People v. Whyte CA1/5 ( 2022 )


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  • Filed 10/18/22 P. v. Whyte CA1/5
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,
    Plaintiff and Respondent,
    A160769
    v.
    LARRY WHYTE,                                                           (Sonoma County
    Super. Ct. No. SCR7243081)
    Defendant and Appellant.
    Defendant and appellant Larry Whyte (Appellant) appeals from the
    trial court’s judgment following his conviction of various sexual abuse
    offenses. We reject his claims and affirm.
    PROCEDURAL BACKGROUND
    In September 2019, the District Attorney of Sonoma County filed an
    information charging Appellant with six counts of committing a lewd act
    upon a child under the age of 14, Jane Doe, between August 2008 and August
    2011 (count one), and between August 2010 and August 2012 (counts four,
    five, seven, eight, and nine) (Pen. Code, § 288, subd. (a)); 1 causing a minor,
    Jane Doe, to engage in sexual conduct for the purpose of making a
    photograph between August 2009 and August 2011 (count two; § 311.4,
    subd. (c)); possession of child pornography on February 1, 2019 (count three;
    1   All undesignated statutory references are to the Penal Code.
    1
    § 311.11, subd. (a)); sexual penetration with a child ten years old or younger,
    Jane Doe, between August 2010 and August 2012 (count six; § 288.7,
    subd. (b)); and oral copulation of a person under 16 years old, Jane Doe,
    between August 2015 and December 2015 (count ten; former § 288a,
    subd. (b)(2)).
    In January 2020, a jury found Appellant guilty on all counts. In
    August, the trial court sentenced Appellant to prison for a determinate term
    of 17 years and 4 months, plus an indeterminate term of 15 years to life.
    The present appeal followed.
    FACTUAL BACKGROUND
    Testimony of Jane Doe
    Jane Doe, the alleged victim, was 18 at the time of her testimony in
    January 2020. Appellant was Jane Doe’s godfather. She met him when she
    was around six years old. She would visit Appellant in his recreational
    vehicle (RV) when he was in town, and he would buy her things and take her
    to fun places. During the visits to the RV, Appellant encouraged Jane Doe to
    be naked. He told her it was “normal” and “natural,” and he showed her
    “pictures on his computer of friends of his that were nude and at beaches
    with a bunch of other nude people.” He also showed her pornographic
    movies.
    Appellant encouraged Jane Doe to play a version of hide and seek in
    which she was naked; sometimes he was naked too. On multiple occasions
    when Jane Doe was 7 to 10 years old, while playing hide and seek with the
    lights on, Appellant touched her on the chest and vagina, including inside her
    vagina. During these games, Jane Doe was alone with Appellant.
    2
    On multiple occasions when Jane Doe was between 8 and 10 years old,
    Appellant used paint and markers to draw on her naked body. He also
    photographed her naked painted body, and she painted his naked body.
    Jane Doe also recalled an occasion when Appellant put her hand on his
    penis; he said it was something his granddaughter (Jane Doe 2) had done.
    She “vaguely remember[ed]” it happening more than once.
    Multiple times, starting when Jane Doe was around the age of nine,
    Appellant held a vibrating electric toothbrush and sometimes an electric
    massager against her clitoris. Appellant told Jane Doe that his
    granddaughter and two of her friends were able to withstand the “tickl[ing]”
    for certain amounts of time, which made Jane Doe feel she should try to last
    longer.
    When Jane Doe was around 11 years old, a friend (later identified as
    Katrina P.) began accompanying Jane Doe to Appellant’s RV. Katrina P. was
    present for games of hide and seek, during which the lights in the RV were
    off and Appellant “would try to identify who was who by touching” their “body
    parts.”
    On one occasion before Jane Doe’s 14th birthday, Appellant put his
    mouth on her vagina. Katrina P. was not present. Sometime after then,
    Jane Doe stopped seeing Appellant because she “realized what he was doing
    was wrong.” When Jane Doe was 14 years old, she told her mother about the
    sexual abuse, but she did not tell law enforcement at that time.
    On cross-examination, defense counsel confronted Jane Doe with
    inconsistencies between her testimony and prior accounts of the abuse.
    When asked about the delay in reporting the abuse to law enforcement, she
    said she “was not strong enough to go forward” earlier.
    3
    Testimony of Jane Doe 3
    Jane Doe 3, who was 16 years old at the time of her testimony, was a
    friend of Appellant’s granddaughter (Jane Doe 2). Jane Doe 3 testified that
    she and Jane Doe 2 would visit Appellant in his RV when he traveled to
    Oregon when she and Jane Doe 2 were around six to eight years old. During
    that time, Appellant introduced them to a game that involved hiding each
    other’s pants and underwear; they were commonly naked from the waist
    down in the RV. During that same time period, Appellant also frequently
    had the girls touch his penis. Finally, Jane Doe 3 remembered Appellant
    holding a vibrating electric toothbrush against her vagina a couple of times;
    the object of the “game” was to see how long she could stand the “tickling.”
    Physical Evidence Recovered from Appellant’s RV
    In August 2017, Jane Doe gave a statement to the police regarding the
    sexual abuse. In early 2019, Appellant was arrested in the City of Petaluma
    and his RV was searched. An electric toothbrush and an electric massager
    were found in the RV; at trial, Jane Doe identified them as the ones
    Appellant held to her vagina. Also, a picture frame with a digital storage
    card was found in the RV. The police were able to recover 34 deleted photos
    from the storage card. Thirteen of them were photographs of a girl’s
    prepubescent naked body, sometimes with body paint. A number of the
    photographs were centered on the girl’s genital area. When a deputy showed
    cropped versions of two of the photographs to Jane Doe, she identified the girl
    as herself.
