Filed 2/23/16 P. v. Truong CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040147
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1106741 )

         v.

KENG QUAN TRUONG,

         Defendant and Appellant.



         Defendant Keng Quan Truong was convicted by jury trial of eight counts of
                                                                         1
forcible sodomy (Pen. Code, § 286, subd. (c)(2)(A)), two counts of forcible oral
copulation (§ 288a, subd. (c)(2)), and one count of dissuading a witness by force or threat
of force (§ 136.1, subd. (c)(2)). The court imposed a prison sentence of 84 years. On
appeal, he contends that (1) the trial court prejudicially erred in admitting testimony
about child sexual abuse accommodation syndrome (CSAAS) and in instructing the jury
with CALCRIM No. 1193 regarding the CSAAS evidence, (2) the trial court prejudicially
erred in giving the jury a flawed version of CALCRIM No. 3501, a unanimity instruction,
(3) his sentence is cruel and unusual punishment, (4) his trial counsel was prejudicially




1
         Subsequent statutory references are to the Penal Code unless otherwise specified.
deficient in several respects, and (5) he suffered cumulative prejudice from multiple
errors. We affirm the judgment.


                                I. The Prosecution’s Case
       When Michael Doe was 12 years old, he began going to the Vietnamese American
Center (VAC) after school, where he received tutoring and karate lessons. Michael and a
group of other children his age were assigned to be tutored by defendant. Defendant was
eight years older than Michael. During the summer after seventh grade, Michael
continued going to VAC, but only for karate and to tutor other children. Defendant was
not present during the summer. When Michael was in eighth grade, defendant was again
Michael’s tutor. In the middle of that year, defendant took some of the children,
including Michael, bowling. During Michael’s eighth grade year, defendant started
coming over to Michael’s house on Sundays to “just hang out.” Defendant would play
games or watch television with Michael and Michael’s little sister. At this point, Michael
was 14 years old.
       When Michael started high school in ninth grade, defendant told Michael that
Michael needed to come to VAC to “do community service” because it was required “in
                                            2
order to graduate [from] high school . . . .” Defendant began picking Michael up at
Michael’s home every weekday and driving him to VAC, where Michael would tutor
other children. Defendant would also drive Michael home each weekday evening. After
Michael finished ninth grade in 2007, defendant began taking Michael on more outings.
                                                       3
They went to the beach, camping, and to the movies. The summer after ninth grade,
Michael’s family moved out of the school district where he had been attending high


2
       Michael later learned that this was not true.
3
        Michael also testified that he went to the movies with his friend Tai and defendant
in the spring of his eighth grade year.

                                                2
school. Michael wanted to stay at the same high school. Defendant suggested that
Michael use Michael’s aunt’s mother’s address, which was within that school’s district,
so that he could stay at the same high school. Defendant offered to drive Michael back
and forth to school each day. Using the aunt’s mother’s address, Michael was able to
attend the same high school, and defendant began driving him to and from school.
Michael’s parents gave defendant $100 a month to cover his gas.
       In the fall of 2007, when Michael began his sophomore year, he was 15 years old.
One day, defendant showed Michael some marks on defendant’s wrists and told Michael
that he had burned these marks into his wrists with a piece of jade. He said that the
marks indicated the “Moon Organization” that he worked for. Defendant told Michael:
“ ‘[M]y organization, we handle bad kids. We punish them.’ ” Defendant told Michael
that Michael was “being bad,” and defendant’s “ ‘crew wants to take pictures of your
private parts.’ ” At first Michael thought defendant was joking, and he was confused.
Defendant then threatened to “go to the police and tell them that [Michael was] using a
fake address to go to school” if Michael did not allow the pictures to be taken. Michael
was afraid that he and his aunt’s mom would “get in trouble” if defendant told the police,
                                                         4
so he allowed defendant to take pictures of his penis.
       The day after the pictures were taken, defendant took Michael to defendant’s
home for the first time and told Michael that the “Moon Organization” wanted to “punish
you some more.” Defendant claimed that Michael had three choices: “ ‘You either have
sex with me, sex with someone that was in the same tutoring group, or I’m going to
report to the police’ ” about the use of the aunt’s mom’s address. Because he did not want
anyone else to get in trouble, Michael chose to have sex with defendant. Defendant
sodomized Michael in defendant’s bedroom, and he made a video-recording of the event,
which he said he was going to send to the Moon Organization. Michael told no one about

4
       Michael did not initially tell the police about these pictures.

                                              3
this event because he was “ashamed.” The next day, defendant told Michael that he had
“ ‘performed badly’ ” because Michael had screamed as defendant sodomized him.
Defendant told Michael that they “had to do it again today.” Defendant sodomized
Michael again that day, and he again recorded the event. Michael found the sodomy
painful, and it caused him to experience constant diarrhea.
        After that, defendant told Michael that the Moon Organization required Michael to
have sex with defendant every Wednesday. Michael complied because he was “scared”
even though he felt it was wrong, and he did not like defendant. Defendant threatened
that the Moon Organization might post the video of them having sex and the picture of
Michael’s penis on the Internet. Defendant also told Michael that Michael’s father, who
was a machinist, was “gonna have his finger chopped off” or both his parents might lose
                                      5
their jobs if Michael did not comply. Defendant hit Michael on the hand or “butt” with a
stick or a ruler if Michael didn’t “listen to him” or did “something that he didn’t like.”
Defendant was jealous of Michael’s friends and told Michael what Michael could and
could not do. On one occasion, Michael wore hair gel in his hair, which defendant did
not like. Defendant punished Michael by branding him on his back with a hot piece of
jade.
        When Michael turned 16, defendant began requiring Michael to have sex with him
two or three times a week, rather than just once a week. Until Michael was 17, defendant
always put his penis in Michael’s anus. When Michael was 17, defendant began
sometimes requiring Michael to put his penis in defendant’s anus. He also began
requiring Michael to have oral sex with him. Defendant took many photos of Michael
naked and often videotaped their sexual encounters. Overall, he forced Michael to have




5
      When Michael’s father lost his job during Michael’s freshman year in college,
defendant claimed that the Moon Organization was responsible.

