as living in Twain Harte but recalled that it would happen during
his lunchbreak from school and that he would drive his mother’s car up to Twain Hart to
see appellant whenever he could.


3    John claimed he actually did have sex with appellant’s sister at the Lakeside house.
However, appellant’s sister denied having sex with John in her testimony for the defense.


                                              9.
       John stopped having sex with appellant after she and Phil moved to Oregon. John
felt hurt when appellant moved, but they had talked about it and it was John’s
understanding that eventually he would get his own car to go visit appellant and Phil and
eventually move there.
       Sometime after appellant and Phil moved to Oregon, John received a text message
from Phil essentially stating that appellant had told him what was going on and if John
respected them to stay out of their lives and never talk to them again. Phil also said
something to the effect he was disappointed but still cared about John. He was also upset
that John had shot a gun in anger towards his wife.
       Eventually, John told his mother about his relationship with appellant but made
her promise not to press charges. After John told his mother, his mother told his father
and, months later, someone told the police.
       John’s mother, Kathy S. (Kathy), was the first witness called by the prosecution.
Her testimony provided background information about how she met appellant in 2008,
after appellant came to work at the Lutheran church of which Kathy had been a member
for a number of years. Kathy also testified about how, after separating from her husband,
she came to ask appellant to help her look after John when she was working, and
eventually to invite appellant and Phil to move in with her and John. The primary focus
of Kathy’s testimony, however, was on describing specific incidents that seemed
suspicious to her and suggested the existence of an unusual or inappropriate relationship
between appellant and John.
       Kathy first testified to an incident that occurred in 2009, while she and John were
living at the Buena Oaks house. The incident took place a few months into John’s
freshman year, when he was 15 years old, and at a time when Kathy was beginning to
rely more and more on appellant to drive John to and from school. It was a school night,
and John was in bed with the lights out. After Kathy saw his phone light up, she went
into his room to investigate and found John texting with someone.

                                              10.
       After confiscating John’s phone, Kathy saw a message on it which read, “Don’t
worry, it’s only a little blood.” When she asked him who wrote the message, he replied it
was “just a friend.” Kathy did not know the context of the message, but it appeared that
someone was hurting or had gotten hurt. Kathy then noticed the phone number
associated with the message had appellant’s name on it. When she asked John about that,
he maintained it was just a friend and did not explain how his friend had the same name
as appellant.
       One or two days later, Kathy confronted appellant with the text message and
appellant denied recognizing the phone number. Kathy then punched the number into her
own phone and showed appellant that it brought up her name. Appellant looked down,
started crying, and revealed to Kathy some cut marks on her wrists.
       When Kathy spoke with Phil about this incident, he expressed concern about
appellant being alone in the evenings when he worked. After that, appellant and Phil
started spending nights over at the Buena Oaks house.
       During their past Bible studies together, appellant revealed to Kathy she had a
“troubled past.” Based on their conversations, Kathy believed she and appellant shared
the same values and she trusted appellant and felt comfortable with her picking up John
from school.
       In addition to the texting incident, Kathy described two other unusual incidents
she recalled occurring when appellant was staying with them at the Buena Oaks house.
On one of the occasions, Kathy heard John get up out of bed and got up to check on him.
As she was walking by appellant’s room on the way to John’s room, Kathy saw John in
appellant’s room, lying on top of her bed covers. He was wearing pajama shorts and an
undershirt. Kathy told John to get up and go back to bed. John’s reaction was “[a] little
defensive, but compliant.” Kathy recalled telling appellant that John did not belong in
there and thought appellant said okay.