    Katrina P.’s Testimony for the Defense
    Katrina P. testified she met Jane Doe when she was around seven
    years old; Jane Doe was eight years old. Katrina P. was about 10 years old
    when she met Appellant. She and Jane Doe always visited Appellant
    4
    together when he was in town. Katrina P. had never seen Appellant do
    anything inappropriate and she opined the allegations against Appellant
    were not consistent with his character. She never saw Appellant walk
    around naked and he never showed her photographs or videos of naked
    people. Appellant never touched her vagina with an electric toothbrush or
    massager, and she never saw Appellant do that to Jane Doe. Sometimes
    Jane Doe took off her clothes, and Appellant encouraged her to put them back
    on. They did play hide and seek in the dark in Appellant’s RV, but Appellant
    did not grope her during the game. Katrina P. recalled that Jane Doe would
    sometimes get naked during the game and Appellant had to get her to put
    her clothes back on. Katrina P. and Jane Doe stopped being friends at the
    age of 13. Katrina P. believes Jane Doe is not an honest person.
    On cross-examination, Katrina P. acknowledged Appellant is the only
    father figure in her life. She also admitted that Jane Doe was the girl in one
    of the sexually explicit photos recovered from Appellant’s RV.
    DISCUSSION
    I.    There Was No Ineffective Assistance of Counsel With Respect to a
    Statement Made by Jane Doe’s Support Person
    After the prosecution called Jane Doe to the stand, but before the start
    of her substantive testimony, the trial court commented, “I see that you have
    someone with you. This is an emotional support person. Are you from the
    District Attorney’s Office?” The support person responded that she was from
    “Verity.” The court then asked Jane Doe if she “wish[ed] to have [the support
    person] with [her] while [she] testif[ied].” After Jane Doe answered in the
    affirmative, the court asked the support person to “explain what Verity is.”
    The support person responded, “We are the sexual assault rape crisis centers.
    5
    We support people who have been sexually assaulted or trafficked.” Defense
    counsel did not object.
    Under section 868.5, subdivision (a), in a case involving charges of
    sexual abuse such as those in the present case, a “prosecuting witness …
    shall be entitled, for support, to the attendance of up to two persons of [his or
    her] own choosing, one of whom may be a witness, at the preliminary hearing
    and at the trial, or at a juvenile court proceeding, during the testimony of the
    prosecuting witness.” It is well established that “[t]he utilization of support
    persons is not by itself a practice that presents an unacceptable risk that
    impermissible factors will come into play which might erode the presumption
    of innocence.” (People v. Patten (1992) 
    9 Cal.App.4th 1718
    , 1732–1733.)
    On appeal, Appellant concedes that, normally, a support person’s
    presence is “statutorily and constitutionally permissible.” But he argues his
    due process rights were violated in the present case because, during the
    challenged exchange, the trial court improperly elicited a statement that the
    support person “believed that Jane Doe was in fact a victim of sexual assault
    or trafficking.” Appellant characterizes the claim as both an “inadvertent act
    of judicial misconduct” and “an act akin to spectator misconduct.” He also
    argues the issue should be analyzed under “individualized variables that
    affect whether the presence of a support person violates a defendant’s due
    process rights,” citing People v. Patten, supra, 
    9 Cal.App.4th 1718
     and section
    868.5. We conclude that, however the claim is characterized, any claim based
    on the challenged comment by the support person was forfeited, and defense
    counsel’s forfeiture of that claim was not ineffective assistance of counsel
    (IAC).
    At the outset, we conclude Appellant’s claim was forfeited due to his
    counsel’s failure to object. (People v. Stevens (2009) 
    47 Cal.4th 625
    , 641.)
    6
    Appellant argues an objection “would have been futile as it was the court
    [that] inadvertently elicited this information for the jury.” But Appellant
    points to nothing in the record suggesting the trial court would have been
    unwilling to admonish the jury. (See People v. Seumanu (2015) 
    61 Cal.4th 1293
    , 1320 [“the circumstances in no way suggest an objection and a request
    to have the jury admonished would have found an unsympathetic jurist”].)
    For example, the court could have admonished the jury pursuant to
    CALCRIM No. 377, which provides in part, “Do not consider the presence of
    the [support person] who [is] with the witness for any purpose or allow it to
    distract you.” Or the court could have specifically admonished the jury to
    disregard the support person’s description of Verity. Appellant asserts that
    such an admonishment would have been ineffective, but he provides no
    persuasive reasoning why and cites no authority to that effect. “We presume
    that a jury follows the court’s admonishments.” (People v. Schultz (2020)
    
    10 Cal.5th 623
    , 673.) Accordingly, any claim based on the challenged
    comment by the support person has been forfeited.
    Appellant also contends that, if his claim was forfeited then he received
    IAC.2 “ ‘ “In assessing claims of ineffective assistance of trial counsel, we
    consider whether counsel’s representation fell below an objective standard of
    reasonableness under prevailing professional norms and whether the
    defendant suffered prejudice to a reasonable probability, that is, a probability
    sufficient to undermine confidence in the outcome. [Citations.] ... Defendant
    thus bears the burden of establishing constitutionally inadequate assistance
    of counsel.” ’ ” (People v. Brown (2014) 
    59 Cal.4th 86
    , 109 (Brown).) “If the
    2 Our analysis as to IAC is the same whether the claim is characterized
    as judicial misconduct, spectator misconduct, or a challenge to the presence of
    the support person.
    7
    record ‘sheds no light on why counsel acted or failed to act in the manner
    challenged,’ an appellate claim of [IAC] must be rejected ‘unless counsel was
    asked for an explanation and failed to provide one, or unless there simply
    could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 
    39 Cal.4th 641
    , 746.)
