People v. Kelly CA3 ( 2021 )

Filed 10/13/21 P. v. Kelly CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C087530
Plaintiff and Respondent, (Super. Ct. No. 17FE019449)
v.
ANDY KARL KELLY,
Defendant and Appellant.
A jury found defendant guilty of committing a lewd or lascivious act on a child
under the age of 14 (10 counts), attempting to commit a lewd or lascivious act on a child
under the age of 14, engaging in sexual intercourse or sodomy with a child 10 years old
or younger (two counts), and engaging in oral copulation or sexual penetration with a
child 10 years old or younger (four counts). The victim, defendant’s goddaughter, was
six years old and younger at the time of the charged offenses. Defendant was sentenced
to 110 years to life and an additional determinate term of 19 years.
1
On appeal, defendant contends that (1) the trial court abused its discretion in
admitting expert testimony concerning Child Sexual Abuse Accommodation Syndrome
(CSAAS), (2) CALCRIM No. 1193 allowed the jury to consider the CSAAS evidence in
an improper manner, and (3) substantial evidence did not support his conviction of
attempting to commit a lewd or lascivious act on a child under the age of 14.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with committing a lewd or lascivious act on a child under
the age of 14 (Pen. Code, § 288, subd. (a); counts one, two, four, five, seven, eight, nine,
eleven, thirteen, seventeen)1; attempting to commit a lewd or lascivious act on a child
under the age of 14 (§§ 664, 288, subd. (a); count three); engaging in sexual intercourse
or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); counts six, sixteen);
and engaging in oral copulation or sexual penetration with a child 10 years old or
younger (§ 288.7, subd. (b); counts ten, twelve, fourteen, fifteen). It was further alleged
that defendant engaged in substantial sexual contact with a victim under the age of 14
years old within the meaning of section 1203.066, subdivision (a)(8). The incidents were
alleged to have occurred between February 11, 2015, and July 18, 2017.
Prosecution Evidence
Trial Testimony About the Underlying Events
The victim was seven years old at trial. She had a sister, S.D., who was 11, and
three brothers. Defendant was the victim’s godfather. The victim spent a great deal of
time with her godparents, defendant and his wife, who helped the victim’s father and
stepmother and were essentially an extended family. The victim stayed with defendant
and his wife off and on her whole life until she was six. K.S. and, more recently, A.H.,
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
2
defendant’s daughters, also lived with them at defendant’s house.2 The victim had a
small bed in defendant’s bedroom next to the bed defendant shared with his wife.
The victim testified that she was five and six when bad things happened to her.
On one occasion, when she was six, she was in bed and defendant was tickling her.
Defendant licked her armpit and then asked her what she wanted to lick. The victim
licked defendant’s stomach, and then defendant pulled out his “wiener” or “thingy.”
On another occasion, when the victim was five years old, she was playing outside
with her friends and then went inside. Defendant came in the bedroom. Defendant
pulled his penis out of his pants and “started grabbing on it for a minute . . . .” Defendant
told the victim to touch his penis, and so she touched it with her finger. Eventually, “the
white stuff came out.” Defendant told the victim to eat it. The victim had to suck
defendant’s penis with her mouth. Defendant also put his penis in her vagina.
On another occasion, she was in the bathtub when defendant came into the
bathroom. Defendant put his penis in her vagina. Defendant also put his fingers in her
anus and put his mouth on her breasts.
Defendant also kissed the victim “like a grown-up kiss” by putting his lips on hers
and putting his tongue in her mouth.
The victim testified that defendant told her not to tell anyone about the things he
did with her. She did not tell her parents about the incidents because she was too
frightened.
Eventually, the victim told S.D. S.D. wanted to tell her mother and encouraged the
victim to tell someone, but the victim refused, saying that defendant told her she would
get hurt if she told anyone. On the last occasion, the victim reported abuse to S.D., and
2 K.S. was defendant’s stepdaughter and A.H. was her sister.
3
then they told the victim’s “cousin.”3 S.D. and the cousin told the victim’s parents. The
victim’s father and stepmother took the victim to a hospital.
On cross-examination, the victim testified that she got in trouble before for
watching videos she was not supposed to watch. She denied ever watching videos of
adults having sex. However, she further testified on recross-examination that she got in
trouble for watching “nasty” videos.
The Victim’s Hospital Visit, Law Enforcement Interview, and BEAR Clinic
Examination
An emergency room nurse testified that the victim “was very matter of fact.” The
nurse acknowledged on cross-examination that the victim did not seem upset, was not
crying, and did not provide many details of the alleged sexual abuse.
Sacramento Sheriff’s Detectives Christopher Robertson and his partner
interviewed the victim at the hospital. An audio recording of the interview was played
for the jury. In the interview, the victim told the deputies that, the day before the
interview, defendant made her “lick the . . . white stuff off him.” The victim was naked
in the bathtub. Defendant said to the victim that it was “take out time.” The victim put
on a towel and went into the room she shared with defendant and his wife. Defendant
was rubbing his penis over his pants, and then he pulled it out. Defendant made the
victim touch his penis with her hand and suck his penis. Defendant rubbed his penis to
“make the white stuff come out,” and he forced the victim “to lick the white stuff off
him.” Defendant made white stuff come out again and he made the victim eat it again.
He used his own hand to make the white stuff come out, and he put his “wiener” in her
“hole.” However, “the whole wiener wouldn’t fit.” Defendant placed his finger in her
anus, and then put his finger in the hole in “front.” The victim said that defendant placed
his penis in her hole on three separate occasions.
3 She was not actually a cousin by blood relation.
4
Defendant taught the victim how to “grown-up kiss” using the tongue. That
occurred on the victim’s birthday when she turned six.
The victim told the deputies that she never told anyone about the incidents because
she was scared. Defendant threatened her that, if she told anyone, he would spank her
until she could not feel anything.
On cross-examination, Robertson confirmed that, during the interview, the victim
was calm and was not crying.
Julie Langston was a registered nurse who worked for the Sutter Medical Group at
the BEAR Clinic, where they perform sexual assault and child abuse forensic assault
exams.4 Langston performed an exam on the victim on July 20, 2017. Langston testified
that symptoms the victim had disclosed included abdominal and pelvic pain, “pain when
she went to the bathroom with some genital itching,” and bleeding when she had a bowel
movement. Langston noted that the victim “had a yeast infection a couple months earlier
and there had been some genital itching with that.” Langston testified that abdominal or
pelvic pain, pain on urination, and yeast infections can be side effects of vaginal sexual
assault, but there is no way to directly link such symptoms to a vaginal sexual assault.
Langston also testified that yeast infections can have nonsexual causes.
Langston testified that, in examinations in cases of sexual assault, in more than 50
percent of adults and 90 percent of children, the physical exam results are “normal.” In
other words, it is not surprising in a case of recent sexual abuse to find no injuries. In her
examination of the victim, Langston did not find anything abnormal. The victim did have
a slightly dilated anus, but that could have resulted from a recent bowel movement.
4Langston testified that BEAR is an acronym for “Bridging Assessment Evidence and
Resources,” presumably reversing the order of “Evidence Assessment.”
5
Langston testified that the lack of findings in the victim’s exam was consistent with the
history of sexual abuse described to Langston.5
Later, Detective Shane Spence went to the victim’s father’s and stepmother’s
house to discuss with them the procedure of a SAFE interview.6 Spence showed the
victim a photograph of defendant to see if she could identify him. The victim identified
defendant, said that she missed him, and spontaneously kissed the photograph.
The Victim’s SAFE Interview
At the SAFE interview, the victim seemed very nervous and threw up in the car on
the way. The prosecution played a recording of the SAFE interview for the jury.7
The victim told the interviewer that defendant was very nice, “but he started doing
S-A-X,” by which she meant sex. The victim stated that defendant “started putting his
thingy in” her, started having sex with her, and forced her to lick white stuff off of him.
According to the victim, this happened on three occasions.
On the first occasion, defendant tried to have sex with her. The victim and
defendant were snuggling and he licked her armpit. He asked her what she wanted to
lick, and she said his tummy. She licked his bellybutton. Defendant then pulled out his
“wiener” under the blanket and “was squishing it,” with his hands. Defendant asked the
victim to have sex and she said no. The victim and defendant were “talking backwards,”
“no means yes and yes me [sic] no,” and the victim said no. Defendant said, “[h]ow
about I, I have it with your doll.” Defendant started pushing on the vagina area of the
5 Langston took a number of swabs from the victim, including genital swabs, anal swabs,
a buccal swab, a perioral swab from the area around the lips, and swabs around her
breasts. Langston also collected the victim’s shorts, top, and underwear.
6 SAFE is an acronym standing for “special assault forensic evaluation.” (People v.
Sanchez (2016) 246 Cal.App.4th 167, 174.)
