People v. Barber CA4/1 ( 2022 )

Filed 12/19/22 P. v. Barber CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079865
Plaintiff and Respondent,
v. (Super. Ct. No. FWV20004012)
GREGORY WAYNE BARBER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Shahla S. Sabet, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel B.
Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
Defendant Gregory Wayne Barber appeals from a judgment of
conviction entered after a jury convicted him of various crimes related to the
sexual abuse of his granddaughters.
On appeal, Barber raises multiple contentions regarding to the
admission of expert testimony from an investigating detective concerning
how children typically disclose sexual abuse. Barber first argues that the
trial court erred in permitting a detective to testify about how child sexual
abuse victims commonly behave after having been sexually abused. Barber
contends that this testimony was akin to expert testimony regarding Child
Sexual Abuse Accommodation Syndrome (CSAAS), and that a trial court
should be required to hold a hearing to determine the scientific acceptance
and reliability of such evidence under People v Kelly (1976) 17 Cal.3d 24(Kelly) prior to admitting the testimony. Barber maintains that if the trial
court had held such a hearing, the court would have necessarily concluded
that CSAAS is not a scientific theory that is generally accepted in the
relevant scientific community and would have excluded the testimony.
Barber also contends with respect to this argument that because this
evidence was “irrelevant and inflammatory” and not subject to Kelly’s
reliability requirement, its admission rendered his trial fundamentally
unfair.
Second, Barber argues that, apart from the requirements of Kelly,
CSAAS evidence generally should be determined to be inadmissible for all
purposes because, according to Barber, such evidence fails to meet the
requirement of reliability for expert testimony, as set forth in Evidence Code
section 801.
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Third, Barber contends that the trial court should have excluded the
detective’s testimony concerning common behaviors of child sexual abuse
victims because there is no longer a need to dispel misconceptions harbored
by laypersons about the behavior of victims of sexual abuse—the purpose for
which such evidence has been deemed admissible. Barber maintains that the
public “no longer harbors misconceptions about the behavior of sexually
abused children.” (Boldface and capitalization omitted.)
Fourth, Barber claims that the trial court erred in permitting the
detective to testify regarding common behaviors of child victims of sexual
abuse because the detective’s expert testimony “closely tracked the facts of
this case.” Barber argues that this “allowed the jury to apply the syndrome
to the facts of the case and conclude that both [granddaughters] were
sexually abused,” which is an impermissible use of such testimony.
Barber’s last contention related to the detective’s expert testimony
regarding sexual abuse disclosures is that the trial court committed
instructional error in failing to provide a limiting instruction informing the
jury that it could consider the detective’s testimony for the sole purpose of
deciding whether the victims’ conduct was not inconsistent with the conduct
of a person who had been sexually abused, and not for the purpose of
determining whether the sexual abuse had occurred.1
In a final argument, Barber contends that the trial court abused its
discretion in allowing the parties to make additional closing arguments after
1 The People contend that Barber failed to request this limiting
instruction and that he has therefore forfeited the contention on appeal. In
response, Barber asserts that the trial court had a sua sponte duty to provide
the limiting instruction, or, alternatively, that his trial counsel rendered
ineffective assistance in failing to request the instruction. We address these
contentions in our discussion of this argument.
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the jury indicated during deliberations that it had a question concerning why
multiple counts were alleged in connection with what the jury perceived to be
a single act. The People contend that Barber forfeited this argument by
failing to make a specific and timely objection. Barber argues that, to the
extent his trial counsel failed to properly object, such failure constituted
ineffective assistance.
Because we conclude that none of Barber’s contentions warrants
reversal, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL HISTORY
A. Factual background
1. The prosecution’s case
Barber and his wife had three children, two boys and one girl, Mary
Doe. One of Barber’s sons had three children of his own—one son and two
daughters. One of Barber’s granddaughters, Jane Doe 1 was born in 2006,
and the other, Jane Doe 2, was born in 2007. When Jane Doe 1 was born, her
family was living with Barber and his wife in Chino, California. Although
Barber’s son’s family subsequently moved out, the son and his children
returned to Barber’s home in 2011 or 2012, after the son and his wife
divorced. Barber sometimes babysat Jane Does 1 and 2 at the house in
Chino.
a. Mary Doe discloses that Barber abused her when she was a
child and he serves time in prison for that abuse
In December 2016, when Mary Doe was an adult, she disclosed to a
friend, and then to her younger brother, that her father, Barber, had
molested her when she was a child. Mary Doe later disclosed the abuse to
her mother, who appeared shocked by what Mary Doe divulged. The day
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after she disclosed the abuse to her mother, Mary Doe reported the sexual
abuse to police.
According to Mary Doe, Barber began molesting her when she was in
kindergarten. The abuse occurred principally in her parents’ bedroom, but it
also occurred in the garage, shower and a family car. Mary Doe stated that
the abuse occurred even when other members of the family were at home,
and sometimes when she was in bed with her mother and father while her
mother was sleeping.