    We reject Appellant’s IAC claim. Defense counsel reasonably could
    have concluded an admonishment regarding the support person’s comment
    was unnecessary in light of the introductory admonishments the trial court
    gave to the jury earlier in the day, including, “You must decide what the facts
    are in this case. You must use only the evidence that is presented in the
    courtroom. Evidence is the sworn testimony of witnesses, the exhibits
    admitted into evidence, and anything else I tell you to consider as evidence.”
    The court had also admonished the jurors, “You alone must judge the
    credibility or believability of the witnesses.” “Defense counsel cannot be
    faulted for not requesting an instruction that would duplicate the one given
    by the court.” (People v. Lucero (2000) 
    23 Cal.4th 692
    , 730.)
    Furthermore, defense counsel reasonably could have chosen not to
    object or request a special admonishment to avoid drawing attention to the
    support person’s comment or to avoid suggesting to the jury that the
    comment had significance. As respondent argues on appeal, “defense counsel
    could have reasonably assumed the jury would interpret the remark as a
    general statement about the organization’s mission.” Given the likelihood
    that jurors would put no weight on the support person’s brief general
    description of her employer, defense counsel could have reasoned that an
    objection and request for an admonishment would have been counter-
    productive. (People v. Harris (2008) 
    43 Cal.4th 1269
    , 1290 [“while requesting
    an admonition was one tactical option, counsel could also have decided that
    8
    objecting would focus the jury’s attention on the [challenged statement] in
    ways that would not be helpful to the defense”]; People v. Carter (2003)
    
    30 Cal.4th 1166
    , 1223 [“the record does not reveal whether counsel had a
    plausible tactical reason for not requesting” that the jury be instructed to
    view extrajudicial statements with caution, “such as to avoid unduly focusing
    the jury’s attention on those statements”].)3
    In conclusion, Appellants’ claims based on the challenged statement by
    the support person have been forfeited and Appellant has not shown defense
    counsel’s failure to object could not have been a reasonable tactical decision,
    as required for an IAC claim on direct appeal.
    II.   The Trial Court Did Not Err in Admitting Expert Testimony
    Appellant contends the trial court erred in allowing the prosecution to
    introduce expert testimony regarding Child Sexual Accommodation Abuse
    Syndrome (CSAAS). Appellant has not shown error.4
    A.    Background
    Before trial, Appellant moved to exclude expert testimony regarding
    CSAAS. Appellant argued the evidence in the case did “not warrant” such
    testimony because “[t]here is no evidence tending to show that Jane Doe
    3 We also reject any IAC claim on the theory that the support person’s
    statement, when viewed in the totality of the circumstances, made the
    support person’s presence a due process violation. Defense counsel could
    reasonably have concluded that objecting to the presence of the support
    person after she made the challenged statement would have engendered
    great sympathy in favor of Jane Doe, and that the single passing statement
    did not render the support person’s presence prejudicial in light of the trial
    court’s instructions.
    4 Because Appellant has shown no error in admission of the expert
    testimony, he necessarily has failed to show IAC due to his counsel’s failure
    to present certain objections to the testimony.
    9
    manifested any symptoms as characterized in the syndrome.” At the hearing
    on the motion, defense counsel also argued the CSAAS expert testimony
    should be excluded because the risk of prejudice far outweighed the probative
    value, especially because Jane Doe was an adult who could explain her own
    behavior to the jury. The trial court denied the motion.
    At trial, Dr. Blake Carmichael testified he is a clinical psychologist
    working primarily with children who have suffered some form of
    “maltreatment.” After explaining his background and experience, he was
    deemed an expert regarding CSAAS. Dr. Carmichael testified he had no
    knowledge about the facts of the case before the jury. He opined the CSAAS
    model can be “very helpful to educate people” about the “counterintuitive”
    behavior of victims of childhood sexual abuse. Among other things, he
    testified that people should not have expectations regarding the outward
    emotional responses of children to abuse; that abused children may
    repeatedly return to an abuser; how abusers may “groom” children for abuse;
    why children may delay in reporting abuse; and why abused children may
    have faulty memories.
    After the close of evidence, the trial court instructed the jury regarding
    expert testimony in general using CALCRIM No. 332. The court also
    instructed the jury regarding CSAAS testimony specifically using CALCRIM
    No. 1193. The court explained, “You have heard testimony from Dr.
    Carmichael regarding [CSAAS]. [¶] Dr. Carmichael’s testimony about
    [CSAAS] is not evidence that the defendant committed any of the crimes
    charged against him. [¶] You may consider this evidence only in deciding
    whether or not Jane Doe’s conduct was not inconsistent with the conduct of
    someone who has been molested, and in evaluating the believability of her
    testimony.”
    10
    B.    Legal Background
    We review the trial court’s decision whether to admit expert testimony
    for an abuse of discretion. (People v. Lapenias (2021) 
    67 Cal.App.5th 162
    , 170
    (Lapenias).) “An appellate court cannot reverse a judgment based on the
    erroneous admission of evidence unless the admitted evidence ‘resulted in a
    miscarriage of justice.’ (Evid. Code, § 353, subd. (b).) In a criminal case, a
    miscarriage of justice can only be found when the reviewing court determines
    it is reasonably probable that a result more favorable to the defendant would
    have been reached had the trial court excluded the erroneously admitted
    evidence.” (Lapenias, at p. 170, fn. omitted.)
    “Expert testimony on ‘the common reactions of child molestation
    victims,’ known as CSAAS theory evidence, ‘is admissible to rehabilitate such
    witness’s credibility when the defendant suggests that the child’s conduct
    after the incident – e.g., a delay in reporting – is inconsistent with his or her
    testimony claiming molestation.’ [Citation.] ‘ “Such expert testimony is
    needed to disabuse jurors of commonly held misconceptions about child
    sexual abuse, and to explain the emotional antecedents of abused children’s
    seemingly self-impeaching behavior.” ’ [Citation.] [¶] But such evidence ‘is
    not admissible to prove that the complaining witness has in fact been
    sexually abused.’ [Citation.] ‘The expert is not allowed to give an opinion on
    whether a witness is telling the truth . . . .’ ” (People v. Julian (2019)
    
    34 Cal.App.5th 878
    , 885; see also Lapenias, supra, 67 Cal.App.5th at p. 170.)