7 Page two of the transcript of this interview is absent from the clerk’s transcript.
6
victim’s doll like he was having sex. Defendant told the victim not to tell anyone that he
showed her how to have sex.
The second occasion occurred on the victim’s birthday. Defendant told the victim
to give him a kiss, and “then he went to the tongue.” He made her put her tongue inside
of his mouth and he put his tongue inside her mouth. Defendant’s hands were on the
victim’s neck. He then received a work-related phone call and had to leave.
On the most recent occasion, when the victim was six, she was outside playing
with friends. The victim had to go inside because her toe was bleeding. Defendant
prepared a bath for the victim. When she went to the bath, the victim had a bathing suit
on, and she asked defendant to leave so she could take it off. Defendant watched her
through a crack in the door. The victim got into the bathtub and defendant came back
into the bathroom. He was wearing black shorts and he took them off. Defendant sucked
on the victim’s “boob.” Defendant laid down and pushed down on the victim’s vagina
with his “thingy” or his “wiener.” Defendant’s penis went inside of the victim’s vagina.
Defendant was moving and shaking. At one point, defendant’s face started turning
purple and had to get up and get his shot from the refrigerator. Defendant was diabetic.
The victim followed defendant and saw him get his shot from the refrigerator and give
himself the shot. On this occasion, according to the victim, defendant injected the shot
on his “thingy.” Defendant put his finger inside the victim’s vagina and “rolled it around
in there . . . .” He also put his finger in her anus. Defendant and the victim went to the
bedroom. Defendant told the victim to “[s]queeze [his] wiener. Squeeze it really fast.”
Defendant made the victim “suck the top” of his penis. The white stuff came out of
defendant’s penis. The victim had to lick the white stuff off of defendant’s “wiener” and
“the balls.” Then, as defendant’s wife came in, defendant told the victim to get back into
the bath. The victim was scared because defendant told her that, if she told anyone, he
would spank her until she could not feel anything. After defendant’s wife went back to
7
work later, the victim was in bed and she woke up. Defendant took off the black shorts
and put his penis in her vagina again.
DNA and Urological Evidence
Ryan Nickel testified as an expert in DNA analysis and statistical significance.
Nickel analyzed a number of samples including defendant’s reference sample and items
in the victim’s BEAR collection kit. On one of three vestibule swabs, he detected “one
sperm head in a screening cutting.”8 Nickel found two sperm heads on the underwear in
the BEAR kit and took a cutting for DNA analysis.
Nickel developed DNA profiles from the items he found. No foreign DNA was
found on the vestibule swab.9 On cross-examination, Nickel agreed that it was it was a
misnomer to discuss the sperm fraction on the vestibule swab because, after DNA
analysis, no sperm was found.
On the sperm fraction Nickel located on the underwear, he found a mixed profile,
with one female contributor and one male contributor. Defendant was a potential
contributor to the male profile in the sperm fraction. According to Nickel, it was 16.1
quadrillion times more likely that the victim and defendant were the contributors to the
sample than the victim and a random male. As to the nonsperm fraction, Nickel also
discovered a mixed profile, one male and one female. According to Nickel, it was 33,800
times more likely that the victim and defendant were the contributors to the sample than
the victim and a random male. Nickel testified that, if he did not have to dilute the
8 Langston testified that the vestibule is the area “right after the labia minora, right
before the hymen.”
9 Nickel explained that it is possible to find no foreign DNA in a swab taken from a
female despite the presence of a sperm fraction because “either there just isn’t enough --
there aren’t sperm cells on that remaining three-quarters sample that I took to DNA or
that the epithelial cell fraction is overwhelming the number of the sperm cells and ending
up in the sperm fraction.”
8
sample before amplifying it in order to properly perform his analysis, the “profile would
be a lot higher.”
Nickel testified that articles furnished by the defense supported the premise that
transfer of DNA in the washing machine can occur. However, Nickel testified that the
DNA quantities found in this case were significantly higher than those found in the
studies, suggesting that such transfer did not explain the presence of defendant’s DNA in
the underwear. On redirect, Nickel reiterated his belief that the underwear had been
recently worn and had not been washed based on a stain in the underwear and epithelial
cells he found in one of the cuttings. Nickel also testified that the amount of DNA
detected in the nonsperm fraction from the underwear was approximately 60 nanograms,
and that one of the articles provided by the defense on transfer occurring in washing
machines “says if you get higher than 6.7 nanograms, then you can likely exclude
secondary transfer.”
Dr. Robert Lurvey testified as an expert in urology. He testified that there are
three types of medication that may be injected into the penis. These medications treat
erectile dysfunction. They are administered by the patient by injection in the penis using
an insulin-type needle. The injection would be administered prior to sexual intercourse
and would cause an erection in approximately five to ten minutes. This type of
medication is stored refrigerated. Lurvey testified that a patient suffering from erectile
dysfunction could have an erection, lose it prior to ejaculation, and then administer a shot
to regain an erection. Lurvey also testified that erectile dysfunction is common among
men who have diabetes.
Defense Evidence
K.S. testified that she witnessed defendant interacting with the victim over several
years, and she never observed anything in their interactions that seemed weird to her.
She also never witnessed anything sexual in their interactions. K.S. never felt
uncomfortable based on anything defendant did with her. None of K.S.’s sisters ever
9
reported anything to her about feeling uncomfortable around defendant. K.S. testified
that the victim “would lie about whatever she could and try and get away with it. That
was a frequent thing with her.”
A.H. testified that she did not notice anything unusual in how defendant acted
towards the victim when they all went on a trip to a ranch in Nevada for three days. The
victim never said anything to A.H. about any adult acting inappropriately towards her,
and she never said anything about defendant touching her in a sexual way. A.H. never
witnessed anything in defendant’s interaction with the victim that caused A.H. concern.
J.H., who was 25, had considered defendant to be her father for about 20 years.
J.H. had never seen defendant act inappropriately towards a child or express a sexual
interest in a child. In the time surrounding the family vacation to a ranch in Nevada, she
did not see anything unusual between the victim and defendant. She testified that, at one
point, she had to speak to the victim about the victim watching adult videos. According
to J.H., the victim was curious about the human body and sexual things.
L.K., defendant’s sister, testified that defendant was her “protector and . . . hero.”
L.K. testified that defendant was honest and trustworthy. She never observed any
unusual behavior between defendant and his two daughters from a previous marriage.
Neither of the daughters ever spoke to L.K. about defendant acting inappropriately. L.K.
also testified that she did not witness any inappropriate actions by defendant towards any
of the girls on a trip to Disneyland which included “the stepdaughters, biological
daughters” and the victim. L.K. also did not notice anything unusual about the victim’s
demeanor during the three-day stay at a ranch in Nevada.
Defendant testified on his own behalf. He testified that he was diabetic. He gave
himself injections twice a day in the stomach or the arm to manage his diabetes. He
testified that he did not inject insulin or anything else into his penis, and that he never
took any medication for erectile dysfunction.
10
Defendant did the laundry in the house. There was a clothes hamper in his room
at the foot of the bed. Defendant testified that his clothes went in that hamper, and, if the
victim was at the house, she would put her clothes in that hamper too.
Defendant denied engaging in any of the sexual acts the victim described.
Verdicts and Sentencing
The jury found defendant guilty of all counts and found true the allegation
pursuant to section 1203.066. The trial court sentenced defendant to 110 years to life and
an additional 19-years determinate.
DISCUSSION
I. CSAAS Testimony and Statistical Evidence Related to False Accusations
A. Additional Background
1. In Limine Motion
The prosecution stated in its trial brief and motions in limine that it planned to call
Dr. Blake Carmichael as an expert in the area of child sexual abuse and specifically how
children react to such abuse. The prosecution stated that this topic was encompassed
within the broader subject of CSAAS, and that courts have typically admitted testimony
on that subject. The prosecution asserted that three of the misconceptions covered in
CSAAS were present in this case: delayed reporting, helplessness, and secrecy and
accommodation.
In defendant’s in limine motion, he sought to exclude CSAAS testimony. He
asserted that CSAAS evidence has been shown to be neither reliable nor relevant in
assessing allegations that a child has been the victim of sexual abuse. Defendant
acknowledged that, since the publication of Dr. Roland Summit’s article in 1983, on
which CSAAS testimony is based, CSAAS had been admitted to dispel the
misconception that children who had been sexually abused will report the abuse
immediately. However, he further asserted that, based on publicity about child
molestation, jurors were now aware many child molestation victims “may not report the
11
incident right away or may never report them at all” and CSAAS evidence was no longer
needed to dispel any misconception. Thus, according to defendant, “any such testimony
is unnecessary, misleading, time consuming and will serve no purpose other than to
confuse the jury and attempt to bolster the credibility of the complaining witness’
testimony.” Defendant also asserted that CSAAS testimony should be excluded because
it was inadmissible under the Kelly/Frye test;10 irrelevant; more prejudicial than
probative under Evidence Code section 352; speculative; and misleading and confusing.