                                           11.
      After the incident, Kathy followed up with appellant and Phil and told them that
John did not belong in their room. Phil assured Kathy that John was like a brother to
appellant and this was how appellant treated her own brothers. Kathy thought this was
odd but concluded it was okay because John had been on top of the covers.
      During the other incident she recalled occurring at the Buena Oaks house, Kathy
heard muffled noises coming from appellant’s room at night when Phil was at work.
Kathy got up and walked to appellant’s room. When she opened the door, she saw
appellant and John in bed together under the covers. Kathy told John to get up and go to
bed. John reacted by saying, “Mom, we were only talking.” Kathy noticed John was
wearing pajamas when he got out of the bed. Appellant did not get out of bed and Kathy
could not recall whether appellant said anything.
      A day or two later, Kathy spoke about the incident with John, appellant, and Phil.
John repeated that he and appellant had only been talking and said she had been
comforting him. Phil also reiterated that appellant viewed John as a brother and this was
how she treated her brothers.
      On February 1, 2010, Kathy and John moved from the Buena Oaks house into the
Arbona house. It was both Kathy’s and the Schlenskers’s idea to move in together.
Kathy explained that they “shared a common vision ultimately to have a place of refuge
for the teenagers of the church” and the one-story house on Arbona was large enough for
that purpose.
      During the month they lived at the Arbona house, Kathy had the master bedroom
while appellant and Phil had the guest bedroom across from John’s bedroom. The
arrangement was for John to be with appellant after school when Kathy was not around.
Kathy worked three days a week on Monday, Tuesday, and Thursday, and would
typically leave the house at 7:30 a.m. and return between 5:15 p.m. and 5:30 p.m.
      Kathy recalled one unusual incident when they were living at the Arbona house.
One morning, shortly after leaving the house for work, she realized she had forgotten

                                           12.
something and drove home. When she walked inside the house, she saw, in her
peripheral vision, John jumping under the covers in appellant’s bed.
       Kathy walked into appellant’s room and asked John what he was doing in her bed.
John replied, “Oh, nothing mom.” His demeanor was “nonchalant.” When Kathy
directed John to get out of the bed, she saw he was wearing his pajama bottoms and a
shirt. Appellant did not say anything but “turned her head … as if she had been
sleeping.”
       When Kathy spoke to appellant and Phil about this incident, they again reassured
her that appellant had brotherly feelings towards John and this was how appellant
behaved with her brothers. During the conversation, John’s demeanor was defensive. He
said nothing was happening and asked how she could think such a thing.
       In March 2010, Kathy, John, appellant, and Phil moved from the Arbona house to
the Lakeside house. During that time, appellant would engage in one-on-one Bible
studies with youth group members upstairs in her room. Kathy estimated that John
participated in private Bible study sessions with appellant in her room once a week but
could not recall for how long this continued.
       Starting from March 2010, the first suspicious incident Kathy could recall
occurred late at night. When she went to John’s room to check on him, she found
appellant in bed with him under the covers.4 Kathy turned on the lights and told appellant
to get out of John’s bed. When she got out of the bed, Kathy saw that appellant was
wearing pajamas. Appellant told Kathy that John had been “frightened and needed to be
comforted” and had asked her to read to him.
       The next suspicious incident Kathy could recall occurred during the daytime.
Looking for John, Kathy went upstairs and knocked on appellant’s door. John unlocked


4      Kathy testified that, as “a parent thing,” she would frequently check on John in the
middle of the night but did so less frequently as he got older.


                                               13.
and opened the door. Kathy did not see appellant right away. Appellant then walked out
from the vanity area of the bathroom connected to the bedroom.
       Another time, Kathy walked upstairs to appellant’s room during the daytime and
found appellant and John both lying on the floor. Appellant was wearing very short
shorts and had one knee “propped up.” John’s head was within three or four inches of
appellant’s crotch area. Kathy “chit chatted with them for a moment” and then finally
said, “This looks totally inappropriate. [John], you should not be that close to
[appellant’s] crotch area.” Appellant took hold of a blanket that was on the floor, pulled
it over her head, and turned away from Kathy. Meanwhile, John was saying, “There’s
nothing going on here” and “We’re just sitting here having a conversation.” John’s
demeanor seemed “a little put off that [Kathy] would even think that they would be
inappropriate toward each other.” Kathy remarked to appellant, “you’re the adult” and “I
don’t understand why [John] is doing all the talking.”
       Kathy recalled after each of these three incidents occurring at the Lakeside house,
she had follow-up meetings with appellant and Phil. Phil continued to respond the way
he had done in the past, telling Kathy that appellant treated John as a brother and that he
trusted his wife.
       Regarding other occasions she found appellant and John in inappropriate positions
or situations at the Lakeside house, Kathy testified that, sometimes when they were all
watching television, appellant would have her hand on John’s leg or they would have the
covers over them while they were sitting next to each other. During these occasions, Phil
was often sitting on the other side of appellant.
       On another occasion, Kathy walked into the fireplace room at night before going
to bed and found appellant with her arms around John’s neck. Kathy testified it was “a
close embrace, and [appellant] had one foot up and she’s looking into his face.” Kathy
walked up to them and asked, “What’s going on here?” John responded, “Nothing is
going on. We were just talking.”

