People v. Medina CA4/3 ( 2021 )

Filed 7/15/21 P. v. Medina CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G060131
Plaintiff and Respondent, (Super. Ct. No. 17CR004940)
v.
ORDER MODIFYING
JESUS MEDINA,
OPINION AND DENYING
Defendant and Appellant. PETITION FOR REHEARING;
NO CHANGE IN JUDGMENT
The opinion filed on June 29, 2021, is hereby modified as follows:
(1) On page 5, delete the first paragraph, beginning with the words “Gansen again
asked appellant,” in its entirety, and add a new first paragraph that now reads:
Gansen again asked appellant to “[t]ell me what happened,” and he said,
“So when I was layin’ her down, uh . . . I accidentally, yeah, touched her
there.” He said Jane Doe’s skirt “fell up” and he touched the outside of her
underwear. Gansen suggested there was “a little more than just that.”
Appellant responded, “So she had a skirt, so the skirt flew up. And then
curious, maybe. I . . . I don’t know.” Gansen asked, “Did you feel it?” and
appellant replied, “[Y]eah.” He asked how many times, and appellant
insisted, “Just once.” Gansen asked if appellant “actually [felt] it,” and
appellant replied, “Yeah, just a little bit of the outside, yeah.” When asked
if touching Jane Doe aroused him, appellant replied, “It was just dumb. I
don’t even know the feeling . . . . Accidental.” Gansen said, “I mean this
wasn’t accidental. Let’s not go there. I mean we’re doin’ good, you know”
Appellant replied, “Yeah.” When Gansen told appellant the situation was
not “like the end of the world,” appellant replied, “[W]ell, it is for me.”
Appellant denied returning a second time.
(2) On page 11, delete the first sentence of the second full paragraph,
beginning with the words, “First, this oversimplifies the issue,” and replace it with the
following three sentences:
First, this oversimplifies the issue and ignores other seemingly self-
impeaching evidence in the case for which Dr. Urquiza’s testimony was
relevant. During neither of her videotaped interviews did Jane Doe break
down or become unable to continue. And although she did begin to cry at
one point in her testimony, after a brief break she was able to resume and
finish her testimony uninterrupted.
The remainder of this paragraph, beginning with the words “Similarly, she
did not disclose,” is unmodified.
Appellant’s petition for rehearing is DENIED. These modifications do not
effect a change in the judgment.
BEDSWORTH, ACTING P.J.
WE CONCUR:
MOORE, J.
FYBEL, J.
2
Filed 6/29/21 P. v. Medina CA4/3 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060131
v. (Super. Ct. No. 17CR004940)
JESUS MEDINA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Monterey County, Carrie
McIntyre Panetta, Judge. Affirmed in part, vacated in part and remanded with directions.
Alexis Haller, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Amit
Kurlekar and Christen Somerville, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted appellant Jesus Medina of two counts of a lewd act on a
child under 14 (Pen. Code, § 288, subd. (a)). In challenging that conviction, he raises a
host of claims and sub-claims: (1) The trial court abused its discretion in permitting the
prosecutor to call an expert witness without first establishing a proper basis for his
testimony. (2) On two occasions, the expert’s testimony improperly exceeded the scope
of the limited purpose for which it was admitted, and to the extent appellant’s trial
counsel failed to object, he was constitutionally ineffective. (3) The introduction of two
prior videotaped interviews of the complaining witness violated appellant’s due process
rights. (4) The prosecutor committed reversible misconduct by improperly cross-
examining a defense character witness, and to the extent counsel failed to object, he was
constitutionally ineffective. (5) The prosecutor committed reversible misconduct in her
closing argument, and to the extent counsel failed to object, he was constitutionally
ineffective. (6) The trial court prejudicially erred by instructing the jury with CALCRIM
No. 1193 regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), and to the
extent counsel failed to object, he was constitutionally ineffective. (7) Even if the
individual errors were harmless, their cumulative effect was not. (8) And lastly, the trial
court erred in ordering appellant to submit to AIDS testing pursuant to Penal Code
section 1202.1.
We reject appellant’s first seven contentions. We agree the trial court erred
when it ordered an AIDS testing requirement. The order must therefore be vacated, and
the matter remanded for further proceedings. The judgment is affirmed in part, vacated in
part, and remanded with directions.
FACTS
Seven-year-old Jane Doe performed in an Aztec dance group organized by
the White Hawk Indian Council, which also engaged in prayer and spiritual gatherings.
Appellant was a leader of the group, and his wife and children also participated. Jane
Doe always liked appellant and thought of him as a brother.
2
Jane Doe, her mother, appellant, appellant’s wife, and appellant’s children
all drove together to a group event in Merced. The event ended about midnight, and
afterwards appellant drove his children and Jane Doe back to his Salinas house to spend
the night. Jane Doe’s mother (Mother) and appellant’s wife stayed behind because the
group had another event scheduled for early the next morning. No other adult was
present at appellant’s house, but Jane Doe felt safe with appellant and Mother trusted him
with her daughter. This was Jane Doe’s first sleep-over away from her parents or
overnight stay at appellant’s house.
When they got home late that night, appellant carried the sleeping Jane Doe
upstairs, placed her on a mattress on the floor next to his daughter’s bed, and then left the
room. He later returned to the room and pulled down “whatever bottoms [she] was
wearing, and then [her] underwear.” He touched her vagina with his finger, and moved it
around “[i]n like a circular motion” on her skin.
Appellant left, and Jane Doe tried to pull her “pants, [or] whatever [she]
was wearing, and [her] underwear up,” but “froze” when she heard him returning because
she “didn’t want [appellant] to know [she] was awake.” Appellant then started doing
“the same thing,” touching her vagina a second time, and again making a circular motion
with his finger. He then pulled up her underwear and left the room.
Jane Doe remembered appellant was quiet the first time, but he was
“laughing, but not too loud,” the second time he touched her. She lay still on the bed and
did not “really [do] much of nothing.” She felt “mad” and “[v]ery sad” because she did
not want him to touch her vagina. She wished her mother were there to “defend” her.
The next morning, Jane Doe briefly spoke to her mother on the phone.
Mother said Jane Doe was crying and sounded sad, but she did not mention what had
happened the night before. Mother called back later that morning, and asked to speak to
Jane Doe, but appellant said it was a bad idea to speak to her just now because “[s]he
might cry like she did earlier this morning.”
3
Two days after the incident, Jane Doe told her mother over the phone that
she never wanted to return to appellant’s house because he had touched her vagina.
When Mother got home, Jane Doe described to her what had happened, which Mother
recorded “to provide to law enforcement.” Mother later turned over the recording and
Jane Doe’s clothing to police.
A few weeks later, Salinas Police Detective Byron Gansen interviewed
appellant at the police station. Appellant said he knew the police had asked him to come
down to the stationhouse because of Jane Doe’s “accusation.” He described driving his
children and Jane Doe home from the event in Merced and said he took Jane Doe
upstairs, took her shoes off, and put her in bed. He put the rest of the children to bed and
then went to bed himself.
Gansen left the room and returned with a swab and swabbed appellant’s
1
cheek for a DNA sample. Appellant repeated his statement about simply putting Jane
Doe and his children to bed. Gansen told appellant he believed “somethin’” might have
“happened,” and, if it did, appellant’s DNA would be present. He explained people make
mistakes, and he did not want appellant to look like a liar. Appellant replied, “Uhm . . .
something might have. You know, might have. . . .” He laughed and continued, “I don’t
know. It could of happened. I’m not sure. Uhm . . . I don’t remember.”
Gansen asked appellant if his intent was to go into the bedroom and “scar
this girl for life.” Appellant replied, “[N]uh uh.” Gansen asked, “Or . . . were you just
kinda curious and you thought she was sleepin’, and somethin’ happened? . . . [T]hat’s
what we need to find out, and that’s what we need to talk about.” Appellant replied,
“[Y]eah,” and when Gansen asked what happened, appellant said, “I made a mistake
accidentally.”
1
Subsequent DNA testing evidence was admitted, but it was forensically inconclusive.
4
Gansen again asked appellant to “[t]ell me what happened,” and he said,
“So when I was layin’ her down, uh . . . I accidentally, yeah, touched her there.” He said
Jane Doe’s skirt “fell up” and he touched the outside of her underwear. Gansen
suggested there was “a little more than just that.” Appellant responded, “So she had a
skirt, so the skirt flew up. And then curious, maybe. I . . . I don’t know.” Gansen asked,
“Did you feel it?” and appellant replied, “[Y]eah.” He asked how many times, and
appellant insisted, “Just once.” Gansen asked if appellant “actually [felt] it,” and
appellant replied, “Yeah, just a little bit of the outside, yeah.” When asked if touching
Jane Doe aroused him, appellant replied, “It was just dumb. I don’t even know the
feeling . . . . Accidental.” Gansen said, “[T]his wasn’t accidental. Let’s not go there.”
Appellant replied, “Yeah.” When Gansen told appellant the situation was not “like the
end of the world,” appellant replied, “[W]ell, it is for me.” Appellant denied returning a
second time.