Defendant also asserted that the introduction of this evidence would violate his rights
under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and
under applicable sections of the California Constitution.
2. Hearing and Trial Court’s Ruling
The court deferred ruling on the in limine motions concerning CSAAS until after
the victim testified. Following that testimony, the trial court inquired as to the
prosecution’s proposed focus of Carmichael’s testimony. The prosecutor identified seven
areas about which she would seek testimony from Carmichael: (1) incremental
disclosure, (2) failure of memory, (3) why children sometimes disclose to other children
rather than adults, (4) children acting as if there is not a problem and wanting to continue
seeing the abuser, (5) allegations that the victim learned about sexual acts elsewhere and
displaced blame on defendant, (6) helplessness and accommodation, and “[t]hat children
lying and making up these types of allegations are very rare, especially when they love
the person” and (7) confusion over timing and details.
10People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 Fed.
1013. Defendant appropriately does not make a Kelly/Frye claim here. Any such claim
would be meritless. (See People v. Lapenias (2021) 67 Cal.App.5th 162, 173 (Lapenias)
[CSAAS evidence is not subject to a Kelly/Frye analysis]; People v. Munch (2020) 52
Cal.App.5th 464, 472-473 (Munch) [same].)
12
Defense counsel acknowledged that CSAAS evidence was routinely admitted in
California courts, although other jurisdictions rejected it as “junk science.” Counsel also
argued that misconceptions related to nondisclosure may have been prevalent years ago,
but because of certain events such as the Catholic priest and Penn State scandals, jurors
now recognize children might not initially disclose for a variety of reasons.
Recognizing the law allows for the admissibility of CSAAS evidence, the court
asked, “So you’re wanting me to enact new law, essentially pave a new way. Is that what
you are saying?” Defense counsel responded: “Absolutely. I think this Court, in its
wisdom, can consider enacting new law . . . I think this Court can make that ruling and
become a trend setter.”
The trial court ruled that it would allow Dr. Carmichael to testify. The court
acknowledged the defense’s point that some aspects of the testimony addressed matters
of common knowledge which therefore do not require expert testimony and would be
cumulative of what jurors already know. However, the court further stated that, “if there
are some jurors that really aren’t aware of some of these things, which . . . are in some
points counterintuitive, then I think that is important for them to actually be able to
consider and weigh.”
3. Dr. Carmichael’s Trial Testimony
Dr. Carmichael worked as a clinical psychologist in the Child Adolescent Abuse
Resource Education Diagnostic and Treatment Center at the U.C. Davis Children’s
Hospital. Carmichael did not know the victim, had never talked to her or met her, and he
knew nothing about this case.
Carmichael testified about delayed disclosure of child sexual abuse. He testified
that it is uncommon for children to report sexual abuse soon after it occurs. According to
Carmichael, research indicated that only 15 to 20 percent of children report abuse
“quickly.” Asked about the reasons children do not report quickly, Carmichael testified,
“[w]e’re looking at kids who are sexually abused primarily by folks they know, people
13
they trust, people they have an ongoing and a loving relationship. And so we can’t look
at abuse as a thing but more so in the context of that relationship.” He testified that often
the abuser is a person the child perceives as an authority figure, and children are taught to
obey authority figures. Thus, a perpetrator may tell the child victim not to tell anyone,
and, if the child does tell, the child would be disobeying the authority figure.
Additionally, the child may have a good relationship with the perpetrator. “They enjoy
going to movies. They might enjoy playing video games. They get special attention. So
a lot of things that make a child feel good also comes from the person that is abusing
them.” This can make it confusing for the child and make it difficult to disclose the
abuse because the child does not “want the person that they care about to get in trouble.”
The child may not want to disclose the abuse because the person to whom the child might
report may have his or her own relationship with the abuser or might rely on the abuser to
provide for the family. For example, if a child discloses to the mother, the mother could
be upset and family discord could result, for which the child would feel responsible. A
child may perceive the threat of this outcome and choose against disclosure. Carmichael
testified that some researchers had found that the closer a child victim feels to their
abuser, the longer the delay in reporting may be. Child victims also sometimes say they
did not report abuse because they thought they would be in trouble. Such children feared
both disobeying the abuser and making the person whom they told angry or facing the
possibility that the person they tell would not believe them.
Carmichael testified that children may have a flat or numb affect when discussing
abuse. “People sometimes expect a child to look sad, to say that they are angry, to have a
different look about them talking about something so upsetting. And so we can’t think of
kids as miniadults. [sic] By the mere fact of them trying to distance themselves from
those intense emotions and trying to keep those things at bay and then trying to maybe
even appear stoic and not having the thoughts running through their brain, as they are
telling about it, can cause them to look unaffected.”
14
When asked if children try to forget the details of abuse, Carmichael responded,
“[a]bsolutely.” He testified that “one of the classic things to do [is] to try to avoid
thinking about it.”
Carmichael testified that abused children may not necessarily demonstrate signs of
being fearful or afraid or sad about having to be in the presence of the abuser. They can
still love their abuser and miss the abuser. “[I]t is not just the abuse that defines that
relationship. There are other things they can enjoy with that person.”
Turning to the process of disclosure, Carmichael testified that it was not common
for children “to say everything that first time they talk about it.” Typically, disclosure is
not a “one-time event. It is more of a process, sometimes called incremental disclosure:
Giving a little bit of information; seeing what the response is and then telling more details
as they get more comfortable.”
After discussing suggestibility with Carmichael, the prosecutor turned to the
subject of false allegations of sexual abuse. Carmichael testified that “the statistics are
that . . . children making false allegations of sexual abuse are rare. Anywhere between
zero and 5 or 6 percent . . . of allegations are found to be false made by children.” Higher
rates of false allegations were found in circumstances involving custody disputes or child
visitation, such as when a married couple is divorcing. However, in those cases, it was
not the children, but rather one parent, making the false allegations.
On cross-examination, defense counsel referred to CSAAS, which Carmichael and
the prosecutor had not done during Carmichael’s direct testimony, asking if the subjects
about which Carmichael testified were part of that broader subject. Carmichael
acknowledged that delayed disclosure was, indeed, a subject of CSAAS. Carmichael
acknowledged that CSAAS dated to Dr. Summit’s 1983 article in which Summit
discussed observations of hundreds of children who had been sexually abused and his
“observations of some of the things the kids did that weren’t expected but also the variety
of ways kids can deal with being sexually abused.” Carmichael testified that CSAAS did
15
not create a diagnostic tool. He testified that there “is no tool, symptom, check list.
There is nothing that is in place today that can tell you if a kid was abused.” Rather,
CSAAS “is an educational tool to help people understand this population of kids who we
know were sexually abused.”
Defense counsel asked Carmichael about his direct testimony concerning false
allegations: “I think the number you used was between zero to six percent. In some
instances the numbers you gave were 30 to 35 percent. You find more false allegations;
fair to say?” Carmichael testified that there “are some articles that I referred to that do
report a higher rate of false allegations, again, within the context of custody and parents
making the allegations.” After discussing studies that found few or no instances of false
allegations made by children themselves, Carmichael testified that “a vast majority of
research since that time has shown low rates of false allegations by kids.” However,
Carmichael acknowledged that, while the incidence may be low, the occurrence of false
allegations made by children does exist.
B. Admissibility of CSAAS Evidence
Defendant asserts that the trial court abused its discretion in allowing Carmichael
to testify about CSAAS. Defendant asserts that Carmichael’s testimony was unreliable
and misleading because the underlying premise of CSAAS is the assumption that the
child is indeed a victim of sexual abuse. Defendant contends that there was a substantial
danger that the jury would consider that testimony as supporting the victim’s claims of
abuse. According to defendant, “Carmichael’s testimony about CSAAS, a non-
diagnostic tool . . . based on the assumption the child is a victim of sexual abuse, was not
the proper subject of expert evidence because his testimony amounted to acknowledging
that children react differently. In other words, one cannot assume abuse based on the
presence or absence of delay in reporting.” Defendant asserts that, while CSAAS
evidence is intended to disabuse jurors of misconceptions about child victims, the value
of this testimony is outweighed by the prejudicial effect. Defendant asserts that, because
16
the issue of guilt was largely dependent on the victim’s credibility, “the CSAAS evidence
compromised [defendant’s] due process right to a reliable jury determination of his guilt
beyond a reasonable doubt.” According to defendant, the error cannot be deemed
harmless under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]
(Chapman) or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our high court approved
of the decisions of Courts of Appeal that had held that CSAAS testimony is admissible
for some purposes. (Id. at p. 1300.) McAlpin was followed by People v. Brown (2004)
33 Cal.4th 892 (Brown), which upheld the use of expert testimony concerning battered
women’s syndrome and which expressly did so based on similar reasoning to that in
McAlpin. (Brown, at pp. 905-907.) It is now well settled that CSAAS evidence is
admissible for the limited purposes it was admitted for in this case. (McAlpin, at
pp. 1300-1301; see also Lapenias, supra, 67 Cal.App.5th at p. 171; Munch, supra, 52
Cal.App.5th at p. 468; People v. Perez (2010) 182 Cal.App.4th 231, 243-245 (Perez);
People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1102 (Sandoval); People v. Patino
(1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Bowker (1988) 203
Cal.App.3d 385, 390-394 (Bowker).) And courts are bound by our high court’s reasoning
in McAlpin and Brown. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455; Munch, at p. 468; Perez, at p. 245.) Thus, the trial court properly declined
defendant’s invitation to “enact new law” and become a “trend setter.” The decision of a
trial court to admit expert testimony on CSAAS ‘will not be disturbed on appeal unless a
manifest abuse of discretion is shown. (McAlpin, at p. 1299.)
