People v. Rickard CA4/3 ( 2023 )

Filed 5/16/23 P. v. Rickard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061087
v. (Super. Ct. No. 18NF1741)
DAMIAN EDWARD RICKARD, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
Cassidy, Judge. Affirmed.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi P.
Semitsu and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Child Sexual Abuse Accommodation Syndrome (CSAAS) is a pattern of
conduct that is often exhibited by a child who has been sexually abused. (People v.
McAlpin (1991) 53 Cal.3d 1289, 1300.) The five typical behaviors are: 1) secrecy;
2) helplessness; 3) entrapment and accommodation; 4) delayed, unconvincing disclosure;
and 5) recantation. (People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).)
Here, a young girl was eight years old when the man she called her
grandfather, Damian Edward Rickard, began molesting her. The abuse continued for
several years. The victim did not disclose the abuse until she was 14 years old.
During a jury trial, the court permitted a psychologist to testify about
CSAAS and its five components. The prosecutor also asked, “is most sexual abuse by a
family member or a stranger?” The expert witness testified, in part: “The research shows
that 90 percent of sexual abuse occurs by someone known well to the child.” The jury
later found Rickard guilty of committing four counts of child sexual abuse.
We find the evidence about the identity of most child sexual abusers was
outside of the scope of the testimony that had been ruled admissible by the trial court in
this case, which was specifically limited to CSAAS. But we do not find the error to be
prejudicial. We further find no other prejudicial errors. Thus, we affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
Taylor C. was about eight years old when her parents divorced and her
father moved in with Rickard, her grandmother’s boyfriend. Taylor and her two younger
sisters would often visit Taylor’s father and stay over at Rickard’s house. Taylor called
Rickard “grandpa.” Shortly after Taylor’s eighth birthday, she and one of her sisters
were in Rickard’s bedroom late one evening watching cartoons. Taylor’s sister had fallen
asleep. Rickard exposed his penis to Taylor, who was scared and hid under the covers.
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Taylor did not tell anyone because Rickard “made me swear to secrecy.”
On “countless” occasions thereafter, Rickard put his hands in Taylor’s
underwear. Rickard would lick his fingers and then put them into her vagina. Rickard
also touched Taylor’s breasts. Rickard once rubbed his penis on Taylor’s vagina and her
bottom area, but Rickard did not penetrate her. On another occasion, as Rickard was
touching Taylor, he showed her a video on his phone in which he was being orally
copulated. Rickard encouraged Taylor to orally copulate him, but she refused.
The last time Rickard tried to touch Taylor was when she was between
seventh and eighth grade, but Taylor “told him I would tell my parents.” Rickard acted
angry and confused. Taylor said she had learned in a sex education class that what
Rickard was doing “wasn’t normal.”
In eighth grade, Taylor told a friend in general terms what Rickard had
done to her, but the friend kept Taylor’s secret. When Taylor was 14 years old, her
mother was cleaning her bedroom and found a note written by Taylor. When Taylor’s
mother asked her about the note, Taylor cried and disclosed what Rickard had been doing
to her since she was eight years old.
The family contacted the police. The police surreptitiously recorded a
phone call made by Taylor to Rickard while he was at work. During the “covert” phone
call, Taylor asked, “We both know you put your fingers in my vagina and touched my
breast when I was like eight years old, I just wanted to know why you chose me?”
Rickard answered, “Uh, I really don’t have a good answer to that . . . .” Taylor said,
“I want you to apologize and promise you won’t touch me, my vagina anymore.”
Rickard said, “Okay, you got that, I apologize and I won’t never ever do it again.”
About an hour after the covert phone call, the police arrested Rickard and
seized his cell phone. During a search of the phone, the police observed a video in which
Rickard was receiving oral sex from a woman.
3
Court Proceedings
The prosecution filed an information charging Rickard with digitally
penetrating a child 10 years of age or younger, and three counts of committing a lewd and
lascivious act upon a child under the age of 14. Rickard pleaded not guilty.