Gansen asked appellant whether he would “like to write a letter to the
family” to apologize. Appellant said he did, and wrote: “I made a terrible mistake the
night of the ceremony. I did touch [Jane Doe] that night only once. I am very sorry I did
this. I am not sure what I was doing or what came of me. I apologize to [Jane Doe] and
[Mother] for making this terrible mistake. I hope the creator can heal all us including my
mind state. I apologize also for not telling you right away. I need counseling and help. I
am sorry for any hurt I have caused you and the family. My mind is going crazy. I hope
everyone can heal from this. Please forgive me. The prayer will heal all.”
Dr. Anthony Urquiza testified as “an expert on the psychological [e]ffects
of child abuse or child sexual abuse.” Urquiza had treated thousands of child victims of
sexual abuse throughout his career, and also taught therapists how to treat children who
experienced such abuse. He had not met Jane Doe before testifying, nor reviewed the
case files, and his testimony was limited to child sexual abuse in general, not Jane Doe in
5
particular. He further clarified “it would be inappropriate for me to render an opinion
about anything specific to this case.”
Urquiza said there are “a number of misperceptions or myths that people
have about child abuse, child sexual abuse.” For example, children who have been
sexually abused commonly have positive feelings about their abuser if they had an
ongoing prior relationship. Another common misconception was that a victim would cry
or appear distressed or very upset whenever he or she was disclosing the abuse. Instead,
children learn to cope with their abuse and to emotionally dissociate by suppressing their
feelings. Disclosing sexual abuse is often difficult for children to do so victims often
disclose their abuse incrementally or in a piecemeal fashion. Furthermore, children who
experience sexual abuse often do not remember the precise time sequences, calendar
dates, or unimportant details such as the clothes people were wearing. Even so, they
often remember the act of abuse itself in detail.
The prosecutor introduced two videotaped interviews of Jane Doe. The
first occurred about a month after the incident, when she was still seven years old, and the
second about thirteen months later, when she was eight. Each interview was about an
hour long, and both were consistent with Jane Doe’s initial account given to her mother
and with her testimony, which was given when she was nine years old.
In the defense case, four of appellant’s longtime friends testified as
character witnesses, and said they never saw him behave inappropriately toward children,
and they did not believe he was a child molester. Appellant’s wife testified he never
behaved inappropriately with children, had “a good character,” and she had not seen
anything leading her to believe he “was a sexual predator of some kind.”
Appellant testified he drove Jane Doe and his children back to his house in
Salinas after the ceremony in Merced. They arrived home around 2:00 a.m. and he
carried the sleeping Jane Doe upstairs to his daughter’s bedroom. When he placed her on
the mattress, her skirt “flew up,” and he pulled it down to cover her, accidentally
6
touching her vagina when he pulled her skirt down. He said he took off her shoes, left
the room, and insisted he never returned that night.
Appellant acknowledged he initially told Gansen he did not recall ever
touching Jane Doe that night. He also admitted he said it was accidental only after
Gansen told him there would be DNA evidence. He conceded he told Gansen he touched
Jane Doe’s vagina because he was “curious.” He also agreed he voluntarily wrote the
letter to Jane Doe and her family, that he wrote he was aware what he had done was
wrong, and that he was sorry. He also conceded he did not use the word “accident” in his
apology letter.
DISCUSSION
1. The Threshold Admissibility of Dr. Urquiza’s Expert Testimony
Appellant first contends the trial court abused its discretion by permitting
Dr. Urquiza to testify at all because “the prosecution failed to identify a relevant myth or
misconception that [his] expert opinion was designed to rebut.”
A. Additional Background
The prosecutor made a pretrial motion to admit Dr. Urquiza’s generic
testimony about abuse victims as a class during her case-in-chief. In it, she argued the
defense “will likely attack the credibility of the victim,” and such attacks “often” allude
to “myths and misconceptions,” such as the fact “the victim did not show obvious trauma
when disclosing the molestation to adults” and “did not appear frightened, upset, or
traumatized by the abuser’s conduct[.]” She also referred to the “myth” that child abuse
victims immediately “disclose all the details of the molestation to the first person they
tell.” She insisted Urquiza’s testimony was necessary “to educate the jury about such
misinformation.” She emphasized Urquiza would “in no way vouch for the credibility of
[Jane Doe] or opine that she suffers from a ‘child molestation syndrome’ or some other
syndrome, inferring [sic] the truth of the allegations.” Instead, she assured Urquiza’s
testimony would be “general and about victims as a class.”
7
Defense counsel made a motion “to exclude and limit certain evidence
concerning [CSAAS].” He argued the prosecutor should “not be allowed to introduce the
equivalent of a profile of a child molester or victim of a molest under the subterfuge of
dispelling numerous myths about child molesters or victims of molest.” Although
primarily asserting the proposed testimony should be excluded under Evidence Code
2
section 352, counsel also insisted any such testimony “must be narrowly tailored to the
purpose for which it is admissible, i.e., the prosecution must identify the commonly held
‘myth’ or ‘misconception’ the evidence is designed to rebut,” and should also be limited
to explaining “why such behavior may not be inconsistent with a child’s having been
abused.”
The trial court ruled Urquiza could testify, but with a limiting jury
instruction, and his testimony would be confined to “a general class of individuals, and
the doctor won’t be opining about Jane Doe specifically.” It found the evidence
“appropriate because I do think there are many myths and misconceptions that a
layperson would have about the victim of sexual assault, especially a child.” The court
felt, with the limiting instruction, the evidence was more probative than prejudicial under
section 352.
B. Analysis
A trial court has broad discretion in deciding whether to admit or exclude
expert testimony, and its decision whether expert testimony is admissible is subject to
review for abuse of discretion. (People v. Duong (2020) 10 Cal.5th 36, 60; People v.
McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) Under this standard, a trial court’s
ruling will not be disturbed, and reversal is not required, unless the court exercised its
discretion in an arbitrary, capricious, or patently absurd manner, resulting in a manifest
miscarriage of justice. (People v. Chhoun (2021) 11 Cal.5th 1, 26.) Expert testimony is
2
All further statutory references are to the Evidence Code unless otherwise indicated.
8
admissible on any subject sufficiently beyond common experience such that the opinion
of an expert would assist the trier of fact. (§ 801, subd. (a); People v. Duong, supra, 10
Cal.5th at p. 60; People v. Brown (2004) 33 Cal.4th 892, 905 (Brown).)
Although “expert testimony on the common reactions of child molestation
victims is not admissible to prove that the complaining witness has in fact been sexually
abused[,] it is admissible to rehabilitate such witness’s credibility when the defendant
suggests that the child’s conduct after the incident . . . is inconsistent with his or her
testimony claiming molestation.” (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; see
People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino); People v. Bowker (1988)
203 Cal.App.3d 385, 393-394 (Bowker); cf. Brown, supra, 33 Cal.4th at p. 906
[“admissibility of expert testimony does not depend on a showing based on a recognized
‘syndrome’”]; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001 [distinguishing
CSAAS evidence from inadmissible expert testimony on “‘make-up sex’” in a rape
case].) Such expert testimony may be “‘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.]” (McAlpin,
supra, 53 Cal.3d at p. 1301.)
In McAlpin, our Supreme Court relied on earlier decisions allowing
CSAAS testimony and adopted their reasoning to find expert testimony regarding certain
parental reactions to disclosure of child abuse admissible. (McAlpin, supra, 53 Cal.3d at
pp. 1300-1302.) Similarly, in Brown the court upheld the use of expert testimony on
battered women’s syndrome, once again relying on the underlying rationale supporting
the admissibility of CSAAS evidence. (Brown, supra, 33 Cal.4th at pp. 905-908.) Here,
Dr. Urquiza’s testimony was proffered under the same theory.
Appellant maintains “the prosecution failed to identify any relevant myths
or misconceptions that required expert testimony to dispel.” Not so. In her written
motion, the prosecutor identified five examples of the myths Dr. Urquiza’s testimony
9
could potentially dispel, depending on how Jane Doe testified, including how she was
cross-examined. In addition, she had earlier sent a letter to defense counsel advising him
of a more complete list of ten potentially paradoxical myths and misconceptions Dr.
Urquiza might describe and discuss, again depending on how the testimony played out.
Appellant considers this insufficient because none of these “myths and
misconceptions” were precisely applicable to Jane Doe’s exact behavior. However, such
a strict specificity requirement, made in a pretrial motion made prior to Jane Doe’s or Dr.
Urquiza’s testimony, was not necessary. “Identifying a ‘myth’ or ‘misconception’ has
not been interpreted as requiring the prosecution to expressly state on the record the
evidence which is inconsistent with the finding of molestation. It is sufficient if the
victim’s credibility is placed in issue due to the paradoxical behavior . . . .” (Patino,
supra, 26 Cal.App.4th at p. 1744.) “If it were a requirement of admissibility for the
defense to identify and focus on the paradoxical behavior, the defense would simply wait
until closing argument before accentuating the jurors’ misconceptions regarding the
behavior. To eliminate the potential for such results, the prosecution should be permitted
to introduce properly limited credibility evidence if the issue of a specific misconception
is suggested by the evidence.” (Id. at p. 1745.) We agree with Patino that the rationale
for admitting expert testimony on child molest victims’ behavior is served by allowing
such testimony where the victim’s credibility is placed in issue due to so-called
“paradoxical behavior,” even if the prosecutor does not explicitly pinpoint the applicable
3
paradox or paradoxes in a pretrial motion.