While CSAAS testimony is inadmissible to prove that a molestation occurred, it is
nevertheless admissible as to the molestation victim’s “ ‘credibility when the defendant
suggests that the child’s conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.’ ” (Sandoval, supra, 164
Cal.App.4th at p. 1001, quoting McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) CSAAS
17
evidence has been 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 . . . .” ’ ” (Sandoval, at p. 1002,
quoting McAlpin, at p. 1301.) “ ‘For instance, where a child delays a significant period of
time before reporting an incident or pattern of abuse, an expert could testify that such
delayed reporting is not inconsistent with the secretive environment often created by an
abuser who occupies a position of trust. Where an alleged victim recants his [or her]
story in whole or in part, a psychologist could testify on the basis of past research that
such behavior is not an uncommon response for an abused child who is seeking to
remove himself or herself from the pressure created by police investigations and
subsequent court proceedings. In the typical criminal case . . . , it is the People’s burden
to identify the myth or misconception the evidence is designed to rebut.’ ” (Sandoval, at
p. 1002, quoting Bowker, supra, 203 Cal.App.3d at p. 394, fn. omitted.)
“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, including a delay in reporting a molestation.” (Patino, supra,
26 Cal.App.4th at pp. 1744-1745.) Inconsistencies in the victim’s statements may also
support the use of CSAAS evidence. (Perez, supra, 182 Cal.App.4th at p. 245.)
Additionally, “[a]dmission of evidence such as CSAAS is not error merely because it was
introduced as part of the prosecution’s case-in-chief rather than in rebuttal. The
testimony is pertinent and admissible if an issue has been raised as to the victim’s
credibility.” (Patino, at p. 1745.)
The typical purposes for which CSAAS evidence may be admitted were at issue in
this case. Defense counsel on cross-examination elicited testimony from the victim about
the fact that she still enjoyed spending time with defendant, “aside from these things,”
raising issues concerning the paradoxical fact that an abused child can still love their
18
abuser and not be sad about being in the abuser’s presence. Addressing matters related to
the victim’s credibility in general and, inferentially, whether she had age-inappropriate
sexual knowledge from sources other than defendant, defense counsel asked the victim
many questions about whether she had watched adult videos. He also asked the victim
about whether she had witnessed adults having sex. Also as to the victim’s credibility, he
asked the victim if she “ever [told S.D.] anything just to get her attention.”
Defense counsel elicited testimony from S.D. that defendant and the victim got
along “[p]erfectly fine,” that the victim did not seem to be afraid of defendant, and that
the victim and defendant had a good relationship, which implicated the counterintuitive
way child victims may relate to their abusers. In response to defense counsel’s cross-
examination, S.D. agreed that, on the first occasion when the victim disclosed the abuse
to her, the victim only said defendant “did nasty things to me with his private.” This
raised the issue of incremental disclosure. He asked S.D. about the fact that the victim
told S.D. not to tell anyone because the victim did not want her to do so and she said
defendant would hurt her. This touched on delayed disclosure. Defense counsel asked
S.D. if one of the reasons she did not tell her mother about the victim’s disclosure was
because S.D. was not sure whether the victim was being truthful, calling into question the
victim’s credibility. Defense counsel further attacked the victim’s credibility, asking
S.D.: “[the victim] doesn’t always tell the truth, does she,” to which S.D. responded that
she did not. Indeed, counsel pursued this tack when discussing the victim’s second
disclosure as well, asking S.D. if she was not sure whether the victim was telling the
truth.
Also on the subject of incremental disclosure, in response to questioning by
defense counsel, the emergency room nurse testified that the victim did not provide many
details of the alleged sexual abuse.
Defense counsel also elicited from the emergency room nurse testimony that the
victim did not seem upset and was not crying when the two spoke, and testimony from
19
Detective Robertson that, during his interview with the victim, she was calm and not
crying. This testimony was relevant to child sexual abuse victims’ counterintuitive flat or
numb affect when discussing abuse.
All of the foregoing witnesses testified before Carmichael testified.
Thus, the victim’s credibility, delay in reporting the abuse, incremental disclosure,
and her demeanor when discussing the abuse, all matters to which Carmichael’s
testimony was relevant, were raised throughout trial and prior to Carmichael’s testimony.
It is beyond reasonable dispute that “the victim’s credibility [was] placed in issue due to
. . . paradoxical behavior.” (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
As discussed in more detail in part II. of the Discussion post, the trial court
instructed the jury with CALCRIM No. 1193 on the limited purposes for which it could
consider Dr. Carmichael’s testimony. Regarding Carmichael’s testimony, the court
instructed the jury that “testimony about these matters is not evidence that the defendant
committed any of the crimes charged against him.” “We of course presume ‘that jurors
understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th
758, 803 (Wilson).)
We conclude the trial court did not abuse its discretion in admitting the CSAAS
testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; accord, Munch, supra, 52
Cal.App.5th at p. 468; Perez, supra, 182 Cal.App.4th at p. 245.)
C. Statistical Evidence Regarding False Accusations
In his reply brief, defendant cited two cases decided after the filing of his opening
brief, People v. Julian (2019) 34 Cal.App.5th 878 (Julian), and People v. Wilson (2019)
33 Cal.App. 5th 55 (Wilson). He asserts that, under these cases, CSAAS experts should
not be permitted to testify, as did Carmichael here, as to the statistical rarity of false
accusations of child abuse. We requested supplemental briefing from the Attorney
General, who had not had the opportunity to address Julian or Wilson, or this argument
20
generally, because it was not raised by defendant with specificity in his opening brief.
We also afforded defendant the opportunity to submit a supplemental brief in reply.
1. Forfeiture
The Attorney General asserts that defendant forfeited this claim because he did not
object to the statistical evidence related to false allegations in the trial court. We agree.
“Evidence Code section 353 provides, as relevant, ‘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: [¶] (a) There appears of record an objection
to or a motion to exclude or to strike the evidence that was timely made and so stated as
to make clear the specific ground of the objection or motion . . . .’ ” (People v. Partida
(2005) 37 Cal.4th 428, 433 (Partida), quoting Evid. Code, § 353.) In accordance with
Evidence Code section 353, our high court has “ ‘consistently held that the “defendant’s
failure to make a timely and specific objection” on the ground asserted on appeal makes
that ground not cognizable.’ ” (Partida, at pp. 433-434, italics added.) “A party cannot
argue the court erred in failing to conduct an analysis it was not asked to conduct.” (Id. at
p. 435.)
While defendant did move in limine to exclude Carmichael’s CSAAS testimony,
he did not object to evidence concerning the statistical rarity of false allegations in his
written motion. Defendant asserts on appeal that he did object to this evidence during the
in limine hearing. Defendant’s vague comments cannot be read as an objection
compliant with Evidence Code section 353.11 Defendant did not specifically object to
11 At the part of the record defendant cites, defense counsel stated: the court should
“keep in mind that . . . [CSAAS] does not address false allegations. Dr. [Summit] did not
discuss false allegations because that wasn’t the purpose of the study. The purpose of
this empirical study was to try to explain in those that have been molested and been
documented, why did they observe certain behaviors. [¶] So in a case of false
allegations, which I don’t think the district attorney mentioned, she mentioned only about
the point, and I want to thank her for making my arguments for me. I suppose that saved
21
testimony concerning the statistical rarity of false allegations and state specific grounds
supporting its preclusion, such as arguing that Carmichael’s testimony “about the rarity
of false claims of child sexual abuse exceeded the permissible limits of expert testimony”
because such statistical evidence is irrelevant and invites the jury to determine a
defendant’s guilt based on statistical probabilities rather than on the evidence presented.
