Filed 7/17/15 P. v. Pickett CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E060682

v.                                                                       (Super.Ct.No. SWF1300337)

RICHARD DAVID PICKETT,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,

Judge. Affirmed in part, reversed in part, and remanded with directions.

         Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and William M. Wood and

Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       When defendant Richard David Pickett’s daughter was six, she told family

members that “Daddy pulled my pants down and put his wiener on my butt.” The police

interviewed defendant, and he admitted that he “pulled [his] dick out” and “rubbed it on

her.” However, he additionally admitted that he put his finger and then his penis in her

vagina.

       After a jury trial, defendant was found guilty of sexual intercourse with a person

aged ten or younger (Pen. Code, § 288.7, subd. (a)), sexual penetration with a person aged

ten or younger (Pen. Code, § 288.7, subd. (b)), and a lewd act on a child under 14 (Pen.

Code, § 288, subd. (a)). As a result, he was sentenced to a total of 48 years to life in

prison, along with the usual fines, fees, and requirements.

       Defendant now contends:

       1. There was insufficient independent evidence of either sexual intercourse

(count 1) or sexual penetration (count 2) to satisfy the corpus delicti rule.

       2. The trial court erred by admitting expert testimony about Child Sexual Abuse

Accommodation Syndrome (CSAAS).

       3. The jury instruction regarding CSAAS evidence erroneously allowed the jury to

consider this evidence in assessing credibility.

       4. Defendant’s trial counsel rendered ineffective assistance at sentencing by

failing to argue that the trial court should sentence concurrently.




                                              2
       We find no error affecting the conviction. We do agree, however, that defense

counsel was ineffective in failing to at least ask the trial court to consider concurrent

sentencing. Accordingly, we will reverse and remand for resentencing.

                                               I

                                 STATEMENT OF FACTS

       A.     Background.

       Defendant and his wife Desiree lived in Hemet. They had two children — Jane

Doe No. 1 (Doe 1)1 and a younger son. Desiree’s grandmother, Hazel B., lived nearby

and saw the family every day.

       In 2012, defendant and Desiree agreed to get divorced. Defendant, however, was

not financially able to move out, so he continued to live in the house; he slept on a couch

in the living room.

       B.     Doe 1 Discloses to Hazel B..

       As of mid-March 2013, Doe 1 was six years old. One day around that time, when

the whole family was in the car, Doe 1 whispered to Hazel B., “My daddy and I have a

secret.” She added that she was not supposed to tell her mother. Hazel B. did not think

defendant had heard. She “let it go until [she] could talk to [Doe 1] privately . . . .”

       Two days later, Hazel B. asked Doe 1, “Did you and your daddy have a secret?”

Doe 1 said, “Yes.” Hazel B. asked, “Did he . . . put his penis on you?” Doe 1 said,

       1      The trial court ordered that the victims of both the charged and uncharged
sexual offenses be referred to by fictitious names. (Pen. Code, § 293.5.)



                                               3
“Yes.” Hazel B. asked “if he put it in her,” and Doe 1 said no. Doe 1 indicated that he

put it “on the front” and on “the butt.” Hazel B. asked, “How many times?,” and Doe 1

said, “One time.” Doe 1 mentioned that she had been lying on the couch. She repeated

that it was a secret and she was not supposed to tell her mother.

       Doe 1 “didn’t want to talk about it”; Hazel B. had to ask her questions. Hazel B.

was concerned, because Doe 1 “ha[d] been telling some lies.” For example, Doe 1 had

recently gotten into trouble at school for saying there was a naked man running through

the cafeteria.

       C.        Hazel B. Relays the Disclosure to Desiree.

       Two days after that — which was the next time she could get Desiree alone —

Hazel B. told Desiree, “(Jane Doe No. 1) has told me that [defendant] put his wiener on

her butt.” Hazel B. told Desiree that she did not know whether it was true or not, but she

thought it was true, because of the way Doe 1 had acted.

       Desiree said, “I’m going to call the cops.” Hazel B. told her not to, “because

you’re going to get your kids taken away . . . .” Desiree was also concerned that

defendant might deny everything and try to get her arrested instead. Desiree decided to

talk to Doe 1 about it.

       Desiree took Doe 1 aside and asked, “Did this really happen?” Doe 1 said, “Yes.”