    C.    Analysis
    At the outset, Appellant argues the CSAAS evidence was “irrelevant
    and inadmissible because there are no longer misconceptions to correct and
    there is no evidence that any juror in this case held misconceptions related to
    how abuse victims should act. . .” That argument appears to have been
    11
    forfeited because Appellant cites nowhere in the record where he made it
    below. In any event, the same argument was rejected in Lapenias, supra,
    67 Cal.App.5th at pages 172–173, which involved another case in which
    Dr. Carmichael testified. The court of appeal reasoned that the “argument
    rests on a factual assertion (misconceptions about child sexual abuse are no
    longer present) that was not established prior to the trial court’s evidentiary
    ruling.” (Id. at p. 172.) Moreover, “while some prospective jurors in this case
    may have been aware of some aspects of CSAAS, it is not clear from the
    record that all the empaneled jurors were aware of the entire spectrum of
    CSAAS evidence (secrecy, helplessness, entrapment, accommodation, and
    recantation). Moreover, even if we were to assume that all the empaneled
    jurors were fully aware . . ., we would then find Dr. Carmichael’s testimony to
    be merely cumulative and therefore not prejudicial.” (Id. at pp. 172–173.)
    We agree with that analysis.
    Appellant next argues there was no need for expert testimony
    regarding CSAAS because Jane Doe was an adult at the time she testified.
    He reasons, “She could most certainly have explained for herself the reasons
    why she behaved in the manner she did. If it is true she delayed in reporting,
    she could have explained to the jury why this was so. She could have
    explained for herself if she had a faulty recollection of events [that] occurred
    so many years in the past.” In support of his position, he cites only a 1989
    Ohio court of appeal decision concluding that a 14 year old was “perfectly
    capable of communicating a case of alleged sexual abuse” and the expert
    testimony would be “the equivalent of allowing an expert to testify as to
    credibility.” (State v. Davis (1989) 
    64 Ohio App.3d 334
    , 346–347.) We reject
    that reasoning. In California, expert testimony regarding CSAAS is relevant
    to assist the jury in determining whether the alleged victim’s “conduct was
    12
    not inconsistent with the conduct of someone who has been molested.”
    (CALCRIM No. 1193; see also, e.g., People v. Munch (2020) 
    52 Cal.App.5th 464
    , 475 [“The CSAAS evidence was relevant to advise jurors that such
    normally self-impeaching behavior is not unusual for sexually abused
    children.”].) Expert testimony “disabus[ing] jurors” of “commonly held
    ‘myths’ or misconceptions about child sexual abuse” (Lapenias, supra,
    67 Cal.App.5th at p. 171) is relevant regardless of whether the witness can
    also explain their conduct. Indeed, the witness can only explain their own
    behavior, not the “typical reactions among children who have been sexually
    abused.” (Id. at p. 172.) Furthermore, even if we were to conclude that Jane
    Doe’s testimony was an adequate substitute for testimony about CSAAS, we
    would then find Dr. Carmichael’s testimony to be merely cumulative and
    therefore not prejudicial. (See id. at pp. 172–173.) Appellant’s argument
    fails.
    Appellant also argues expert CSAAS testimony is inadmissible because
    it is unreliable under the Kelly rule,5 which “concerns the admissibility of
    evidence based on a new scientific method, which requires a showing the
    method is generally accepted in the relevant scientific community.”
    (Lapenias, supra, 67 Cal.App.5th at p. 173.) That argument appears to have
    been forfeited because Appellant cites nowhere in the record where he made
    it below. In any event, the argument was rejected in the Lapenias decision,
    which reasoned, “Here, the theory of CSAAS is not new. [Citation.] Further,
    CSAAS testimony does not purport to provide a definitive truth; rather, the
    expert testimony attempts to disabuse jurors of misconceptions they might
    hold about the conduct of children who have been sexually abused. In short,
    expert CSAAS testimony is not ‘ “ ‘scientific’ ” evidence’ subject to the Kelly
    5   People v. Kelly (1976) 
    17 Cal.3d 24
    .
    13
    rule.” (Lapenias, at p. 173.) Again, we agree with the analysis of the
    Lapenias court. (See also Munch, supra, 52 Cal.App.5th at pp. 472–473 [also
    rejecting challenge to CSAAS evidence under the Kelly rule].)
    Appellant argues the CSAAS evidence should have been excluded
    under Evidence Code section 352 because the probative value was
    substantially outweighed by the probability of undue prejudice. The
    argument rests on his previous arguments that the CSAAS evidence is not
    probative because there are no longer generally held misconceptions and
    because the CSAAS theory lacks scientific validity. We have rejected those
    arguments and have concluded that Dr. Carmichael’s testimony was relevant
    to help the jury to assess Jane Doe’s credibility.6
    Neither did Appellant demonstrate a risk of undue prejudice that
    substantially outweighed the probative value of the expert testimony. “Here,
    the prosecution charged [Appellant] with committing multiple sex crimes
    against his [goddaughter] when she was under 14 years old. From our
    perspective, the prejudicial impact of the relatively benign CSAAS testimony
    was likely to have paled in comparison to the charged conduct.” (Lapenias,
    supra, 67 Cal.App.5th at p. 174; see also Munch, supra, 52 Cal.App.5th at
    p. 475 [the expert’s “testimony was relatively short and benign as compared
    to the highly relevant explicit details of the sexual offenses Jane Doe testified
    about” and “[t]he potential prejudicial impact of [the expert’s] testimony was
    also reduced because [the expert] testified that he knew no facts about this
    case”].) Contrary to Appellant’s argument, Dr. Carmichael was very clear he
    was not opining on whether Jane Doe had been abused, and the trial court’s
    6 The decision in People v. Clotfelter (2021) 
    65 Cal.App.5th 30
    , is
    distinguishable. In that case, it was “not at all apparent that the CSAAS
    testimony was relevant” because the alleged victims “denied they had been
    touched inappropriately.” (Id. at p. 64.)