As it turned out, defense counsel’s cross-examination of Jane Doe carefully
avoided being overly confrontational, and narrowly focused on her inability to recall
several details of the events that transpired that night. He was able to get Jane Doe to
3
Appellant also takes issue with the fact Dr. Urquiza’s testimony was offered during the
prosecutor’s case-in-chief, and suggests its real purpose was not really to rebut later defense attacks on Jane Doe’s
credibility. However, he concedes courts have held there is nothing inherently improper in permitting the prosecutor
to preemptively bolster witness credibility in the case-in-chief. (See, e.g., Patino, supra, 26 Cal.App.4th at p. 1745.)
10
admit she could not remember the names of appellant’s children, exactly where they were
when the group arrived at appellant’s house, the details of the mattress she was laid on, or
the exact amount of time between the relevant events. These were points Dr. Urquiza
had carefully discussed. He had pointed out molest victims often cannot recall certain
collateral details and a child’s inability to recall certain details, while at the same time
clearly remembering others, was also not inconsistent with having been molested.
Appellant points out defense counsel did not suggest Jane Doe was “lying
or knowingly providing a false account of the incident.” Rather, the defense was that
Jane Doe was simply mistaken about what had happened and the touching was merely
accidental. As such, appellant maintains there was no need for expert testimony because
counsel “conceded that [Jane Doe] actually believed that she had been abused.”
First, this oversimplifies the issue and ignores other seemingly self-
impeaching evidence in the case for which Dr. Urquiza’s testimony was relevant,
including the fact Jane Doe did not break down and be unable to continue in either of the
two videotaped interviews or in her testimony. Similarly, she did not disclose to her
mother what had happened when they first talked, she did not resist or speak out while
being molested, and she still thought of appellant as like a brother. It is not the case that
such expert evidence may only be used to rebut specific defense attacks on a victim’s
credibility. Instead, where a victim’s conduct, including her testimonial demeanor, might
put her credibility at issue as Jane Doe’s did here, expert psychological testimony may be
properly admitted to rehabilitate her credibility, and to explain how such conduct is not
necessarily inconsistent with believability. (See, e.g., People v. Housley (1992) 6
Cal.App.4th 947, 956 [victim “directly placed her credibility in issue by retracting her
molestation claims and offering a new story at trial;” expert testimony was properly
admitted]; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450 [where prosecutor
identified misconceptions about victims’ conduct, trial court did not err in permitting
11
expert to testify despite defendant’s claim he did not put in issue any of the paradoxical
behaviors of child molestation victims].)
Second, the argument overlooks the very salient fact that Jane Doe
consistently stated appellant had touched her vagina twice and on two separate
occasions. Moreover, she had also described her behavior in the interim, her becoming
“frozen” when she heard appellant returning, and the fact appellant made “laughing”
noises the second time he rubbed her vagina in a “circular motion.” Simply put, Jane
Doe’s testimony, if believed, was absolutely inconsistent with appellant’s insistence he
only touched her once, that she was just mistaken, and it was merely an accident. Her
credibility, especially as to the specific details of her testimony, were of prime
importance. Indeed, without them there would not have been a count 2. The testimony
of a witness who is “mistaken” about such things is no less at issue than that of one who
prevaricates.
In admitting Dr. Urquiza’s limited expert testimony, the trial court did not
act in an arbitrary, capricious, or patently absurd manner resulting in a manifest
miscarriage of justice. (People v. Chhoun, supra, 11 Cal.5th at p. 26.) There was no
4
abuse of discretion.
4
Having concluded the trial court reasonably concluded Dr. Urquiza’s testimony was admissible,
and not more prejudicial than probative, we also find its admission did not violate appellant’s constitutional right to
a fair trial. “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as
to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913; cf. Patino,
supra, 26 Cal.App.4th at p. 1747 [the use of CSAAS evidence at trial does not render the trial fundamentally
unfair].) Dr. Urquiza’s testimony was relevant to the Jane Doe’s credibility, was properly limited, and did not
render appellant’s trial fundamentally unfair. (Cf. Patino, supra, 26 Cal.App.4th at p. 1747 [“[I]ntroduction of
CSAAS testimony does not by itself deny appellant due process”]; see also Estelle v. McGuire (1991) 502 U.S. 62,
70 [admission of “battered child syndrome” evidence did not violate defendant’s due process rights].)
12
2. The Substance of Dr. Urquiza’s Testimony
A. “Profiling”
Appellant also attacks the underlying substance of some of Dr. Urquiza’s
testimony, arguing he “effectively told the jurors that [Jane Doe] fit the profile of a victim
of child sexual abuse” and therefore implied she was indeed such a victim.
However, Dr. Urquiza’s testimony on the several forms of dissociative
behavior exhibited by child abuse victims, and the possible effects of disassociation on
victims’ ability to recall details surrounding episodes of abuse, was admitted only as to
Jane Doe’s credibility. Urquiza’s evidence was limited to discussing child sexual abuse
victims generally, and nothing in his testimony indicated he had diagnosed Jane Doe or
believed she had been abused. Indeed, he had never met Jane Doe, read the reports, and
knew nothing about her or the particulars of the case.
This case bears very little resemblance to Bowker, supra, relied on by
appellant, where the expert’s testimony “accounted for nearly 70 pages of reporter’s
transcript and was replete with comments designed to elicit sympathy for child abuse
victims and solicitations that children should be believed.” (Bowker, supra, 203
Cal.App.3d at p. 394.) In addition, there “the picture painted by [the expert] happened to
be of the two children in the case.” (Ibid.) Here, Dr. Urquiza’s initial testimony
comprises 17 pages of testimony, 7 of which are devoted to laying the foundation for his
expertise, and his testimony did not allude to any details about Jane Doe or the incident.
Bowker has little bearing on the present case.
“Contrary to appellant’s position, [Dr. Urquiza] did not suggest [Jane
Doe’s] claims were credible simply because she exhibited some behaviors common to
abuse victims. . . . It is thus unlikely the jury would interpret [his] statements as a
testimonial to [Jane Doe’s] credibility. On this record we are satisfied the psychological
testimony was properly used to dispel certain common misconceptions regarding the
behavior of abuse victims.” (People v. Housely, supra, 6 Cal.App.4th at pp. 955-956.)
13
Simply put, Dr. Urquiza’s testimony did not improperly “profile” Jane Doe as a child
molest victim.
B. The Juror’s Question
Appellant also claims the trial court erred by asking Dr. Urquiza a juror’s
question about the long-term effects of child sexual abuse. He argues the question was
improper because such effects were irrelevant to Jane Doe’s credibility and improperly
5
appealed to the jurors’ sympathy.
Defense counsel objected to the question: “[I]t was prejudicial in the sense
that it has nothing to do with this case at all, which is true, and it engenders some kind of
worry about what’s going to happen to Jane Doe in this case, and what’s in the future for
her. That seems to me to be implying that she is going to be somehow one of those
children [who do experience the long-term effects]. And I don’t think that it’s . . .
something the jury should hear. I think that’s prejudicial.”
The court responded, “I thought it could go to explain her demeanor here in
court testifying two years after the alleged incident, how it affects someone if they had
been the victim of this sort of offense, and what they may expect to see in terms of
behavior.”
But that is precisely the problem. The court’s theory of relevance was that
if Jane Doe showed any of these short- or long-term behavioral effects, it tended to show
she was indeed a victim of child molest, i.e., how she was “affect[ed]” by “this sort of
offense.” It had nothing to do with rehabilitating her credibility in light of myths and
misconceptions and was therefore irrelevant to the limited nature of Dr. Urquiza’s
testimony. It also invited the jury’s attention to how Jane Doe might be adversely
affected in the future, and away from the only relevant concerns before them: her
credibility and appellant’s guilt. And Dr. Urquiza’s response did the same. He
5
The juror’s written question read: “What lasting effects does child sexual abuse leave on a child?”
The trial court asked the question verbatim, but added an additional sentence: “Again in general.”
14
mentioned how abuse affected victims’ ability to have healthy relationships in the future,
sexual issues, substance abuse problems, self-injury and other suicidal behavior, and even
post-traumatic stress behavior. He used the terms “revictimization” and “symptom
profile,” which certainly have nothing to do with her testimonial credibility. This was
error.
Even so, this exchange was brief, taking up only about a page and a half of
Dr. Urquiza’s testimony. Part of his response also involved dissociation, which was
relevant to how Jane Doe testified and behaved in her interviews when she did not act
overly emotional or disturbed as she described what had happened. Furthermore, in the
context of the entire trial, the error was not prejudicial. Dr. Urquiza told the jury he had
never met Jane Doe, was completely unfamiliar with the case, and was not opining
whether or not Jane Doe had been abused. The jury was instructed not to consider
Urquiza’s testimony as evidence of whether there was molestation, and the prosecutor
emphasized the same point several times in her closing arguments. The jury was also
instructed they could not let sympathy for an alleged victim influence their decision.
(See CALCRIM No. 200.)