She stated, “Daddy pulled my pants down and put his wiener on my butt.” Desiree asked,

“Are you really sure that nothing was . . . put in . . . ?” Doe 1 said, “No.” She added that




                                               4
defendant had called her into the living room to watch a movie with him and had her lie

down on the couch with him.

       D.     Desiree Confronts Defendant.

       A couple of days later, Desiree “talked to the defendant about it.” She told him, “I

know what you did.” She “believe[d]” that he knew she was talking about sexually

touching Doe 1. “[H]e just looked at her[,] kind of taken aback . . . .” Desiree then said,

“(Jane Doe No. 1) told grandma.” She added, “If you did something, you need to leave

. . . .” “He looked [her] in the eye, and . . . he just didn’t say anything.” He had “no

emotional response.” “[H]e went outside and smoked a cigarette . . . .” Later, he told her

“he had been asleep when it was going on[.]”

       E.     Doe 1’s Testimony at Trial.

       At trial, Doe 1 denied that defendant was her father; she testified that her father

was not in the courtroom. She called her father “Richard” and her mother “Desiree.” She

was “[m]ad” at her father because he did “bad things” to her.

       Doe 1 testified that her father had once touched her “butt” with his “wiener.” This

was after he pulled her pants down. They were on the couch watching a movie. He told

her not to tell anyone.2

       2       Consistent with the applicable standard of review, we recount the most
incriminating portions of Doe 1’s testimony. However, Doe 1 also contradicted her
incriminating testimony. Thus, she also testified that defendant never touched her with
any part of his body other than his hand, that he never touched her with his “private part,”
and that he did touch her with his “wiener” but only over her clothes and did not pull
down her pants. Many of her answers were “I don’t remember.”



                                              5
       F.     A Forensic Interview and a Physical Examination of Doe 1 Are Conducted.

       A doctor who was a mandated reporter notified the police.3 As a result, on April

5, 2013, Doe 1 was detained by Child Protective Services. An interviewer with the

Riverside Child Assessment Team (RCAT) conducted a forensic interview with her.

During the interview, Doe 1 denied any sexual touching.

       Also on April 5, 2013, a sexual abuse examination of Doe 1 was conducted. No

physical evidence of sexual abuse was found. However, that would be consistent with the

nature of the reported molestation.

       Desiree was arrested. While she was in a cell, a police officer phoned her; he said

that Doe 1 would not talk to anyone and wanted her mommy. He also said that Doe 1 had

told an interviewer that nothing had happened and defendant had not touched her. He

asked Desiree to talk to Doe 1 and “find out the truth.” Desiree understood this to mean

that he wanted Doe 1 to say defendant had touched her. According to Desiree, he offered

to let her use her cell phone if she did. According to the officer himself, however, he did

not “make any promises . . . .”

       Accordingly, Desiree met with Doe 1 in an interview room. At first, Doe 1 said

she did not want to talk about what had happened. Doe 1 also warned Desiree that they

were on TV and people were watching. Desiree asked Doe 1, “You remember the thing




       3    When defendant testified, he explained that the doctor learned of the abuse
from him. (See part I.J, post.)



                                             6
with daddy?” Doe 1 said, “Put his thing on top of my butt[.]” Desiree asked, “What

thing, honey?” Doe 1 said, “His wiener[.]” Doe 1 then asked, “Can I go now?”

       G.     The Police Interview Defendant.

       Also on April 5, 2013, a police officer interviewed defendant. The interview was

videotaped, and the video was played for the jury.

       At the beginning of the interview, defendant said, “I know what . . . I think I did

was wrong, but . . . I have no recollection of anything happening.”

       The officer accused defendant of lying, expressed some sympathy, then asked him

again what happened. Defendant then said, “I was touchin’ her and . . . I pulled my dick

out . . . and I rubbed it on her.” He said it happened “[o]n the couch.” “We were

watching a movie, and . . . she was laying with me.”

       Defendant started tickling her. Then he used his index finger to touch her vagina.

He was asked:

       “[OFFICER]: . . . And how far into her vagina did you put your finger?

       “[DEFENDANT]: I didn’t.

       “[OFFICER]: Well, it went in a little bit, okay? It went in just a little bit. And

that’s what I need to know. Probably the best way to explain it is if you — if you can

take the cap off that bottle and show to me — we’ll just pretend that the hole of that bottle

. . . is her vagina. And just with your index finger, show me how far inside it went to.