At a jury trial, the prosecution presented the testimony of seven witnesses
during its case-in-chief. Dr. Jody Ward testified as an expert witness (the testimony will
be covered in detail in the discussion section of this opinion).
Rickard called Taylor’s grandmother and her two sisters as witnesses.
The grandmother testified she was in shock about the charges, and never saw anything
suspicious. The sisters generally testified they did not see any signs Taylor was
experiencing sexual abuse. Rickard testified he did not molest Taylor. Rickard said he
was at work during the covert phone call, he had consumed alcohol at a celebratory
lunch, and during the call “a lot of things were racing through my head.” Rickard
testified Taylor often played with his phone and it was not password protected.
In the prosecution’s rebuttal case, a police officer testified he arrested
Rickard about an hour after the covert phone call. The officer said he did not see any
signs that Rickard was under the influence. On cross-examination the following
exchange occurred:
“[DEFENSE COUNSEL:] Had [Rickard] made phone calls before you got
there or after you got there?
“[WITNESS]: After. After I spoke with him is when I asked him if he
wanted to make phone calls.
“[DEFENSE COUNSEL]: All right. So he -- he tries to make the phone
calls and you are present; is that correct?
“[WITNESS]: No. I don’t recall if I was present. [¶] So he -- what
happened, investigators detained him. I arrived on scene. I attempted to speak with him.
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At that time he stated he wanted his lawyer and then he was asked --
“[DEFENSE COUNSEL]: May we approach?”
Rickard moved for a mistrial based on an alleged violation of the United
States Constitution, which the trial court denied. (See Doyle v. Ohio (1976) 426 U.S.
610, 620 (Doyle).) The court offered to tell the jury “to disregard the last answer,” but
Rickard’s counsel declined.
The jury found Rickard guilty of the charged sexual offenses. Rickard filed
a motion for a new trial based, in part, on the alleged Doyle error. The trial court denied
the motion. The court imposed an indeterminate prison term of 15 years to life, plus a
determinate term of eight years.
II
DISCUSSION
Rickard contends: A) the trial court improperly admitted CSAAS evidence;
B) prosecutorial misconduct during closing argument; C) the court erred in denying his
motion for a mistrial and/or new trial; and D) cumulative prejudice.
A. CSAAS Testimony
Rickard contends the trial court improperly admitted Dr. Ward’s expert
testimony. We disagree. We find the court properly admitted the CSAAS testimony,
except for one portion that was outside of the limited scope of the proffered evidence;
however, we do not find the evidentiary error to be prejudicial.
We review a trial court’s admission of evidence for an abuse of discretion.
(People v. Brooks (2017) 3 Cal.5th 1, 43.) However, there are varying degrees of
deference within the abuse of discretion standard of review. (Haraguchi v. Superior
Court (2008) 43 Cal.4th 706, 711-712.) A “trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo, and its application of
5
the law to the facts is reversible only if arbitrary and capricious.” (Ibid., fns. omitted.)
In this part of the discussion, we will: 1) state relevant principles of
law; 2) summarize the proceedings in the trial court; and 3) apply the law to the facts.
1. Relevant Principles of Law
Generally, “all relevant evidence is admissible.” (Evid. Code, § 351.)
“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a
witness . . . , having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code, § 210.)
“If a witness is testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact;
and [¶] (b) Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known to him at
or before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion . . . .” (Evid. Code, § 801.)
“The theory of child sexual abuse accommodation syndrome was first
delineated by Roland Summit.” (Bowker, supra, 203 Cal.App.3d at p. 389, fn. 3.)
CSAAS testimony describes five characteristic behaviors experienced by children who
have been sexually abused: (1) secrecy; (2) helplessness; (3) entrapment and
accommodation; (4) delayed, unconvincing disclosure; and (5) retraction. (Id. at p. 389.)
Although CSAAS testimony is not admissible to prove that the alleged
molestation occurred, CSAAS testimony has been routinely held admissible “‘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.’”