                                              4
oral and anal sex with him more than 100 times. The frequency remained two or three
times a week until Michael graduated from high school.
       Michael turned 18 in February 2010 and graduated from high school in June 2010.
When Michael began attending college, defendant demanded that Michael have anal and
oral sex with defendant at least five times a week. Defendant told Michael that he did not
want to have sex with him but did so only because the Moon Organization required it.
Michael no longer believed that the Moon Organization existed, but he continued to have
sex with defendant because defendant threatened to expose the explicit pictures and
videos of Michael. Michael testified that he was “forced to” have sex with defendant.
       In August 2010, defendant presented Michael with a typed contract laying out the
“rules” for how Michael was to behave. The contract purported to be between Michael
and the Moon Organization, and it described punishments for violations. Defendant told
Michael that “something bad’s gonna happen” if he did not comply with the contract’s
rules. The contract required Michael to obtain permission from the Moon Organization
to have sex with any female. It also governed his use of his computer.
       By April 2011, when Michael was 19 years old, Michael had grown “tired of
everything” and “wanted control of my life.” He went to the YWCA and met with a
counselor. The counselor contacted the police, who then interviewed Michael. At the
suggestion of the police, Michael made a pretext call to defendant. The police searched
defendant’s bedroom and found the contract in a book where Michael had told the police
defendant kept it. The police also seized defendant’s video camera and his laptop
computer. The computer contained naked photographs of Michael sitting on defendant’s
bed and a video of them having sex.
       After Michael reported the offenses, defendant talked to Michael twice and “tried
to make me feel guilty” for pressing charges. Defendant told Michael: “ ‘If I go to jail,
I’m gonna make your parents go with me.’ ” He also said: “ ‘If you press charges, I’m
gonna have someone give your parents AIDS and your family AIDS by a needle.

                                             5
Michael called the police, sounding “[t]errified,” and said he wanted to “drop all the
charges.” After a restraining order was obtained for Michael against defendant, the case
proceeded.
       When the police interviewed defendant after Michael’s report and asked him about
Michael, he told them about how he had driven Michael to school when Michael was in
high school. He also said he had seen Michael the previous day, and they had had “a
little argument.” Defendant adamantly denied that he had had a sexual relationship with
Michael. He also told the police that there was “no proof” of any sexual relationship
between them. “[O]ur relationship is only brother.” Defendant also denied that he had
taken any pictures of Michael or a video of them having sex. However, he admitted that
he sometimes “hit” Michael to discipline him and that “[s]ometimes I’m very mean to uh,
to him.” When a police officer showed defendant the video of Michael and defendant
having sex that the police had found on defendant’s computer, defendant claimed that the
video was “fake.”


                                  II. The Defense Case
       Defendant’s eldest sister testified that when she met Michael she and defendant
were sharing a bedroom in their parents’ house. Michael came to their home once or
twice a week after school and went into the room she shared with defendant or into the
living room to study. She was usually in the bedroom when Michael was there, and the
door to the room was open. Her mother was usually home as she did not work outside
the home. Defendant’s sister never saw or suspected anything “inappropriate” was
occurring. The family later moved to another home where she and defendant each had
their own bedroom. She could not remember when they moved. Her parents were
retired, so they were usually home. Michael continued to come to the home and go into
defendant’s bedroom. The bedroom door was always open. She did not know if
defendant and Michael had sex in defendant’s bedroom, but she never heard any “strange


                                             6
noises.” However, she was sure that they had never had sex “[b]ecause I trust my
brother,” and he had told her that “he didn’t have sex with Michael.” She believed that
Michael “is trying to trick my brother.” She had made statements to an investigator that
were inconsistent with her trial testimony.
       Defendant’s father testified that he did not know Michael well because he was
generally at work until 2009, when he retired. Defendant’s father did not encounter
Michael until after he retired. In 2010, Michael would come to the house every few
weeks and go into defendant’s room, but the door to the bedroom would remain “ajar.”
In 2011, Michael came over every day.
       Defendant’s mother testified that defendant and his sister shared a bedroom until
2009. She testified that Michael began coming to their home in early 2008. He came by
“once every few weeks or every month.” Michael and defendant would study in the
living room. She testified that they never went into defendant’s bedroom because “I
don’t allow boys to go into my daughter’s room.” The family moved to a different house
in October 2009. In 2010, Michael continued to come over once every few weeks. He
and defendant would study in defendant’s bedroom with the door open. In 2011, Michael
came over every day. He would take defendant to school in the morning, and they would
return and go into defendant’s bedroom after school.
       Defendant testified at trial that he was gay but hid that fact from his parents
because they disapproved of homosexuality. He first met Michael when Michael started
coming to VAC for tutoring. Michael was 11 or 12 years old at that time and in the
seventh grade. Defendant was Michael’s tutor when Michael was in seventh and eighth
grades. In 2006, defendant began going to Michael’s home to tutor both Michael and
Michael’s sister. He did not go there often because he was busy with other things. In
2007, when Michael was in ninth grade, defendant brought Michael with him to a group
event that included dinner and a movie. Defendant was continuing to tutor Michael. He
agreed to drive Michael to and from high school in the 10th grade because Michael asked

                                              7
him to do that so he could stay at the same high school. Defendant testified that he
always drove Michael directly to Michael’s home after school and then left.
       Defendant denied that he had ever taken a picture of Michael’s penis. In January
2008, their relationship changed “into a brother and brother relationship.” Defendant and
Michael went to a Buddhist temple and vowed to be brothers to each other. Michael was
just one of more than a dozen “god-brother[s] and sister[s]” that defendant had. In early
2008, Michael “all the sudden” wanted to come to defendant’s house to study. They
would study in the living room. The two also started going on more outings together.
They continued to study together at defendant’s house when Michael was in 11th grade.
There was nothing sexual between them when Michael was in the 10th and 11th grades.
       In September 2009, when Michael was in 12th grade, defendant found a bisexual
pornographic magazine in Michael’s backpack. By this time, defendant’s family had
moved to the house where defendant had his own bedroom. Defendant and Michael
would study in defendant’s bedroom. In November 2009, Michael told defendant that he
loved defendant “as my lover, not brother.” Defendant was “shocked” and told Michael
not to speak of this again. However, Michael kept bringing it up every few weeks. A
week after Michael’s 18th birthday in February 2010, Michael brought up this topic
again, and defendant falsely told Michael that he liked another guy in hopes of avoiding
this topic. In April 2010, Michael asked to drive defendant’s car, and defendant allowed
him to do so. Michael drove dangerously, and defendant got mad at him. The next day,
Michael came to defendant’s house to study. Michael again told defendant that he
wanted to be lovers rather than brothers. Michael threatened that “if I don’t want to be
with him as a boyfriend” he would “hurt himself or abandon his education.” Michael
said that his dangerous driving had been an attempt to kill the two of them. Defendant
was “[s]cared” and “confused,” and he told Michael that he would consider the issue and
give him an answer when Michael graduated from high school.