       “[DEFENDANT]: It probably went to about here.”




                                             7
       At this point, defendant put his entire fingernail inside the bottle. Defendant said

his finger went in and out three or four times.

       Next, defendant said, he pulled out his penis and rubbed it on her vagina. The

officer said, “Well, there was a little bit of penetration, okay? Not much, but there was

penetration, okay?” Once again, he asked defendant to demonstrate with the bottle. This

time, defendant put “barely the tip of his finger” inside the bottle. Defendant said his

penis went in and out “[o]nce or twice.” However, after the officer accused him of

“minimizing,” defendant said his penis went in and out “[f]ive or six” times. He

ejaculated “[o]n her butt.”

       H.     Uncharged Prior Sexual Offense.

       Jane Doe No. 2 (Doe 2) testified that she met defendant in 2004, when she was 12

and defendant was about 20. Defendant was with a friend of his whom Doe 2 knew only

as “Dirty Shawn.” They took her to a friend’s house, where they gave her alcohol and

marijuana and got her drunk.

       The group went for a walk outside. Then defendant and his friend both forcibly

undressed her and raped her in a ditch. Doe 2 was too scared and too drunk to resist. She

told them to stop, but they did not stop until they ejaculated.

       When a police officer first spoke to Doe 2 about the rape, she denied even

knowing defendant, because she was scared and she wanted to pretend it never happened.

Eventually, however, she told the officer what happened.




                                              8
         I.     Expert Testimony About Child Sexual Abuse Accommodation Syndrome.

         Dr. Jody Ward, a psychologist, testified as an expert on Child Sexual Abuse

Accommodation Syndrome (CSAAS). She defined CSAAS as a pattern of behaviors

typically displayed by children who have been sexually abused. The “hallmarks” of

CSAAS are (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed

and unconvincing disclosure, and (5) retraction or recantation. Secrecy and helplessness

are more or less universal hallmarks; “the others may or may not be there depending on

the child [and] the situation.”

         Dr. Ward testified that most sexually abused children do not report the abuse right

away. When they do disclose, they may not disclose all of the details of what happened to

them. She conceded that, in the case of a child molested by a stranger, CSAAS would not

apply.

         J.     Defendant’s Testimony at Trial.

         Defendant took the stand. He indicated that he himself had been sexually abused

by his stepfather until he was 14. He had been diagnosed as having schizophrenia.

         Defendant admitted having “a sex addiction.” He also admitted that, as of March

2013, he was not having sex with his wife.

         When Desiree confronted him, defendant understood that she was accusing him of

sexually touching Doe 1. He was confused. He went out for a cigarette because he was

stressed and upset. However, neither Desiree, Hazel B., nor Doe 1 said any more about it,

so he “basically ignored the whole conversation.”



                                              9
       On April 3, 2013, defendant went to see a doctor to adjust his medication. He told

the doctor that he had been accused of abusing his daughter, and he was concerned

because he did not remember it.

       When the police interviewed him, he said that he rubbed his penis on his daughter

because that was what Desiree told him that Doe 1 had said. Initially, he testified that he

did not remember actually doing so. Then he conceded, “I might have, yes.” Finally, he

agreed that it was “true.” However, he claimed he was asleep and “I guess you could say

I was dreaming . . . when it happened.”

       Defendant denied ever penetrating Doe 1 with either a penis or a finger. During

the interview, he told the officer that he did those things because “I was telling him

basically what he wanted to hear.”

       With regard to Doe 2, defendant claimed the sex was consensual. He had pleaded

guilty to statutory rape and had been sentenced to probation.

                                             II

   THE APPLICATION OF THE CORPUS DELICTI RULE TO COUNTS 1 AND 2

       Defendant contends that, with regard to count 1 (sexual intercourse) and count 2

(sexual penetration), there was insufficient evidence, aside from his own statements, to

satisfy the corpus delicti rule.

       “The corpus delicti rule requires some evidence that a crime occurred, independent

of the defendant’s own statements. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th




                                             10
641, 721.) “The principal purpose of the corpus delicti rule is to ensure that a defendant

is not convicted of a crime that never occurred. [Citations.]” (Ibid.)

