Filed 5/1/14 P. v. Hernandez CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C071523

         v.                                                                      (Super. Ct. No. 11F04330)

VICTOR RENE HERNANDEZ,

                   Defendant and Appellant.




         A jury convicted defendant Victor Rene Hernandez of lewd and lascivious acts
with a child under age 14, oral copulation by a person over 21 years of age with a person
under age 16, and sodomy by a person over 21 years of age with a person under age 16.
The trial court sentenced defendant to 27 years 8 months in prison and awarded 292 days
of actual presentence credit, but indicated that conduct credit would be determined by the
Department of Corrections and Rehabilitation.



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       Defendant now contends the trial court erred in (1) denying his Pitchess motion1
seeking disclosure of the personnel records for the investigating police detective;
(2) refusing to release the victim’s psychological treatment records; (3) admitting expert
testimony regarding child sexual abuse accommodation syndrome; (4) declining a special
instruction requested by defendant that would have guided the jury’s reliance on the
expert testimony regarding child sexual abuse accommodation syndrome; (5) allowing
the victim’s father and brother to describe the victim’s statements regarding the details of
the offenses; and (6) improperly delegating the calculation of conduct credit to the
Department of Corrections and Rehabilitation.
       We agree with defendant’s sixth contention that the trial court must calculate his
conduct credit. We will remand the matter to the trial court with directions to calculate
defendant’s presentence credit and amend the abstract of judgment. We will affirm the
judgment in all other respects.
                                     BACKGROUND
       The victim testified that defendant (his maternal uncle) engaged in sexual contact
with him, beginning when the victim was in sixth grade and ending after his freshman
year in high school. The sexual contact began with touching but eventually included
multiple episodes of oral and anal sex. Toward the end of the multi-year period, the
victim said he asked defendant to stop the sexual contact at least five times. Eventually,
the victim reported the conduct to his father and brother. When the family confronted
defendant about the offenses, defendant nodded in the affirmative.
       After the police were contacted, Detective Andrew Bates with the Folsom Police
Department conducted an investigation. Detective Bates also arranged for the victim to
be interviewed by an expert in child sexual abuse.



1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), which authorizes the
disclosure of law enforcement personnel records in limited circumstances.

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       Months before trial, defendant filed a Pitchess motion, asserting that the poor
quality of the police investigation justified production of the investigator’s personnel
records so that defendant could determine whether the investigator had been adequately
trained or had ever been criticized for inadequate investigation. The trial court denied the
motion, ruling that defendant had not shown good cause for disclosure.
       In a motion in limine, defendant argued that he had subpoenaed the victim’s
psychological treatment records and that an interpretation of Proposition 9 (the Victims’
Bill of Rights Act of 2008: Marsy’s Law) to create an absolute privilege against
disclosure of such records is unconstitutional. The trial court said it would follow
People v. Hammon (1997) 15 Cal.4th 1117, 1119, 1128 [trial court is not required, at
pretrial stage, to review or grant discovery of privileged information in the hands of third-
party psychotherapy providers]. The trial court also said it had reviewed the records and
the anticipated witness testimony, focusing especially on the possibility of inconsistent
statements by the victim, and it did not see anything in the records warranting disclosure.
To the extent defendant was claiming that Proposition 9 is unconstitutional, the trial court
rejected that claim.
       In another motion in limine, defendant sought exclusion of expert testimony
regarding child sexual abuse accommodation syndrome (CSAAS), or in the alternative,
for a special instruction on how the jury should apply the CSAAS evidence. Expert
testimony on CSAAS may be offered to explain a victim’s failure to report, or delay in
reporting, sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Such expert
testimony is not admissible to prove that the offenses occurred, but it may be admissible
to disabuse the jury of myths or misconceptions it might hold about how a child reacts to
a sexual offense. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) The trial court
denied the motion in limine, stating that the expert had testified in the trial court
previously, the trial court was generally familiar with what the expert would say
regarding CSAAS, and it was the trial court’s experience that some of the myths about