Appellant argues that because “the introduction of the evidence of the long-
term harm of sexual abuse violated appellant’s fundamental right to a fair trial, the court
6
should apply the Chapman harmless error analysis.” “In similar situations, however, our
high court has applied instead the standard of People v. Watson (1956) 46 Cal.2d 818[(Watson)], under which we reverse only if it is reasonably probable the defendant would
have reached a more favorable result in the absence of the error.” (People v. Wilson
(2019) 33 Cal.App.5th 559, 571; see People v. Prieto (2003) 30 Cal.4th 226, 247 [“The
erroneous admission of expert testimony only warrants reversal if ‘it is reasonably
probable that a result more favorable to the appealing party would have been reached in
6
Chapman v. California (1967) 386 U.S. 18.
15
the absence of the error’ [Citations.]”]; People v. Bledsoe (1984) 36 Cal.3d 236, 251-252
[applying Watson standard where evidence of rape trauma syndrome erroneously
admitted to prove victim was actually raped].) We apply the Watson standard here.
Considered in the context of all the other evidence in this case, we find this
single question and answer were not so significant as to make appellant’s trial
“fundamentally unfair.” Furthermore, “[u]nder Watson, defendant must demonstrate a
reasonable probability that a result more favorable to defendant would have been reached
absent the error.” (People v. Lucas (2014) 60 Cal.4th 153, 263, disapproved on other
grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) Appellant has not
made such a demonstration. It is not reasonably probable the verdict in this matter would
have been more favorable to appellant but for this single erroneous question and answer.
Thus, although the trial court erred in asking the juror’s question, it was harmless.
3. Jane Doe’s Prior Statements
Appellant’s next contention is that the trial court prejudicially erred by
permitting the prosecutor to introduce the two prior videotaped interviews with Jane Doe
and that their admission violated his state and federal constitutional rights to a fair trial.
A. Additional Background
The prosecutor brought a pretrial motion to introduce three of Jane Doe’s
7
prior statements pursuant to section 1360. Two were the videotaped interviews and the
third was Jane Doe’s mother’s testimony as to what Jane Doe had told her two days after
the incident. Defense counsel objected on the grounds that section 1360 “is a violation of
[appellant’s] federal constitutional rights to a fair trial.” He conceded section 1360 was
7
In pertinent part, that section provides: “(a) In a criminal prosecution where the victim is a minor,
a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed
with or on the child by another . . . is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1)
The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted
outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia
of reliability. [¶] (3) The child . . . [¶] . . . [t]estifies at the proceedings.” (§ 1360.)
16
8
technically satisfied, but insisted it was “an unconstitutional statute.” The court ruled all
three prior statements were admissible under section 1360.
“We review a trial court’s admission of evidence under section 1360 for
abuse of discretion.” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367; People v.
Brodit (1998) 61 Cal.App.4th 1312, 1330.) An erroneous admission of evidence does not
result in a reversal unless the error resulted in a miscarriage of justice. (§ 353, subd. (b).)
“If admission of the hearsay statements violated a state statute alone, we apply the
standard articulated in People v. Watson [citation], and reverse only if there is a
reasonable probability of a result more favorable to the defendant in the absence of the
error.” (People v. Roberto V., supra, 93 Cal.App.4th at p. 1373.) However, if the error
violated a defendant’s constitutional rights, we must determine whether the error was
harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)
B. Analysis
Below appellant attacked the facial constitutionality of section 1360, not its
application to this case. He does not repeat that facial challenge on appeal. Instead, he
now claims Jane Doe’s prior statements were “unduly prejudicial” because they were
cumulative of her testimony and thus “rendered the trial fundamentally unfair.”
However, trial counsel did not raise these claims below, nor make a section 352
“prejudice” objection to their introduction.
“A facial challenge to the constitutional validity of a statute or ordinance
considers only the text of the measure itself, not its application to the particular
circumstances of an individual. [Citation.] ‘“To support a determination of facial
unconstitutionality, voiding the statute as a whole, [appellant] . . . must demonstrate that
the [statute’s] provisions inevitably pose a present total and fatal conflict with applicable
8
The court found Jane Doe’s statement to her mother was also admissible under the fresh complaint
doctrine. (See People v. Brown (1994) 8 Cal.4th 746, 749-750 [molest victim’s complaint admissible for
nonhearsay purpose].) Appellant does not contest the admissibility of Jane Doe’s statement to her mother.
17
constitutional prohibitions.”’ [Citations.]” (Tobe v. City of Santa Ana (1995) 9 Cal.4th
1069, 1084.) In contrast, when a defendant claims a facially valid statute has been
applied in a constitutionally impermissible manner to the defendant, the court must
evaluate the propriety of the application of the statute to the facts of the particular case to
determine whether the application of the statute has an unconstitutional result. (Ibid.)
Here, however, neither the trial court nor the prosecutor had an opportunity
to address whether application of section 1360 to the facts of this case would
unconstitutionally infringe upon appellant’s right to a fair trial. Indeed, trial counsel did
not even attempt to explain how it did, and instead summarily asserted facial
unconstitutionality. The claim is therefore forfeited. (People v. Flinner (2020) 10
Cal.5th 686, 726 [“[A] defendant forfeits an argument on appeal where he fails to object
at all to the evidence in the trial court or when he objects on substantively distinct
grounds”]; see also § 353, subd. (a).)
To avoid forfeiture, appellant bootstraps his not-raised-below “prejudice”
argument into a quasi-constitutional one by falling back on a catch-all “due process”
argument. However, such an argument is still essentially a challenge to the admission of
Jane Doe’s statements under section 352, and not to the constitutionality of section 1360.
Appellant’s obligation to timely and specifically object to evidence in the trial court on
the same grounds raised on appeal is not avoided by a subsequent revarnishing with the
gloss of a constitutional “due process” claim. Indeed, “‘[n]o procedural principle is more
familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.’ [Citations.]” (United States v.
Olano (1993) 507 U.S. 725, 731.) Likewise, converting a facial constitutional challenge
to section 1360 to an as-applied challenge or a “due process” claim, without having given
the prosecution and the trial court an opportunity to respond or assess what in reality is a
newly minted section 352 balancing claim is unwarranted.
18
But forfeiture notwithstanding, the claim also fails on the merits, and
counsel was therefore not ineffective for not raising an unmeritorious objection.
In support of his new contention, appellant cites two out of state cases:
Burke v. State (Okla. Crim. App. 1991) 820 P.2d 1344, 1348, superseded by statutory
repeal (see Okla. Laws 1993, ch. 197, § 4); and State v. Seever (Mo. 1987) 733 S.W.2d
438, 441, superseded by statute as stated in State v. Evans (Mo. App. 2016) 490 S.W.3d
377, 388. We are not bound by the decisions of our sister-state courts (People v. Troyer
(2011) 51 Cal.4th 599, 610), and we find neither case persuasive.
In Burke v. State, supra, a case with a dissenting opinion and a swing
opinion concurring in the result only, a three-judge panel of the Oklahoma Court of
Criminal Appeals found an Oklahoma statute similar to section 1360 facially
unconstitutional because it allowed for the introduction of an unavailable child’s prior
video-recorded statement, and thus violated the Sixth Amendment’s confrontation clause.
(Id., 820 P.2d at p. 1348.) In an obiter dictum in the lead opinion, the author stated he
was “further troubled” by the fact that in some cases the videotape would in effect allow
the prosecution to “present its principal witness twice.” (Ibid.) The source of his
“troubles,” however, was not rooted in any reasoned constitutional analysis. Rather, it
was instead based on a passing reference to a since-overruled Texas appellate court
decision that found due process violated by a Texas statute that “require[d] the defendant
to call as a witness his accuser if he wants to question the witness.” (Long v. State (Tex.
Cr. App. 1987) 742 S.W.2d 302, 320, overruled in Briggs v. State (Tex. Cr. App. 1990)
789 S.W.2d 918, 924.)
In State v. Seever, supra, the Missouri Supreme Court found “improper
bolstering” where the trial court admitted a videotaped statement of the victim, who also
testified at trial. (Id., 733 S.W.2d at p. 441.) Later, in State v. Silvey (Mo. 1995) 894
S.W.2d 662, 672, abrogated on other grounds by State v. Porter (Mo. 2014) 439 S.W.3d
208, the court clarified that “[t]he bolstering [in Seever] was improper because it
19
effectively allowed the witness to testify twice.” “What Seever prohibits is the use of
such a videotape to wholly duplicate the live testimony of the child witness.” (Ibid.)
However, appellant fails to mention that the restriction in State v. Seever
was later modified and superseded by revisions to the Missouri statute concerning the
admissibility of recordings of children under 14. (See State v. Fears (Mo. App. 2007)
217 S.W.3d 323, 326-327 [statute now specifically provides the recording of a verbal or
nonverbal statement of a child who testifies at the proceeding “shall be admissible in
addition to the testimony of the child at the proceeding whether or not it repeats or
duplicates the child’s testimony” (some italics omitted)].) Thus, State v. Seever is not
only not a constitutional case, which appellant concedes in a footnote, it is also no longer
9
valid law on this issue in the state where it was decided.