                                            8
         On June 10, 2010, the day Michael graduated from high school, defendant told
Michael that he wanted to be Michael’s boyfriend and lover. Michael immediately kissed
defendant on the lips. A few days later, Michael spent the night in defendant’s bedroom.
Defendant testified that Michael was the dominant person in their relationship. Michael
initiated sexual activity and touched defendant’s penis. Defendant was reluctant, but
Michael persuaded him to have anal sex with him. Michael put his penis in defendant’s
anus. A month later, defendant told Michael about his prior sexual history and about the
fact that he had promised his parents that he would marry no later than 2014. Michael
responded by slapping defendant across the face. After this incident, Michael became
“more controlling and aggressive and abusive.” He “control[led] every aspect of my
life.”
         Defendant wanted out of the relationship, but Michael presented him with a
handwritten contract in August 2010. Michael promised not to mistreat defendant
anymore. Michael cried and tried to hurt himself with a knife. Instead, the knife cut
defendant and left a scar. Due to his concern that Michael would harm himself,
defendant agreed to type up the contract that Michael had written. Defendant was willing
to “do whatever to please him” because “I love him.” He did not even know what some
of the provisions in the contract meant. Michael threatened defendant with the knife and
forced him to sign the contract.
         In September 2010, defendant and Michael had oral sex for the first time. They
were in defendant’s bedroom, and Michael insisted that defendant orally copulate him. It
was Michael’s idea to make a video of them having sex, and defendant agreed to it
because he was “curious.” They made five to seven videos with defendant’s camera of
them having sex, and they also took pictures of the two of them kissing. Defendant
claimed that Michael always recorded the videos and pictures on Michael’s flash drive
and kept the drive with him. By March 2011, defendant wanted to end the relationship
because Michael had become so controlling and abusive. Michael would not let

                                             9
defendant see other friends, and sometimes Michael would hit defendant and call him
names. Defendant was planning to break up with Michael. The video that the police
found in defendant’s bedroom was of the two of them having sex in March 2011. On
April 15, 2011, they had sex for the last time. On April 19, they argued, and defendant
gave Michael a letter regarding the end of their relationship.
       Defendant testified that he had purposely made a scar on his chest with a piece of
jade. It was Michael who claimed that defendant belonged to “a Moon Organization”
because he thought defendant’s scar looked like a moon. Defendant denied having
burned Michael’s back with a piece of jade. He also denied having threatened Michael.
Defendant admitted that he had slapped Michael twice. He claimed that slapping was
what he had meant when he told the police that he had hit Michael. Defendant testified
that he lied to the police about his relationship with Michael because the police officers
had lied to him so he did not trust them. He also claimed that he lied to the police “to
protect Michael.”
       Defendant claimed that Michael had been setting him up since August 2010. He
believed that Michael had set him up out of jealousy because he had told Michael about
his prior relationships and about his promise to his parents that he would marry when he
was 30 years old. Defendant testified that Michael had made up the allegations to “take
revenge” on defendant because Michael knew that “[t]he thing that I hate the most, which
is involve underage sex.” “He create a story that I’m forcing him to have sex with
him . . . .” Defendant denied that he had ever forced Michael to have sex with him. He
insisted that they had sex only when Michael was an adult, and it was always consensual.


                                      III. Discussion
                                  A. CSAAS Evidence
       Defendant claims that the trial court should have excluded CSAAS testimony
under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and because it was irrelevant and

                                             10
unduly prejudicial. He also contends that the CSAAS testimony exceeded its proper
purpose and that the trial court’s instruction of the jury with CALCRIM No. 1193 was
inadequate.
                                      1. Background
       The defense moved in limine to exclude testimony by Carl Lewis about CSAAS.
It asserted that this testimony would be “irrelevant and an inappropriate area of expert
testimony.” The defense argued that “CSAAS is no longer recognized as a theory that
applies in forensic settings and does not meet the Kelly-Frye standards.” It also claimed
that any relevance was “far outweighed by the prejudice” from its “misapplication,” jury
confusion, and undue consumption of time. Further, the defense asserted that such
evidence would be appropriate only “by way of rebuttal.” The defense requested an
Evidence Code section 402 hearing to determine relevance and scope. The prosecution
asserted that the CSAAS testimony would be admissible to “dispel the misconceptions
regarding accommodation, secrecy, helplessness, and delayed disclosure.”
                                                                          6
       The court overruled the defense objections to Lewis’s testimony. It found that
“CSAAS is not subject to the Kelly-Frye standard,” and the CSAAS testimony would be
relevant to dispel any misconceptions. The court limited the CSAAS testimony to “its
purpose” “of educating the jury about a child’s reaction to molestation so that the jury
may evaluate the evidence free of constraints of popular myth, and in particular to dispel
the misconception regarding accommodation, secrecy, helplessness and delayed
disclosure.” The court precluded the CSAAS evidence from being used “to prove that a
sexual molestation . . . had occurred.” The parties agreed that Lewis could testify before
Michael finished his direct testimony and before cross-examination. They also agreed
that the defense CSAAS expert could testify before Michael was cross-examined.



6
       The court specified that its in limine rulings would be effective through trial.

                                             11
       Lewis testified that he had investigated hundreds of child sexual abuse cases, and
he had been teaching police officers and other professionals about child sexual abuse
investigation since 1995. He was familiar with CSAAS and had qualified as an expert on
                          7
CSAAS about 300 times. Lewis knew nothing about this case. He testified that CSAAS
was “very distinct from a diagnosis.” “No person can be diagnosed or can be said to
suffer from [CSAAS].” He emphasized that CSAAS “is not an indicator or predictor of
sexual abuse;” it is intended to explain what “might be counter-intuitive.” Lewis stated
categorically that CSAAS “cannot be used” to determine whether someone has been
molested.
       Lewis described how CSAAS had first been recognized by Dr. Roland Summit.
Summit had observed that clinicians were rejecting allegations of sexual abuse by
children because the children “didn’t look or act like what the therapist thought an abused
child should look like.” Studies of both victims and offenders where most of the
offenders eventually admitted the allegations demonstrated that the therapists’
assumptions were not accurate. Summit wanted professionals to realize that, despite the
“outward appearance” of and “seemingly conflicting behavior” of child sexual abuse
victims, “their allegations might be true.” Defendant’s trial counsel objected to Lewis’s
testimony that, despite counterintuitive conduct by the child, “their allegations might be
true,” but his objection was overruled.
       Lewis explained that Summit’s work showed that there are five “myths” or
“categories” concerning how a child sexual abuse victim would act that are “not true.”
The first category is secrecy. Usually, the molestation will take place in secret, and the
molester will try to isolate the victim from friends. The molester may threaten the victim
that disclosure will get the victim in trouble or cause bad things to happen. The second
category is helplessness, such as where the child is dependent on the molester. The third