When Barber abused Mary Doe in the garage, Barber would lock the
door. There were instances when Mary Doe’s mother tried to get into the
garage while the abuse was taking place, but the door was locked. Barber
would stop molesting Mary Doe and unlock the door; Mary Doe’s mother
would be upset that the door had been locked.
According to Mary Doe, she became accustomed to the manner in which
Barber would molest her. It happened in the same way, generally, each time,
and it usually occurred multiple times a week. Barber would start by taking
off Mary Doe’s shirt and begin touching her breasts. He would take off her
pants or shorts and his own clothes, so that both of them would be completely
undressed. Barber would touch Mary Doe’s vagina with his fingers. He
would have her touch his erect penis. Mary Doe remembered that Barber
would “ask [her to] get a towel or get a sock or something out of the hamper
so he could clean himself with [it].” Other times, Barber would “guide [her]
down” and “that was [her] cue” that he wanted her to orally copulate him.
Barber also orally copulated Mary Doe.
The molestation stopped when Mary Doe was 13 years old. Mary Doe
had begun to understand “the dynamic [of] relationships between a boy and a
girl,” and at that point she “realized that what was happening -- what [her]
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relationship was with [her] father wasn’t normal.” Mary Doe told her father
that she “didn’t want to anymore, and that if he didn’t stop, that [she] would
tell [her] mother.” In response, Barber told Mary Doe that “it was a secret”
and “nobody could know.” Barber stopped the abuse, and Mary Doe did not
tell anyone about the abuse for many years.
Mary Doe was aware that her aunt had disclosed that Mary Doe’s
grandfather had abused the aunt, and the aunt’s family “mistreated” her
after her disclosure. When Mary Doe eventually disclosed Barber’s abuse,
her brother was “angry” with her, and her mother “questioned [her] a lot and,
kind of, defended [Barber] a little bit.”
After Mary Doe revealed the sexual abuse to police, a detective asked
her to participate in a recorded telephone call during which she would try to
get Barber to confess to the abuse. Mary Doe called Barber from her cell
phone and confronted Barber about the abuse. Barber admitted to the sexual
abuse, and began crying and “blam[ing]” his wife for failing to “giv[e] him
affection.” Barber told Mary Doe that he had hoped that she “would forget
about it.” Barber admitted to her that “it was exciting for him, [and] that he
thought it would be exciting for [her], as well.”
After this telephone call took place, Barber was arrested. Not long
after Barber’s arrest he was released on bail, and he eventually reached a
plea deal. He began serving a prison term in connection with his abuse of
Mary Doe in September 2017.
b. Barber’s son begins to suspect that Barber sexually abused
his granddaughters, Jane Does 1 and 2
Barber’s son testified about a few incidents that caused him to be
concerned that Barber may have molested his granddaughters. According to
Barber’s son, one incident that aroused his suspicion occurred when Jane
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Doe 1 and Barber were alone in the garage. The only door to the garage was
locked; Barber’s son knocked on the door for about 5-10 minutes before
Barber unlocked the door. Barber said at the time that he had been under
the car working on it and that Jane Doe 1 had been playing a game.
Although Barber’s son was not entirely comfortable with that explanation, he
decided to “let that go.”
The second incident occurred when Barber was babysitting Jane Does 1
and 2. Barber’s son walked into the bedroom where all three of them were
and saw one of his daughters wearing “little booty shorts” and “doing
cartwheels in front of [Barber], fairly close.” According to Barber’s son,
Barber was sitting in a rocking chair and “staring at her, kind of
inappropriately.”
These incidents occurred prior to Mary Doe’s reporting Barber’s sexual
abuse of her to police, and Barber’s son was not aware at that time that
Barber had sexually abused Mary Doe.
c. After Barber’s arrest, Jane Does 1 and 2 were interviewed by
a professional at the Children’s Assessment Center; both
denied having been molested
After Barber was arrested for molesting Mary Doe, someone in law
enforcement told Barber’s son not to discuss the matter with Jane Does 1 and
2 and not to ask them whether they had been molested, so as not to
“influence the girls one way or another.” Instead, in or around January 2017,
Jane Does 1 and 2 were interviewed at the Children’s Assessment Center.
The interviewer asked Jane Doe 1 “generally, has anyone done anything” to
her, but did not specifically ask her whether Barber had ever sexually abused
her. Jane Doe 1 “was scared,” and told the interviewer that no one “had done
anything to [her].” An interviewer asked Jane Doe 2 whether she had been
touched inappropriately. She told the interviewer that she had not been
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touched inappropriately because she did not want anyone to think “she is so
gross.” The interviewer did ask Jane Doe 2 whether Barber had touched her
inappropriately, but she “didn’t want to talk about it at that time.”
d. Jane Does 1 and 2 disclose Barber’s sexual abuse to family
members
Around December 2019, approximately three years after Barber was
arrested for molesting Mary Doe, Barber’s wife and son told Jane Does 1 and
2 that the reason that Barber was in prison was because he had sexually
molested their aunt, Mary Doe. Jane Doe 1 recalled being “shocked” because
she thought “it just only happened to [her] and Jane Doe 2.” After Barber’s
molestation of Mary Doe was disclosed to Jane Does 1 and 2, the girls talked
with each other privately. Jane Doe 1 told Jane Doe 2 that she was going to
divulge that Barber had sexually molested Jane Doe 1. Jane Doe 2 asked
Jane Doe 1 not to say anything about what he had done to Jane Doe 2.