Although he avoids framing the question in such a way, appellant’s
argument is really that section 1360 violates a defendant’s right to a fair trial because
such admission might unfairly “bolster” a victim’s testimony by allowing him or her to
testify more than once. Appellant provides no California authority to support such a
claim, and his out of state authority is either inapplicable or unpersuasive.
We find no fundamental unfairness in section 1360, either facially or “as
applied” to the circumstances of this case, and cannot conclude the trial court acted
beyond the bounds of reason in admitting Jane Doe’s prior statements, both of which
10
fully complied with the statutory requirements. (Cf. People v. Brodit, supra, 61
9
Appellant also refers to Cogburn v. State (1987) 292 Ark. 564, and State v. Taylor (1999) 196
Ariz. 584, but both are inapt. Cogburn v. State, supra, involved an Arkansas statute regarding depositions that had
not been complied with. (Cogburn v. State, supra, 292 Ark. at p. 569.) No such statute is involved here; indeed, in
California, depositions are not permitted in criminal cases except under the strict conditions of conditional
examinations. (See Pen. Code, §§ 1335 et seq.) State v. Taylor, supra, is also of no relevance because it involved
the constitutionality of a legislatively created hearsay exception that conflicted with the Arizona separation of
powers doctrine. (Id., 196 Ariz. at p. 588; see Ariz. Const., art. VI, § 5, no. 5.)
10
We have reviewed both videotapes and find the trial court did not err in finding “the time, content,
and circumstances of [Jane Doe’s statements] provide sufficient indicia of reliability.” (§ 1360, subd. (a)(2).) The
time- and date-stamped videos show a relatively composed and articulate seven-year-old Jane Doe in the first video
and eight-year-old in the second. In both she appears to understand and answer the non-leading questions posed to
her, and describes what happened and how she felt with no indication of coaching or dissimulation. She is at times
20
Cal.App.4th at p. 1325 [section 1360 did not violate due process on the grounds it
unfairly “provide[d] a ‘nonreciprocal’ benefit to the state”].) There was no due process
violation.
4. The Prosecutor’s Cross-Examination of a Character Witness
Appellant next contends the trial court abused its discretion by permitting
the prosecutor to improperly cross-examine a defense character witness. Alternatively,
the prosecutor committed prejudicial misconduct by engaging in such cross-examination.
And as an alternative, because defense counsel failed to object to this cross-examination,
he was constitutionally ineffective.
A. Additional Background
Appellant’s friend Y.C. testified as the last of four defense character
witnesses. On direct examination, she was asked, “Do you believe [appellant is] a child
molester?” to which she replied, “No.” On cross-examination, the following ensued:
“[Prosecutor]: You came here today at [appellant’s] request to testify about
his character, didn’t you?
“[Y.C.]: From his lawyer, yes.
“[Prosecutor]: And you’ve talked to him about the case?
“[Y.C.]: I’ve – very briefly. I’ve tried not to ask too many questions, as not
to change my opinion. [Italics added.]
“[Prosecutor]: So, you don’t want to know more information?
“[Y.C.]: If you feel like giving me more information.
“[Prosecutor]: Did you want to know more information?
“[Y.C.] That would be up to you.”
fidgety, shy, and uncomfortable with some questions, but she is not overly emotional, and she does not break down
or lose control. We perceive nothing in the videos that unfairly appeals to the sympathies or emotions of the jurors.
21
Y.C. continued to evade the prosecutor’s questions until the trial court
finally intervened and directly asked her, “Prior to [you] testifying did you want to know
more [information about this]?” and she replied, “No.” The prosecutor then continued:
“[Prosecutor]: So your opinion is based on the little information that you
have about this case?
“[Y.C.]: My opinion is based on my experiences with him.
“[Prosecutor]: But it’s not based on any of the facts in this case?
“[Y.C.]: I don’t have the facts in the case, because it’s an ongoing case. I
would prefer not to have information if it’s an ongoing case. So, I haven’t asked.
“[Prosecutor]: If you knew, in fact, he did touch a seven-year-old’s vagina,
would that change your opinion?
“[Y.C.] If I had evidence and proof. I mean, I wouldn’t – I’ve known him
for so long. He interacted with my daughter and cared for my daughter. And I’ve never
seen that. So beyond the scope if I would believe that.
“[Prosecutor]: I’m not asking if you believe it. I’m asking you if you knew
that that was true, would your opinion –”
Defense counsel objected to the question, and the court sustained the
objection. The prosecutor rephrased the question and asked, “If you had other
information that contradicted what you’ve seen before, is it possible for your opinion to
change?” Counsel again objected, and after an unreported side-bar, the objection was
overruled, and Y.C. answered:
“[Y.C.]: “I guess it would depend on the information given to me.
“[Prosecutor]: And if you had heard that he did touch a seven-year-old’s
vagina, would it be possible for your opinion to change?
“[Y.C.] Depending on who I heard it from.
“[Prosecutor] So it is possible?
22
“[Y.C.] Depending on who I heard it from. It would be possible depending
on who I heard it from.”
We know defense counsel objected to two of the prosecutor’s questions.
Unfortunately, we do not know the grounds for his objections and the side-bar conference
was not reported. However, in fairness to appellant and to avoid forfeiture (§ 353, subd.
(a)), and the ineffectiveness of counsel back-up claim, we will assume trial counsel
preserved the objection for appeal.
B. Analysis
Generally, evidence of someone’s character is inadmissible, whether in the
form of an opinion, reputation, or specific instances of conduct, to prove that person’s
conduct on a specific occasion. (§ 1101, subd. (a).) In criminal cases, however,
“evidence of the defendant’s character or a trait of his character in the form of an opinion
or evidence of his reputation” is admissible when “[o]ffered by the defendant to prove his
conduct in conformity with such character or trait of character[; or] [¶] [o]ffered by the
prosecution to rebut evidence adduced by the defendant . . . .” (§ 1102, subds. (a) & (b);
see also § 1100 [character evidence also “include[es] evidence . . . of specific instances of
such person’s conduct . . . .”].)
“When a witness testifies to a defendant’s good reputation, the prosecutor is
entitled to ask in good faith if the witness has heard of misconduct by the defendant.
[Citations.] . . . [¶] . . . When a witness offers an opinion of a defendant’s good character,
it is often based on personal knowledge as well as reputation. [Citation.] This opens the
door for the prosecutor to offer rebuttal evidence of defendant’s character. [Citation.] . . .
The prosecutor can test the witness’s opinion by asking about his or her knowledge of the
defendant’s misconduct [citation], even if the witness professes ignorance. [Citation.]”
(People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)
Thus, “‘[w]hen . . . a witness is called to express an opinion as to the good
character of the defendant, the prosecution must have the opportunity [under the
23
Evidence Code] to let the jury test the validity of the opinion or the weight to be given to
it by asking whether the holder of the opinion has knowledge of events or acts which
have indisputably occurred.’ [Citation.] . . . When such cross-examination of a good-
character witness is permitted, the jury should be instructed that such questions and
answers of a character witness are to be considered only for the purpose of determining
the weight to be given to the opinion or testimony of the witness.’ [Citation.]” (People v.
Clair (1992) 2 Cal.4th 629, 682-683.) Notably, nothing in section 1102, subdivision (b),
excludes evidence of the current charged offenses from the prosecution’s ability to
counter a defendant’s good character opinion evidence, and appellant concedes there is
no California authority to support a contrary conclusion.
Indeed, in People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, the court held
such cross-examination was not improper. “No reported California case . . . has decided
whether (as defendant contends) it is improper for a defense character witness to be asked
on cross-examination if he has heard that the defendant committed the act or acts for
which he is on trial. [Fn.] Out-of-state authorities are not uniform on the subject, some
permitting such interrogation, while others hold that such cross-examination must be
confined to acts antecedent to the offense for which the defendant is on trial. [Citation.]
[¶] . . . [W]e hold that the cross-examination was proper.” (Id. at p. 526.)
Appellant attempts to distinguish People v. Qui Mei Lee, supra, by arguing
that the cross-examination question at issue in that case referred to the fact the defendant
was charged with the crimes – an indisputable fact – not that he had actually committed
them. We find the distinction unpersuasive. Nothing supports limiting a hypothetical
question to only the existence of an accusation, but not the truth of one. If a jury should
know whether a character witness will overlook an accusation, it should know whether
the witness will overlook evidence of guilt itself. The relevance of such a question is the
witness’ credibility and, “on cross-examination, such lack of credibility may be
demonstrated by asking [her] whether [she] has heard of the commission of the offense
24
for which the defendant is on trial.” (Id., 48 Cal.App.3d at p. 527, italics added.) And,
“if [she] has heard of the offense charged, the validity of [her] opinion may be affected
thereby.” (Ibid.) In other words, if Y.C. learned that appellant actually committed the
offense with which he was charged – touching a seven year old’s vagina – the validity of
any continuing opinion that appellant is not a child molester would be most likely
“affected thereby.”
Appellant refers us to several federal cases holding a prosecutor may not
ask character witnesses hypothetical questions that assume the defendant’s guilt of the
11
precise acts for which he is on trial. Even though decisions of the lower federal courts
are not binding on California courts (People v. Williams (2013) 56 Cal.4th 630, 668), we
note there is a split of authority on this issue, with two federal circuit courts of appeals
holding otherwise; the United States Supreme Court has not weighed in.