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which the expert would testify are still commonplace. Thus, the trial court would permit
the expert to testify, but would exercise its discretion under Evidence Code section 352 to
discourage testimony regarding factors not presented by the evidence in the case. The
trial court also indicated it would give CALCRIM No. 1193 [testimony on CSAAS]
rather than the special instruction requested by defendant.
       In addition, defendant made a motion in limine seeking to prevent the victim’s
father and brother from describing the victim’s statements regarding the details of the
offenses. The trial court denied the motion, ruling that some details were admissible to
establish context; but the trial court would exercise its discretion under Evidence Code
section 352 to prevent excessive detail, and it would give a limiting instruction at the time
the evidence was presented. The trial court subsequently instructed the jury that the
statements were not admitted for the truth but as evidence about the circumstances of the
disclosures.
       The jury convicted defendant on 12 counts of lewd and lascivious acts with a child
under age 14 (Pen. Code, § 288, subd. (a) -- counts one through twelve), two counts of
oral copulation by a person over 21 years of age with a person under age 16 (Pen. Code,
§ 288a, subd. (b)(2) -- counts thirteen and fourteen), and two counts of sodomy by a
person over 21 years of age with a person under age 16 (Pen. Code, § 286, subd. (b)(2) --
counts fifteen and sixteen). The trial court sentenced defendant to 27 years 8 months in
prison and awarded 292 days of actual presentence credit, but indicated that conduct
credit would be determined by the Department of Corrections and Rehabilitation.
                                      DISCUSSION
                                              I
       Defendant contends the trial court erred in denying his Pitchess motion seeking
disclosure of the personnel records for Detective Bates.
       Although peace officer personnel records are generally confidential, they may be
discoverable in specified circumstances. (Pen. Code, § 832.7, subd. (a).) A defendant

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“must file a motion supported by affidavits showing ‘good cause for the discovery,’ first
by demonstrating the materiality of the information to the pending litigation, and second
by ‘stating upon reasonable belief’ that the police agency has the records or information
at issue.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) To
establish materiality, the defendant must present a specific and plausible factual scenario
of officer misconduct (id. at pp. 1016, 1025; People v. Thompson (2006) 141 Cal.App.4th
1312, 1316), a logical link between the defense proposed and the pending charge, and
how the discovery being sought would support such a defense or how it would impeach
the officer (Warrick, supra, 35 Cal.4th at p. 1021).
         A trial court applies common sense in determining what is plausible, and it makes
its determinations based on a reasonable and realistic assessment of the facts and
allegations. (People v. Thompson, supra, 141 Cal.App.4th at pp. 1318-1319.) A
defendant’s showing must be internally consistent and complete. (Id. at p. 1317.) When
a defendant merely says an officer will testify and might testify falsely, there is no good
cause. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1023-
1024.)
         “If the trial court finds good cause for the discovery, it reviews the pertinent
documents in chambers and discloses only that information falling within the statutorily
defined standards of relevance.” (Warrick, supra, 35 Cal.4th at p. 1019.) We review
denial of a Pitchess motion for abuse of discretion. (People v. Samayoa (1997)
15 Cal.4th 795, 826.)
         Defendant’s Pitchess motion was accompanied by a supporting affidavit, filed
under seal. The affidavit said that based on the statements made by Detective Bates at
the preliminary hearing regarding his background and training, he appeared to have
conducted the investigation without having obtained appropriate training. The affidavit
also said Detective Bates conducted an insufficient investigation, failed to discover
relevant facts, and prepared inadequate statements.

                                                5
       After reviewing the Pitchess motion, the trial court found that defendant had not
shown good cause for review of the investigator’s personnel records and denied the
motion.
       Defendant has not identified any evidence in support of his motion other than the
affidavit filed under seal by his attorney. Our review of the affidavit supports the trial
court’s ruling.
       As the trial court noted, defendant’s burden to show good cause was relatively
low. (People v. Thompson, supra, 141 Cal.App.4th at p. 1316.) Nonetheless, defendant’s
Pitchess motion did not show how the discovery being sought would support defendant’s
defense or how it would impeach the officer. Asserting that the detective did not obtain
all relevant information does not necessarily indicate, without more, that the information
actually obtained by the detective was wrong.
       A defendant’s claim that he never made the incriminating remarks attributed to
him in a testifying officer’s report was not enough to establish good cause, at least not
without a plausible “ ‘alternate version of the facts.’ ” (People v. Sanderson (2010)
181 Cal.App.4th 1334, 1340-1341.) But here, defendant flatly denied the charges against
him, and did not assert a plausible alternate version explaining why the detective would
have falsified evidence or committed misconduct. He suggested that a better investigator
would have uncovered evidence casting him in a better light or the victim in a worse
light, but that is not enough to establish abuse of discretion. (See People v. Samayoa,
supra, 15 Cal.4th at pp. 826-827 [no abuse of discretion to deny disclosure of personnel
records when defense counsel alleged coercion of confession but did not allege that
officer fabricated charges, committed violence or obtained evidence by false arrest or
illegal search or seizure].)
       The trial court did not abuse its discretion in declining to review the detective’s
personnel records.