Later that day, Jane Doe 1 went to her grandmother and told her that
Barber had, in fact, touched her inappropriately. Jane Doe 1 testified that
she finally disclosed the abuse because she had been keeping it all inside and
was “at [her] breaking point.” Jane Doe 1 thought that her grandmother did
not believe her at first, but her grandmother hugged her and told her it would
be “okay.”
Approximately 20 minutes later, Jane Doe 2 also revealed to her
grandmother that Barber had touched her inappropriately. Jane Doe 2
testified that she got to the point of being willing to tell her grandmother
because she felt like “they would have believed me” because “it [had]
happened to somebody else[,]” as well. Jane Doe 2’s grandmother hugged
both girls and said, “[I]t’s not your fault.”
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Barber’s wife told her son, the girls’ father, what the girls had told her.
The girls also disclosed the abuse to their father at a later time. When the
girls told their father about the abuse, they were “really quiet” and appeared
to be “really ashamed of themselves.” Barber’s son felt angry at Barber and
himself. However, neither the girls’ grandmother nor their father reported
Barber’s abuse of the girls to police. The girls’ father testified that he wanted
to protect them from “more trauma” that could result from “this trial process”
and because he knew “it was going to be their word versus [Barber’s].”
Mary Doe testified that she did not learn about Barber’s sexual abuse
of Jane Does 1 and 2 until August 2020. According to Mary Doe, she was
babysitting the girls and another niece when the two girls started crying and
told her they wanted to talk to her about something upstairs in their room.
Once upstairs, the girls revealed to Mary Doe that Barber had sexually
abused them.2
After she learned about the abuse from Jane Does 1 and 2, Mary Doe
confronted her brother and mother. Mary Doe told them that she was aware
that Jane Does 1 and 2 had disclosed the sexual abuse months earlier and yet
their grandmother and father, Mary Doe’s mother and brother, had done
nothing about it. Mary Doe told her brother that doing nothing was not
helping the girls.
Later that week, with her brother’s approval, Mary Doe took Jane
Does 1 and 2 to a police station. Jane Doe 1 testified that she wanted to go to
2 Jane Doe 1 recalled her first disclosure to Mary Doe differently.
According to Jane Doe 1, approximately two months after the girls disclosed
the abuse to their grandmother and father, Mary Doe walked in on Jane
Doe 1 cutting herself with a razor in her bedroom. Mary Doe began talking
with Jane Doe 1 about why she was harming herself. Jane Doe 2 came into
the room at some point, and the three of them had a discussion. Jane Doe 1
told Mary Doe that Barber had touched her “inappropriately.”
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the police station with her aunt that day because she “wanted [Barber] to get
what he deserved for taking [her childhood] away from [her.]”
e. Jane Does 1 and 2 participate in interviews at the Children’s
Assessment Center for a second time and disclose Barber’s
sexual abuse
After Mary Doe took the girls to talk with police about the abuse, the
same interviewer from the Children’s Assessment Center who had
interviewed them in January 2017 interviewed them again on December 10,
2020.3
Jane Doe 1 told the interviewer that she recalled having been
interviewed in 2017, but she did not remember what she said during that
interview. In this second interview, Jane Doe 1 described how Barber had
sexually abused her from the time she was four or five years old. She
disclosed that Barber touched her chest and vagina while they were in his
bedroom and the garage, and that he told her not to tell anybody or
something bad would happen. Jane Doe 1 told the interviewer that Barber
would use either his hands or fingers, or his penis, to rub against her. She
indicated that Jane Doe 2 was sometimes present while Barber was abusing
Jane Doe 1 and would have to watch the abuse, and that Barber would
sometimes abuse Jane Doe 2 in front of Jane Doe 1.
Jane Doe 1 also indicated to the interviewer that she sometimes slept
in a bed with Barber and her grandmother, and that Barber sometimes
abused her in the bed while her grandmother was sleeping. Jane Doe 1 also
told the interviewer that Barber would call her into the garage, lock the door,
and start to touch her inappropriately. Jane Doe 1 mentioned that
sometimes her father would ask “why is the door [to the garage] locked,” and
3 The video recordings of these interviews were played for the jury.
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Barber would say that he “was just playing a game with [Jane Doe 1].” She
believed that her father “didn’t think anything of it.”
Jane Doe 1 described various types of touching that occurred when
Barber would move or remove her clothes. She explained how Barber
touched himself while he abused her. She described how Barber would
ejaculate when he did this. Jane Doe 1 explained that this conduct happened
more than once, and said that Barber did these things while they were “in the
room, the garage or in his truck.”