7
       Defendant’s trial counsel did not challenge Lewis’s expertise on CSAAS.

                                             12
category is entrapment and accommodation. The child will often act as if nothing is
wrong and will continue to associate with the abuser. The fourth category is delayed,
conflicted, unconvincing disclosure. The child will often delay disclosing the abuse for a
substantial period of time and provide inconsistent or incomplete accounts of the abuse.
The fifth category is retraction. The child may disclose and then retract the allegations
due to the disruption caused by the disclosure.
       On cross-examination, defendant’s trial counsel elicited Lewis’s testimony that
CSAAS “works on the assumption that molest occurred.” Lewis repeatedly stated that
CSAAS was simply intended to explain “unexpected conditions.” He confirmed that
CSAAS “cannot be used to discern between true or false allegations.” Lewis reiterated
this on redirect. He testified that CSAAS cannot tell the jury whether somebody has been
molested. Its purpose is solely to provide an explanation for “unexpected” conditions
“that many people may not have the background to understand.” CSAAS helps to dispel
“preconceptions about how people are expected to act, how someone might react to the
stimuli of being sexually abused.”
       Annette Ermshar, a clinical psychologist, testified as a defense expert on CSAAS.
She characterized Summit’s work as nothing more than clinical observations intended to
inform clinicians working with children. Summit was not trying “to find truth” because
the children he was working with were known to have been sexually abused. Ermshar
asserted that Summit’s work necessarily involved “confirmation bias” since the children
exhibiting the behaviors all had been abused. She testified that there were no clinical
methods that could distinguish false sexual abuse claims from true ones. On cross-
examination, Ermshar confirmed that she had seen instances of molest victims exhibiting
all of the behaviors described by Lewis and that a child should not be disbelieved simply
because the child exhibits such behaviors.




                                             13
       Defendant’s trial counsel elicited testimony that Michael’s initial statement to the
police had been less complete than his subsequent testimony, and he pointed out various
inconsistencies between Michael’s statements to the police and his testimony.
       The prosecution and the defense agreed that the trial court should instruct the jury
with CALCRIM No. 1193. The jury was instructed: “During the trial certain evidence
was admitted for a limited purpose. You may consider that evidence only for that limited
purpose and for no other.” “You have heard testimony from Carl Lewis and Annette
Ermshar regarding Child Sexual Abuse Accommodation Syndrome. Their 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 Michael’s conduct was not inconsistent with the conduct of
someone who has been molested in evaluating the believability of his testimony.”
       Defendant’s trial counsel argued to the jury: “We have a biased adult accuser, not
a child, with a motive. There’s a four year supposed delay of disclosure and numerous,
multiple, inconsistent, unreliable, contradicted statements.” He detailed inconsistencies
between Michael’s testimony and his prior statements. And he argued to the jury: “So
he’s lied to you, contradicted himself from large details to small ones. He can’t keep it
straight.” Defendant’s trial counsel also spent considerable time arguing to the jury
regarding the CSAAS evidence. “What is it? Why do we need it? What does it do? We
know what it cannot be used for. It cannot prove the presence of any sexual abuse.”
Defendant’s trial counsel argued that the prosecutor was using the CSAAS testimony “to
excuse the contradictions, inconsistencies of Michael’s testimony.” “What do we know
about the syndrome? It assumes abuse occurred. We know that.” He claimed that the
CSAAS evidence was intended to create “a wall of immunity to Michael’s testimony.”
                                          2. Kelly
       Defendant claims that the trial court prejudicially erred in overruling his objection
under Kelly to the CSAAS testimony.

                                             14
       “In People v. Kelly (1976) 17 Cal.3d 24 (Kelly), [the California Supreme Court]
held that evidence obtained through a new scientific technique may be admitted only
after its reliability has been established under a three-pronged test.” (People v. Bolden
(2002) 29 Cal.4th 515, 544.) “Kelly/Frye only applies to that limited class of expert
testimony which is based, in whole or part, on a technique, process, or theory which is
new to science and, even more so, the law.” (People v. Stoll (1989) 49 Cal.3d 1136,
1156.) Kelly applies only where “the unproven technique or procedure appears in both
name and description to provide some definitive truth which the expert need only
accurately recognize and relay to the jury. The most obvious examples are machines or
procedures which analyze physical data. Lay minds might easily, but erroneously,
assume that such procedures are objective and infallible.” (Ibid.) “[A]bsent some special
feature which effectively blindsides the jury, expert opinion testimony is not subject to
Kelly/Frye.” (Stoll, at p. 1157.)
       CSAAS testimony is not new to science or the law. California courts have long
held that Kelly does not apply to the admission of CSAAS testimony. (People v. Harlan
(1990) 222 Cal.App.3d 439, 448 (Harlan).) CSAAS testimony does not purport to
provide any “definitive truth” but merely attempts to allay misconceptions that lay
persons may harbor about the conduct of molestation victims. This type of expert
testimony lacks any “special feature” that might “blindside[]” the jury, and therefore is
not subject to Kelly. The trial court did not err in overruling defendant’s Kelly objection
to the admission of the CSAAS evidence.
                                       3. Relevance
       Defendant claims that the trial court erroneously overruled his relevance objection
to Lewis’s CSAAS testimony because there was not substantial evidence that any of the
“myths” described by Lewis were relevant in this case.
       The prosecution asserted that the CSAAS evidence would be relevant to dispel
myths concerning “accommodation, secrecy, helplessness, and delayed disclosure.”