    14
    instructions clearly prohibited the jury from treating the expert’s testimony
    as “evidence that the defendant committed any of the crimes charged against
    him.” The trial court did not abuse its discretion in declining to exclude the
    CSAAS evidence under Evidence Code section 352. (Lapenias, at p. 174;
    Munch, at p. 475.)7
    Finally, Appellant argues admission of the expert testimony about
    CSAAS violated his rights to due process and a fair trial under the federal
    Constitution. The argument is premised on Appellant’s preceding
    contentions that the testimony was irrelevant. Because we have rejected
    those arguments, we also reject his contention that admission of the evidence
    was unconstitutional.
    III.   Appellant Has Not Shown Prejudicial Prosecutorial Misconduct
    Appellant contends the prosecutor committed misconduct in eliciting
    improper CSAAS testimony and in misusing that testimony during closing
    argument, in violation of the trial court’s order restricting the admissibility
    and use of CSAAS evidence. The claim fails.
    7Appellant argues for the first time in his reply brief that Dr.
    Carmichael’s testimony was improper because he “answer[ed] questions that
    improperly mirrored various facts in the case” and because the expert did not
    expressly testify to the “five components of the CSAAS theory.” (Lapenias,
    supra, 67 Cal.App.5th at p. 169.) Arguments asserted for the first time in a
    reply brief are forfeited. (Proctor v. Vishay Intertechnology, Inc. (2013)
    
    213 Cal.App.4th 1258
    , 1273–1274.) In any event, the arguments are
    meritless. Appellant cites no authority the CSAAS theory must be presented
    in any particular manner, as long as the testimony explains misconceptions
    about the behavior of child sexual abuse victims and it is not presented to
    prove the alleged sexual abuse occurred. (Lapenias, at p. 170.) And
    questioning whether particular behaviors are inconsistent with being a
    victim of sexual abuse, including behaviors manifested by the alleged victim
    in the case, is in accordance with the purposes for which the CSAAS evidence
    is admitted.
    15
    At the outset, we observe the claim is forfeited because Appellant cites
    no portion of the record where he objected below to the portions of testimony
    and argument challenged on appeal. (People v. Johnsen (2021) 
    10 Cal.5th 1116
    , 1164 (Johnsen).) Appellant argues the failure to object was IAC.8 That
    claim fails because counsel may have had a tactical reason not to object (id.
    at p. 1165), and, as explained below, any objection would have been without
    merit and the alleged misconduct was not prejudicial. (See People v.
    Anderson (2001) 
    25 Cal.4th 543
    , 587 [“Counsel is not required to proffer futile
    objections”]; Brown, supra, 59 Cal.4th at p. 109 [an IAC claim requires a
    showing of a “ ‘ “a reasonable probability” ’ ” the defendant suffered
    prejudice].)
    As noted above, the claim fails on the merits. The trial court prohibited
    the prosecution’s expert from giving “any opinions or conclusions on whether
    or not abuse occurred in this case, but rather just on the accommodation
    syndrome itself so that the jury can fully understand that issue.” Appellant
    argues that, “[i]n violation of that court order, the prosecution elicited
    testimony from its expert witness that was tailored to fit Jane Doe’s
    testimony, which created a predictive profile of a child abuse victim to show
    that Jane Doe was telling the truth about being sexually abused.”
    We disagree. As noted in footnote 7, ante, it does not violate the
    purposes for which CSAAS evidence is admitted to ask an expert whether
    particular behaviors are inconsistent with being a victim of sexual abuse,
    including behaviors manifested by the alleged victim in the case.
    Accordingly, the prosecutor in the present case did not violate the trial court’s
    8We reject Appellant’s contentions that his pre-trial objection to
    CSAAS evidence preserved his claims regarding the alleged misconduct and
    that any objections would have been futile.
    16
    order or the established limits on CSAAS testimony by asking Dr.
    Carmichael whether the jury should “have any expectations” about a child’s
    “outward emotional responses” to abuse; whether an abused child should be
    expected to remember every detail of the abuse; whether it would be
    inconsistent with abuse for a victim to recall additional details over time;
    whether it would be inconsistent with abuse for a child to return to the
    abuser; and whether the likelihood of disclosure of abuse could be affected by
    “groom[ing],” a victim’s feeling of personal strength, or the child’s “special
    relationship” with their abuser.
    Although those were behaviors Jane Doe manifested, Appellant points
    to nowhere in the expert’s testimony where the expert suggested that if a
    child showed such behaviors it meant they had been abused. Instead, the
    expert clearly testified that the purpose of educating the jurors about CSAAS
    was to disabuse them of misconceptions they may have regarding how abused
    children behave. The expert said, “It is important to educate people about
    this population of kids that most people don’t know about, don’t study, don’t
    come into contact with. And understanding there’s a variety of ways how
    kids can and do react after they have been abused, some of which are kind of
    counterintuitive.” The expert emphasized, “There is no set of behaviors or
    things that you can point to to say that kid was abused because they did this
    or they did not do that.” On cross-examination, he confirmed he had “no
    personal opinion as to the credibility of anyone who has been testifying
    during the course of [the] trial,” emphasizing, “I don’t know any of that
    information, and that is the purview of the jury and the legal process.”