       “‘The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the

criminal agency that has caused the injury, loss or harm. [Citation.] “The independent

proof may be by circumstantial evidence [citation], and it need not be beyond a

reasonable doubt. A slight or prima facie showing, permitting the reasonable inference

that a crime was committed, is sufficient. [Citations.]” . . . [Citations.]’ [Citations.]”

(People v. Gutierrez (2002) 28 Cal.4th 1083, 1127-1128.)

       Preliminarily, the People contend that defendant forfeited this contention by failing

to raise it below. As the Supreme Court has noted, there is a split of authority with

respect to whether the insufficiency of the evidence under the corpus delicti rule can be

raised for the first time on appeal. (People v. Alvarez (2002) 27 Cal.4th 1161, 1172, fn. 8,

and cases cited.) Defendant, however, also contends that, if the contention was forfeited,

then his trial counsel rendered ineffective assistance. Assuming his corpus delicti

contention is meritorious, there could be no rational tactical purpose for failing to raise it;

moreover, the failure to raise it would necessarily be prejudicial. Thus, we must reach the

issue, if only under the rubric of ineffective assistance of counsel. (Cf. People v. Norman

(2003) 109 Cal.App.4th 221, 229-230 [failure to raise cruel and unusual punishment];

People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [same].)

       The only evidence that defendant penetrated Doe 1 with either his penis or his

finger came from defendant’s own statements when he was interviewed by the police.



                                              11
Doe 1 repeatedly stated that “Daddy pulled my pants down and put his wiener on my

butt”; this was already the basis for count 3 (lewd act). She consistently denied that

defendant put anything “in” her.

       The People rely primarily on People v. Jones (1998) 17 Cal.4th 279. There, the

victim had been shot in the head and killed. Semen was found in her vagina, in her

rectum, and on her external genitalia; it was not found in her mouth, but there was expert

testimony that it could have been eliminated by “the mouth’s natural rinsing processes.”

(Id. at pp. 291, 302.) The defendant admitted aiding and abetting his accomplice’s

forcible rape and forcible oral copulation of the victim. (Id. at pp. 292, 300.) The trial

court ruled that sufficient evidence of forcible oral copulation had been presented at the

preliminary hearing. (Id. at pp. 300-301.) The defendant was then convicted of (among

other things) murder with rape and oral copulation special circumstances, forcible rape in

concert, and forcible oral copulation. (Id. at p. 291.)

       The Supreme Court held that the evidence of forcible oral copulation at the

preliminary hearing met “the low threshold of proof required to satisfy the corpus delicti

rule . . . .” (People v. Jones, supra, 17 Cal.4th at p. 302.) It explained: “The state of the

victim’s clothing (no underwear or shoes) and the forensic evidence (semen in the

victim’s vagina and on her external genitalia and anus) indicates multiple sexual acts

occurred. . . . This circumstantial evidence of multiple forcible sexual acts sufficiently

establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii)

the involvement of a criminal agency.



                                             12
       “Defendant, however, contends that the prosecution failed to establish the corpus

delicti of oral copulation because no semen was found in the victim’s mouth. In other

words, he argues that the lack of evidence of the specific loss or harm to this victim is

fatal to the establishment of the corpus delicti. The law’s requirements, however, are not

so strict.” (People v. Jones, supra, 17 Cal.4th at p. 302.) “[W]e have never interpreted

the corpus delicti rule so strictly that independent evidence of every physical act

constituting an element of an offense is necessary. Instead, there need only be

independent evidence establishing a slight or prima facie showing of some injury, loss or

harm, and that a criminal agency was involved.” (Id. at p. 303.)

       It is significant that, in Jones, the Supreme Court emphasized the evidence of

multiple forcible sexual acts. This was sufficient to establish the commission of multiple

sexual offenses; the defendant’s confession could then be used to establish the precise

nature of each of those offenses — the “physical act constituting an element of [the]

offense.”

       This reading of Jones finds support in this court’s opinion in People v. Tompkins

(2010) 185 Cal.App.4th 1253 [Fourth Dist., Div. Two]. There, the defendant was

convicted of 11 counts of lewd acts committed against one particular victim (Jane Doe 2).

(Id. at pp. 1256, 1258-1259.) According to the defendant’s own statements, “he had had

some form of sexual contact with . . . Jane Doe 2[] almost every time she visited him from

February or March 2004 through November 2005.” (Id. at p. 1258.)