                                             15
Michael’s testimony revealed that he had kept the abuse secret for four years and
continued to comply with defendant’s demands because he feared defendant would
follow through on his threats. Even after he reported the abuse, he attempted to retract
his allegations due to defendant’s multiple threats. Michael’s testimony demonstrated
that defendant’s position of trust contributed to Michael’s feeling of helplessness. The
defense explicitly challenged Michael’s account of defendant’s abuse by pointing to
Michael’s delayed disclosure and to inconsistencies in his statements. In this context,
Lewis’s testimony about the five “myths” had considerable relevance, and the court did
not err in overruling defendant’s relevance objection.
                              4. Evidence Code Section 352
       Defendant claims that the CSAAS testimony should have been excluded under
Evidence Code section 352. He asserts that “no legitimate inference” could be drawn
from the CSAAS testimony, and it was prejudicial because it had “the potential to evoke
sympathy” for Michael.
       Trial courts have the discretion to exclude evidence pursuant to Evidence Code
section 352 “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.” (Evid. Code,
§ 352.)
       The CSAAS evidence was neither irrelevant nor unduly prejudicial. The CSAAS
evidence had considerable relevance to dispel common misconceptions about molestation
victims that were material here in light of Michael’s delayed disclosure, inconsistencies,
and continued association with defendant for four years. The jury was precluded from
using this evidence in any unduly prejudicial fashion because it was explicitly instructed
that it could use this evidence “only in deciding whether or not Michael’s conduct was
not inconsistent with the conduct of someone who has been molested in evaluating the



                                             16
believability of his testimony.” The trial court did not abuse its discretion in overruling
defendant’s Evidence Code section 352 objection.
                                5. Scope of CSAAS Testimony
       Defendant contends that the trial court prejudicially erred in permitting Lewis to
provide testimony that exceeded the proper scope of CSAAS evidence.
       Defendant first challenges a small part of a lengthy answer that Lewis gave in
response to the prosecutor’s question about Summit’s observations. At the end of his
response, Lewis explained that Summit “felt it was important” to make people aware
“that despite a child’s outward appearance or seemingly conflicting behavior that their
allegations might be true.” Defendant’s trial counsel objected, and the objection was
heard at sidebar off the record. The court later made a record of the sidebar proceedings.
The defense objection to this testimony was that it exceeded “the limitations of the
syndrome being testified to” because “it’s not a diagnostic tool.” The court found that “in
context” the testimony properly explained the basis for Summit’s observations.
       The trial court did not err in overruling this objection. The proper purpose of
CSAAS testimony is to dispel common misconceptions about the behavior of child
molestation victims so that the jury will not rely on those misconceptions to discount
allegations that “might be true.” Lewis’s testimony was entirely consistent with the
limited purpose for which CSAAS testimony is properly admitted, and it did not suggest
that CSAAS evidence is “a diagnostic tool.” This portion of his testimony merely
relayed Summit’s observation that certain behaviors by alleged molest victims did not
mean that their allegations were not true.
       Defendant’s in limine objection to Lewis’s testimony sought to limit its scope “to
a general description of CSAAS and may not be applied to the facts of the current case.”
On appeal, he challenges several small bits of Lewis’s testimony on the ground that they
applied to facts of the case.



                                             17
       First, at trial, defendant’s trial counsel objected when the prosecutor asked Lewis
if “secrecy” might apply to “[t]urning up a TV?” Before Lewis could answer the
question, defendant’s trial counsel said: “Your Honor, I’m going to object. I’m going to
ask that the witness answer the question not the attorney.” After a sidebar discussion, the
prosecutor did not reask the question, and Lewis did not answer it. Defendant now
contends that this question exceeded the proper scope of CSAAS evidence because it
diverged from a general description of CSAAS and instead tried to relate CSAAS to
specific facts involved in this case. Since Lewis did not respond to this question, this
question could not have resulted in the admission of improper evidence.
       The prosecutor subsequently elicited without objection Lewis’s testimony that
isolating the child, limiting the child’s friends, and threatening the child might contribute
to secrecy, that the child’s dependency on the abuser could contribute to helplessness,
and that the child’s hesitancy to disclose could contribute to delayed disclosure. The
prosecutor’s detailed hypothetical questions were clearly based on specific facts in this
case, but the questions never suggested that these facts showed that the hypothetical child
had been molested. All of the questions were aimed at explaining the reasons why a
child’s behavior might appear inconsistent with abuse even if the child had been abused.
       Defendant relies on People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker). In
Bowker, the expert testified that CSAAS could be used to determine whether a child’s
behavior was “consistent with molest” and provided testimony based on the facts of the
case that “constructed a ‘scientific’ framework into which the jury could pigeonhole[] the
facts of the case.” (Bowker, at p. 395.) The Bowker court found that testimony exceeded
the proper scope of CSAAS testimony.
       Defendant’s reliance on Bowker is misplaced. Here, Lewis not only never
suggested that CSAAS could be used to determine whether a child’s behavior was
“consistent with molest,” he explicitly and repeatedly testified that CSAAS could not be
used in such a fashion. Nor is there any validity to defendant’s assertion that Bowker

                                             18
bars CSAAS testimony in response to hypotheticals based on the facts of a particular
case. In Harlan, supra, 222 Cal.App.3d 439, the defendant contended that “the expert
testimony was tied too closely to the facts of the case and led to the impression that the
victim must have been molested . . . .” However, the Court of Appeal found that the
testimony was not improper because it “related directly” to one of the misconceptions
described by CSAAS. (Harlan, at p. 450.) The same is true here. The testimony of
Lewis that defendant challenges “related directly” to the specific misconceptions
described by CSAAS. The trial court did not err in permitting Lewis to give this
testimony.
                                 6. CALCRIM No. 1193
       Defendant claims that CALCRIM No. 1193 does not properly instruct the jury on
the limited purpose of CSAAS testimony. He claims that CALCRIM No. 1193 permits
the jury “to use CSAAS testimony to conclude the victim’s claim the defendant sexually
abused him is true” and “does not inform the jurors that CSAAS assumes the truth of
Michael’s claim.”
       Defendant’s claims lack merit. It was not necessary for the CSAAS limiting
instruction to tell the jury that “CSAAS assumes the truth” of the molest because Lewis
explicitly told the jury that CSAAS “works on the assumption that molest occurred.” The
jury could not have accepted Lewis’s CSAAS testimony without also accepting this
testimony. Defendant’s claim that CALCRIM No. 1193 permitted the jury to use the
CSAAS testimony “to conclude the victim’s claim . . . is true” is belied by the language
of the instruction. CALCRIM No. 1193 told the jury that the CSAAS evidence “is not
evidence that the defendant committed any of the crimes charged against him.” It also
told the jury that the “only” “limited purpose” for which it could use the CSAAS
evidence was “in deciding whether or not Michael’s conduct was not inconsistent with
the conduct of someone who has been molested in evaluating the believability of his
testimony.” No reasonable juror could have concluded from this language that he or she

                                             19
could properly use the CSAAS evidence as a template for determining whether the
molestations occurred. While it is true that evaluating an alleged molestation victim’s
“believability” may ultimately assist the jury in determining whether the molestations
occurred, the same may be said of any evidence relevant to a witness’s credibility.
CALCRIM No. 1193 properly instructed the jury on the limited purpose to which it could
put CSAAS evidence.