                                             14.
       Another time, Kathy and John were planning to go somewhere and he wanted to
say goodbye to appellant. When Kathy went upstairs to look for him, she saw appellant,
apparently asleep, in bed under the covers. John was kneeling down next to the bed with
one arm across appellant. His face was very close to her face as he was saying goodbye.
When John appeared to kiss appellant, Kathy said, “What are you doing? It’s time to go.
We’re leaving.”
       Kathy also testified regarding suspicious incidents or situations that occurred
outside the home. In this regard, Kathy recalled that, in the summer of 2010, when they
were on a camping trip, Kathy found Phil sitting alone at the campground and asked him
where appellant and John were. Phil replied that they were in the tent. Kathy went to the
tent and saw that the windows were closed and the door was zipped shut. When she
opened up the door, she saw John lying on the air mattress with his shirt off and appellant
giving him a massage. John complied when Kathy told him to get his shirt on and come
out of the tent.
       Another time during the summer of 2010, Kathy went with John, appellant, and at
least four other girls from the church youth group to a Christian music event in Monterey
called “Spirit West Coast.” During the event, they camped together in a tent. Kathy
recalled that appellant and John slept side by side, perpendicular to the other girls, who
were at the other end of the tent. This had not been the intended sleeping arrangement
and, while finding it unusual, Kathy did not insist that appellant and John move because
they were both in their own separate sleeping bags.
       Later the same summer or early in the fall of 2010, Kathy went with John,
appellant, Phil, and three other youth group members to an event in San Jose called
“Hands on Bay Area.” During the event, they stayed in two hotel rooms. Kathy slept in
the room with the youth group members, while appellant, Phil, and John slept in the other
room. When Kathy asked John why he was sleeping with appellant and Phil, John
replied he just wanted to.

                                            15.
       Kathy confirmed that there was a nine-millimeter handgun in the home between
2008 and 2012. Kathy testified that it belonged to her and she kept it in her room locked
in a safe. She never gave it to John to use except when they went out target practicing.
       Around the middle of September 2011, Kathy sent John to a “Christian-run school
and teaching place for young men” called “Future Men” in Missouri. She was prompted
to send him there by information she received from her stepdaughter, namely that John
had confided in his stepsister and her husband that he and appellant were sexually
involved.
       Kathy called a pastor and arranged for him to be present when she confronted John
with the information she had received from her stepdaughter. During the meeting with
the pastor, John told Kathy that he had lied to his sister.
       After meeting with the pastor, Kathy and John went to Wal-Mart. John told her he
wanted to go inside to talk to Phil. Kathy responded that she did not want him to talk to
Phil before she had a chance to confront Phil and appellant. John reacted by storming off
into the Wal-Mart.
       The next time Kathy saw John that night was at home around 10:15 p.m. Kathy
had appellant and Phil come into her room and confronted them. During the
confrontation, appellant said Kathy was just jealous and denied that she and John were
having sex. Appellant also said that John had sex with her sister, who consequently was
no longer allowed to be at the house. After the meeting, appellant and Phil went to their
room and started packing up their things.
       Dessi S. (Dessi), John’s father and Kathy’s ex-husband, testified regarding an
incident involving John and appellant that struck him as unusual. Sometime around
2010, when John was 15 years old, Dessi went to the Lakeside house in the late morning
or early afternoon, to look for John after he was unable to reach his son. No one
responded when Dessi knocked on the front and back doors.