                                             13
       We held: “[S]eparate evidence is not required as to each individual count to

establish the corpus delicti; rather, evidence that multiple molestations took place will

establish the corpus delicti for multiple counts. [Citation.] Here, the evidence amply met

that standard. Jane Doe 2 testified that defendant molested her more than once but less

than 50 times, she had visitation with defendant approximately every other weekend

during that period, and defendant molested her on some, but not all, of those visits. She

also testified that, although her memory of the incidents was poor, she had told the truth

to Investigator Montgomery when he interviewed her. Investigator Montgomery, in turn,

testified that Jane Doe 2 had told him defendant had touched her ‘on many occasions,’

and ‘several incidents’ had occurred near his computer.” (Id. at p. 1260.)4

       Here, as in Jones and Tompkins, there was independent evidence of multiple

molestations. Hazel B. testified, based on what Doe 1 told her:

       “Q. Where did he put [his penis]?

       “A. Well, I think on the front, and she said the butt. So it meant that — maybe it

meant that it was the back part too.”




       4      In addition to Jones, the People also rely on People v. Jennings (1991) 53
Cal.3d 334 and People v. Robbins (1988) 45 Cal.3d 867. In both of those cases, however,
the corpus delicti issue was whether there was sufficient independent evidence of any
sexual offense at all. (People v. Jennings, supra, 53 Cal.3d at pp. 366-369; People v.
Robbins, supra, 45 Cal.3d at pp. 885-886.) Here, the issue is how many sexual offenses
the independent evidence will support. Jennings and Robbins do not help with this issue.



                                             14
       This evidence that defendant touched Doe 1 in front with his penis and then also

touched her in back with his penis would support two separate convictions for a lewd act

on a child. (People v. Scott (1994) 9 Cal.4th 331, 340-348; People v. Jimenez (2002) 99

Cal.App.4th 450, 453-457.)

       It is true that Hazel B. undermined her own testimony on this point somewhat by

telling Desiree only that defendant had put his penis on Doe 1’s butt; she did not mention

anything about him touching her in front. Nevertheless, for purposes of the corpus delicti

rule, all that matters is whether there was independent evidence of multiple molestations;

it does not matter that there was also contrary evidence. “[U]nder the principles

governing review for the existence of substantial evidence, the testimony of a witness is

ordinarily sufficient to uphold a judgment ‘even if it is contradicted by other evidence,

inconsistent or false as to other portions. [Citations.]’ [Citation.]” (People v. White

(2014) 230 Cal.App.4th 305, 319, fn. 14.)

       It is also true that, according to Hazel B., Doe 1 denied that defendant penetrated

her, either in front or in back. Even so, under Jones and Tompkins, there was

independent evidence of multiple injuries, losses, or harms. This was sufficient to satisfy

the corpus delicti rule; thereupon, the jury was free to consider defendant’s own

statements in deciding precisely what physical acts actually gave rise to each injury, loss,

or harm.

       We therefore conclude that the convictions on counts 1 and 2 did not violate the

corpus delicti rule.



                                             15
                                             III

                       EVIDENCE REGARDING CHILD SEXUAL

                       ABUSE ACCOMMODATION SYNDROME

       Defendant raises two related issues arising out of the CSAAS evidence.

       A.     The Admission of the CSAAS Evidence.

       First, defendant contends that the trial court erred by admitting the CSAAS

evidence at all.

              1.      Additional factual and procedural background.

       By way of his trial brief, defendant brought a motion in limine to exclude any

evidence about CSAAS. He argued that the evidence was irrelevant because there was

none of the delayed disclosure or other counterintuitive behavior by a victim that CSAAS

evidence is admissible to explain.

       In their trial brief, the People argued that the evidence was admissible to dispel

myths and misconceptions about victims of child sexual abuse.

       The trial court declined to rule on the motion until after Doe 1 testified. The

prosecutor raised the issue again at that time, but after hearing argument, the trial court

further reserved its ruling.

       Finally, after Doe 2 testified, the trial court ruled that CSAAS evidence was

relevant and admissible to rehabilitate the credibility of both Doe 1 and Doe 2.




                                             16
       B.     Discussion.

       “An appellate court reviews a court’s rulings regarding relevancy . . . for abuse of

discretion. [Citation.] We will not reverse a court’s ruling on such matters unless it is

shown ‘“the trial court exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’

[Citation.]” (People v. Merriman (2014) 60 Cal.4th 1, 74.)