(People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301 [“‘great majority of courts
6
approve such expert rebuttal testimony’”]; People v. Patino (1994) 26 Cal.App.4th 1737,
1744 [CSAAS testimony is admissible for “disabusing a jury of misconceptions it might
hold about how a child reacts to a molestation”]; People v. Lapenias (2021) 67
Cal.App.5th 162, 171 [it is well established in California law that CSAAS is relevant for
evaluating the credibility of an alleged victim of child sexual abuse].)
Where CSAAS testimony is admitted during a criminal trial, the evidence
must be tailored to target a particular myth or misconception. (Bowker, supra, 203
Cal.App.3d at pp. 393-394 [“it is the People’s burden to identify the myth or
misconception the evidence is designed to rebut”].) The admissibility of CSAAS
“testimony must be handled carefully by the trial court.” (People v. Patino, supra, 26
Cal.App.4th at p. 1744.)
2. The Trial Court Proceedings
The prosecution filed a pretrial motion arguing: “Evidence of ‘Child
Sexual Abuse Accommodation Syndrome’ is admissible to dispel common myths
concerning victim behavior.” (Capitalization and boldfacing omitted, italics added.)
The prosecution’s motion included a statement of anticipated facts. The
prosecution proffered that CSAAS consists of five stages, citing a published opinion:
“Stage one is secrecy, an element inherent in the adult-child relationship, where a child
understands certain things should not be disclosed. Stage two is helplessness, the
absence of power a child has in a relationship with a parental figure or trusted adult. . . .
Entrapment and accommodation, the third stage, occurs after the child fails to seek
protection. Stage four, delayed disclosure, occurs when the child tells someone about the
sexual abuse. In retraction, the final stage, the child denies abuse has occurred.”
(Bowker, supra, 203 Cal.App.3d at p. 389.)
7
The prosecution argued in the pretrial motion that Rickard “was just like a
grandfather to the victim. The victim never told her mother, father, sisters, or brothers
what was going on between her and the Defendant. The defense is calling family
members to testify that they never saw anything sexual going on, and in fact they
observed that the victim acted normally around the Defendant. CSAAS testimony is
imperative here so that the jury is not biased by the delay in reporting these incidents, and
to give them an understanding of why sometimes victims in these situations are
extremely reluctant to come forward. CSAAS also helps explain the dynamic between
abuser and abused, and why other family members may recall the victim acting
‘normally’ around the Defendant. The People anticipate using Dr. Jody Ward to
introduce this testimony.”
At a pretrial hearing, Rickard’s counsel orally cited an out-of-state opinion
disapproving of the admission of CSAAS testimony. (See State v. J.L.G. (2018) 234 N.J.
265, 301-304.) Counsel also noted a more recent California published opinion that
approved of the admission of CSASS testimony and said, “I’m kind of stuck with that
case.” (See People v. Munch (2020) 52 Cal.App.5th 464, 468.) Counsel stated: “There
is always an issue as to what the person can testify to in their testimony. It doesn’t just
open up the person to anything.” (Italics added.) The trial court ruled: “All right. As
you indicated, under the California cases this testimony is admissible for the purposes as
[the prosecutor] outlined, so I’ll allow that.” (Italics added.)
During its case-in-chief, the prosecution called psychologist Dr. Ward, who
said that her specialty was in child sexual abuse, and she had testified in about 350
previous trials. Ward said she had no knowledge regarding the facts of the instant case.
Ward testified CSAAS “is a pattern of behaviors that many children exhibit who have
been sexually abused. Not all children exhibit all of these behaviors, but many do.”
Ward said CSAAS helps people “understand why children do what they do in response to
8
sexual abuse that occurs within an ongoing relationship.” Ward testified CSAAS “is not
a diagnostic tool, meaning we can’t use it to diagnose or determine whether or not sexual
abuse occurred.”