                                              16.
       Dessi heard voices coming from the upstairs and recognized those of appellant and
John. Dessi entered the house through the garage and stood at the bottom of the stairs
leading to the upstairs bedroom. He could hear John giggling and saying something like,
“You know how that tickles me.”
       Dessi then saw Phil cross in front of the open bedroom door. Phil was wearing a
robe which struck Dessi as strange given the time of day. Phil spotted Dessi and said,
“Your father has broken in. [John], your father is standing at the bottom of the stairs.”
       John, who was wearing pajamas, came down the stairs and seemed upset with
Dessi and the idea that his father had broken into the house. Not wanting to engage in a
confrontation at that time, Dessi told John that he did not like what he was seeing, it was
inappropriate, and that he was leaving. John followed Dessi as he walked out to the car.
Shortly thereafter, Dessi communicated what he had seen to Kathy and his feelings that it
was strange for John to be upstairs in the adults’ private bedroom.
       Besides John, Kathy, and Dessi, the only other witness called by the prosecution
was Spencer Garrett. Garrett testified that he worked as a deputy with the Tuolumne
County Sheriff’s Office, when he interviewed John in Sonora on July 16, 2012, and
interviewed appellant in Crescent City on August 1, 2012.
       During the August 1, 2012, interview, appellant told Garrett that she viewed John
like a brother and that she had been entrusted with his care. When Garrett told appellant
that John was saying they had sex, she said no and that it was not something she would
do. When asked how often she did Bible study with John, appellant responded that it was
almost every night.
       During her interview, appellant told Garrett that John had tried to have sex with
her “very many times.” When Garrett asked her if she thought about having sex with
John, she said no and indicated she found the idea “disgusting” and “gross.” She also
responded in the negative when asked if she was capable of having sex with John.



                                            17.
       After Garrett asked appellant to “level” with him about what happened, appellant
said, “He pinned me down.” When asked why she never made a report, appellant
responded that no one would believe her “because of all the stories you hear in the news
of teachers and the gross things that they do with their students.”
       When Garrett told appellant that he did not believe all the sex they had was forced,
she responded, “Not every time.” When Garrett asked if she was just going along with
sex, appellant replied “[y]eah” and said “she wished to God she had the strength not to.”
       When Garrett asked about the time period during which appellant and John had
sex, appellant said it lasted a year and a half. Garrett also asked if she planned to end the
relationship. Appellant told Garrett she kept telling John that it needed to end and, if
what they believed was true, she would be going to hell and she would rather just stop
and for John to be saved.
       Towards the end of the interview, Garrett asked appellant what she thought should
happen and she responded, “I feel like I should be punished.” Appellant admitted she
and John had a relationship and described it as “a sick twisted one.”5
       On cross-examination, Garrett acknowledged that appellant told him she had sex
with John because she was afraid of him. She also reported that John shot at her two
times and also hit her.
       On redirect, Garrett testified that appellant told him John held her down the first
several times they had sex. However, she did not say John forced her to have sex
throughout the whole one-and-a-half year time period during which they were sexually
involved.

5       During cross-examination, defense counsel elicited contextual details regarding
appellant’s statement to Garrett describing her relationship with John as “sick” and “twisted.”
Garrett acknowledged that he asked appellant, “You feel that the first several times, he forced
you to have sex with him?” to which she responded, “That’s more than a feeling.” Garrett
continued, “But then it sounds like you guys develop somewhat of a relationship” to which
appellant replied, “A sick, twisted one.” Garrett acknowledged that he next asked appellant
whether she “had good times and bad times,” and that she replied “it was all bad.”


                                               18.
       The defense
       Appellant testified that she and Phil moved to Sonora in June 2007, and that she
started working at the Lutheran church in July 2007, which was also when she first met
John. She later met Kathy in the fall of 2007. Between July 2007 and August 2009,
appellant and Phil lived in an apartment on Flora Lane.
       According to appellant’s testimony, she and Kathy grew closer in the latter part of
2008, through their joint participation in Bible study and their relationship continued to
evolve in 2009. Appellant also got to know John better in the confirmation class he was
required to take before his confirmation in 2009.
       At Kathy’s request, appellant began babysitting John in June 2009. Appellant
would watch him on Mondays, Tuesdays, and Thursdays, while Kathy had him on
Wednesdays and Fridays. Appellant did not flirt with John at all.
       Appellant’s work required her to attend a Christian summer camp, which John
attended during the last week of July 2009. On one occasion at the camp, appellant
busted her knee during surfing lessons and was unable to climb up the hill. Because John
was the biggest person there, he volunteered to carry her up the hill. When he carried her
up the hill piggyback style, appellant did not flirt with him or make any remarks of a
physical or sexual nature.
       In August 2009, appellant and Phil started spending more time at the Buena Oaks
house where Kathy and John lived. Appellant recalled an incident when John forcibly
tried to kiss her when they were sitting on the couch watching television. He pushed her
head up against the couch with his face on hers while she tried to push him off.
       On another occasion, John came in the room where appellant was folding laundry
and pushed her against the dresser and “proceeded to hump [her] body until … he came.”
John did not have appellant’s consent to do this and she did not say or do anything to
encourage it. Appellant estimated that John assaulted her in this manner three times at
the Flora Lane apartment and once at the Buena Oaks house.