                                              6
                                              II
       Defendant next contends the trial court erred in refusing to release the victim’s
psychological treatment records.
       A defendant has a constitutional right to have a court determine whether
potentially relevant but arguably privileged records must be disclosed for use at trial.
(Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57 [94 L.Ed.2d 40, 57].) On appeal, we
review the records that were not disclosed to determine whether they are material and
should have been disclosed. (People v. Martinez (2009) 47 Cal.4th 399, 453-454.)
       Defendant claims the victim’s psychological records “may well have disclosed
crucial discrepancies” between statements the victim made to treatment professionals and
statements he made at trial. But in ruling on the motion in limine, the trial court said it
had reviewed the treatment records and the anticipated witness testimony, focusing
especially on the possibility of inconsistent statements by the victim, and it did not see
anything in the records warranting disclosure.
       We have reviewed the records that were not disclosed, and determined that there is
nothing in them that is materially inconsistent with the victim’s trial testimony, and
nothing that should have been disclosed.
                                             III
       Defendant further contends the trial court erred in admitting expert testimony
regarding CSAAS.
       CSAAS testimony must be tailored to the evidence in a given case, targeting
specific myths or misconceptions suggested by the facts at issue. (People v. Bowker
(1988) 203 Cal.App.3d 385, 393.) Where the victim’s credibility is at issue, it may be
used in the prosecution’s case-in-chief. (People v. Patino, supra, 26 Cal.App.4th at
p. 1745.)
       Defendant urges California courts to reconsider the admissibility of CSAAS,
noting that four other states have decided to routinely exclude it. But he acknowledges

                                              7
that we are bound by California precedent on this subject. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
       Defendant also acknowledges that we review the trial court’s ruling for abuse of
discretion. Here, defendant has not established that the trial court abused its discretion in
admitting the CSAAS evidence. The testimony was relevant because the victim did not
promptly report the abuse. And the trial court explained that in its experience, some of
the myths about which the expert would testify are still commonplace, although the trial
court said it would exercise its discretion under Evidence Code section 352 to discourage
testimony regarding factors not presented by the evidence in the case. Moreover, the trial
court allowed defendant to call his own expert, who testified that professionals do not
agree about CSAAS, and children sometimes lie about sexual abuse to get attention or
escape punishment.
       The trial court did not abuse its discretion.
                                              IV
       In addition, defendant claims the trial court erred in declining a special instruction
requested by defendant that would have guided the jury’s reliance on the CSAAS
evidence.
       The special instruction requested by defendant stated: “You have heard testimony
from Anthony Urquiza, Ph.D. regarding [CSAAS]. [¶] [CSAAS] research is based upon
an approach that is completely different from that which you must take in this case. The
syndrome research begins with the assumption that a molestation has occurred, and seeks
to describe and explain common reactions of children to that experience. As
distinguished from that research approach, you are to presume that the defendant is
innocent. The [P]eople have the burden of proving guilt beyond a reasonable doubt. As
such, testimony about [CSAAS] is not evidence that the defendant committed any of the
crimes charged against him.” Defendant says the instruction was based on CALJIC
No. 10.64 and People v. Bowker, supra, 203 Cal.App.3d at page 394.

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       Trial courts have a sua sponte duty to instruct a jury that CSAAS evidence (1) is
admissible solely for the purpose of showing that the victim’s reactions, as demonstrated
by the evidence, are not inconsistent with having been molested, and (2) the expert
testimony is not intended, and cannot be used, to determine whether the victim’s
molestation claim is true. (People v. Housley (1992) 6 Cal.App.4th 947, 958-959.)
       Defendant argued in the trial court that his proffered instruction was better than
CALCRIM No. 1193, claiming that the special instruction was “clearer and more direct
about the fact that the jury cannot use [CSAAS] information as a litmus test for guilt or
innocence.” The court disagreed, deciding it would “stick with the CALCRIM
instruction. I think it’s clearer. It’s not argumentative. It’s accurate.” Accordingly, the
trial court instructed the jury, consistent with CALCRIM No. 1193, as follows: “You
have heard testimony regarding [CSAAS]. Testimony about [CSAAS] 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 [the alleged victim’s] conduct was not
inconsistent with the conduct of someone who has been molested and in evaluation -- and
in evaluating the believability of his testimony.”
       The CALCRIM instructions replaced CALJIC instructions and are now “ ‘viewed
as superior’ ” to them. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1188.) The
CALJIC instruction stated that the syndrome research was based on “an approach that is
completely different from” the jury’s, beginning with “the assumption that a molestation
has occurred.” (CALJIC No. 10.64.)
       An argument similar to defendant’s was rejected in People v. Gilbert (1992)
5 Cal.App.4th 1372. There, a defendant argued that an instruction was not “ ‘strong
enough’ ” because it did not advise the jury that the CSAAS research begins by assuming
that molestation has occurred. (Id. at p. 1386-1387.) The court in Gilbert acknowledged
that the “assum[ing]” language came from People v. Bowker, supra, 203 Cal.App.3d at
page 394, italics omitted. (People v. Gilbert, supra, 5 Cal.App.4th at p. 1387.) But the