Jane Doe 1 also recalled times when Barber would make her orally
copulate him. She recalled that this happened more than once, and referred
to various locations where it occurred, including outside of a grocery store or
a Dollar Tree store, in the garage and in the bedroom. Jane Doe 1 also
described incidents when Barber would orally copulate her.
Jane Doe 1 told the interviewer that Barber would make her and Jane
Doe 2 watch pornography on his phone with him, and when someone came
into the room, he would press a button to make it look like they were just
listening to music. Jane Doe 1 indicated that Barber sometimes took
photographs while he was abusing her.
Jane Doe 1 described to the interviewer how she decided to tell what
had happened to her only after she had become depressed and suicidal and
had been talking with a therapist. Jane Doe 1 had not even told the
therapist what Barber had done to her. Jane Doe 1 was scared for herself
and her sister when she learned that Barber would be released from prison,
and she was concerned that he might move back into the home with her
grandmother.
During Jane Doe 2’s interview, Jane Doe 2 acknowledged that she had
lied in 2017 when she denied that Barber had touched her inappropriately.
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Jane Doe 2 explained that she was afraid that her family would get mad at
her or would not love her anymore if she told them what had occurred. She
proceeded to describe to the interviewer the ways in which Barber had
sexually abused her for years.
For example, Jane Doe 2 described how Barber would make her orally
copulate him. She also described how Barber would orally copulate her. She
mentioned having witnessed Barber do these things with Jane Doe 1, as well,
and she discussed having seen Barber touch Jane Doe 1 inappropriately with
his hands and fingers. Jane Doe 2 told the interviewer, similar to what Jane
Doe 1 disclosed in her interview, that Barber would make her and Jane Doe 1
watch sex videos on his tablet.
Jane Doe 2 described how Barber would sometimes touch her
inappropriately while they were in the living room watching a movie or while
she was taking a bath. Like Jane Doe 1, Jane Doe 2 also described instances
of sexual abuse that occurred while she was in bed with Barber and her
grandmother.
Jane Doe 2 also described incidents when Barber would commit sex
acts with the girls while they were in a vehicle in a parking lot of a store, and
indicated that during some of these incidents, Barber would ejaculate.
Jane Doe 2 told the interviewer that the abuse ended when Barber
went to prison, which was just before she started fifth grade. She explained
that no one initially told her or her sister why Barber was in prison; they
finally told her the reason he was in prison in December 2019. Jane Doe 2
told the interviewer that after her grandmother and father told the girls that
Barber had sexually abused Mary Doe, Jane Doe 1 told her grandmother that
Barber had also molested them.
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f. The trial testimony of Jane Does 1 and 2
At trial, Jane Doe 1 testified in a manner that was generally consistent
with the statements she had made to the interviewer during her January
2017 interview. Jane Doe 1 testified that Barber touched her inappropriately
“[q]uite often” while they lived at the house in Chino, starting when she was
four years old and continuing until Barber went to prison, which was when
Jane Doe 1 was about 10 years old. Jane Doe 1 explained that she and Jane
Doe 2 would often sleep in their grandparents’ bedroom, and that they would
sleep on either side of Barber. She said that Barber would take her and her
sister to buy toys and candy, and that he babysat them in the afternoons
when their grandmother was at work. She indicated that Barber would
touch her vagina with his fingers, and that this happened more than once,
both over and under her clothes. She further stated that he touched her
breasts more than once. Jane Doe 1 also testified that Barber would orally
copulate her, and that this happened more than one time, and that he also
would make her touch his penis with her hands. Barber also made Jane
Doe 1 orally copulate him.
Jane Doe 1 testified that Barber would engage in this conduct when
they were in the bedroom, garage, and the car. According to Jane Doe 1,
Barber spent a lot of time working on the car in the garage, and the
inappropriate touching often took place in the garage. On more than one
occasion, Jane Doe 1’s father tried to get into the garage while the door was
locked when Barber and Jane Doe 1 were in the garage and Barber was
abusing her.
Jane Doe 1 testified that on some occasions when Barber was touching
her inappropriately, Jane Doe 2 was also present. Jane Doe 1 explained that
she also witnessed Barber touch Jane Doe 2 inappropriately on multiple
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occasions. Jane Doe 1 also explained that she and her sister were sometimes
together when Barber would sexually abuse them in the car during a trip to
get toys or candy.
Jane Doe 1 testified that after Barber engaged in sex acts with her, he
would tell her not to tell anyone about it.
At trial, Jane Doe 2 testified that she could not remember the first time
that Barber had touched her inappropriately, but she indicated that she was
“really young” when the abuse started. According to Jane Doe 2, Barber
sexually abused her “on a weekly basis” while they were living in the same
house with him.
Jane Doe 2 testified that Barber would use his hands and fingers to
touch her inappropriately, and would make her touch him inappropriately.