(Capitalization omitted.) And the defense was on notice the prosecution would seek to
introduce such evidence because when the trial court asked the prosecutor to outline her
focus as to Carmichael’s testimony, among the seven points listed, she stated:
helplessness and accommodation, and “[t]hat children lying and making up these types of
allegations are very rare, especially when they love this person.” (Italics added.)
Moreover, even assuming this evidence was covered by his general in limine
objection to the CSAAS evidence, defendant still failed to preserve the issue. “The
general rule is that ‘when an in limine ruling that evidence is admissible has been made,
the party seeking exclusion must object at such time as the evidence is actually offered to
preserve the issue for appeal’ [citation], although a sufficiently definite and express
ruling on a motion in limine may also serve to preserve a claim.” (People v. Brown
(2003) 31 Cal.4th 518, 547.) Defendant did not object to the testimony at issue here
when Carmichael testified at trial. In the absence of any objection to this specific
evidence, defendant has forfeited the contention. (Partida, supra, 37 Cal.4th at pp. 433-
434.)
In his supplemental reply brief, defendant, citing People v. Johnson (2004) 121
Cal.App.4th 1409, 1411, footnote 2 (Johnson), asserts that it is improper to apply
forfeiture where the governing law at the time of trial would not have supported a
me time from doing it. But, hopefully, false allegations are not part of the study. And so
the [CSAAS] does not apply in that particular instance.” We discern no specific
objection relevant to defendant’s present contention, or specific grounds for such, in
counsel’s remarks in the trial court.
22
decision by the trial court sustaining the objection. There, the court concluded there had
been no forfeiture of a confrontation clause objection because the “governing law at the
time of the hearing afforded scant grounds for objection.” (Ibid.)
However, although there was a long line of authority concerning CSAAS
evidence, there was no authority approving the admissibility of statistical evidence
related to false allegations. Indeed, as trial counsel aptly observed during the in limine
hearing, testimony about statistics on false accusations is not part of CSAAS. (See fn.
12, ante.) It strikes us as somewhat obvious—and more than the “scant grounds” that
Johnson spoke of—that whether false accusations had been made in other instances is
irrelevant and also subject to a valid Evidence Code section 352 objection based on the
danger of misleading the jury. Certainly, given the lack of authority approving such
evidence, it cannot be said that an objection on these grounds would have been futile.
(See People v. Perez (2020) 9 Cal.5th 1, 7-8.) Yet, a specific objection to this testimony
and those grounds were not asserted.
In his supplemental reply brief, relying on Julian, supra, 34 Cal.App.5th at pages
887-889, defendant suggests that, if the issue is not preserved, it is because he received
the constitutionally ineffective assistance of counsel, a contention we address next. In
Julian, the court concluded that the objection should have been made in the trial court
and that trial counsel’s deficient performance was prejudicial given the circumstances of
that case. (Ibid.)
2. Ineffective Assistance of Counsel
a. Ineffective Assistance of Counsel General Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); People v.
23
Rogers (2016) 245 Cal.App.4th 1353, 1367 (Rogers).) “ ‘Surmounting Strickland’s high
bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d
624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d
284, 297].)
To establish prejudice, “[i]t is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at
p. 104.) To show prejudice, defendant must show a reasonable probability that he would
have received a more favorable result had counsel’s performance not been deficient.
(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The likelihood of a
different result must be substantial, not just conceivable.” (Richter, at p. 112, italics
added; Rogers, supra, 245 Cal.App.4th at p. 1367; People v. Jacobs (2013) 220
Cal.App.4th 67, 75; In re M.P. (2013) 217 Cal.App.4th 441, 457, fn. 10.)
b. Decisional Authority Published During the Pendency of this Appeal
In Julian, an expert offered CSAAS testimony. (Julian, supra, 34 Cal.App.5th at
pp. 882-883.) However, after presenting CSAAS evidence of the type commonly seen in
appropriate cases, the prosecution “introduced a new issue—the statistical percentage of
false allegations by child sexual abuse victims.” (Id. at p. 883.) The expert testified that
“false allegations of sexual abuse by children ‘don’t happen very often.’ ‘The range of
false allegations that are known to law enforcement or [Child Protective Services] … is
about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that
appear to be false allegations.’ ” (Id. at p. 885.)
In addressing the admissibility of this testimony, the Julian court reviewed the
purposes for which CSAAS evidence is admissible and those for which it is not. (Julian,
supra, 34 Cal.App.5th at pp. 885-886.) Discussing the latter, the court stated: “Nor is it
proper for an expert to present ‘predictive conclusions’ [citation], such as alleged child
24
abuse victims ‘should be believed’ or ‘abused children give inconsistent accounts and are
credible nonetheless’ [citation]. Such predictive conclusions go beyond the scope of
CSAAS evidence and may confuse the jury. ‘[T]he jurors’ education and training may
not have sensitized them to the dangers of drawing predictive conclusions.’ [Citation.]
Where expert opinions on the statistical probability of guilt are admitted, the jury may be
‘distracted’ from its ‘requisite function of weighing the evidence on the issue of guilt,’
and may rely instead on this ‘irrelevant’ evidence.” (Id. at p. 886.) The Julian court
concluded: “Here the jury had to decide between the credibility of child 2’s testimony
and Julian’s. But [the expert’s] 92 to 99 percent probability evidence invited jurors to
presume Julian was guilty based on statistical probabilities, and not decide the evidence
properly introduced in the case. [Citation.] [The expert’s] statistics were not admissible
as CSAAS evidence.” (Ibid.) The court further concluded that the “statistical probability
evidence deprived Julian of his right to a fair trial.” (Ibid.)
In Wilson, the same expert who testified in Julian testified that false allegations of
child sexual abuse “occur ‘very infrequently or rarely,’ most often during a child custody
dispute.” (Wilson, supra, 33 Cal.App.5th at p. 568.) “He continued, ‘There are a number
of studies that talk about the pressures put on children to make a false allegation.’ He
referred to a ‘classic’ Canadian study that found ‘about 4% of cases in which there was
an allegation that was determined to be false,’ remarking that ‘[w]hat was notable [about
the study] was that in none of those cases was it a child who made the allegation that was
false, it was somebody else,’ such as a parent disputing custody.” (Ibid.) On cross-
examination, the expert testified that “there were 12 to 15 other studies on the subject,
which found false allegations in between 1 and 6 percent of cases. Although the ‘classic’
study found no children making false allegations of sexual abuse, he concluded that ‘it’s
better to say that false allegations do happen, because they do happen, but they happen
very infrequently and rarely … .’ He agreed it was possible for children to have false
memories, but there was no data indicating false memories happened frequently. And, in
25
his own career, [the expert] had come across two cases in which a child alleged sexual
abuse that he believed did not occur.” (Ibid.) The defendant asserted that this evidence
“improperly amounted to testimony that 96 percent (or between 94 and 99 percent) of
children accusing a person of child molestation were telling the truth, and that this
invaded the province of the jury in assessing a complaining witness’s credibility.” (Ibid.)
The Wilson court ultimately concluded: “it appears that the clear weight of
authority in our sister states, the federal courts, and the military courts finds such
evidence inadmissible. We find the reasoning of these cases compelling. [The expert’s]
testimony had the effect of telling the jury there was at least a 94 percent chance that any
given child who claimed to have been sexually abused was telling the truth. And,
although [the expert’s] testimony on this point was not expressly directed to either [a
prior victim or the current victim], the practical result was to suggest to the jury that there
was an overwhelming likelihood their testimony was truthful. In so doing, this testimony
invaded the province of the jury, whose responsibility it is to ‘draw the ultimate
inferences from the evidence.’ ” (Wilson, supra, 33 Cal.App.5th at p. 570.) The court
stated: “Even assuming one could determine that only 1 to 6 percent of sexual abuse
allegations are false, that fact would not be helpful to the jury because it tells the jury
nothing about whether this particular allegation is false. Are [the past and current
victims here] in the 4 percent or in the 96 percent? The jury must evaluate their
testimony, together with all the other evidence, to decide this question, and it should do
so without statistical evidence placing a thumb on the scale for guilt.” (Id. at p. 571.)
Accordingly, the court determined that the admission of this evidence constituted an
abuse of discretion. (Ibid.)