Dr. Ward said CSAAS “applies only to child sexual abuse that’s occurring
within an ongoing relationship. These children respond very differently than do children
who have been molested by a stranger. [¶] For example, children who have been
molested by a stranger, they tend to report the abuse right away. . . . [¶] But when
children are abused within an ongoing relationship, they don’t tend to report the abuse
right away out of loyalty and love for the abuser.”
Dr. Ward said there are five stages of CSAAS: “secrecy, helplessness,
entrapment, and accommodation, delayed unconvincing disclosure, and retraction or
recantation.” Ward testified: “Secrecy refers to the fact that all sexual abuse occurs in
secret, with only the perpetrator and the victim there at the time the sexual abuse is
occurring.” She stated this “also refers to the fact that children keep the secret of sexual
abuse for very long periods of time.” Ward testified: “Helplessness refers to the power
differential or imbalance between children and adults.” She said entrapment and
accommodation refer to children enduring sexual abuse, “believing they have to put up
with” the abuse. And as far as disclosure, Ward testified “the research shows two-thirds
of people wait until adulthood to report sexual abuse.” Ward said that once children
disclose sexual abuse, their lives are turned upside down, so they often recant. Ward
testified that not all components of CSAAS are necessarily present in each case.
The prosecutor then asked, “Dr. Ward, is most sexual abuse by a family
member or a stranger?” Ward responded: “The research shows that 90 percent of sexual
abuse occurs by someone known well to the child. Only ten percent occurs from a
stranger. And out of that 90 percent, they say half occurs within the family. So 45
percent -- and half occurs outside of the family, but still someone very well known to the
9
child. And this is just because those people have more access to the child. So it’s just
a matter of these people are around children more, where strangers have to take an
opportunity when it presents itself and so that just doesn’t occur as often.”
Dr. Ward testified CSAAS “is helpful in understanding the dynamics
involved when a child is involved in ongoing sexual abuse.” Ward said that “if a child
has been sexually molested over and over again, a child may believe this is just how it is.
This is just what happens.” Ward testified “children are naive and they go into these
situations over and over hoping and believing that this time will be different.” Ward said
children “don’t have . . . protective measures, like we would as adults.”
3. Application and Analysis
The prosecution introduced the testimony of Dr. Ward in order: “to dispel
common myths concerning victim behavior.” (Capitalization and boldfacing omitted,
italics added.) The trial court admitted the CSAAS evidence for that limited purpose, and
Ward’s testimony largely conformed to that purpose. That is, Ward explained CSAAS
and the five common behaviors of sexual abuse victims.
We find the bulk of Dr. Ward’s expert testimony was sufficiently beyond
the common experience of jurors, and therefore the trial court properly admitted the
CSAAS evidence under well-established California law. (See People v. McAlpin, supra,53 Cal.3d at p. 1300 [CSAAS testimony is admissible to explain “common stress
reactions of children who have been sexually molested”]; People v. Lapenias, supra, 67
Cal.App.5th at pp. 173-174 [CSAAS testimony does not require a showing that it is
generally accepted in the scientific community]; People v. Munch, supra, 52 Cal.App.5th
at pp. 468-470 [CSAAS testimony “does not violate a defendant’s right to due process”];
People v. Perez (2010) 182 Cal.App.4th 231, 245 [CSAAS testimony is admissible to
rehabilitate a molestation victim’s credibility]; People v. Wells (2004) 118 Cal.App.4th
10179, 190 [CSAAS testimony “explained the five stages or components that have been
clinically identified”]; People v. Yovanov (1999) 69 Cal.App.4th 392, 406-407 [“CSAAS
was probative in explaining [the victim’s] six-year delay in reporting the abuse to the
police”]; People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [CSAAS testimony
properly admitted during prosecution’s case-in-chief rather than waiting for rebuttal].)