                                            19.
        During the incident at the Buena Oaks house, appellant told John she was going to
tell his mother that he was doing something inappropriate. John responded by
threatening that if appellant told his mother, he would kill his mother, paint his mother’s
room with her blood, and tell “the cops” that appellant did it against him. Appellant
believed John’s threats because he had begun bullying her that summer and she had seen
him laugh when people died and got shot in movies he was watching. Appellant had also
heard from Kathy that John had tried to beat her up and was getting out of control, which
was why Kathy said she needed appellant’s and Phil’s help with John.
        Not long after the Buena Oaks incident, John raped appellant for the first time.
Appellant went on to testify in detail about this and other specific incidents of
nonconsensual sexual intercourse appellant claimed John subjected her to between
August 2009 and February 2012.6 In this regard, appellant testified that they had
nonconsensual sex two times in August 2009, one time in September 2009, two or three
times in October 2009, one time in December 2009, three or four times in February 2010,
one time in August 2010, one or two times in September 2010, three times in October
2010, a few times (she could not recall how many) in November 2010, three times in
January 2011, two times in April 2011, one time in May 2011, one time in July 2011,
three times in January 2012, and two times in February 2012.7 Appellant also claimed
John forced her to orally copulate him one time in March 2011, and one time in June
2012.




6      In contrast to John’s testimony that they had consensual sex almost every day, appellant’s
testimony indicated the specific incidents of nonconsensual sex she described represented the
only sexual encounters between them during the relevant timeframe that she could recall.
7       In her testimony, appellant indicated there might have been incidents of nonconsensual
sex between her and John in April 2010 and May 2010, but she could not specifically recall any
and explained she had been ill during this period and ultimately had to have surgery to remove
her gallbladder in May.


                                              20.
       In her testimony, appellant described various circumstances, such as visits from
relatives, out-of-town trips, and illnesses she suffered, which occupied her during the
months she claimed no sexual encounters with John occurred. Appellant also called
various relatives as defense witnesses to corroborate the visits and trips she described in
her testimony.
       Appellant further testified regarding circumstances that caused her to be fearful of
John. According to her testimony, during their sexual encounters, John would threaten to
kill people, including himself, Phil, and Kathy, if appellant would not have sex with him.
Appellant personally witnessed John hit Kathy twice while they were arguing. During
the first incident, which occurred at the Buena Oaks house, around September 2009,
appellant saw John punch Kathy in the arm. During the second incident, which occurred
at the Lakeside house sometime in the summer of 2010, appellant saw Kathy fall down
crying after John hit her in the back with a walking stick. John also hit appellant at least
once a month when he was in a rage. On another occasion, appellant learned that John
had hit Kathy after appellant woke up one night and observed two police officers had
come to the house and were speaking separately to John and Kathy. Afterwards, John
and Kathy both talked to her about what happened.
       Appellant also described two incidents where John fired his nine-millimeter
handgun at her. During one of the incidents, which occurred in the fall of 2010, John
called appellant names and she slapped him. Not knowing John had a gun, appellant ran
up the stairs. As she reached the top of the stairs and opened the bedroom door, she
heard a shot and felt the bullet go by her hip. She then ran into the bedroom and locked
the door behind her.
       The second incident occurred around October or November 2010. John was
target-shooting in the backyard. Although appellant was trying to fix holes in the fence
to prevent the dog from getting out, John would not stop shooting. Finally, John shot the