After the parties filed the supplemental briefing we requested, Division 3 of the
Fourth District concluded that Carmichael’s testimony in another case concerning the
rarity of false allegations was inadmissible. (Lapenias, supra, 67 Cal.App.5th at p. 179
[concluding that Carmichael’s testimony “violated the general rule that an expert may not
26
give an opinion as to whether another witness is telling the truth or the defendant is
guilty”].) On appeal in Lapenias, the People attempted to distinguish Julian and Wilson
on the ground that those cases held a CSAAS expert should not testify about the
statistical frequency of false accusations, whereas Carmichael testified only as to the
rarity of false allegations. (Id. at pp. 179-180.) The Lapenias court rejected the
argument, concluding there is no meaningful distinction between giving a statistic that
indicates that false allegations are rare and stating that children rarely make false
allegations. (Ibid.)
c. Analysis
Here, Carmichael testified that “the statistics are that . . . children making false
allegations of sexual abuse are rare. Anywhere between zero and 5 or 6 percent . . . of
allegations are found to be false made by children.” Higher rates of false allegations
were found in circumstances involving custody disputes or child visitation, such as when
a married couple is divorcing. However, in those cases, it was not the children, but rather
a parent, making the false allegations. Carmichael testified that false allegations of
sexual abuse do occur, but it is rare for children to make those allegations.
Based on the analyses in Julian, supra, 34 Cal.App.5th 878, Wilson, supra, 33
Cal.App.5th 559, and Lapenias, supra, 67 Cal.App.5th 169, we conclude that
Carmichael’s testimony here was inadmissible.12 We will proceed directly to a
discussion of prejudice. (See generally Strickland, supra, 466 U.S. at p. 697.)
12 The Attorney General concedes that “the admission of such testimony was error,” but
further asserts that if we conclude there was no forfeiture and reach the merits, the error
was harmless. The erroneous admission of expert testimony only warrants reversal if it
meets the Watson test. (See Lapenias, supra, 67 Cal.App.5th at p. 180 [finding the error
harmless applying Watson and rejecting application of the standard in Chapman, supra,386 U.S. at p. 24].) The standard for prejudice applied in reviewing state evidentiary
error under Watson, supra, 46 Cal.2d 818, is essentially the same as that required for the
prejudice prong of the ineffective assistance of counsel test. (People v. Yor Xiong (2020)
27
In addressing the prejudice prong of the defendant’s ineffective assistance of
counsel claim in Julian, the appellate court stated, in part: “The evidence . . . was highly
prejudicial because this case was a credibility dispute between child 2’s testimony and
Julian’s. It was a heavily contested case with strong defense evidence. Julian denied
child 2’s claims. He said he cooperated with police because he had nothing to hide. [A
detective] confirmed that he had cooperated.” (Julian, supra, 34 Cal.App.5th at p. 888,
italics added.) The court further stated: “Child 2 had difficulty remembering certain
facts, gave some tentative responses, and some of her testimony was introduced with
leading questions. The conflicts between child 2’s trial testimony and a CAIT[13]
interview raised credibility issues. During closing argument, the People conceded that
child 2’s CAIT interviews ‘were very different from her testimony’ and there were ‘some
serious inconsistencies.’ ” (Ibid.) The Julian court then considered the effect of the
expert’s statistical testimony, stating: “[the expert’s] statistical evidence tipped the scales
in favor of the People based on statistical studies that were irrelevant to the issue of
Julian’s guilt or innocence. It distracted the jury from its duty to decide the properly
admitted evidence. [Citation.] Such evidence may not be prejudicial where it occurs in a
slight passing reference by the expert. But here the jury was bombarded with it. [¶]
Julian’s counsel cross-examined [the expert]. But [the expert] used that opportunity to
repeatedly reassert his claim that statistics show children do not lie about being abused.
His counsel’s questions about multiple studies only opened the door to a mountain of
prejudicial statistical data that fortified the prosecutor’s claim about a statistical certainty
that defendants are guilty. [Citation.] [¶] Moreover, in closing argument, the prosecutor
54 Cal.App.5th 1046, 1068, fn. 11; People v. Ocegueda (2016) 247 Cal.App.4th 1393,
1407, fn. 4.)] Thus, our conclusion would be the same whether we were to analyze
prejudice under Watson or Strickland.
13 CAIT is an acronym for “child abuse interdisciplinary team.” (Julian, supra, 34
Cal.App.5th at p. 881.)
28
asked the jury to rely on [the expert’s] statistical evidence that ‘children rarely falsify
allegations of sexual abuse.’ He reminded jurors that [the expert] ‘quoted a Canadian
study for over 700 cases, not a single one where there was a false allegation.’ . . . The
claim that there is a zero percent chance children will fabricate abuse claims replaced the
presumption of innocence with a presumption of guilt. [¶] In his closing argument,
Julian’s counsel discussed his position regarding [the expert’s] testimony about the ‘12
studies,’ the Canadian study, the Trocme & Bala study, a social worker study showing
‘four percent or five percent’ as false allegations, and the prosecutor’s claim that ‘false
allegations are very rare.’ When he discussed the statistical percentage of false
allegations in a study called ‘false allegations of sexual abuse of children and
adolescents,’ the prosecutor objected. The court stopped the argument for a 15-minute
recess. When the jury returned, the court instructed jurors that there was ‘a
disagreement’ by counsel about ‘a certain study.’ The jury should decide the issue based
on the evidence introduced about the study, not what the lawyers remember about it.
Consequently, the jurors’ attention was directed, once again, to the statistical study
evidence right before they began their deliberations. [¶] But the jury’s duty to decide the
facts does not include considering inadmissible statistical information [citation] or using
studies of statistical odds to determine guilt. [Citations.] Julian did not receive a fair
trial.” (Julian, supra, 34 Cal.App.5th at pp. 888-889, some italics added.)
Julian is in stark contrast to the instant case. Here, the victim’s interviews were
not “ ‘very different from her testimony’ ” and there were no “ ‘serious inconsistencies’ ”
among the two. (Julian, supra, 34 Cal.App.5th at p. 888.) The victim’s accounts of
abuse included descriptions of actions and circumstances not typically within the
experience of a child her age. The victim had recently had abdominal pain and pelvic
pain and a yeast infection, which, although there could be natural causes, is consistent
with a past vaginal sexual assault.
29
Critically, here, the allegations were corroborated by DNA evidence. Nickel
testified that, on the sperm fraction he discovered in the victim’s underwear, he found a
mixed profile, with one female contributor and one male contributor. Defendant was a
potential contributor to the male profile in the sperm fraction. According to Nickel, it
was 16.1 quadrillion times more likely that the victim and defendant were the
contributors to the sample than the victim and a random male. As to the nonsperm
fraction, Nickel also discovered a mixed profile, one male and one female. According to
Nickel, it was 33,800 times more likely that the victim and defendant were the
contributors to the sample than the victim and a random male. Also, Nickel testified that,
if he did not have to dilute the sample before amplifying it in order to properly perform
his analysis, the “profile would be a lot higher.” While the defense relied on a theory of
DNA transfer in the washing machine, this theory was seriously undermined by (1)
Nickel’s opinion, based on a stain in the underwear and epithelial cells found in a cutting,
that the underwear had not been recently washed, and (2) the fact that the amount of
DNA detected was much greater than the volume of DNA that had been detected in the
studies involving the transfer of DNA in washing machines, so much so that secondary
transfer could be excluded as an explanation of the presence of defendant’s DNA.
Moreover, the jury here was not “bombarded” with evidence concerning the low
statistical incidence of false allegations of child sexual abuse, nor was the jury presented
with “a mountain of prejudicial statistical data.” (Julian, supra, 34 Cal.App.5th at pp.
888, 889.) Instead, Carmichael testified about the low statistical incidence of false
allegations briefly on direct examination, his testimony on the subject, including the
prosecutor’s questions, occupying little more than a single page of the reporter’s
transcript. On cross-examination, defense counsel asked Carmichael about his direct
testimony concerning false allegations: “I think the number you used was between zero
to six percent. In some instances the numbers you gave were 30 to 35 percent. You find
more false allegations; fair to say?” Carmichael testified that there “are some articles that
30
I referred to that do report a higher rate of false allegations, again, within the context of
custody and parents making the allegations.” After discussing two studies that found few
or no instances of false allegations made by children themselves, Carmichael testified
that “a vast majority of research since that time has shown low rates of false allegations
by kids.” However, Carmichael acknowledged that, while the incidence may be low, the
occurrence of false allegations made by children does exist. Defense counsel’s cross-
examination on the subject encompassed roughly two pages in the reporter’s transcript.
We acknowledge that the prosecution did discuss Carmichael’s testimony in
closing argument. The prosecution argued to the jury: “And how do we know he
molested [the victim]? No one influenced her to make this up. No one has been
benefited by the horrendous year of [the victim] losing her sisters, the defendant,
caregivers, vacation planner. She has no motive to make this up. [¶] Dr. Carmichael
told you false allegations are like zero to 5 percent, and that small number is in child
custody cases. This is not a child custody case.”
But, as we have noted, as to Carmichael’s testimony, the court instructed the jury:
“testimony about these matters is not evidence that the defendant committed any of the
crimes charged against him.” And we presume the jury understood and followed this
instruction. (Wilson, supra, 44 Cal.4th at p. 803.)