Jane Doe 2 further testified that Barber made her orally copulate him, and
she described incidents during which he orally copulated her. Jane Doe 2
indicated that these types of incidents happened “multiple times throughout”
her childhood.
Jane Doe 2 indicated that at times, Jane Doe 1 would be in the garage
while Barber sexually abused Jane Doe 2, but at other times Jane Doe 2 was
alone with him. At trial, Jane Doe 2 testified in a manner similar to Jane
Doe 1 about how Barber would touch her inappropriately while they were in
his and her grandmother’s bedroom, including times when she was in the bed
with both Barber and her grandmother. Jane Doe 2 tried to wake up her
grandmother by kicking her, but her grandmother remained asleep.
Jane Doe 2 testified that the inappropriate touching also occurred when
the girls were in the bathtub together.
Jane Doe 2 testified that Barber would show the girls pornographic
videos on his tablet before he would molest them. Jane Doe 2 testified that
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most of the videos he showed them depicted adults engaged in sex acts, but
one of the videos she remembered showed a child with her father. Jane Doe 2
indicated that the people in the videos were doing the same kinds of acts that
Barber was doing with Jane Does 1 and 2.
Jane Doe 2 testified that Barber told her not to tell anyone about the
touching “or else,” and even though he “was calm about it,” she nevertheless
felt scared that he would do something bad to her or her sister. Jane Doe 2
also testified that she did not tell anyone about the sexual abuse because she
was scared that everyone would think of her “differently” and that they
would think that what was happening to her was her fault.
2. The defense
The defense called as a witness the detective who was assigned to Mary
Doe’s case in 2016. The detective testified that Barber’s electronic devices
were searched in 2016 and 2017, and at that time law enforcement officers
found no pornography or photographs of other victims. The detective also
confirmed that Jane Does 1 and 2 participated in forensic interviews after
Mary Doe’s disclosure in an effort to determine whether they were also
victims of Barber’s sexual abuse.
In the course of presenting this evidence, Barber’s attorney played four
video recordings of the interviews of Jane Does 1 and 2 for the jury. In the
first interview, which took place on November 2, 2020, Jane Doe 1 discussed
Barber’s sexual abuse with officers from the Chino Police Department. The
second interview played for the jury was Jane Doe 2’s interview with officers
on the same date. The other two videos defense counsel played for the jury
were the interviews of Jane Does 1 and 2 by an interviewer at the Children’s
Assessment Center on January 3, 2017. During these interviews, both girls
denied that anyone had ever touched them inappropriately.
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Barber also testified in his own defense. Barber admitted that he had
sexually abused Mary Doe, just as she testified. He denied, however, that he
had sexually abused Jane Does 1 and 2. According to Barber, while he did
take the girls to the store and buy them things and “spoil them,” he did not
commit sex acts with them. Barber also claimed that he could not have
abused them in the garage during the afternoon, as the girls had testified,
because he was not at the house then. According to Barber, contrary to the
testimony of Jane Doe 1 and Jane Doe 2, his wife would have been home
between 3:00 p.m., when the girls got out of school, and 6:00 p.m.
When asked why he thought Jane Does 1 and 2 had made sexual abuse
allegations against him, Barber theorized that his daughter, Mary Doe, was
“manipulating them” because she was “pissed off” that he was being released
from prison much earlier than she had expected.
Nevertheless, Barber admitted on cross-examination that he had tried
to minimize his behavior with respect to Mary Doe by telling her in their
pretext telephone call that his abuse against her had lasted for only weeks or
months, rather than years. He also conceded that, although he did not recall
having done so, he had told Mary Doe seven times during the telephone call
that he had engaged in inappropriate conduct with her because it excited
him. He also had to concede that he had told the investigating officer the
same thing at least six times, and that he told investigators that Mary Doe
seemed to like the abuse. Barber acknowledged that he did not engage in
further touching of Mary Doe after she started to grow pubic hair. Further,
Barber admitted that after he stopped molesting Mary Doe, he would search
for what he referred to as “daddy porn” and “baby-sitter porn” because he
“still had that urge that [he] couldn’t fulfill with Mary Doe anymore,” and
because it was difficult to stop doing something that “excited [him] so much.”
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Barber had told a detective that he believed that the girls who appeared in
the pornography he watched “looked very young, but they were actually
older.” He admitted that the girls looked “ten and eleven,” and that girls that
age were “part of [his] sexual preference.”
B. Procedural background
The San Bernardino County District Attorney filed an information
charging Barber with 10 counts of sexual penetration or oral copulation with
a child 10 years old or younger (Pen. Code,4 §§ 288.7, subd. (b); counts 1-4,
12-17), one count of sexual intercourse with a child 10 years old or younger
(§§ 288.7, subd. (a), 1170, subd. (h)(3); count 5), and 12 counts of committing
a lewd act upon a child under age 14, (§§ 288, subd. (a), 667.71, 667.61,
subds. (j)(2), (e), 1170, subd. (h)(3); counts 6-11, 18-23). The information also
included sentencing enhancement allegations, including that Barber was
previously convicted of violating section 288.5 and was therefore a habitual
sex offender under section 667.71, and that he committed the offenses against
multiple victims under the age of 14, under section 667.61, subdivisions (j)(2)
and (e).