                                             21.
tree that was right next to appellant’s head. Appellant explained that she heard the bullet
whiz by her head and then saw it in the tree, after which she ran crying into the house.
        Appellant further testified that she attempted to commit suicide once in 2010 and
once in 2011. The first attempt was at the end of September 2010. Appellant explained
she became manic and told Phil she could not live anymore. He took her to a medical
clinic where she was assessed and held for three days. The second attempt occurred in
September 2011, and Phil took her to the hospital. Appellant did not know how long she
was in the hospital because the overdose she took caused her to blackout for part of the
time.
        In her testimony, appellant also described her impoverished upbringing and long
history of being subject to sexual abuse beginning at a young age. The sexual abuse was
perpetrated by various different individuals in her lives, including, among others, an older
cousin and her verbally abusive grandmother. When appellant was a teenager, her
mother started letting young men, who had been kicked out or run away from troubled
homes, stay indefinitely in the trailer where appellant’s family lived. When appellant
was between the ages of 18 and 19, one of these men began to rape her on a nightly basis.
As a result, appellant became pregnant and gave up the child for adoption.
        Sabrina C., who was a member of appellant’s church youth group when she was
15 years old, testified that between 2010 and 2011, she noticed a change in appellant’s
relationship with John in that appellant began to seem much more nervous around John.
Sabrina estimated that she saw appellant try to avoid being around John a “[c]ouple
dozen” times.
        Therapist Linda Barnard testified as an expert on posttraumatic stress disorder
(PTSD) and rape trauma syndrome (RTS). Barnard assessed appellant and concluded
that appellant suffered from PTSD and RTS. Barnard opined that appellant had been
suffering from these conditions from the time she was a teenager.



                                            22.
       In generally describing PTSD and RTS, Barnard testified that women raped by an
acquaintance rarely report the rape and that it is not unusual for a victim of acquaintance
rape to have an ongoing relationship with the perpetrator. A person who suffers from
PTSD and RTS is vulnerable to being sexually assaulted as an adult. A person who has
experienced trauma in the past can also easily get trapped into accommodating a new
trauma, a phenomenon known as “accommodation trap.”
       The rebuttal
       Kathy disputed some of the incidents or aspects of incidents described by
appellant in her testimony. For example, Kathy denied that John ever hit her with a
walking stick and testified she would have called the police if he did. Kathy
acknowledged that there was a time that two police officers came to the Arbona house in
uniform. However, she was sure appellant and Phil were not there at the time because
she would never humiliate John by calling the police when other people were at the
house. Kathy also claimed she called the police, not because she feared for her safety but
because she was upset and distraught and feared for the safety of John, who had
contracted the Swine Flu.
       John denied ever telling appellant he would kill his mother and paint her room
with her blood. He admitted making threats on Phil’s life early in his relationship with
appellant but explained the threats would come up during his arguments with appellant
when he was angry about her being married. He never forced appellant to have sex with
him, nor did he ever make threats to hurt himself or anyone else in order to force her to
have sex with him.8




8       On cross-examination, appellant admitted he threatened to hurt himself to appellant. He
also threatened to kill his mother once while when they were living at the Lakeside house before
he went to Missouri.


                                              23.
                                       DISCUSSION
       On appeal, appellant contends that the trial court prejudicially erred by restricting
Barnard’s testimony regarding her opinion that appellant suffered from PTSD and RTS at
the time of the charged offenses. We agree the court’s restriction on Barnard’s testimony
requires reversal of the judgment.
       We review the trial court’s decision to admit or exclude evidence—including
expert opinion testimony—for abuse of discretion. (See People v. Cortes (2011) 192
Cal.App.4th 873, 908 (Cortes).)
       The relevant statutes concerning expert testimony about a defendant’s mental state
are sections 25, 28, and 29. In section 25, the Legislature abolished the defense of
diminished capacity. In section 28, subdivision (a), the Legislature specified that
“[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on
the issue of whether or not the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought, when a specific intent crime
is charged.” In section 29, the Legislature restricted expert testimony as follows: “[A]ny
expert testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required mental
states, which include, but are not limited to, purpose, intent, knowledge, or malice
aforethought, for the crimes charged.”
       In Cortes, supra, 192 Cal.App.4th 873, the Court of Appeal reviewed the scope of
expert testimony concerning a criminal defendant’s mental state. The court explained
that a defendant “cannot put on an expert to testify that, because of his mental disorder or
condition …, he or she did not have the ability, or capacity, to form or harbor whatever
mental state is a required element of the charged offense, such as intent to kill, or malice
aforethought, or premeditation, or deliberation.” (Id. at p. 908.) However, an expert can
testify that the defendant had a mental disorder or condition “as long as that testimony
tends to show that the defendant did not in actuality” have the required mental state, and