Given the strength of the evidence, particularly the DNA evidence, we conclude
that had Carmichael been precluded from testifying about the statistical data concerning
false accusations and the prosecution did not make the above argument during closing
argument, it is not reasonably probable defendant would have obtained a different result.
D. Conclusion
The trial court did not abuse its discretion in admitting the CSAAS testimony as a
general matter. (McAlpin, supra, 53 Cal.3d at pp. 1300-1304.) The admission of CSAAS
evidence generally did not render defendant’s trial fundamentally unfair in violation of
due process. (Patino, supra, 26 Cal.App.4th at p. 1747.) Furthermore, defendant was not
31
prejudiced from evidence indicating the statistical rarity of false accusations. (See
Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
II. CALCRIM No. 1193
A. Additional Background
At a conference on the jury instructions, the court stated that it made a slight
modification to CALCRIM No. 1193 “because the witness never really used the term
‘syndrome,’ the accommodation syndrome language. So I just rephrased it a little . . . .”
The defense objected to the language as phrased, expressing the preference that the
instruction actually refer to CSAAS, noting that Carmichael was cross-examined
extensively about it. The defense raised no additional objection to CALCRIM No. 1193
as proposed by the court, and subsequently agreed that the defense was “okay with all the
instructions as the Court proposes to give them.” On a subsequent day, referencing the
final instructions, the court asked the defense “are you okay with the instructions” and
counsel for defendant replied, “yes.”
The trial court instructed the jury with a modified version of CALCRIM No. 1193
as follows: “You’ve heard testimony from Dr. Blake Carmichael regarding certain
characteristics of children who suffer from sexual abuse and child sexual abuse
accommodation syndrome. Dr. Carmichael’s testimony about these matters is not
evidence that the defendant committed any of the crimes charged against him. You may
consider this evidence only in deciding whether or not [the victim’s] conduct was not
inconsistent with the conduct of someone who has been molested and in evaluating the
believability of her testimony.” The italicized language was added by the trial court to
the pattern instruction’s language.14
14 The standard CALCRIM No. 1193 language reads as follows: “You have heard
testimony from ___________ regarding child sexual abuse
accommodation syndrome. [¶] __________’s testimony about
32
B. Defendant’s Contentions
On appeal, defendant does not complain about the language modified by the trial
court. He focuses on the last sentence of the standard pattern instruction. He complains
that CALCRIM No. 1193 “is flawed because the last sentence essentially told the jurors
they could base their verdict on assumptions inherent in CSAAS testimony. In other
words, jurors could make infer [sic] the molestation occurred if [the victim’s] conduct
was not inconsistent with the conduct of someone exhibiting symptoms of CSAAS.” In
short, defendant asserts that the instruction is problematic because the pattern
instruction’s “last paragraph leaves open an interpretation the jury could consider the
evidence as proof of molestation because it relates to [the victim’s] believability.”
Defendant asserts that the erroneous instruction could have caused the jury to
misinterpret the law and compromised his due process right to a reliable jury
determination of guilt beyond a reasonable doubt by lessening the prosecution’s burden
of proof. Defendant further asserts that the error was prejudicial under any standard.
C. Forfeiture and Section 1259
Tacitly acknowledging that the issue is not preserved for appellate review,
defendant asserts that his contention may be reviewed because the instruction affected his
substantial rights (§ 1259), and, alternatively, asserts that, if we determine that his
contention was forfeited, then he was deprived of the constitutionally effective assistance
of counsel.
Defense counsel participated with the trial court in refining the CALCRIM No.
1193 instruction to be given to the jury based on the circumstances of this case. The
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against (him/her) [or any conduct or crime[s] with
which (he/she) was not charged]. [¶] You may consider this evidence only in deciding
whether or not ____________’s conduct was
not inconsistent with the conduct of someone who has been molested, and in evaluating
the believability of (his/her) testimony.”
33
defense raised no objection to CALCRIM No. 1193 as proposed by the court, and
subsequently agreed on two occasions that the defense was “okay with all the instructions
as the Court proposes to give them.” However, as defendant asserts, we may review his
contention concerning an instruction given “if the substantial rights of the defendant were
affected thereby.”15 (§ 1259.) “ ‘Ascertaining whether claimed instructional error
affected the substantial rights of the defendant necessarily requires an examination of the
merits of the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.’ ” (People v. Ramos (2008) 163 Cal.App.4th
1082, 1087.) Accordingly, we shall proceed to consider the merits of defendant’s
contention.
D. Analysis
“In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the jury was
misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.)
15 The People assert that defendant invited any error by urging the trial court to adopt the
model instruction. “ ‘The doctrine of invited error is designed to prevent an accused from
gaining a reversal on appeal because of an error made by the trial court at his behest. If
defense counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and
not out of ignorance or mistake.’ In cases involving an action affirmatively taken by
defense counsel, [our high court has] found a clearly implied tactical purpose to be
sufficient to invoke the invited error rule.” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 49, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on
other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) “Error is invited
only if defense counsel affirmatively causes the error and makes ‘clear that [he] acted for
tactical reasons and not out of ignorance or mistake’ or forgetfulness.” (People v. Lara
(2001) 86 Cal.App.4th 139, 165, quoting Wickersham, at p. 330.) Trial counsel’s failure
to detect the flaw in CALCRIM No. 1193 that appellate counsel perceives does not
demonstrate a tactical intent to induce the purported error now claimed. (People v.
Moore (2011) 51 Cal.4th 386, 410.) We cannot apply the invited error doctrine here.
34
Arguments similar to defendant’s have been rejected by other courts. (Munch,
supra, 52 Cal.App.5th at p. 474, citing People v. Gonzales (2017) 16 Cal.App.5th 494,
504; see also Lapenias, supra, 67 Cal.App.5th at p. 175 [noting that courts have held
CALCRIM No. 1193 “accurately informs the jury on the limited use of CSAAS
evidence, but the instruction does not: (a) improperly allow an alleged minor victim of
sexual abuse to corroborate her own testimony; (b) violate due process; or (c) misapply
the burden of proof”].) “ ‘A reasonable juror would understand CALCRIM No. 1193 to
mean that the jury can use [the expert’s] testimony to conclude that [the child’s] behavior
does not mean she lied when she said she was abused. The jury also would understand it
cannot use [the expert’s] testimony to conclude [the child] was, in fact, molested. The
CSAAS evidence simply neutralizes the victim’s apparently self-impeaching behavior.
Thus, under CALCRIM No. 1193, 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.” (Munch, at p. 474, quoting Gonzales, at p. 504.) We join the Lapenias,
Munch, and Gonzales courts in holding the portion of the instruction about which
defendant complains on appeal accurately instructs the jury on the proper use, and proper
limitations on the use, of CSAAS evidence.
III. Substantial Evidence — Count Three, Attempted Lewd Acts
A. Defendant’s Contentions
Defendant asserts that his conviction of attempted lewd and lascivious act charged
in count three is not supported by substantial evidence. According to defendant, the
prosecution’s theory—that defendant asked the victim to have sex and she said no—is
insufficient to establish an attempt. Defendant asserts that his conduct did not go beyond
mere preparation, and soliciting a minor to commit a sex act is insufficient to support a
conviction of attempt.
35
B. Standard of Review and Elements of Count Three
“ ‘A substantial evidence inquiry examines the record in the light most favorable
to the judgment and upholds it if the record contains reasonable, credible evidence of
solid value upon which a reasonable trier of fact could have relied in reaching the
conclusion in question. Once such evidence is found, the substantial evidence test is
satisfied.’ [Citation.] ‘Even when there is a significant amount of countervailing
evidence, the testimony of a single witness that satisfies the standard is sufficient to
uphold the finding.’ ” (People v. Lucero (2019) 41 Cal.App.5th 370, 411 (Lucero),
quoting People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
“We must accept all logical inferences that the jury may have drawn from
circumstantial evidence.” (Lucero, supra, 41 Cal.App.5th at p. 411, citing People v.
Maury (2003) 30 Cal.4th 342, 396.) “ ‘ “If the circumstances reasonably justify the
findings made by the trier of fact, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding.” ’ ” (Lucero, at p. 411, quoting People v. Kaufman (2017) 17 Cal.App.5th 370,
381.) “It is well settled that ‘ “[a] reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict.” ’ ” (Lucero, at p. 411, quoting People v.
Penunuri (2018) 5 Cal.5th 126, 142; see also People v. Zamudio (2008) 43 Cal.4th 327,
357; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Spencer (1969) 71 Cal.2d
933, 937.)
On count three, the jury found defendant guilty of attempting to commit a lewd or
lascivious act on a child under the age of 14. (§§ 664, 288, subd. (a).) Section 288,
subdivision (a), provides: “Except as provided in subdivision (i), a[16] person who
16The version of section 288, subdivision (a), in effect at the time of the charged offenses
actually applied to “any person” rather than “a person.” (§ 288, former subd. (a).)