In United States v. Kellogg (3d Cir. 2007) 510 F.3d 188 (Kellogg), the court
distinguished reputation evidence from opinion evidence, and in the case of the latter
stated: “In our view, there is nothing inherent in guilt-assuming hypotheticals, in the
abstract, that makes them unfairly prejudicial, let alone so prejudicial as to constitute a
per se violation of due process. We therefore see no need to adopt a bright-line rule
prohibiting a potentially probative type of inquiry. Generally speaking, a person
testifying regarding a present opinion should be open to cross-examination on how
additional facts would affect that opinion. In the context of opinion character testimony
cross-examination about the charged crime tests ‘both the witness’ bias and the witness’
own standards by asking whether the witness would retain a favorable opinion of the
defendant even if the evidence at trial proved guilt.’ [Citation.] Such evidence may aid
11
Appellant cites: United States v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1120 ; United States v.
Woods (4th Cir. 2013) 710 F.3d 195, 207; United States v. Guzman (11th Cir. 1999) 167 F.3d 1350, 1352; United
States v. Oshatz (2d Cir. 1990) 912 F.2d 534, 539; United States v. McGuire (6th Cir. 1984) 744 F.2d 1197, 1204;
United States v. Mason (4th Cir. 1993) 993 F.2d 406, 409; United States v. Candelaria-Gonzalez (5th Cir. 1977) 547
F.2d 291, 294.
25
in the jury’s ultimate credibility determinations and in deciding how much weight to give
to a defendant’s character evidence.” (Id. at p. 196, second italics added.)
Similarly, even though cross-examination of witnesses who testify only as
to a defendant’s reputation in the community with hypotheticals assuming guilt may be
improper, “similar cross-examination of witnesses who . . . give their own opinion of the
defendant’s character is not error.” (United States v. White (D.C. Cir. 1989) 887 F.2d
267, 274-275, italics added.) We find Kellogg and White more persuasive.
Moreover, as to the cases finding such cross-examination improper, all
involved federal criminal prosecutions, and none addressed or discussed the effect of the
strict limiting instruction required of character evidence in California courts. (See
CALCRIM No. 351; People v. Clair, supra, 2 Cal.4th at pp. 682-683 [“‘When such
cross-examination of a good-character witness is permitted, the jury should be instructed
that such questions and answers of a character witness are to be considered only for the
purpose of determining the weight to be given to the opinion or testimony of the witness’
[Citation.]”].) Indeed, in none of the cases appellant cites is there any indication of a
12
limiting instruction akin to CALCRIM No. 351 having been given.
Here, Y.C. stated she was unaware of the details of what appellant was
charged with. More importantly, she expressly did not want to know those details, and
candidly said “I’ve tried not to ask too many questions, as not to change my opinion.”
(Italics added.) The obvious implication was that if she was told what appellant was
accused of doing, she would change her opinion, something which she appeared not to
want to do.
The prosecutor was therefore logically entitled to ask her if her opinion
would be changed by the details Y.C tried to avoid learning about so she would not have
12
Appellant’s reliance on the hoary Gaugh v. Commonwealth (Ky. 1935) 87 S.W.2d 94, and Craft v.
State (Miss. 1965) 181 So.2d 140, is factually misplaced because both are reputation cases. Here, appellant’s
reputation at the time of the incident was not the subject of his character witnesses’ testimony, including Y.C.’s.
26
to change her opinion. The rationale for the prosecution to ask such questions is that
they test the witness’ knowledge of the defendant’s character. A witness’ deliberate
attempts to stay ignorant of the underlying facts of the case is relevant to such a test.
(See United States v. Oshatz, supra, 912 F.2d at p. 544 (conc. opn. of Mukasey, J.) [“If
the witness’ judgment is distorted either by such partisanship that the witness would think
highly of the defendant despite misbehavior, or by a warped ethical standard, the witness’
opinion may be correspondingly discounted”].)
“A good faith belief by the prosecution that the acts or statements asked
about actually happened suffices to allow questioning of the witness about their
occurrence.” (People v. Tuggles (2009) 179 Cal.App.4th 339, 358.) Based on the
evidence she presented in her case-in-chief, the prosecutor was certainly entitled to a
“good faith belief” that the acts in question “actually happened.” (See People v. Qui Mei
Lee, supra, 48 Cal.App.3d at p. 528 [“[L]ong before [the witness] was cross-examined as
to whether he had heard of the acts mentioned by the prosecutor, the prosecutor had
already placed evidence of all those acts before the jury as integral parts of the People’s
case”].)
Finally, as noted and unlike the federal cases appellant relies on, here the
jury was instructed with CALCRIM No. 351, and specifically told: “The attorney for the
People was allowed to ask defendant’s character witnesses if they had heard that the
defendant had engaged in certain conduct. These ‘have you heard’ questions and their
answers are not evidence that the defendant engaged in any such conduct. You may
consider these questions and answers only to evaluate the meaning and importance of a
character witness’s testimony.” Similarly, the jury was told: “During the trial certain
evidence was admitted for a limited purpose. You may consider that evidence only for
that purpose and for no other.” (See CALCRIM No. 303.)
Thus, “any possibility the jury might have misunderstood the purpose of
this evidence was obviated by the limiting instruction, which we presume the jury
27
understood and followed.” (People v. Panah (2005) 35 Cal.4th 395, 492 [defense
expert’s opinion properly impeached by lack of knowledge of the defendant’s criminal
record]; People v. Edwards (2013) 57 Cal.4th 658, 746 [“‘We of course presume “that
jurors understand and follow the court’s instructions.” [Citation.]’”].) Appellant points
to nothing in the record to rebut that presumption. We therefore find the prosecutor’s
brief questioning of Y.C. regarding her opinion of appellant’s character was not
misconduct, and the trial court did not abuse its discretion in permitting it.
5. Prosecutorial Misconduct in Closing Argument
Appellant next contends the prosecutor committed reversible misconduct in
her closing argument, and because counsel failed to object, he was ineffective.
A. Additional Background
During her closing argument, the prosecutor explained to the jury that the
testimony of a single witness can be sufficient to prove any fact, and specifically referred
13
to CALCRIM No. 1190. Thus, she said, “[T]he testimony of a complaining witness,
Jane Doe’s testimony, is sufficient if you believe her. That’s all you need to convict.” In
explaining why the jury should believe Jane Doe, the prosecutor stated:
“[Prosecutor]: The reason you’re here as a jury is to decide can [Jane Doe]
be believed? Is she credible? We talked about how you can’t just say[,] ‘I don’t believe
her because she’s a child.’ You can’t just say, ‘You know what, I’m going to take the
adult’s word over hers because she’s a kid.’ And you have to look at her cognitive level,
how well was she able to describe things, was that credible, or how old she is. [¶] So
those are the things that you can consider when evaluating is she telling the truth? What
you cannot consider in evaluating ‘[I]s Jane Doe telling us the truth[?]’ is the fact that she
wasn’t sobbing throughout her entire testimony, the fact that she didn’t go up there and
start crying and – crying during the forensic interviews. All that is improper for you to
13
“Conviction of a sexual assault crime may be based on the testimony of a complaining witness
alone.” (CALCRIM No. 1190.)
28
consider in deciding that she’s lying. [¶] And the reason for that is because you heard
from Dr. Urquiza, the forensic – the expert psychologist in child sexual abuse. He
explained that we have in society [myths] and misconceptions. Just generally things that
sometimes people expect. When it comes to child sex abuse, someone might expect that,
you know what, if something that traumatic happened to a child, why isn’t the child
crying about it? [¶] That’s not for you to consider in deciding whether she’s lying. That
fact alone doesn’t prove that she wasn’t telling the truth. Same with the fact that maybe
her memory wasn’t perfect on every detail. Memory isn’t perfect, especially when it
comes to trauma. And we also learned from Dr. Urquiza peripheral details are different
than the main details. If you get some peripheral details wrong, it does not mean that
you’re not telling the truth.”
The prosecutor told the jurors Urquiza was “talking about what the studies
show, what the expertise is in the field[,]” but she emphasized he was not there to opine
whether Jane Doe was a victim or whether she should be believed. “Now, I want to be
clear, Dr. Urquiza . . . wasn’t here to tell you that you have to believe Jane Doe. He was
not here to tell you that Jane Doe is in fact a victim. That’s not his job. That’s your job
as a jury. He has never met Jane Doe. He hasn’t reviewed the facts.” And even if Jane
Doe exhibited behavior similar to what Dr. Urquiza described, she emphasized it does not
“mean she’s a victim.” She then went on to discuss CALCRIM No. 226, the list of
additional things the jury could use to assess Jane Doe’s credibility, and argued how the
evidence showed she was believable. Defense counsel did not object to any of the
prosecutor’s argument.
Appellant now contends the prosecutor improperly and prejudicially argued
that Dr. Urquiza’s “testimony meant that the jury ‘cannot’ consider certain factors in
judging the credibility of Jane Doe [], including her composed demeanor during the
videotaped forensic interviews and the fact that her memory ‘wasn’t perfect in every
detail.’”