However, the prosecutor also asked: “Dr. Ward, is most sexual abuse by a
family member or a stranger?” 1 That question elicited evidence about the identities of
most sexual abusers, rather than testimony about how children typically react to sexual
abuse (CSAAS). Although Ward’s testimony arguably addressed an additional myth—
that most sexual abusers are strangers to the children they abuse—that evidence was not
within the purpose for which the trial court admitted the expert’s testimony, which was
specifically limited to CSAAS. (See Bowker, supra, 203 Cal.App.3d at pp. 393-394
[“it is the People’s burden to identify the myth or misconception the evidence is designed
to rebut”]; see also People v. Sedano (2023) 88 Cal.App.5th 474, 482-483 [evidence that
most child sexual abusers are known to their victims addresses another common myth—
stranger danger—that the danger of child sexual abuse largely comes from strangers].)
Thus, we find Dr. Ward’s testimony about the identities of most sexual
abusers was improperly admitted into evidence under the circumstances of this case. We
now turn to the question of whether the improper admission of that portion of Ward’s
testimony requires a reversal of the judgment.
“A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of evidence
unless: [¶] . . . . [¶] (b) The court which passes upon the effect of the error or errors is
Although Rickard’s counsel did not object to the prosecutor’s question to Dr. Ward
1
about the identity of most sexual abusers, we have chosen to address the merits of issue
on appeal. (See People v. Turner (1990) 50 Cal.3d 668, 708-709 [court addressed merits
of issue to forestall ineffective assistance of counsel claim].)
11
of the opinion that the admitted evidence should have been excluded on the ground stated
and that the error or errors complained of resulted in a miscarriage of justice.” (Evid.
Code, § 353.) “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 the absence of the error.’” (People v. Prieto (2003) 30 Cal.4th 226, 247.)
Here, Dr. Ward testified most sexual abusers are family members or others
who are “well known” to the children that they abuse. But we do not find it reasonably
probable that had that evidence been excluded by the trial court, that the outcome of the
trial would have been more favorable toward Rickard. In this case, Taylor testified in
excruciating detail about the sexual abuse committed by Rickard over a period of many
years. Further, Taylor’s testimony concerning Rickard’s request for oral sex was
corroborated by evidence obtained from his cell phone.
Perhaps most importantly, corroborating evidence also came from
Rickard’s own statements during the covert phone call, in which Rickard essentially
admitted that he had sexually abused Taylor. Again, Taylor said, “I want you to
apologize and promise me you won’t touch me, my vagina anymore.” Rickard
responded, “Okay, you got that, I apologize and I won’t never ever do it ever again.”
The trial court also properly instructed the jury about the proper use and the
limitations of the expert testimony: “You have heard testimony from Dr. Jody Ward
regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward’s testimony about
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against him. [¶] You may consider this evidence
only in deciding whether or not Taylor’s conduct was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of her testimony.”
(CALCRIM No. 1193, italics added.) We presume the jury understood and followed the
court’s instructions. (See People v. McKinnon (2011) 52 Cal.4th 610, 670.)
12
In sum, we find no prejudicial evidentiary errors concerning the admission
of the CSAAS testimony during Rickard’s trial.
B. Prosecutorial Misconduct
Rickard contends the prosecutor committed misconduct at two points
during the closing argument. We disagree.
We evaluate claims of prosecutorial misconduct/error under well-
established standards. “A prosecutor’s conduct violates the Fourteenth Amendment to
the federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it
involves the use of deceptive or reprehensible methods to attempt to persuade either the
trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
“‘A prosecutor is held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the interests,
and in exercising the sovereign power, of the state.’” (People v. Hill (1998) 17 Cal.4th
800, 819-820.) However, “‘the term prosecutorial “misconduct” is somewhat of a
misnomer to the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667.)
In reviewing a prosecutor’s comments to the jury, “we must view the
statements in the context of the argument as a whole.” (People v. Cole (2004) 33 Cal.4th
1158, 1203.) Generally, a prosecutor has “‘wide latitude to discuss and draw inferences
from the evidence at trial,’ and whether ‘the inferences the prosecutor draws are
reasonable is for the jury to decide.’” (Ibid.) The relevant question is “‘whether there is
a reasonable likelihood that the jury construed or applied any of the complained-of-
13
remarks in an objectionable fashion.’” (Id. at pp. 1202-1203.)