36
willfully and lewdly commits any lewd or lascivious act, including any of the acts
constituting other crimes provided for in Part 1, upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by imprisonment in the state prison for three,
six, or eight years.” Thus, the elements to prove a violation of section 288, subdivision
(a), are that (1) the defendant “willfully touched any part of a child’s body either on the
bare skin or through the clothing” or the defendant “willfully caused a child to touch
(his/her) own body, the defendant’s body, or the body of someone else, either on the bare
skin or through the clothing”; (2) the defendant “committed the act with the intent of
arousing, appealing to, or gratifying the lust, passions, or sexual desires of
(himself/herself) or the child”; and (3) the “child was under the age of 14 years at the
time of the act.” (CALCRIM No. 1110.)
“An attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)
Thus, “ ‘[t]o sustain a conviction of attempted violation of section 288(a), the prosecution
has the burden of demonstrating (1) the defendant intended to commit a lewd and
lascivious act with a child under 14 years of age, and (2) the defendant took a direct but
ineffectual step toward committing a lewd and lascivious act with a child under 14 years
of age.’ ” (People v. Villagran (2016) 5 Cal.App.5th 880, 890, quoting People v. Singh
(2011) 198 Cal.App.4th 364, 368.) Defendant’s contentions relate only to the “direct but
ineffectual step” element.
C. Analysis
The prosecution presented evidence from the victim’s SAFE interview that the
victim and defendant were snuggling and he licked her armpit. He asked her what she
wanted to lick, and she said his tummy. She licked his bellybutton. Defendant then
pulled out his “wiener” under the blanket and “was squishing it, ‘cause it . . . felt good.”
37
Defendant asked the victim to have sex and she said no. The victim and defendant were
“talking backwards,” “no means yes and yes me [sic] no,” and the victim said no.
Defendant said, “[h]ow about I, I have it with your doll.” Defendant started pushing on
the vagina area of the victim’s doll like he was having sex.
Based on the evidence before them, the jurors could reasonably have concluded
that defendant asked the victim to have sex with him and, when she refused, tried to
manipulate or trick her into having sex with him through the “talking backwards” game
to obtain her consent. The jurors also could reasonably have concluded defendant
attempted to overcome her resistance through simulating sex with her doll, showing her
that what he wanted to do was “okay,” or hoping she might decide to protect her doll by
substituting herself in its place. Defendant’s acts constitute multiple direct but ineffectual
steps towards achieving his goal of having sex with the victim. And the jury could have
reasonably inferred that, had the victim relaxed her resistance to defendant’s words and
actions or sought to save her doll by consenting, he would have had sex with her. The
acts in furtherance need only be “slight.” (People v. Superior Court (Decker) (2007) 41
Cal.4th 1, 8, quoting People v. Anderson (1934) 1 Cal.2d 687, 690 [“ ‘whenever the
design of a person to commit crime is clearly shown, slight acts in furtherance of the
design will constitute an attempt’ ” (italics added)]; see also People v. Ansaldo (1998) 60
Cal.App.4th 1190, 1196 (Ansaldo), citing People v. Memro (1985) 38 Cal.3d 658, 698,
overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
Defendant’s acts here constitute far more than “slight” acts in furtherance of his clear
intent to commit a lewd and lascivious act with the victim and to have sex with her.
Substantial evidence supported the guilty verdict on count three.
Relying on People v. La Fontaine (1978) 79 Cal.App.3d 176, disapproved on
another ground in People v. Lopez (1998) 19 Cal.4th 282, 292, defendant asserts that
conduct consisting only of verbal communication is preparation only and does not
constitute attempt. In La Fontaine, the defendant picked up a hitchhiker, and asked the
38
hitchhiker if he wanted to make five or ten dollars by allowing the defendant to give him
a blow job. (La Fontaine, at p. 179.) “At no time did [the] defendant touch any portion
of [the hitchhiker’s] body or make any movement or motion toward [the hitchhiker’s]
body.” (Id. at p. 180.) The court held that this solicitation to commit a lewd act, without
more, was insufficient to constitute an attempt to commit a lewd act in violation of
section 288. (La Fontaine, at pp. 182-183.) As defendant acknowledges, several
appellate decisions have declined to follow La Fontaine on this point. (See, e.g., People
v. Herman (2002) 97 Cal.App.4th 1369, 1386 [“That an invitation to participate in the
defendant’s commission of a crime consists only of words does not mean it cannot
constitute an ‘act’ toward the completion of the crime, particularly where the offense by
its nature consists of or requires the requested type of participation”]; Hatch v. Superior
Court (2000) 80 Cal.App.4th 170, 188; Ansaldo, supra, 60 Cal.App.4th at p. 1196.) We
are not persuaded by the analysis in La Fontaine. Moreover, the question here is
academic. As detailed ante, defendant did far more than tender one verbal solicitation for
sex. He undertook a number of direct acts in addition to the solicitation in an effort to
commit a lewd or lascivious act with the victim. (See Hatch, at p. 188 [“Even assuming
La Fontaine’s analysis remains good law, there is some evidence [the defendant] did try
to touch [the victim]: after [the victim] refused to enter his truck, [the defendant]
exposed himself, masturbated and extended his semen-covered hand toward her”].)
Defendant also asserts that the prosecutor’s argument to the jury—that defendant
asking the victim to have sex constituted the direct but ineffective step toward completion
of the crime—effectively limited the jury on the theory upon which it could find
defendant guilty under count three. He claims that, while the prosecutor pointed out what
defendant did with the victim’s doll, “it was not what [defendant] did with the doll, but
rather his asking [the victim] that the prosecutor claimed was the ‘ineffective step’
making the crime attempt.”
39
“Ordinarily, for purposes of substantial evidence review, ‘the prosecutor’s
argument is not evidence and the theories suggested are not the exclusive theories that
may be considered by the jury.’ ” (People v. Brown (2017) 11 Cal.App.5th 332, 341,
quoting People v. Perez (1992) 2 Cal.4th 1117, 1126.) That rule applies here. The jury
was not bound to focus only on the prosecutor’s theory and neither are we. Moreover,
count three, as alleged, specified that the factual allegations supporting the charge were
that defendant “asked [the victim] to have S.A.X. and when she said no and then he had
SAX with her doll . . . .”17 (Italics added.)
Substantial evidence supported the conclusion that defendant was guilty of
attempting to commit a lewd or lascivious act on a child under the age of 14 and
defendant’s contentions to the contrary are without merit.
IV. Fines, Fees, and Penalty Assessments
Although not raised by the parties, we have noticed issues concerning fines and
fees that require correction.
At sentencing, the trial court imposed a fine of “$500 habitual offender program,”
referring to the sex offender habitual offender fine pursuant to section 290.3. The
abstract of judgment does not reflect the imposition of this fine. Accordingly, we shall
order the abstract corrected to reflect the imposition of this fine.
The trial court also ordered defendant to pay $702 as a presentence report fee
pursuant to section 1203.1b. This fee, too, does not appear on the abstract of judgment.
We shall therefore order the abstract corrected to reflect the imposition of this fee.
The trial court ordered defendant to pay a fine of “$600 pursuant to [section]
243.4.” Section 243.4 authorizes a fine up to $10,000 for a felon who commits sexual
17 The verdict forms recited of the charged offense: “attempt to commit a lewd and
lascivious act upon a child, to wit, asked [the victim] to have ‘SAX’ and when she said
no he then had ‘SAX’ with her doll.”
40
battery against a minor. (§ 243.4, subd. (j).) However, defendant was not convicted of
sexual battery under section 243.4 and therefore that fine could not be imposed. “An
unauthorized sentence may be corrected by an appellate court ‘regardless of whether an
objection or argument was raised in the trial and/or reviewing court.’ ” (People v. Turner
(2002) 96 Cal.App.4th 1409, 1415, quoting People v. Welch (1993) 5 Cal.4th 228, 235;
accord, People v. Smith (2001) 24 Cal.4th 849, 852.) We shall modify the judgment to
strike the $600 fine imposed pursuant to section 243.4. However, because this fine does
not appear on the abstract of judgment, we need not order the abstract corrected in this
regard.
DISPOSITION
The judgment is modified to strike the $600 fine imposed pursuant to section
243.4. The trial court is directed to prepare an amended abstract of judgment reflecting
the judgment as modified and reflecting the trial court’s oral imposition of a $500 sex
offender habitual offender fine pursuant to section 290.3 and a $702 presentence report
fee pursuant to section 1203.1b. The trial court is directed to forward a certified copy of
the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment is affirmed as modified.
/s/
MURRAY, Acting P. J.
We concur:
/s/
HOCH, J.
/s/
KRAUSE, J.
41