29
B. Forfeiture
“‘It is well settled that making a timely and specific objection at trial, and
requesting the jury be admonished . . . is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal.’ [Citation.]” (People v. Johnsen (2021) 10 Cal.5th
1116, 1164.) There is nothing in the record to indicate an objection would have been
futile or that the prosecutor’s conduct was “so extreme or pervasive that a prompt
objection and admonition would not have cured the harm.” (People v. Centeno (2014) 60
Cal.4th 659, 674; see People v. Peterson (2020) 10 Cal.5th 409, 464-465.) Accordingly,
we analyze the issue from the perspective of appellant’s alternative argument that
counsel’s failure to object constituted constitutionally ineffective assistance.
C. Ineffective Assistance of Counsel
“An ineffective assistance claim has two components: A [defendant] must
show that counsel’s performance was deficient, and that the deficiency prejudiced the
defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521 (Wiggins); Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) Both “are mixed questions of law
and fact subject to our independent review.” (In re Gay (2020) 8 Cal.5th 1059, 1073.)
Regarding the deficient performance component, “[t]here are countless
ways to provide effective assistance [and] [e]ven the best criminal defense attorneys
would not defend a particular client in the same way.” (Strickland, supra, 466 U.S. at p.
689.) Rarely is there only one reasonable strategy for a defense attorney to adopt when
representing a client in a criminal case. That other strategies might exist, or might appear
in hindsight potentially to have stood a better chance at success, does not make the
strategy employed unreasonable or counsel’s performance deficient. (See Maryland v.
Kulbicki (2015) 577 U.S. 1, 4; People v. Jennings (1991) 53 Cal.3d 334, 379-380.)
“To establish deficient performance, a [defendant] must demonstrate that
counsel’s representation ‘fell below an objective standard of reasonableness,’ [citation]”
as measured by “‘prevailing professional norms.’ [Citation.]” (Wiggins, supra, 539 U.S.
30at p. 521, italics added; cf. Bobby v. Van Hook (2009) 558 U.S. 4, 7 [“‘[T]he Federal
Constitution imposes one general requirement: that counsel make objectively reasonable
choices’[Citation.]”].) Here, appellant has made no such demonstration; he merely
asserts it.
“When applying this standard, we ask whether any reasonably competent
counsel would have done as counsel did. . . . Judicial review of counsel’s performance
is deferential; to establish deficient performance, the defendant ‘must overcome the
presumption that, under the circumstances, the challenged action “might be considered
sound trial strategy.”’ [Citation.]” (In re Gay, supra, 8 Cal.5th at p. 1073; Harrington v.
Richter (2011) 562 U.S. 86, 105 [“standard for judging counsel’s representation is a most
deferential one”]; Bell v. Cone (2002) 535 U.S. 685, 702 [same].) Because deciding
whether to object is inherently a tactical decision, the failure to do so will rarely establish
ineffective assistance of counsel. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) And
“[t]his is not one of those rare cases.” (Ibid.) Appellant has not met the first prong of the
test.
As for the prejudice component of the test, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” (Strickland, supra, 466 U.S. at p. 693.) Rather, “[t]he 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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “How
readily deficient performance undermines confidence in the trial’s outcome will in part
depend on the strength of the trial evidence on any decisive points.” (In re Gay, supra, 8
Cal.5th at p. 1087.) “For a prosecutor’s remarks to constitute misconduct, it must appear
reasonably likely in the context of the whole argument and instructions that ‘“the jury
understood or applied the complained-of comments in an improper or erroneous
manner.”’ [Citation.]” (People v. Winbush (2017) 2 Cal.5th 402, 480.) “‘[W]e “do not
31
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ [Citation.]” (People v. Covarrubias (2016) 1
Cal.5th 838, 894.)
Here, there is no indication the prosecutor’s remarks about how to assess
Jane Doe’s credibility so “infect[ed] the trial with such unfairness as to make
[appellant’s] conviction a denial of due process [citation] or to render the verdicts
unreliable.” (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Similarly, there is nothing
in this record showing a reasonable probability the jury would have come to a different
result had trial counsel objected.
Everything the prosecutor said was correct in terms of her explanations of
what Dr. Urquiza’s testimony could not be used for. Appellant myopically focuses on the
fact she told the jurors they could not use certain aspects of Jane Doe’s behavior in
evaluating her credibility. However, in the context of her entire argument, she meant that
merely because Jane Doe exhibited certain possibly incongruous behavior, the jury
should not automatically disregard her testimony. And it must be remembered that the
defense in this case was not that she was lying but that she misrecollected.
Furthermore, the trial court instructed the jury the attorneys’ statements did
not constitute evidence. (See CALCRIM No. 222.) We presume the jury followed the
court’s instructions (People v. Martinez (2010) 47 Cal.4th 911, 957), and appellant has
provided nothing to rebut that presumption.
Appellant had a full opportunity “to challenge and rebut all evidence
offered against him.” (People v. Wrest (1992) 3 Cal.4th 1088, 1109-1110; accord, People
v. Dykes (2009) 46 Cal.4th 731, 762.) “A mere failure to object to argument seldom
establishes counsel’s incompetence[.]” (People v. Thomas (1992) 2 Cal.4th 489, 531.)
And “this case is no exception.” (Ibid.) In light of the court’s cautionary instructions and
appellant’s ability to challenge Jane Doe’s testimony on cross-examination, we discern
neither prejudice nor a denial of his right to a fair trial based solely on one isolated aspect
32
of the prosecutor’s closing argument. This was not a close case, and it is not reasonably
probable the result would have been different had trial counsel objected to the
prosecutor’s comments. Thus, appellant has failed to meet the second prong of the test.
Because he has shown neither deficient performance nor prejudice,
appellant has failed to establish his counsel was constitutionally ineffective. (Williams v.
Taylor (2000) 529 U.S. 362, 390-391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.)
6. CALCRIM No. 1193
Appellant next contends the trial court violated his “due process and jury
trial rights” by giving the CSAAS instruction, CALCRIM No. 1193. He bases the claim
on the fact Dr. Urquiza did not actually testify about CSAAS, but rather about other,
albeit similar, aspects of the behavior of child abuse victims and how that too may relate
to their “believability.”
A. Additional Factual Background
Defense counsel argued in his moving papers that if “testimony is
introduced to dispel a myth[,] the jury must be instructed not to use that evidence to
predict a molest has been committed,” the evidence was “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 “the expert’s testimony is not intended and
should not be used to determine whether the victim’s molestation claims is [sic] true.”
He did not specifically ask for CALCRIM No. 1193, but his entire motion was predicated
on CSAAS, he repeatedly used the acronym in his moving papers, and he assumed
CSAAS evidence would be forthcoming.
In her initial list of proposed jury instructions, the prosecutor did ask for
CALCRIM No. 1193. However, in her moving papers, she asked for a less specific, non-
CALCRIM instruction similar to that given with approval in People v. Gilbert (1992) 5
Cal.App.4th, 1372, 1387. She argued by analogy that “[a]lthough the People will not
33
14
present syndrome evidence,” CALCRIM Nos. 1192 and 1193 are examples of
instructions that “legitimize the use of similar myth-dispelling evidence.” The trial court
granted the prosecution’s request, but used an unmodified CALCRIM No. 1193, which
included its references to CSAAS.
The court instructed the jury: “During the trial certain evidence was
admitted for a limited purpose. You may consider that evidence only for that purpose
and for no other.” (See CALCRIM No. 303.) The court misread two sentences from
CALCRIM No. 1193, and said: “You have heard testimony from Dr. Anthony Urquiza
regarding [CSAAS]. Dr. Urquiza’s testimony about [CSAAS] is not evidence that the
defendant committed any charged acts against him. You may consider this evidence only
in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct of
15
someone who has been molested in evaluating the believability of her testimony.”
The court’s verbal instruction therefore did not perfectly track the language
of the standard instruction. More importantly, it was incorrect as a factual matter because
Dr. Urquiza did not testify about CSAAS, or any other “syndrome.” Instead, he testified
more generally as to other aspects of behavior commonly exhibited by sexually abused
children and how it relates to their credibility. But defense counsel did not object to the
instruction as given, or request a modification or additional instructions.
B. Legal Background
We may “review any instruction given, refused or modified, even though
no objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby.” (Pen. Code, § 1259; see People v. Mitchell (2019) 7 Cal.5th 561,
14
CALCRIM No. 1192 involves Rape Trauma Syndrome evidence.
15
The written version of CALCRIM No. 1193 in the clerk’s transcript reads: “You have heard
testimony from Dr. Anthony Urquiza regarding Child Sexual Abuse Accommodation Syndrome. [¶] Dr. Urquiza’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
conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the
believability of her testimony.”
34
579-580 [Because defendant “claims that the flawed instructions deprived him of due
process, [which] would affect his substantial rights if true, his [instructional error] claim
is not forfeited”].)
We review the wording of a jury instruction de novo and assess whether the
instruction accurately states the law. In reviewing a claim of instructional error, we
consider whether there is a reasonable likelihood the trial court’s instructions caused the
jury to misapply the law in violation of the Constitution. A challenged instruction is
viewed in the context of the instructions as a whole as well as the entire trial record to
determine whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner. (People v. Mitchell, supra, 7 Cal.5th at p. 579; People v.