A jury convicted Barber on all counts except counts 5 and 17 and found
true the multiple victim enhancements. Barber admitted having suffered the
alleged prior conviction under section 667.71.
The trial court sentenced Barber to a total term of 110 years to life in
prison.
Barber filed a timely notice of appeal.
4 Further statutory references are to the Penal Code unless otherwise
indicated.
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III.
DISCUSSION
A. Barber’s contentions related to the admission of evidence that he
contends amounted to evidence of Child Sexual Abuse Accommodation
Syndrome (CSAAS)
Barber raises five arguments related to the trial court’s decision to
allow the prosecution to elicit testimony from a police detective regarding his
training and experience with respect to the manner in which child sexual
abuse victims tend to disclose the abuse. Specifically, the court permitted the
detective to testify concerning the delay in disclosure that often occurs, as
well as the fact that child victims sometimes initially provide incomplete or
inconsistent statements and slowly recall details over time. Four of Barber’s
arguments relate to why he believes the trial court abused its discretion in
allowing Trosper to testify as to these subjects. In his fifth argument, Barber
contends that even if the trial court did not err in admitting this evidence,
the court erred in failing to provide an instruction limiting the jury’s use of
this evidence.
1. Additional background
Chino Police Department Detective Scott Trosper testified as an expert
witness for the prosecution. At the time of trial, Trosper had been a police
officer for 20 years, two of which he spent as a detective. He had investigated
over 100 child sexual abuse cases, and had directly interviewed or observed
interviews of between 50 and 60 child victims.
The prosecutor asked Detective Trosper whether, based on his training
and experience, it was common for child victims of sexual abuse not to report
the abuse immediately after it first occurred, or to initially deny the abuse
when first asked about it. Trosper indicated that in his experience, this was
“absolutely” common. Trosper also testified that, based on his training and
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experience, it is common for children who have been sexually abused to
continue to spend time with their abuser.
Detective Trosper stated that in his experience with child sexual abuse
cases, it is typical for a child victim to be interviewed or questioned by several
different people, such as police officers, a forensic interviewer, someone from
the Children’s Assessment Center, and later, by individuals in a court
setting. When asked about his experience with investigations of child sexual
abuse and whether child victims typically “disclose every single detail to
every single person who interviews them,” Detective Trosper answered, “No.”
He noted that child victims have “memories [that] are sometimes clouded,”
such that while a victim might remember one incident “extremely clearly,”
the victim’s memory of another incident or other incidents might be more
vague. Also, a child might have a clearer memory of a particular incident
when interviewed on a different occasion.
Detective Trosper’s expert testimony regarding the things that he had
learned through his training and experience with respect to child sexual
abuse victims and their disclosures of the abuse comprises approximately
three pages of reporter’s transcript. After Detective Trosper provided
testimony regarding his training and experience regarding disclosures made
by child sexual abuse victims, generally, he was questioned about his
involvement in the investigation into Barber’s abuse of Jane Does 1 and 2,
and what investigators learned from the interviews of the two girls at the
Children’s Assessment Center. This testimony comprises approximately 20
pages of reporter’s transcript; in addition, the prosecutor played video
recordings of the girls’ interviews for the jury during Detective Trosper’s
testimony. Detective Trosper was not asked to express his opinion as to
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whether the disclosures made by Jane Does 1 and 2 comported with the
typical modes of disclosure by child sexual abuse victims as a class.
2. Analysis
a. Barber’s challenges to the admissibility of Detective Trosper’s
expert testimony
The first four arguments set out in Barber’s opening brief challenge the
trial court’s admission of Detective Trosper’s expert testimony regarding the
nature of disclosures of sexual abuse by child victims of such abuse.
i. Defense counsel failed to object to the admission of the
expert testimony on any of the grounds raised on appeal,
and thereby forfeited these contentions
The People point out that Barber failed to object to the prosecutor’s
questioning of Detective Trosper regarding his experience with child victims
of sexual abuse on any of the grounds that he raises on appeal, and that as a
result Barber has forfeited these contentions. We agree.
A judgment shall not be reversed based on the erroneous admission of
evidence unless “[t]here 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.” (Evid. Code, § 353,
subd. (a).) The failure of counsel to state a timely and specific objection on
the same ground raised on appeal forfeits that ground. (People v.
Demetrulias (2006) 39 Cal.4th 1, 20-22 (Demetrulias); People v. Partida
(2005) 37 Cal.4th 428, 433-434 (Partida).) “ ‘The reason for the requirement
[that a specific objection must be made] is manifest: a specifically grounded
objection to a defined body of evidence serves to prevent error. It allows the
trial judge to consider excluding the evidence or limiting its admission to
avoid possible prejudice. It also allows the proponent of the evidence to lay
20
additional foundation, modify the offer of proof, or take other steps designed
to minimize the prospect of reversal.’ ” (Partida, at p. 434.)