                                 B. CALCRIM No. 3501
                                      1. Background
                                                          8
       The prosecution requested CALCRIM No. 3501. At the instruction conference,
the following colloquy occurred: “[THE COURT:] 3501. ‘The defendant is charged
with forced sodomy and forced oral copulation in Counts 1 through 10 sometime during
the period of,’ and the Court will insert in there the dates from the charging document
from the beginning, the first day, to the last day of the charging period included in all 10
counts. [¶] Is that correct? [¶] MS. WEST [the prosecutor]: That’s correct. [¶] THE
COURT: Mr. Luu? [¶] MR. LUU [defendant’s trial counsel]: Yes.”
       The jury was instructed on each of the charged sodomy and oral copulation counts
as they were alleged in the information. It was told that counts 1 and 2 were alleged to
have occurred “[o]n or about and between February 11, 2007, and February 10, 2008,”
and counts 3 and 4 were alleged to have occurred “[o]n or about and between February
11, 2008, and February 10, 2009.” Similarly, the jury was instructed that counts 5 and 6
were alleged to have occurred “[o]n or about and between February 11, 2009, and
February 10, 2010,” and counts 7 and 8 were alleged to have occurred “[o]n or about and
between September 9, 2010, and April 20, 2011.” Counts 9 and 10 (the oral copulation


8
       Opening statements were not transcribed, so the record does not reveal whether
the prosecutor elected to rely on specific acts to support specific counts.

                                             20
counts) were alleged to have occurred “[o]n or about and between February 11, 2010, and
September 8, 2010.” Hence, each of the five pairs of counts alleged a different time
period.
       The version of CALCRIM No. 3501 given to the jury provided: “The defendant is
charged with forced sodomy and forced oral copulation in Counts 1 through 10 sometime
during the period of February 11, 2007 to September 8, 2010. The People have presented
evidence of more than one act to prove that the defendant committed these offenses. [¶]
You must not find the defendant guilty unless: [¶] One. You all agree that the People
have proved that the defendant committed at least one of these acts and you all agree on
which act he committed for each offense. [¶] Or, two. You all agree that the People
have proved that the defendant committed all the acts alleged to have occurred during this
time period and have proved that the defendant committed at least the number of offenses
charged.”
       The prosecutor argued to the jury: “This case comes down to the words of two
people. Either you believe Michael or you believe the defendant. This isn’t a case where
you need to really look carefully at each detail and see who said what at what time.
Someone’s telling the truth and someone isn’t. The stories are that far apart.” “And if
you believe what Michael says, you’re gonna find defendant guilty of everything. And if
you believe what defendant says, then he’s not guilty of any of this, because this isn’t an
age thing. This is a forcible sodomy, oral copulation, dissuading a witness case.” “Either
he mind-controlled Michael and raped him for four years or they’re lovers and Michael
set him up. It’s one or the other. It’s not half and half.” “One person is lying and one
person [is] telling the truth.”
       “Now the jury instructions will tell you about the dates for Count 1 through 8.”
“So 1 and 2 are for age 15. 3 and 4 are for age 16. 5 and 6 are for age 17. [¶] Then
we’re going to jump over to forced oral cop . . . . So time wise we’re going to jump to
Counts 9 and 10, and that is for 18 to 18 and a half, and then counts back up here, 7 and

                                             21
8, are for sodomy between 18 and a half to the day he reported. [¶] So what he’s telling
you is this happened more than 100 times during that time period, at least two for each of
those time periods that I gave you. So as long as you all agree it happened at least twice
when he was 15, twice when he was 16, twice when he was 17, twice during the time
period he was forced to orally copulate defendant, twice during that time period, then you
find him guilty.” “You’ve heard from Michael. You know he’s telling the truth. You’ve
heard from defendant. You know that he has lied to you.”
       Defendant’s trial counsel argued to the jury that “[defendant’s] and Michael’s
relationship . . . was consensual sex.”
                                          2. Analysis
       Defendant claims that the version of CALCRIM No. 3501 given to the jury by the
trial court was flawed in several respects.
       “It is well established in California that the correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505,
538, disapproved on a different point in People v. Reyes (1998) 19 Cal.4th 743, 756.) We
evaluate the challenged instruction in the context of all the instructions given by the trial
court. (Boyde v. California (1990) 494 U.S. 370, 378.) “[I]nstructions that might be
ambiguous in the abstract can be cured when read in conjunction with other instructions.”
(Jones v. United States (1999) 527 U.S. 373, 391 (Jones).) “[An] instruction ‘may not be
judged in artificial isolation,’ but must be considered in the context of the instructions as
a whole and the trial record. [Citation.] In addition, in reviewing [a potentially]
ambiguous instruction such as the one at issue here, we inquire ‘whether there is a
reasonable likelihood that the jury has applied the challenged instruction in a way’ that
violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72 (Estelle).)
       Defendant argues that Estelle’s “reasonable likelihood” standard does not apply
here because that standard applies only to ambiguous, confusing, or misleading

                                              22
instructions. (See People v. Ngo (2014) 225 Cal.App.4th 126, 165.) The defect in his
argument is that his challenges to the version of CALCRIM No. 3501 given by the trial
court are all premised on claims that the instruction misled the jury about the distinct time
periods applicable to each pair of counts. Such challenges necessarily depend on a claim
that the jury would have been misled or confused by the conflict between the instructions
as to the appropriate time period to apply to each count. Under these circumstances, the
“reasonable likelihood” standard does apply.
       Defendant claims that the first sentence of the instruction erroneously told the jury
that it need only find that defendant had committed 10 acts during the entire period in
order to find all of the counts true. The first sentence of the instruction read: “The
defendant is charged with forced sodomy and forced oral copulation in Counts 1 through
10 sometime during the period of February 11, 2007 to September 8, 2010.” This
sentence by itself was inaccurate because it failed to include the distinct time period that
was charged as to counts 7 and 8, September 9, 2010 through April 20, 2011. However,
our evaluation of a jury instruction necessarily requires us to consider all of the
instructions given to the jury. While this sentence failed to include the time period
applicable to counts 7 and 8 and did not mention that each of the other pairs of charges
alleged a distinct time period within that larger time period, the instructions on the
individual counts clearly informed the jury of the distinct time periods that applied to
each pair of counts. We reject defendant’s invitation to assume that the jury would have
understood this one-sentence introductory sentence to the unanimity instruction to
countermand the detailed and complete instructions given as to each count. When we
consider the instructions as a whole, we can find no reasonable likelihood that the jury
would have been misled by this sentence to disregard the distinct time periods charged as
to each pair of counts.
       Defendant’s second challenge to this instruction concerns the instruction’s use of
the words “act” and “offenses” in the second sentence and the “one” alternative in the