    Appellant has not shown the CSAAS testimony exceeded the scope of the trial
    court’s order or the established legal limits.
    17
    Appellant also argues the prosecutor committed misconduct in his
    closing argument. Primarily, Appellant argues the prosecutor “invited jurors
    to misuse the CSAAS evidence as proof that Jane [Doe] had in fact been
    abused.” We disagree. Appellant points to several brief ambiguous
    comments. To wit, the prosecutor argued: “Dr. Carmichael taught us that
    childhood sexual abuse occurs in the context of a relationship;” “look at the
    nature of the relationship, it provides you with a bit of guidance on how to
    understand how things happened the way they did;” and “[w]hen we hear
    from Jane Doe about how this happened, we hear from Dr. Carmichael about
    how this happened. It is hard, but it makes sense.”
    Although one interpretation of those statements is that Jane Doe was
    abused because the circumstances she described mirrored those described by
    Dr. Carmichael, that interpretation was belied by the prosecutor’s other,
    more substantial arguments, in which he properly and repeatedly used the
    CSAAS evidence to emphasize that the jury should “have no expectations”
    regarding how Jane Doe should have responded if she was abused. And, as
    noted previously, Dr. Carmichael was clear that he was not testifying Jane
    Doe was abused if she manifested the behaviors he described, and the trial
    court’s instructions clearly prohibited the jury from treating the expert’s
    testimony as “evidence that the defendant committed any of the crimes
    charged against him.”9
    9 Defense counsel’s closing reflected a consistent interpretation of Dr.
    Carmichael’s testimony. He argued the expert’s testimony was not “very
    helpful … because his testimony is essentially there is no fixed pattern by
    which victims of abuse react to abuse. So it could be consistent that, you
    know, they delay in their reporting. They might report right away.
    Sometimes they provide inconsistent testimony. Sometimes not. Sometimes
    they forget things. Sometimes they remember specific acts. In short,
    18
    On appeal, Appellant is required to “show that, ‘[i]n the context of the
    whole argument and the instructions’ [citation], there was ‘a reasonable
    likelihood the jury understood or applied the complained-of comments in an
    improper or erroneous manner.’ ” (People v. Centeno (2014) 
    60 Cal.4th 659
    ,
    667.) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury
    drew the most damaging rather than the least damaging meaning from the
    prosecutor’s statements.” ’ ” (Ibid.) In the present case, there is no
    reasonable likelihood the jury understood the challenged brief and ambiguous
    arguments to mean that it could use the CSAAS testimony as evidence Jane
    Doe was abused, contrary to the trial court’s instructions. (See People v.
    Sanchez (2001) 
    26 Cal.4th 834
    , 852 [“Jurors are presumed able to understand
    and correlate instructions and are further presumed to have followed the
    court’s instructions”].)10
    anything that victim of abuse does is consistent with the truth, according to
    Dr. Carmichael.”
    10 Appellant also argues the prosecutor’s argument “invited jurors to
    further misuse the CSAAS evidence to conclude that appellant had also
    sexually abused” Katrina P. However, in the cited argument from the
    prosecutor’s rebuttal, he made no reference to the CSAAS evidence; indeed,
    he made no reference to CSAAS in the entire rebuttal. And Appellant cites
    no authority it was misconduct for the prosecutor to postulate various
    reasons why, as he argued, Katrina P. was untruthful. Finally, Appellant
    contends the prosecutor committed misconduct when he argued that, in
    “assess[ing] the credibility of Jane Doe’s account,” the jury should use
    “common sense” and consider “the information about his access to vulnerable
    children, his free access to multiple children in multiple places, accounting
    for what you know happened in Oregon, accounting for what you know is
    found in his trailer with those photographs. . . .” In context, it is clear the
    prosecutor was referring to the evidence corroborating Jane Doe’s testimony;
    we reject Appellant’s assertion the argument was improperly “calculated to
    inflame the jury and evoke anger and punitive impulses of jurors.”
    19
    In any event, even if some of the prosecutor’s arguments were improper
    for the reasons identified by Appellant (including those in footnote 10, ante),
    they were not so egregious or pervasive that “ ‘ “it is reasonably probable that
    a result more favorable to the defendant would have been reached without
    the misconduct.” ’ ” (People v. Martinez (2010) 
    47 Cal.4th 911
    , 955.)11
    Appellant asserts the present case was a “contest of witness credibility”
    between Jane Doe and Katrina P. However, Katrina P. did not directly
    contradict most of Jane Doe’s testimony. Appellant asserts that Katrina P.
    testified she and Jane Doe visited Appellant when Katrina P. was between 8
    and 9, but Katrina P. testified she met Appellant when she was around ten.
    That meant Jane Doe had visited with Appellant for years before she did so
    with Katrina P.; Katrina P. had no direct knowledge regarding Jane Doe’s
    allegations of abuse when Jane Doe was younger. That encompasses all the
    allegations of abuse, except for the allegations of hide and seek in the dark
    with Katrina P. and the incident where Jane Doe alleged Appellant touched
    her vagina with his mouth (when Katrina P. was not present). Also, although
    Katrina P. denied any inappropriate touching during the hide and seek
    games, because it was dark, it appears she lacked any direct knowledge of
    how Appellant touched Jane Doe during those games.
    Finally, Appellant ignores that Jane Doe’s account was strongly
    corroborated by the photographs found in Appellant’s RV and by Jane Doe 3’s
    testimony describing very similar sexual abuse—especially the game both
    Jane Doe and Jane Doe 3 described with a vibrating toothbrush and/or
    11 Because any misconduct did not “comprise[ ] a pattern of conduct ‘so
    egregious that it infect[ed] the trial with such unfairness as to make the
    conviction a denial of due process,’ ” any prejudice is analyzed under the state
    standard of People v. Watson (1956) 
    46 Cal.2d 818
    . (People v. Espinoza (1992)
    
    3 Cal.4th 806
    , 820–821.)