Barber did not object to Detective Trosper’s expert testimony on any of
the grounds that he raises on appeal. While Barber’s attorney did object four
times during this portion of Detective Trosper’s testimony, none of the
objections mentioned or even touched on the grounds raised on appeal. First,
when the prosecutor asked Detective Trosper, “And have you also spoken to
children who initially deny being molested the first time they’re spoken to,
and then later disclosed sexual abuse?”, defense counsel objected on the
grounds that the question was “[l]eading and outside the scope of his
expertise.” The trial court overruled the objection.
Second, defense counsel objected to the following question on the
ground that it was “leading”: “And based on your training and experience, is
it common for a victim, a child victim, to not disclose some of the abuse?” The
trial court sustained this objection and the prosecutor rephrased the question
to ask, “Based on your training and experience, can you talk about how
disclosures can be made when there [are] multiple interviews?” Third, in
response to a question about how disclosures might be made when a victim is
interviewed multiple times, Detective Trosper responded, “These interviews
are obviously difficult for the children, and their memories are sometimes
clouded, at least in my experience.” Defense counsel objected on the ground
that the detective’s answer involved “[s]peculation.” The trial court overruled
this objection and permitted Detective Trosper’s answer to stand, and also
allowed Detective Trosper to complete his answer.
Finally, defense counsel objected on relevance grounds when Detective
Trosper began to discuss the facts of a different, “current” case on which he
was working. The trial court sustained the relevance objection and
21
admonished Detective Trosper to answer in generalizations and to avoid
discussing other cases.
A review of these objections demonstrates that Barber’s attorney did
not object to Detective Trosper providing his opinions, based on his training
and experience, about how child victims of sexual abuse tend not to disclose
the abuse right away and sometimes disclose in bits and pieces over time.
Nevertheless, in his reply brief, Barber suggests that the “thrust” of his
attorney’s objections was “that Trosper’s testimony concerning the way . . .
child sexual abuse victims commonly act could not reliably be used by the
jury in reaching a verdict in this case.” As we have described, the record does
not support Barber’s characterization of his trial counsel’s objections. It is
therefore clear that Barber has forfeited the arguments that he raises on
appeal regarding the admission of Detective Trosper’s expert opinions about
the nature of child sexual abuse victims’ disclosures.
ii. Even if not forfeited, Barber’s challenges fail on the
merits
In any event, even if not forfeited, Barber’s contentions challenging the
trial court’s admission of Detective Trosper’s expert opinion on child sexual
abuse victim disclosure patterns are without merit.
A. Kelly
In his first argument, Barber contends that Detective Trosper’s
testimony amounted to evidence equivalent to testimony regarding Child
Sexual Abuse Accommodation Syndrome (CSAAS), and that as such,
Detective Trosper’s expert testimony must meet the same requirements as
CSAAS testimony in order to be admissible. He asserts, that CSAAS
22
testimony should be subjected to the test for a new scientific method or
theory, as set out in Kelly, supra, 17 Cal.3d 24, in order to be admissible.5
5 The People dispute that Detective Trosper’s testimony should be
considered to be CSAAS evidence. According to the People, “Detective
Trosper did not testify about CSAAS,” and his testimony was limited instead
“to his own personal observations on the topic of disclosure based on other
cases he had investigated.” The People contend that under Evidence Code
section 720, subdivision (a), a trial court may permit a person “to testify as an
expert if [the individual] has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his
testimony relates,” and that the trial court’s determination that Detective
Trosper qualified as an expert about child sexual abuse victim disclosures
during investigative interviews is subject to review for an abuse of discretion
and should not be disturbed. According to the People, the trial court did not
abuse its discretion in permitting Detective Trosper to testify regarding the
disclosure patterns of child victims based on his many years of training and
experience in both interviewing victims and observing others interview them
while investigating child sexual abuse cases.
Although we agree that permitting a detective to testify regarding a
topic for which he or she has particularized training and experience does not
offend the normal rules for admitting expert testimony, many of the same
concerns that courts have addressed with respect to the admission of CSAAS
evidence through experts in the mental health field exist with respect to
Detective Trosper’s testimony. Trosper testified in general terms about
common myths and misconceptions regarding how child sexual abuse victims
tend to report or disclose the abuse, including observations that victims often
initially deny having been abused, and that their disclosures may occur at
different times and over a lengthy period of time. As such, portions of
Detective Trosper’s testimony were, effectively, consistent with CSAAS
research and theory. (See, e.g., People v. Bowker (1988) 203 Cal.App.3d 385,
389 & fn. 3 (Bowker) [first articulated in 1983, CSAAS has five stages—
secrecy, helplessness, entrapment and accommodation, delayed disclosure,
and retraction].) We therefore assume that Detective Trosper’s testimony
was, effectively, akin to CSAAS evidence and will therefore address Barber’s
contentions on the subject. However, to the extent that certain of Barber’s
arguments highlight the distinction between a detective testifying as an
expert based on his professional experience and observations and a clinician
testifying as an expert about the common behaviors of child molestation
23
We disagree with Barber’s contention that the admissibility of
Detective Trosper’s expert opinions regarding child victim disclosures should
have been assessed under the Kelly rule, and that, under proper application
of that rule, the testimony should have been excluded.