Generally, to raise an alleged error on appeal, the issue must have first been
raised in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2.) Specifically, a
defendant forfeits a prosecutorial misconduct claim on appeal unless the defendant
objected to the alleged misconduct when it occurred, and further asked the court to
admonish the jury. (See People v. Ervine (2009) 47 Cal.4th 745, 806-807 (Ervine).)
Rickard claims the prosecutor committed misconduct during closing
argument by (1) misstating the burden of proof, and (2) misstating the proper use of Dr.
Ward’s testimony. We shall analyze each claim.
1. The Burden of Proof
During the first portion of the prosecution’s closing argument, the
prosecutor reviewed the evidence and argued that each count had been proven beyond a
reasonable doubt. During the defense portion of the closing argument, Rickard’s counsel
argued to the jurors that their obligation was to “look at this and say, ‘I have an obligation
to vote not guilty if Taylor’s version of events does not satisfy me beyond a reasonable
doubt.’” Counsel argued: “I think you’ll find, when you look at it carefully, that this is a
matter where there’s much more than a reasonable doubt as to my client doing anything
improper.”
Rickard challenges on appeal the following italicized portion of the rebuttal
phase of the prosecution’s closing argument: “[Defense counsel] talked about the burden
of proof and what the prosecutor has to do in a trial, prove each and every element
beyond a reasonable doubt, and that is absolutely the case. And that burden is a burden
that is met by prosecutors in every courthouse in every city across this great country
every day and it has been met here.” (Italics added.)
Rickard argues “the prosecutor was appealing to the jury’s passions by
14
connecting the greatness of the country to the meeting of the burden of proof, and also
arguing, in essence, because some other prosecutors in other cases meet their burden, it
has been met here.”
Rickard did not object during the prosecution’s closing argument, nor did
he request a jury admonition, so this issue has been forfeited for purposes of appeal. (See
Ervine, supra, 47 Cal.4th at pp. 806-807.) In any event, we find the prosecutor’s
comment did not improperly appeal to the juror’s passions or lower the burden of proof.
The prosecutor merely appeared to argue that the beyond a reasonable doubt standard is
not an impossible standard to meet, and it had been satisfied in this case.
Further, the trial court properly defined the reasonable doubt standard to the
jury during its instructions. As part of those instructions, the jurors were told that
Rickard was presumed innocent, and it was the prosecution’s burden to prove him guilty
beyond a reasonable doubt. (See CALCRIM No. 220.) The jury was also instructed to
ignore any of the attorney’s comments that conflicted with the law as stated in the court’s
instructions. (See CALCRIM No. 200.) Again, we presume the jury understood and
followed these instructions. (See People v. McKinnon, supra, 52 Cal.4th at p. 670.)
2. Dr. Ward’s Testimony
During the opening phase of the closing argument, the prosecutor recapped
Dr. Ward’s testimony and the five stages of CSAAS. The prosecutor then argued:
“So how is this testimony important? It explains why someone might go
back to the home of the abuser, in this case Taylor had no choice, did she, going to visit
her dad every other weekend, why she would show affection to her abuser. The family
may say, ‘We didn’t see anything going on. We would have known something.’ No.
Children will still show affection for that abuser. They take the good with the bad.”
The prosecutor continued: “And, finally, why did Taylor wait so long to
15
tell someone? That’s right in line with what most children and adults do. This type of
abuse is not easy to talk about. And many people wait years and years, if ever at all, to
say anything.” The prosecutor argued Dr. Ward “knew nothing about this case, but the
things she said were so spot on.” On appeal, Rickard objects to the next italicized portion
of the argument: “She did not know one thing about this case. But these are common
behaviors displayed by people who have been sexually abused and Taylor fit them like a
glove.” (Italics added.)