                                             9
court in Gilbert observed that the language was “intended to make the opinion clear to
the attorney or judge who read it and not to be incorporated . . . in an instruction to the
jury.” (Ibid.) The court said it would be unnecessary, and potentially confusing and
misleading, to instruct the jury that CSAAS research began by assuming molestation had
occurred. (Ibid.)
       Here, we agree with the trial court that defendant’s proffered special instruction
was argumentative and unnecessary, and that CALCRIM No. 1193 was accurate and
sufficient as a limiting instruction regarding CSAAS evidence. The trial court did not
commit instructional error.
                                              V
       Defendant further claims the trial court erred in allowing the victim’s father and
brother to describe the victim’s statements regarding the details of the offenses.
       The trial court said the proffered evidence was subject to the “fresh complaint”
doctrine, that some details of the offenses were admissible to establish context, but the
trial court would exercise its discretion under Evidence Code section 352 to prevent
excessive detail, and it would give a limiting instruction at the time the evidence was
presented. The trial court subsequently instructed the jury that the statements were not
admitted for the truth but as evidence about the circumstances of the disclosures.
Defendant did not object to the limiting instruction.
       The victim’s father testified that the victim told him he and defendant had engaged
in “every kind of sex” including “oral and anal sex.” Later, the victim’s brother testified
about an incident that occurred when the victim was in sixth grade. The brother said the
victim grabbed a knife during a trivial argument and barricaded himself in their shared
bedroom, saying, “You don’t know what I’ve gone through,” and “You don’t know how
it feels. You don’t know what [defendant] has done to me. You don’t know what it feels
like to be told ‘suck it or die.’ You don’t know what he’s made me do.” The brother



                                              10
testified that on another occasion -- when the victim was in tears over an argument with
the boys’ father -- the victim said defendant had sodomized him more than once.
       Defendant claims the evidence was hearsay. But the fresh complaint doctrine
provides that “proof of an extrajudicial complaint, made by the victim of a sexual
offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay
purpose -- namely, to establish the fact of, and the circumstances surrounding, the
victim’s disclosure of the assault to others [when the disclosure and its circumstances] are
relevant to . . . whether the offense occurred.” (People v. Brown (1994) 8 Cal.4th 746,
749-750, 755-756; see also People v. Burton (1961) 55 Cal.2d 328.) According to the
Supreme Court, the bare fact that a victim made a complaint would be “meaningless” and
“immaterial” unless it also included sufficient detail for the jury to infer that the
complaint related to the matter at issue. (People v. Burton, supra, 55 Cal.2d at p. 351.)
Thus, relevant fresh complaint evidence is admissible if its probative value outweighs its
prejudicial effect under Evidence Code section 352. (People v. Brown, supra, 8 Cal.4th
at p. 760.)
       Defendant claims the detail went too far, that the trial court should not have
admitted statements from the father that defendant had engaged in “every kind of sex”
including “oral and anal sex” and from the brother that the victim said defendant told him
to “suck it or die.” Those statements, he contends, improperly corroborated the victim’s
trial testimony and thereby caused a “miscarriage of justice.” We disagree.
       The trial court instructed the jury that the statements were not offered for the truth,
were not offered as evidence that the offenses actually occurred. They were offered
solely to provide the context in which the statements were made. Defendant did not
object to the limiting instruction, and we presume the jury followed the instruction. As
so limited, the evidence was a proper and admissible use of the statements. Moreover,
the statements were not unduly prejudicial, because they provided only enough detail to



                                              11
supply context, and far less detail than the victim supplied in his trial testimony. The trial
court did not abuse its discretion in admitting the challenged evidence.
       But even if the evidence had been erroneously admitted, any error would have
been harmless in this case. (See People v. Manning (2008) 165 Cal.App.4th 870, 880-
881 [fresh complaint evidence, consistent with and cumulative of the victim’s testimony,
was harmless because the jury did not need to rely on the secondhand statements but was
able to hear directly from the victim and judge the victim’s credibility].)
                                             VI
       Finally, defendant contends the trial court improperly delegated the calculation of
conduct credit to the Department of Corrections and Rehabilitation. The Attorney
General agrees that the matter should be remanded to the trial court.
       The trial court did not calculate defendant’s conduct credit, indicating that conduct
credit would be calculated by the Department of Corrections and Rehabilitation. But a
trial court must calculate applicable conduct credits and ensure that the total credits are
reflected in the abstract of judgment. (People v. Donan (2004) 117 Cal.App.4th 784,
789-790.) We will remand the matter to the trial court with directions to calculate
defendant’s presentence credit and amend the abstract of judgment.
                                       DISPOSITION
       The matter is remanded to the trial court with direction to calculate defendant’s
presentence credit, including his actual days, conduct days and total credit. The trial
court is further directed to amend the abstract of judgment to reflect the award of
presentence credit, and to deliver a certified copy of the amended abstract of judgment to




                                             12
the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.


                                                              MAURO                   , J.


We concur:


              BUTZ                  , Acting P. J.


              MURRAY                , J.




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