                                             23
instruction. He claims that the jury would have understood “act” to refer to a single act
of sodomy or oral copulation, but it would have understood “offenses” to refer to just two
“offenses,” sodomy and oral copulation, rather than to the 10 counts of sodomy and oral
copulation with which defendant was charged. Defendant reasons that the jury would
have parsed this language to mean that it need only unanimously agree on one act of
sodomy and one act of oral copulation in order to convict defendant on eight counts of
sodomy and two counts of oral copulation.
       Defendant’s reasoning is illogical. No reasonable juror would have ascribed this
meaning to this language. The second sentence of the instruction plainly used “these
offenses” to refer back to the first sentence’s reference to “Counts 1 through 10.” Since
“these offenses” were 10 counts, and the instruction clearly told the jury that “you all
[must] agree on which act he committed for each offense,” no reasonable juror could
have understood that “each offense” meant anything other than the 10 counts referenced
in the first sentence of the instruction.
       Defendant’s third challenge to the instruction is that the second alternative in the
instruction was erroneously described. He claims that the instruction erroneously told the
jury that “if they agree the defendant committed the number of offenses charged, they can
convict him on all of them” rather than telling the jury that this alternative depends on
unanimous agreement that defendant committed all of the acts “described by the victim.”
The challenged language said: “You all agree that the People have proved that the
defendant committed all the acts alleged to have occurred during this time period and
have proved that the defendant committed at least the number of offenses charged.”
Again, defendant’s argument depends on his hypertechnical construction of the language
in this sentence. We see no reasonable likelihood that reasonable jurors would have
understood “all the acts alleged to have occurred” to mean anything other than all of the
acts that Michael alleged. Defendant’s argument depends on the jurors reading this
sentence to say that they had to agree that defendant committed all 10 of the charged acts

                                             24
and that defendant committed at least the 10 charged acts. Such a construction of this
language would render it meaningless.
       Since there is no reasonable likelihood that the jury construed the unanimity
instruction in any of the ways that defendant imagines and the other instructions plainly
cured the unanimity instruction’s time-period flaw (Jones, supra, 527 U.S. at p. 391), we
reject defendant’s challenges to the unanimity instruction.


                           C. Cruel and Unusual Punishment
       Defendant contends that his 84-year prison term is cruel and unusual because it
“serves no legitimate penal purpose.”
       He bases his argument on the United States Supreme Court’s decision in Coker v.
Georgia (1977) 433 U.S. 584 (Coker) and a concurring opinion in People v. Deloza
(1998) 18 Cal.4th 585 (Deloza).
       Coker was a death penalty case in which the court held that it categorically
violates the Eighth Amendment to impose the death penalty for the crime of rape because
such a punishment is excessive and disproportionate. (Coker, supra, 433 U.S. at p. 592.)
The Coker court stated: “[T]he Eighth Amendment bars not only those punishments that
are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime committed. . . .
[A] punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail the test on either
ground.” (Coker, at p. 592.)
       Deloza was a case in which the defendant received a prison sentence of more than
100 years to life. The majority opinion had nothing to do with cruel and unusual
punishment. The issue was whether the court had discretion to impose concurrent rather
than consecutive terms. The case was remanded for resentencing because the trial court

                                              25
had misunderstood the scope of its discretion to impose concurrent terms. (Deloza,
supra, 18 Cal.4th at p. 599.) Justice Mosk concurred separately and opined that a
sentence “impossible for a human being to serve” was cruel and unusual. (Deloza, at
p. 600.) Defendant cites no case in which a sentence was found to be cruel and unusual
because it was “impossible for a human being to serve,” and several published cases have
rejected the contention. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v.
Retanan (2007) 154 Cal.App.4th 1219, 1231; People v. Byrd (2001) 89 Cal.App.4th
1373, 1382-1383.)
       Defendant asserts that his sentence is cruel and unusual because “a sentence that
no human being could conceivably complete serves no rational legislative purpose, under
either a retributive or a utilitarian theory of punishment.” Coker provides no support for
this premise because its holding was that death was an excessive punishment for rape.
Defendant was not sentenced to death. He was sentenced to 84 years in prison. While
we accept defendant claim that his sentence is essentially a life sentence, we reject his
                                                                       9
claim that his life sentence serves no rational legislative purpose.
       Defendant fails to cite any authority for the proposition that a life sentence for his
offenses would serve no rational punitive purpose. The “classic concerns of sentencing”
are “retribution, deterrence, and incapacitation.” (People v. Mesce (1997) 52 Cal.App.4th
618, 632; see also In re Nunez (2009) 173 Cal.App.4th 709, 730 [“Valid penological
goals include retribution, incapacitation, rehabilitation, and deterrence.”].) Defendant’s
life sentence serves all three of these goals of punishment.
       Defendant’s 84-year sentence is the product of the mandatory application of
section 667.6 combined with the trial court’s decision to impose upper terms. “By


9
       Defendant was 26 years old when he was arrested. Since his worktime credit will
be limited to 15 percent (§ 2933.1), he must serve just over 71 years in prison. We agree
with defendant that the likelihood that he will survive until he reaches the age of 97 in
prison are minimal.