    20
    massager. The prosecutor emphasized that powerful corroborating evidence,
    and not the CSAAS evidence, in the closing portion of his rebuttal. Appellant
    has not shown there is a reasonable probability he was prejudiced by any
    prosecutorial misconduct.12
    IV.   Appellant is Not Entitled to Remand Under Senate Bill No. 567
    Appellant contends this case must be remanded for resentencing
    because a change in law subsequent to his sentencing hearing has rendered
    his upper term sentence unlawful. At the time Appellant was sentenced,
    “section 1170, subdivision (b), gave the trial courts broad discretion to decide
    which of the three terms specified for an offense would best serve the
    interests of justice. (See § 1170, subd. (b), as amended by Stats. 2020, ch. 29,
    § 14.) Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg.
    Sess.)…, amended section 1170, subdivision (b), in a number of respects, one
    of which was to make the middle term of imprisonment the presumptive
    sentence. (See § 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.)
    Under the amended statute, ‘When a judgment of imprisonment is to be
    imposed and the statute specifies three possible terms, the court shall, in its
    sound discretion, order imposition of a sentence not to exceed the middle
    term, except as otherwise provided in paragraph (2).’ (§ 1170, subd. (b)(1).)”
    (People v. Wandrey (2022) 
    80 Cal.App.5th 962
    , 981, review granted Sept. 28,
    2022, S275942 (Wandrey); see also People v. Flores (2022) 
    73 Cal.App.5th 1032
    , 1038 (Flores).) Under the amended version of section 1170, subdivision
    (b)(2), a trial court may impose the upper term only if “there are
    circumstances in aggravation of the crime that justify the imposition of a
    term of imprisonment exceeding the middle term, and the facts underlying
    12Appellant argues for reversal under the cumulative error doctrine,
    but we have not found multiple errors to be considered cumulatively.
    21
    those circumstances have been stipulated to by the defendant, or have been
    found true beyond a reasonable doubt at trial by the jury or by the judge in a
    court trial . . . .”
    Appellant contends he is entitled to resentencing under Senate Bill
    No. 567 (2021–2022 Reg. Sess.) because “[w]hen the [trial] court sentenced
    [A]ppellant, it imposed upper terms based on aggravating factors that had
    not been found true beyond a reasonable doubt at trial or admitted by
    [A]ppellant.” Respondent properly concedes the amended version of section
    1170, subdivision (b) “applies retroactively in this case as an ameliorative
    change in the law applicable to all nonfinal convictions on appeal.” (Flores,
    supra, 73 Cal.App.5th at p. 1039.) However, respondent argues, “Any error
    in failing to obtain true findings by the jury or admissions by [A]ppellant was
    harmless beyond a reasonable doubt, since the jury would have
    unquestionably found the factors true had they been submitted to it.”
    “Error in relying on facts not found by the jury to impose an aggravated
    term is subject to review under the harmless error standard of Chapman v.
    California (1967) 
    386 U.S. 18
    .” (Wandrey, supra, 80 Cal.App.5th at p. 981.)
    “ ‘[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury,
    applying the beyond-a-reasonable-doubt standard, unquestionably would
    have found true at least a single aggravating circumstance had it been
    submitted to the jury, the Sixth Amendment error properly may be found
    harmless.’ ” (Wandrey, at p. 982.)
    In the present case, at sentencing the trial court relied on four
    aggravating factors in imposing the upper term for the lewd act charged in
    count one: (1) Jane Doe was “particularly vulnerable;” (2) “the manner in
    which the crimes were carried out suggests planning over a long period of
    time;” (3) Appellant abused “a position of trust and confidence;” and (4)
    22
    Appellant “use[d] obscene material to encourage Jane Doe to engage in…
    behavior.”13 Although the jury did not find those circumstances true beyond
    a reasonable doubt, Appellant fails to explain how the jury could have failed
    to do so had they been asked to do so. As respondent argues, the jury
    “ ‘unquestionably’ ” (Wandrey, supra, 80 Cal.App.5th at p. 982) would have
    found all of those circumstances true beyond a reasonable doubt. In
    particular, given the corroborating physical and testimonial evidence and the
    jury’s acceptance of Jane Doe’s account, there is no doubt the jury would have
    found that Jane Doe was particularly vulnerable, that Appellant engaged in
    extensive planning, that Appellant abused a position of trust, and that
    Appellant used obscene material to groom Jane Doe. There is no basis to
    remand for resentencing. (Id. at p. 981.)14
    13Appellant asserts the trial court relied on a finding of Appellant’s
    callousness as an aggravating circumstance. But, although the trial court did
    say Appellant’s acts showed callousness, it expressly declined to rely on the
    relevant aggravating factor—that “[t]he crime involved great violence, great
    bodily harm, threat of great bodily harm, or other acts disclosing a high
    degree of cruelty, viciousness, or callousness.” (Cal. Rules of Court,
    Rule 4.421(a)(1).)
    14  Because it is clear the jury would have found true all of the
    aggravating factors upon which the trial court relied, there is no need to
    consider if it is reasonably probable the trial court would have exercised its
    discretion to select the upper term if it “recognized that it could permissibly
    rely on only a single one of the aggravating factors, a few of the aggravating
    factors, or none of the aggravating factors, rather than all of the factors on
    which it previously relied.” (People v. Lopez (2022) 
    78 Cal.App.5th 459
    , 467,
    fn. 11; see also People v. Zabelle (2022) 
    80 Cal.App.5th 1098
    , 1113; People v.
    Dunn (2022) 
    81 Cal.App.5th 394
    , 408–410, review granted Oct. 12, 2022,
    S275655.)