                                             24.
as long as the expert does not “offer the opinion that the defendant actually did, or did
not, harbor the specific intent at issue.” (Ibid.)
       The defendant in Cortes was convicted of first degree murder after he stabbed the
victim 13 times during a fight. The trial court barred the defendant from presenting
expert opinion testimony that the defendant had likely “entered a dissociated state” prior
to the stabbing. (Cortes, supra, 192 Cal.App.4th at p. 893.) The Court of Appeal held
that the expert should have been able to give that opinion. (Id. at p. 911.) The court
noted that the expert also could have testified that dissociation “can cause the person to
act without conscious volition.” (Ibid.) Such testimony would only “have given the jury
a basis to infer” that the defendant did not actually have the mental state required for first
degree murder, and thus it would have fallen short of expressing an opinion that the
defendant actually lacked the required mental state. (Id. at p. 912.)
       Similar issues were addressed in People v. Nunn (1996) 50 Cal.App.4th 1357,
where the defendant was convicted of attempted murder after shooting at a group of men.
There, the defendant was precluded from presenting a clinical psychologist’s opinion that
due to inebriation and past traumatic experiences, the defendant had “fired his rifle
impulsively.” (Id. at p. 1362.) On appeal, the Nunn court upheld the trial court’s ruling,
explaining that “[a]n expert may not evade the restrictions of section 29 by couching an
opinion in words which are or would be taken as synonyms for the mental states
involved.” (Id. at p. 1364.)
       The court in People v. Borderlon (2008) 162 Cal.App.4th 1311 (Borderlon)
followed Nunn in holding that an expert could not be asked hypothetical questions that
would be the “functional equivalent” of asking whether the defendant had a particular
intent. (Borderlon, at p. 1327.) In Borderlon, the defendant was charged with
committing a robbery shortly after being released from prison. He presented “expert
testimony on ‘institutionalization,’ a dependence on life in an institutional setting that
made living outside the institution akin to adjusting to a new culture” (id. at p. 1315), and

                                              25.
he proposed to ask the expert whether an individual in the defendant’s circumstances
would have the intent to commit robbery. The court held that the defendant was properly
precluded from asking such a hypothetical question, noting that the defendant “was
simply planning by means of the hypothetical to do indirectly what he could not do
directly under the statute, namely elicit an opinion from [the expert] regarding
defendant’s specific intent .…” (Id. at p. 1327.)
       Under the above authorities, Barnard could properly testify that appellant suffered
PTSD and RTS at the time of the offenses. Such testimony was not tantamount to an
opinion that appellant actually lacked the requisite mental state for any of the charged
offenses. The court therefore abused its discretion in concluding otherwise and
consequently restricting Barnard’s testimony to preclude her from testifying that
appellant suffered from PTSD and RTS at the time of the offenses.
       The trial court’s restriction of Barnard’s testimony prejudiced appellant’s case.
Appellant’s primary defense theory was that any sexual activity that occurred between
her and John was nonconsensual and her participation was either physically coerced by
him or she submitted to him out of fear based on his violent acts and threats aimed both at
herself and others. The restriction prevented appellant from fully developing this defense
by depriving the jury of a means to connect her PTSD and RTS diagnoses with her
mental state and conduct at the time of the offenses.
       In his opening statement, defense counsel indicated that Barnard’s testimony
would be significant because the conditions of PTSD and RTS can explain why a victim
might fail to report a rape or fail to “react to it like you would expect a person would in
like or normal circumstances because of the background and because of the diagnosis.”
The court’s restriction on Barnard’s testimony prevented defense counsel from inquiring,
either specifically or hypothetically, into whether certain behaviors appellant exhibited at
the time of the offenses could be viewed as consistent with her PTSD or RTS diagnoses,