                                             26
requiring a full, separate, and consecutive term for each rape, Penal Code section 667.6,
subdivision (d) attempts to ‘provide increased punishment in cases of greater culpability
based upon injury to the victims and society.’ [Citation.] The severity of [the
defendant’s] sentence is directly proportionate to the number and violence of his crimes.
Mandatory imposition of consecutive sentences for multiple violent rapes does not
constitute cruel and unusual punishment.” (People v. Preciado (1981) 116 Cal.App.3d
409, 412.) “The statute is directed at multiplicity of offenses by providing for full,
separate, consecutive sentencing. In view of the outrageous nature of violent sexual
offenses and the manifest danger to society from recidivism and multiplicity of offenses,
we cannot say that the severity of the punishment is so disproportionate to the crimes so
as to shock the conscience and offend fundamental notions of human dignity.” (People v.
Karsai (1982) 131 Cal.App.3d 224, 242, disapproved on a different point in People v.
Jones (1988) 46 Cal.3d 585, 600, fn.8.) The Legislature’s decision to mandate full,
separate, and consecutive terms for multiple violent sexual offenses clearly serves the
goals of incapacitation, deterrence, and retribution. The offender is incapacitated by a
longer prison term, and greater retribution is merited due to the offender’s greater
culpability. The offender and other potential offenders may be deterred by the lengthy
prison term.
       The trial court’s decision to impose upper terms for each count was also supported
by the goals of retribution, incapacitation, and deterrence. Defendant makes no attempt
to challenge the validity of the numerous aggravating circumstances relied on by the trial
court. Defendant’s offenses were beyond cruel. He spent years grooming Michael and
establishing himself in a position of trust that would facilitate his sexual abuse. He then
manipulated Michael into submitting to his threats and repeatedly forcibly sodomized this
vulnerable boy throughout most of Michael’s adolescence. Not only did defendant
perpetrate four years of unrelenting forcible sexual abuse on Michael, but the abuse
escalated as the years went by. Michael lost a large portion of his formative years to

                                             27
defendant’s sexual abuse. The trial court’s decision to impose upper terms, like the
Legislature’s decision to mandate full, separate, and consecutive terms, ensures that
defendant will remain in prison for the rest of his life thereby incapacitating him from
perpetrating any further sexual abuse in the community. It also serves the goals of
retribution for defendant’s extremely culpable conduct and deterrence of anyone who
might consider such conduct.
         The imposition of a life sentence on defendant will free the community of his
corrupting influence and deprive him of the freedom that he so abused. His conduct
caused great damage to Michael, who continues to suffer from nightmares about
defendant’s abuse of him and has difficulty trusting people. Although the Static-99R
scored defendant at low risk of reoffending, this was largely because his lengthy prison
term was expected to incapacitate him. The fact that defendant has continued to insist
that he “did not do anything wrong” and that his relationship with Michael was “a
consensual relationship” heightens the risk that defendant would continue to pose a
danger to the community if he were not incarcerated. He accepts no responsibility for his
actions and blames Michael for lying and betraying him. Defendant’s sentence of 84
years in prison is not cruel and unusual punishment.


                            D. Ineffective Assistance of Counsel
         Defendant claims that his trial counsel was prejudicially deficient in failing to (1)
object to Lewis’s testimony as inadmissible hearsay, (2) object to CALCRIM No. 1193,
(3) object to CALCRIM No. 3501, and (4) object to the court’s decision to impose upper
         10
terms.



10
        Defendant initially claimed that his trial counsel was prejudicially deficient in
failing to renew his relevance objection to the CSAAS evidence, but he withdrew this
contention in his reply brief.

                                               28
       When a defendant challenges his conviction based on a claim of ineffective
assistance of counsel, he must prove that counsel’s performance was deficient and that
his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d
171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
(Strickland, at p. 694.)
       Defendant’s trial counsel’s failure to object to the two instructions was not
prejudicial because CALCRIM No. 1193 was not defective and there was no reasonable
likelihood that the jury would be misled by CALCRIM No. 3501.
       His trial counsel’s failure to interpose a hearsay objection to Lewis’s testimony
was not prejudicial as such an objection would not have been successful. An expert may
properly “base an opinion on reliable hearsay, including out-of-court declarations of other
persons” (In re Fields (1990) 51 Cal.3d 1063, 1070) “so long as it is material of a type
that is reasonably relied upon by experts in the particular field in forming their opinions”
(People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley)). “And because Evidence
Code section 802 allows an expert witness to ‘state on direct examination the reasons for
his opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is
based on such inadmissible matter can, when testifying, describe the material that forms
the basis of the opinion.” (Gardeley, at p. 618.)
       Defendant claims that Lewis could not properly describe Summit’s observations as
the basis for Lewis’s opinion testimony because Lewis did not testify about any opinions
of his own but merely reported Summit’s observations. Defendant mischaracterizes
Lewis’s testimony. Lewis testified as an expert because he had personally investigated
hundreds of child sexual abuse cases and had been teaching other professionals about
child sexual abuse for more than 15 years. Lewis’s description of Summit’s
groundbreaking work was a necessary part of his description of the longstanding

                                             29
recognition of CSAAS by other experts. He did not rely solely on Summit’s
observations. His testimony was informed by his own many years of experience. Lewis
repeatedly expressed his own expert opinion in response to questions. Under these
circumstances, Lewis could properly describe Summit’s observations as part of the basis
for Lewis’s expert testimony since Summit’s observations were the type of material that
is reasonably relied upon by experts in this field.
       There is no merit to defendant’s claim that he was prejudiced by his trial counsel’s
failure to object to the trial court’s imposition of upper terms. The probation officer
recommended a term of 84 years in prison, and the prosecutor agreed. The prosecutor,
defendant’s trial counsel, and the court all agreed that “full term consecutive” sentences
were required by “the law.” Defendant’s trial counsel asked the court to impose
mitigated terms for a total term of 31 years because defendant had no prior criminal
history. The court rejected this request and found that upper terms were merited because
there were multiple aggravating circumstances that outweighed the sole mitigating
circumstance of no prior criminal record. The court identified four aggravating
circumstances. The planning and sophistication of the offenses was demonstrated by
defendant’s coercion, threats, and intimidation, and the lengthy period over which the
offenses took place. The offenses involved great violence, including defendant hitting
Michael with a stick and branding him with a piece of jade. Defendant took advantage of
a position of trust and confidence that he had attained as Michael’s tutor and solidified
through taking Michael on outings and taking responsibility for transporting Michael to
and from school. This position allowed defendant to control and manipulate Michael by
threats and violence. Finally, the length of the period of time over which the crimes
occurred “basically robbed the victim of his childhood.”
       Defendant does not challenge the sufficiency of the evidence to support the trial
court’s findings regarding the aggravating circumstances. His sole contention is that his
trial counsel should have raised the unsuccessful cruel and unusual punishment argument

                                             30
that he makes on appeal. Since that argument lacks merit, his trial counsel’s failure to
raise it below could not have prejudiced defendant.


                                E. Cumulative Prejudice
       As we have not found multiple errors, there is no prejudice to cumulate.


                                     IV. Disposition
       The judgment is affirmed.




                                            31
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




                                    32