       “CSAAS cases involve expert testimony regarding the responses of a child

molestation victim. Expert testimony on the common reactions of a child molestation

victim is not admissible to prove the sex crime charged actually occurred. However,

CSAAS testimony ‘is admissible to rehabilitate [the molestation victim’s] credibility

when the defendant suggests that the child’s conduct after the incident — e.g., a delay in

reporting — is inconsistent with his or her testimony claiming molestation. [Citations.]’

[Citation.] ‘“Such expert testimony is needed to disabuse jurors of commonly held

misconceptions about child sexual abuse, and to explain the emotional antecedents of

abused children’s seemingly self-impeaching behavior . . . .” [Citation.]’ [Citation.] ‘For

instance, where a child delays a significant period of time before reporting an incident or

pattern of abuse, an expert could testify that such delayed reporting is not inconsistent

with the secretive environment often created by an abuser who occupies a position of

trust. Where an alleged victim recants his story in whole or in part, a psychologist could

testify on the basis of past research that such behavior is not an uncommon response for

an abused child who is seeking to remove himself or herself from the pressure created by



                                              17
police investigations and subsequent court proceedings. In the typical criminal case,

however, it is the People’s burden to identify the myth or misconception the evidence is

designed to rebut. Where there is no danger of jury confusion, there is simply no need for

the expert testimony. [Citation.]’ [Citation.]” (People v. Sandoval (2008) 164

Cal.App.4th 994, 1001-1002, fn. omitted.)

       Defendant argues that Doe 1 did not delay disclosure and did not recant. However,

it was the prosecution’s theory that defendant actually committed three distinct sexual

acts, and that Doe 1 disclosed only the least reprehensible one. In that light, she delayed

disclosure of the other two acts permanently. Dr. Ward testified that “children keep the

secret of sexual abuse for many, many years.” “[V]ery low level threats[] are enough for

a child to keep the secret of sexual abuse for a long time.” “[T]wo-thirds of people do not

report sexual abuse until adulthood and many never report it at all.” She also testified that

“when a child makes a disclosure of sexual abuse, they tend to be . . . tentative or

hesitant.” A child may test the waters by making only a partial or limited disclosure.

“[A] person who’s been a victim of sexual abuse might not disclose all the details

. . . initially . . . [.]” “[S]ometimes many details are never revealed.” (Italics added.)

       It was defendant’s position that, because Doe 1 never said that he penetrated her

with his finger or his penis, and in fact expressly denied any penetration, there was a

reasonable doubt as to whether he actually did so. The CSAAS testimony was highly

relevant to show that her denials were not inconsistent with defendant’s own confession

that he did commit these acts.



                                              18
       As defendant notes, the courts have approved the use of CSAAS evidence to

rehabilitate a child victim’s testimony. Defendant argues that, in this case, it was used to

impeach the victim — to try to show that her denials were false. He concludes that this

was an impermissible use of CSAAS evidence.

       Admittedly, CSAAS evidence is most typically used to rehabilitate a child victim

who has delayed disclosure or who has recanted. In the case of recantation, however, the

evidence is being used both to rehabilitate and to impeach — to rehabilitate the victim’s

original statement by impeaching the victim’s recantation. Logically, we see no reason

why it cannot be used to impeach any exculpatory statements by a victim.

       Defendant also claims the CSAAS evidence “invaded the province of the jury.”

He argues that “[a] witness’s opinion as to another witness’s credibility is generally

inadmissible.” As already discussed, however, CSAAS evidence in general is admissible

precisely because it is relevant to show that a child victim is credible. Dr. Ward did not

venture any opinion as to whether Doe 1 was or was not telling the truth. She freely

admitted that she had never met Doe 1 and she was not “here to testify specifically about”

Doe 1. Her knowledge of CSAAS was beyond the common experience of an ordinary

juror. It was likely to assist the jurors by shedding light on the reasons Doe 1 might have

for denying penetration, even if it did happen. Thus, the statutory conditions for the

admission of expert testimony were satisfied. (Evid. Code, § 801, subd. (a).) For similar

reasons, the evidence did not violate defendant’s right to trial by jury.