Richardson (2008) 43 Cal.4th 959, 1028, abrogated on other grounds by statutory repeal
in People v. Nieves (2021) 11 Cal.5th 404, 535 [an instruction is not examined in
“artificial isolation”].) “‘“‘[W]e must assume that jurors are intelligent persons and
capable of understanding and correlating all jury instructions which are given.’
[Citation.]” [Citation.]’ [Citations.]” (People v. Covarrubias, supra, 1 Cal.5th at p. 915;
see Estelle v. McGuire, supra, 502 U.S. at p. 72.) And, as noted, we presume the jury
followed the court’s instructions. (People v. Edwards, supra, 57 Cal.4th at p. 746.)
C. Analysis
Appellant claims giving a CSAAS instruction when there was no CSAAS
evidence prejudicially affected his substantial rights. He focuses on the word
“syndrome” in the instruction, and insists it was error to use it because the “[j]urors were
not warned about ascribing too much meaning to the term,” and it “invited the jury to
draw the impermissible inference that [Jane Doe] suffered from a child abuse ‘syndrome’
16
because she displayed certain ‘common characteristics.’”
16
Appellant also offers the argument that CALCRIM 1193 is “the legal equivalent of a traffic
circle,” because it “fails to make clear that the expert testimony ‘should not be used to determine whether the
victim’s molestation claim is true.’” (Citation omitted.) Metaphors aside, this general attack on CALCRIM No.
35
We agree it was error to give the jury an instruction including a reference to
“child sexual abuse accommodation syndrome” when it was never defined and there was
no such CSAAS evidence. The instruction should have been modified to describe a more
jargon-neutral, substantively similar admonishment. (See, e.g., People v. Gilbert, supra,
5 Cal.App.4th at p. 1387.)
Nonetheless, we fail to perceive how the underlying message the
instruction was intended to convey – that Dr. Urquiza’s expert testimony was to be used
only for a limited purpose and not to show Jane Doe was actually molested – was
prejudicially affected or that the outcome in this case would have been different if the
instruction had been edited, and appellant offers no authority or argument to suggest
otherwise. Similarly, nothing indicates the jury was improperly told how to use
Urquiza’s testimony or insufficiently advised as to its strictly limited purpose. And the
idea the jury would have thought they were being told Jane Doe suffered from a child
abuse syndrome so she must have been abused is . . . well . . . a stretch. We find nothing
that indicates the jury did anything except follow their instruction to accept Urquiza’s
testimony for its strictly limited purpose.
Appellant insists the instruction was overly inflammatory and caused the
jury to infer that Jane Doe was abused. In support, he relies on State v. J.L.G. (2018) 234
N.J. 265 (J.L.G.), in which the New Jersey Supreme Court held CSAAS evidence
generally inadmissible and unscientific. (Id. at p. 272 [“We therefore hold that expert
testimony about CSAAS in general, and its component behaviors other than [certain
limited evidence of] delayed disclosure, may no longer be admitted at criminal trials”].)
We find J.L.G. contrary to well-established California law and therefore unpersuasive.
In Munch, supra, a case in which Dr. Urquiza did testify about CSAAS, our
colleagues in Division Six of the Second District flatly rejected J.L.G., stating, “J.L.G.
1193 has been repeatedly rejected and we see no basis to revisit the issue here. (See, e.g., People v. Munch (2020)
52 Cal.App.5th 464, 474 (Munch); accord, People v. Gonzales (2017) 16 Cal.App.5th 494, 504.)
36
involves an aberrant view of CSAAS,” and was “‘overly dismissive of the
“accommodation” aspect of CSAAS.’ [Citation.]” (Munch, supra, 52 Cal.App.5th at p.
470.) The court pointed out that J.L.G. relied on a journal article which was inconsistent
with the general view held by child abuse experts and was subsequently challenged by
experts in the field for poor statistical analysis. (Id. at pp. 470-471.)
Moreover, unlike New Jersey, most states – including California – have
long permitted testimony on CSAAS and similar CSAAS-like behavior. (Munch, supra,
52 Cal.App.5th at pp. 470-471.) Our Supreme Court has held that even though “expert
testimony on the common reactions of child molestation victims is not admissible to
prove that the complaining witness has in fact been sexually abused . . . it is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the child’s
conduct after the incident . . . is inconsistent with his or her testimony claiming
molestation.” (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; cf. Munch, supra, 52
Cal.App.5th at p. 466 [“CSAAS evidence is a valid and necessary component of the
prosecution case in matters involving child abuse”].)
Whatever it is called, such testimony is admissible to dispel specific myths
or misconceptions by pointing out victims of childhood sexual abuse, as a group, often
may exhibit behavior seemingly inconsistent with having been molested. (See People v.
Julian (2019) 34 Cal.App.5th 878, 885; Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
When a defense attorney places the credibility of the victim at issue, the prosecution may
offer expert testimony to explain to the jury why, for example, a child victim would delay
reporting the abuse. (Ibid.)
Although the trial court erred in retaining inapplicable terminology in the
instruction, the underlying rationale for Urquiza’s testimony was not affected. The word
“syndrome” was never used by Dr. Urquiza, or by the attorneys. Its only appearance was
in the jury instruction. More importantly, the instruction still fully informed the jury that
it could not use Dr. Urquiza’s testimony as proof that the abuse actually occurred, and the
37
trial court, Urquiza, and the prosecutor all repeatedly told the jury Urquiza made no
diagnosis and his testimony could not be used to prove the truth of Jane Doe’s
17
allegations. Thus, we find the trial court’s incorrect inclusion of the term – in the
context of the jury instructions viewed as a whole – did not substantially affect
appellant’s rights, and there is no reasonable likelihood the jury applied the instruction in
an impermissible manner. (People v. Mitchell, supra, 7 Cal.5th at p. 579.) The error was
harmless.
7. Cumulative Error
We have identified two trial court errors in this matter – asking a juror’s
irrelevant question and giving an unmodified jury instruction – neither of which was
prejudicial. Cumulating these two harmless errors does not lead us to a different result.
This was not merely a “he-said, she-said” case as appellant sometimes implies. Jane
Doe’s consistent accounts of what transpired were corroborated by appellant’s own
damaging admissions and his letter of apology, and his testimony was far from
convincing. Appellant was “entitled to a fair trial, not a perfect one. [Citation.] Despite
the trial court’s error[s] here, nothing in the record indicates that [appellant’s] trial was in
any way unfair.” (People v. Anzalone (2013) 56 Cal.4th 545, 556.) There was no
cumulative reversible error.
8. The AIDS Testing Order
Lastly, appellant contends the trial court’s order requiring him to submit to
AIDS testing was erroneous. The Attorney General agrees, as do we.
17
Expanding on his traffic circle metaphor discussed ante appellant uses Euclid’s axiom of the
transitivity of equivalence to posit a decidedly non-mathematical syllogism: “If A (expert testimony) equals B
(complainant credible), and if B (complainant credible) equals C (defendant guilty), then A (expert testimony)
equals C (defendant guilty).” However, the flaw in his argument lies in the fact his first premise is false: A is not
“equal” to B. Or, as the Munch court pointed out, “a juror who believes [the expert’s] testimony will find both that
[the child’s] apparently self-impeaching behavior does not affect her believability one way or the other, and that the
CSAAS evidence does not show she had been molested.” (Id., 52 Cal.App.5th at p. 474, italics added.)
38
Penal Code section 1202.1 provides in pertinent part that the trial court
“[s]hall order every person who is convicted of . . . [Pen. Code, § 288, subd. (a)] . . . to
submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the
probable causative agent of acquired immunodeficiency syndrome (AIDS) within 180
days of the date of conviction.” (Pen Code, § 1202.1, subd. (a).) However, it applies
only if “the court finds that there is probable cause to believe that blood, semen, or any
other bodily fluid capable of transmitting HIV has been transferred from the defendant to
the victim.” (Pen. Code, § 1202.1, subd. (e)(6)(A)(iii), italics added.)
Here, the trial court made no inquiry or finding there was probable cause to
believe appellant had transferred bodily fluid to Jane Doe. As such, it was an unlawful to
order testing. The proper remedy for this mistake is to remand the matter for further
proceedings to determine whether the prosecution has additional evidence that may
establish the requisite probable cause. (People v. Butler (2003) 31 Cal.4th 1119, 1123.)
Appellant suggests we should instead simply reverse and order the trial
court to strike the AIDS testing order. However, “[g]iven the significant public policy
considerations at issue, we conclude it would be inappropriate simply to strike the testing
order without remanding for further proceedings to determine whether the prosecution
has additional evidence that may establish the requisite probable cause.” (People v.
Butler, supra, 31 Cal.4th at p. 1129.) Accordingly, the appropriate remedy in this case is
“to remand the matter for further proceedings at the election of the prosecution.” (Ibid.)
DISPOSITION
The trial court’s order requiring appellant submit to AIDS testing is
vacated. The matter is remanded with directions to hold a hearing where the prosecution,
if it so chooses, may present evidence to satisfy Penal Code section 1202.1. If the court
39
determines the prosecution failed to meet its burden, it is directed to prepare an amended
abstract of judgment and forward a copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
40