Rickard argues that by making the “like a glove” comment, the prosecutor
sought “to have the jury conclude that this ‘match’ supports the conclusion that Taylor C.
was, in fact, sexually molested.”
Once again, Rickard did not raise this objection at trial, so it has been
forfeited for purposes of appeal. (See Ervine, supra, 47 Cal.4th at pp. 806-807.) In any
event, we do not find the prosecutor’s “like a glove” comment to be improper. The jury
was instructed to consider the CSAAS testimony for the limited purpose of “deciding
whether or not Taylor’s conduct was not inconsistent with the conduct of someone who
has been molested, and in evaluating the believability of her testimony.” (CALCRIM
No. 1193.) The prosecutor’s argument appeared to simply urge the jurors to compare
Taylor’s conduct to the five components of CSAAS in order to evaluate the believability
of her testimony. This argument was in harmony with the court’s instructions to the jury.
In sum, we find no evidence of prosecutorial misconduct during the
prosecutor’s closing arguments.
C. Motion for Mistrial and/or a New Trial
Rickard contends the trial court erred by denying his motion for a mistrial
and/or a new trial based on an officer’s testimony on cross-examination that Rickard said
he wanted to speak to counsel upon his arrest. We disagree.
16
A motion for a mistrial is a request to terminate the trial before a verdict
and it “is directed to the sound discretion of the trial court.” (People v. Jenkins (2000)
22 Cal.4th 900, 985-986.) A mistrial should be granted when there has been “incurable
prejudice.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “Incurable prejudice” is a
subjective judgment; therefore, the trial court is vested with broad discretion in ruling on
a defendant’s motion for a mistrial or a new trial. (Ibid.)
In Doyle, the United States Supreme Court held that “it would be
fundamentally unfair and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently offered at trial.” (Doyle,
supra, 426 U.S. at p. 618; People v. Schindler (1980) 114 Cal.App.3d 178, 188 [the same
rule applies to “a defendant’s request for counsel”].)
However, the United States Supreme Court later clarified that in order to
establish Doyle error, the defendant must demonstrate that the prosecution actually used
his postarrest silence for impeachment purposes and that the trial court “permitted” its
use. (Greer v. Miller (1987) 483 U.S. 756, 761-765.) That is, there must be an
affirmative act by the trial court to consider and allow the postarrest silence evidence,
which “will usually take the form of overruling a defense objection, thus conveying to the
jury the unmistakable impression that what the prosecution is doing is legitimate.”
(People v. Evans (1994) 25 Cal.App.4th 358, 368.)
Here, the officer stated on cross-examination that Rickard had asked for an
attorney following his arrest. But the prosecution did not invite the officer’s testimony,
nor did the prosecutor make any subsequent mention of it. Further, the court offered to
admonish the jury to disregard the brief comment; therefore, the officer’s testimony did
not constitute a Doyle error. (See Greer v. Miller, supra, 483 U.S. at pp. 761-765.)
Thus, we hold that the trial court correctly denied the mistrial motion based
on alleged Doyle error, as well as the new trial motion made on the same ground.
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D. Cumulative Prejudice
Rickard contends the cumulative prejudice of the foregoing alleged errors
compels reversal of his convictions. We disagree.
“In theory, the aggregate prejudice from several different errors occurring
at trial could require reversal even if no single error was prejudicial by itself.” (In re
Reno (2012) 55 Cal.4th 428, 483, superseded by statute on other grounds as stated in In
re Friend (2021) 11 Cal.5th 720, 728.) However, the rejection of each of a defendant’s
individual claims “cannot logically be used to support a cumulative error claim [where]
we have already found there was no error to cumulate.” (In re Reno, at p. 483.)
Here, we found Rickard was not prejudiced by Dr. Ward’s testimony that
most sexually abused children are abused by family members, or people that are well
known to the child. We found no further errors. Therefore, there is no additional
prejudice to aggregate and/or analyze.
III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
O’ LEARY, P. J.
GOETHALS, J.
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