                                              19
       Finally, defendant argues that the CSAAS evidence made the trial fundamentally

unfair, in violation of due process. The evidence, however, was relevant and appropriate

expert testimony. “‘[A]pplication of the ordinary rules of evidence generally does not

impermissibly infringe on a . . . defendant’s constitutional rights.’ [Citation.]” (People v.

Lindberg (2008) 45 Cal.4th 1, 26.) We simply do not perceive the unfairness about which

defendant complains. (See also People v. Patino (1994) 26 Cal.App.4th 1737, 1747

[“introduction of CSAAS testimony does not by itself deny appellant due process.”].)

       C.     The Instruction on CSAAS Evidence.

       Second, defendant contends that the jury instruction regarding CSAAS evidence

was erroneous.

              1.     Additional factual and procedural background.

       The trial court instructed the jury with CALCRIM No. 1193, as follows:

       “You have heard testimony from Dr. Jody Ward regarding Child Sexual Abuse

Accommodation Syndrome. Dr. Jody Ward’s testimony about Child Sexual Abuse

Accommodation Syndrome is not evidence that the defendant committed any of the

crimes charged against him. You may consider this evidence only in deciding whether or

not Jane Doe’s 1 [sic] or Jane Doe 2’s conduct was not inconsistent with the conduct of

someone who has been molested in evaluating the believability of their testimony.”

(Italics added.)




                                             20
              2.     Discussion.

       “[I]n all cases in which an expert is called to testify regarding CSAAS . . . the jury

must sua sponte be instructed that (1) such evidence is admissible solely for the purpose

of showing the victim’s reactions as demonstrated by the evidence are not inconsistent

with having been molested; and (2) the expert’s testimony is not intended and should not

be used to determine whether the victim’s molestation claim is true.” (People v. Housley

(1992) 6 Cal.App.4th 947, 959.) The instruction given here included these required

elements.

       Defendant argues that the instruction was erroneous because CSAAS evidence

cannot be used in evaluating a witness’s credibility. That is incorrect.

       Both the permitted and the unpermitted uses of CSAAS evidence involve

supporting the child victim’s credibility. What distinguishes them is how the evidence is

used to support credibility. An expert is not allowed to testify that, because the alleged

victim delayed disclosure, the alleged victim must be telling the truth about being

molested. However, an expert is allowed to testify that, because child victims in general

delay disclosure, the fact that the victim delayed disclosure does not mean that the victim

is lying about being molested.

       CALCRIM No. 1193 explained this distinction correctly. It did not allow the

jurors to use the CSAAS evidence in evaluating the victims’ credibility in general. To the

contrary, it instructed them that they could use it only “in deciding whether or not [the




                                             21
victims’] conduct was not inconsistent with the conduct of someone who has been

molested,” and only then in relating that inconsistency to their credibility.

        We therefore conclude that the trial court did not err by giving CALCRIM No.

1193.

                                             IV

                  CONCURRENT OR CONSECUTIVE SENTENCING

        Defendant contends that his trial counsel rendered ineffective assistance at

sentencing by failing to argue that the trial court should sentence concurrently.

        A.     Additional Factual and Procedural Background.

        The probation report indicated that there were four aggravating factors and no

mitigating factors. It recommended that the trial court impose the upper term on count 3

based on two of these aggravating factors. It also recommended consecutive sentencing,

but it did not give any reasons for this.

        The People’s sentencing memorandum indicated that there were seven aggravating

factors and no mitigating factors. It asked that defendant be sentenced to the upper term

on count 3. Like the probation report, it recommended consecutive sentencing, but

without giving reasons.

        Defense counsel did not file a sentencing memorandum; he submitted the matter

without argument.

        The trial court found three aggravating factors (Cal. Rules of Court, rules

4.421(a)(11) [the defendant took advantage of a position of trust or confidence],



                                             22
4.421(b)(2) [the defendant’s prior convictions are increasingly serious], 4.421(b)(5) [the

defendant’s prior performance on probation was unsatisfactory]) and no mitigating

factors. Thus, it imposed the upper term on count 3.

        The trial court also ran all of the terms consecutively. It did not state any reasons

for this.

        B.     Discussion.

        It is undisputed that the trial court had discretion to sentence either concurrently or

consecutively. (See Pen. Code, § 669, subd. (a).) Certainly we have not found any statute

that would require consecutive sentencing in this case.5

        The trial court was required to state reasons for sentencing consecutively (Cal.