    23
    V.    Appellant is Not Entitled to Remand Under Assembly Bill No. 518
    Following Appellant’s sentencing, effective January 1, 2022, section 654
    was amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.). (People v.
    Mani (2022) 
    74 Cal.App.5th 343
    , 379 (Mani).) “Previously, where . . .
    section 654 applied, the sentencing court was required to impose the sentence
    that ‘provides for the longest potential term of imprisonment’ and stay
    execution of the other term. (. . .§ 654, former subd. (a).) As amended by
    Assembly Bill 518, . . . section 654 now provides the trial court with
    discretion to impose and execute the sentence of either term, which could
    result in the trial court imposing and executing the shorter sentence rather
    than the longer sentence.” (Mani, at p. 379.)
    At issue in the present appeal is the trial court’s application of
    section 654 to counts six and seven. The court imposed a 15-years-to-life
    sentence on count six, sexual penetration with a child aged 10 years or
    younger (§ 288.7, subd. (b)), and stayed a two-year sentence (one-third the
    middle term of six years) on count seven, committing a lewd or lascivious act
    upon a child under the age of 14 years (§ 288, subd. (a)). Appellant contends
    this case must be remanded to allow the trial court an opportunity to exercise
    its newly granted discretion whether to impose the sentence under count six
    or count seven. The parties agree Assembly Bill No. 518 (2021-2022 Reg.
    Sess.) is retroactive. (Mani, supra, 74 Cal.App.5th at pp. 379–380.)
    However, respondent argues section 1203.065, subdivision (a) prohibits the
    trial court from staying the execution of sentence for count six.
    Section 1203.065, subdivision (a) provides, in pertinent part,
    “Notwithstanding any other law, probation shall not be granted to, nor shall
    the execution or imposition of sentence be suspended for, a person who is
    convicted of violating . . . Section 288.7 . . . .” Respondent cites People v.
    24
    Caparaz (2022) 
    80 Cal.App.5th 669
     (Caparaz), at page 689, for the
    proposition that “a stay is type of suspension; thus, a prohibition against
    suspending a sentence necessarily prohibits the stay of a sentence.”
    Respondent then argues, “What section 1203.065, subdivision (a) means is: A
    trial court is prohibited from staying the execution of sentence for a violation
    of section 288.7 (count 6 here) notwithstanding any other law, including
    section 654.”
    We agree. The decision in Caparaz, supra, 
    80 Cal.App.5th 669
    , is
    directly analogous. There, the Attorney General argued that remand for
    resentencing under Assembly Bill No. 518 was unnecessary because the
    superior court was without discretion to stay punishment mandated by the
    One Strike law, which applied to the count for which the sentence was not
    stayed. (Caparaz, at p. 688.) The Attorney General relied on section 667.61,
    subdivision (h) of the One Strike law, which provides, “Notwithstanding any
    other law, probation shall not be granted to, nor shall the execution or
    imposition of sentence be suspended for, a person who is subject to
    punishment under this section.” (Caparaz, at p. 689.) The court of appeal
    stated, “When a defendant is convicted of two offenses for which section 654
    prohibits multiple punishment (as is the case here), the trial court imposes
    sentence for one of them, and then imposes and stays the sentence for the
    other offense. [Citation.] A stay is a type of suspension. [Citation.] The
    Attorney General argues section 667.61[, subdivision] (h) means a trial court
    is prohibited from suspending or staying the imposition of a One Strike law
    sentence notwithstanding any other law, including section 654.” (Caparaz, at
    p. 689.) The court of appeal agreed, concluding it was unnecessary to remand
    because the trial court had “no discretion to suspend or stay the One Strike
    25
    law sentence . . . in favor of the shorter non-One Strike law sentence . . .
    notwithstanding the amendment to section 654.” (Caparaz, at p. 690.)
    The operative language in section 667.61, subdivision (h), at issue in
    Caparaz, is identical to that in section 1203.065, subdivision (a), at issue in
    the present case. Accordingly, employing the same reasoning as in Caparaz,
    it is unnecessary to remand for resentencing because the trial court would
    have no discretion to stay the sentence on count six. In response, Appellant
    does not dispute that the statute at issue in Caparaz is directly analogous to
    that at issue in the present case. Instead, Appellant argues the Caparaz
    court erred because a 1986 decision cited therein for the meaning of “stay,”
    People v. Santana (1986) 
    182 Cal.App.3d 185
    , concluded the “stay” of an
    enhancement had the “functional effect” of striking the enhancement.
    Santana is inapposite; the issue in that case was whether to treat the trial
    court’s order purporting to “stay” the enhancement as an order “striking” the
    enhancement for purposes of appellate review. (Santana, at pp. 190–192.)
    We reject Appellant’s argument that a stay under section 654 is equivalent to
    striking the count—the stayed count can be “resurrected” (Santana, at p. 191)
    if, for any reason, the unstayed sentence is reversed or vacated. (People v.
    Alford (2010) 
    180 Cal.App.4th 1463
    , 1469.) In any event, a stay of the
    sentence on count six under section 654 is prohibited by the plain language of
    section 1203.065, subdivision (a), regardless of whether a court might
    conclude the stay is functionally equivalent to striking the count.
    It is unnecessary to remand for resentencing because the trial court is
    without authority to stay the sentence on count six.15
    15 We need not and do not address respondent’s additional contention
    that remand would be futile because it is clear the trial court would not elect
    to stay the sentence on count seven instead of the sentence on count six, if it
    did have the authority to do so.
    26
    DISPOSITION
    The trial court’s judgment is affirmed.
    SIMONS, Acting P.J.
    We concur.
    BURNS, J.
    WISEMAN, J.*
    (A160769)
    * Retired Associate Justice of the Court of Appeal, Fifth Appellate
    District, assigned by the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    27