                                             26.
which was a valid area of inquiry, as defense counsel pointed out in opposing the
restriction.9
       Respondent urges that, because defense counsel managed to elicit testimony from
Barnard that appellant had suffered PTSD and RTS since she was a teenager, which
implicitly included the timeframe of the charged offenses, the court’s restriction on
Barnard’s testimony did not prejudice appellant’s defense. However, as illustrated by the
forgoing discussion, the court’s restriction did not simply preclude defense counsel from
asking Barnard whether appellant suffered PTSD and RTS at the time of the offenses, it
precluded relevant and valid inquiry into how these conditions could have affected
appellant’s behavior and perceptions at that time and whether her behavior was consistent
with these conditions. This restriction on Barnard’s testimony was significant because it
limited appellant’s ability to counter the prosecution’s theory that appellant’s behavior
during the time of the offenses, particularly as reported by John’s mother, was
inconsistent with appellant’s claims that she feared John and was acting under duress
when she engaged in sexual activity with him.
       During Kathy’s testimony describing occasions where she found appellant and
John together in unusual or suspicious circumstances, the prosecutor frequently elicited
testimony to the effect that appellant never appeared to be afraid or upset on those
occasions. The court’s restriction on Barnard’s testimony prevented defense counsel
from specifically asking the expert whether appellant’s reported lack of fear or negative
emotions around John could be consistent with her PTSD and RTS diagnoses, and
thereby limited the defense’s ability to provide the jury with a basis for inferring an
alternative explanation for appellant’s behavior than the one offered by the prosecution.
(See e.g., Cortes, supra, 192 Cal.App.24th at p. 913.)

9       The trial court, however, properly refused to allow defense counsel to ask the expert
directly whether, due to her mental conditions, appellant was able to form “the specific intent to
sexually arouse” required for the lewd act offenses.


                                                27.
       The case essentially boiled down to a credibility contest between appellant and
John. As mentioned above, the overwhelming majority of the offenses on which
appellant was convicted allegedly occurred between August 1, 2009, and August 21,
2010. This timeframe coincides closely with the timeframe covered by Kathy’s
testimony regarding specific incidents she observed finding appellant and John in unusual
or suspicious situations. The last few incidents she recalled in her testimony were
specifically described as occurring in the late summer and early fall of 2010. Thus,
Kathy’s testimony tended to corroborate John’s account of the existence of an
affectionate relationship between himself and appellant during this time period.
However, Kathy’s testimony did not provide similar corroboration for the offenses
allegedly occurring between August 22, 2010, and March 31, 2012, and the jury was
unable to reach a verdict on most of these offenses and found appellant not guilty of three
of them.10
       The verdicts suggest a strong possibility that Kathy’s testimony affected the jury’s
assessment of the credibility of the respective accounts provided by John and appellant of
their sexual encounters during the earlier timeframe. The trial court’s restriction of
Barnard’s testimony prejudiced the defense’s ability to counter the unfavorable
inferences raised by Kathy’s testimony and to provide an alternative explanation for
reported behavior that, on its surface, appeared inconsistent with appellant’s claim that
she feared John. Under the unique circumstances of this case, we conclude it is
reasonably probable that the undue restriction on Barnard’s testimony precluded the jury
from properly considering appellant’s PTSD and RTS diagnoses in relation to the mental
state necessary to convict her of committing lewd acts against John, as well as the mental



10      The only offenses on which appellant was convicted that were not specifically tied to one
of the two timeframes discussed above were the sodomy and oral copulation charged in counts
44 and 45, which allegedly occurred sometime between August 1, 2009, and March 1, 2012.


                                               28.
state required for her defense of duress to all the charged offenses. (People v. Watson
(1956) 46 Cal.2d 818, 836; see Cortes, supra, 192 Cal.App.4th at pp. 912–913.)
                                     DISPOSITION
       The judgment is reversed.



                                                                _____________________
                                                                             HILL, P.J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
SMITH, J.




                                            29.