Rules of Court, rule 4.406(b)(5)); it did not do so. This was error in itself. Defense

counsel, however, forfeited the error by failing to object. (People v. Boyce (2014) 59

Cal.4th 672, 730-731.)

        “Defendant . . . bears the burden of showing by a preponderance of the evidence

that (1) counsel’s performance was deficient because it fell below an objective standard

of reasonableness under prevailing professional norms, and (2) counsel’s deficiencies

resulted in prejudice. [Citations.]




        5     Penal Code section 667.6 requires consecutive sentencing in certain cases
involving violent sexual offenses. (Pen. Code, § 667.6, subd. (d).) However, the crimes
of which defendant was convicted were not violent and were not within the scope of that
statute. (See Pen. Code, § 667.6, subd. (e).)



                                              23
       “‘Unless a defendant establishes the contrary, we shall presume that “counsel’s

performance fell within the wide range of professional competence and that counsel’s

actions and inactions can be explained as a matter of sound trial strategy.”’ [Citation.]

When the record on direct appeal sheds no light on why counsel failed to act in the

manner challenged, defendant must show that there was ‘“‘no conceivable tactical

purpose’” for counsel’s act or omission. [Citations.]’ [Citation.]” (People v. Centeno

(2014) 60 Cal.4th 659, 674-676.)

       Here, defense counsel has never been asked why he failed to argue for concurrent

sentencing or why he failed to ask the trial court to state its reasons for consecutive

sentencing. Nevertheless, we cannot imagine any rational tactical purpose. Certainly the

People do not suggest any.

       It could be argued that the trial court had already found three aggravating factors

and no mitigating factors. Aggravating factors can be used, not only to impose the upper

term, but also, alternatively, to sentence consecutively (Cal. Rules of Court, rule

4.425(b)); thus, defense counsel may have assumed that, even if he argued the issue, the

trial court would sentence consecutively.

       This reasoning, however, would fall short of the standard of professional

competence. The trial court seems to have relied on all of the aggravating factors in

imposing the upper term; if so, it could not use them again to sentence consecutively.




                                             24
(Cal. Rules of Court, rule 4.425(b)(1).)6 Moreover, other factors pointed toward

concurrent sentencing: The crimes were not predominantly independent of each other

(Cal. Rules of Court, rule 4.425(a)(1)), and the crimes were committed in close proximity

in time and place (Cal. Rules of Court, rule 4.425(a)(3)). Thus, competent defense

counsel would have at least asked the trial court to sentence concurrently and would have

asked it to state reasons for sentencing consecutively.

       For similar reasons, defendant has sufficiently shown prejudice. “To establish

prejudice, defendant must show that there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. [Citations.] A

reasonable probability is ‘“a probability sufficient to undermine confidence in the

outcome.”’ [Citation.]” (People v. Davis (2005) 36 Cal.4th 510, 551.) Because the trial

court had already used the aggravating factors in imposing the upper term, and because

the other relevant factors pointed toward concurrent sentencing, there is at least a

reasonable probability that, if defense counsel had asked the trial court to sentence

concurrently, it would have done so.




       6       The People cite certain other findings that the trial court made, including
that defendant was an active participant and that defendant inflicted emotional injury.
Those findings, however, as the court expressly stated, were made under California Rules
of Court, rule 4.414, relating to the decision to grant or deny probation. They would not
normally qualify as aggravating or mitigating factors. (Cal. Rules of Court, rules 4.421,
4.423, 4.425; but see Cal. Rules of Court, rule 4.408(a).) The trial court made a wholly
separate set of findings regarding the applicable aggravating and mitigating factors.



                                             25
       We therefore conclude that we must reverse and remand for resentencing. We

hasten to add that we are not holding that the trial court had to sentence concurrently, as a

matter of law. Nothing in this opinion should be taken as expressing any view on how the

trial court should exercise its discretion on remand.

                                             V

                                      DISPOSITION

       The judgment with respect to conviction is affirmed. The judgment with respect to

sentence is reversed, and the matter is remanded for resentencing.

       The clerk of this court is directed to send a copy of this opinion to the State Bar

immediately upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd.

(a)(2).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 RAMIREZ
                                                                                         P. J.

We concur:


McKINSTER
                           J.


MILLER
                           J.




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