The Kelly rule “conditions the admissibility of evidence based on a new
scientific method of proof on a showing that the technique has been generally
accepted as reliable in the scientific community in which it developed.”
(People v. Shirley (1982) 31 Cal.3d 18, 34.) The rule applies “only to expert
testimony ‘based, in whole or part, on a technique, process, or theory which is
new to science and, even more so, the law.’ ” (People v. Lapenias (2021)
67 Cal.App.5th 162, 173 (Lapenias).) Additionally, the rule applies only if
“the unproven technique or procedure appears in both name and description
to provide some definitive truth which the expert need only accurately
recognize and relay to the jury. The most obvious examples are machines or
procedures which analyze physical data.” (People v. Stoll (1989) 49 Cal.3d
1136, 1156.)
The argument that Barber puts forward has been rejected by other
courts, including recently in Lapenias, supra, 67 Cal.App.5th at p. 173. The
Lapenias court explained, “[T]he 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 rule.” (Ibid.) We agree with this analysis. (See also
victims based on scientific or academic research or theories (i.e., “typical”
CSAAS evidence), we will acknowledge that distinction.
24
People v. Munch (2020) 52 Cal.App.5th 464, 472-473 (Munch) [rejecting
challenge to CSAAS evidence under the Kelly rule].)
In addition, the fact that Detective Trosper was testifying about his
own experiences and observations of child sexual abuse victims demonstrates
that there was no reason to assess this particular expert testimony under
Kelly. Detective Trosper was not testifying about a psychological syndrome,
theory, or method; instead he discussed his own observations of child sexual
abuse victims’ disclosures of that abuse, all of which were based solely on his
many years of training and experience with respect to child sexual abuse
investigations. Expert testimony based on an individual’s professional
experience, when presented without reference to a diagnosis or defined
syndrome or any other scientific or academic method, is not likely to mislead
a jury based on an aura of scientific infallibility, and is not subject to the
“ ‘additional screening procedures’ ” of the Kelly test. (See Munch, supra,
52 Cal.App.5th at p. 473.)
In setting out the argument that CSAAS evidence should be subject to
a Kelly analysis, Barber also contends that the trial court’s admission of
Detective Trosper’s expert testimony regarding child sexual abuse disclosure
patterns, without application of the Kelly rule for establishing its reliability,
violated due process because it “rendered [the] trial fundamentally unfair.”
Barber acknowledges that this argument has been rejected by other courts
(see People v. Patino (1994) 26 Cal.App.4th 1737, 1747-1748 [“[I]ntroduction
of CSAAS testimony does not by itself deny appellant due process”]), but, he
argues, the Patino court’s reliance on Estelle v. McGuire (1991) 502 U.S. 62,
72, which involved the admission of evidence regarding battered child
syndrome, provides an inapt analogy and undermines the Patino court’s
analysis. We are not persuaded that Barber’s challenge to Patino is correct;
25
other courts agree with our assessment, in that they have rejected the notion
that the admission of evidence regarding CSAAS, even without a Kelly
analysis, violates due process. (See Lapenias, supra, 67 Cal.App.5th 162,
174; Munch, supra, 52 Cal.App.5th at p. 470.) We see no basis to depart from
the conclusion reached by these courts. A trial court’s compliance with the
rules of evidence typically does not violate a defendant’s right to due process
(see People v. Hall (1986) 41 Cal.3d 826, 834-835).
B. Evidence Code section 801 does not render
CSAAS evidence inadmissible
Barber next contends that CSAAS evidence should be excluded for all
purposes under Evidence Code section 801. He argues that Evidence Code
section 801, subdivision (b) limits an expert’s testimony to opinions that are
“ ‘[b]ased on matter . . . that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which his testimony
relates.’ ” “Trial judges have a critical gatekeeping function when it comes to
expert testimony beyond merely determining whether the expert may testify
at all. Expert evidence that does not require a Kelly analysis must still be
admissible under Evidence Code section 801, which mandates it be ‘of a type
that reasonably may be relied upon by an expert in forming an opinion upon
the subject.’ [Citations.]” (People v. Azcona (2020) 58 Cal.App.5th 504, 513.)
Relying on out-of-state authority, Barber asks this court to conclude
that CSAAS evidence is not sufficiently reliable to be admitted for any
purpose under Evidence Code section 801. (See Blount v. Commonwealth
(Ky. 2013) 392 S.W.3d 393, 395; Commonwealth v. Dunkle (Pa. 1992)
602 A.2d 830; State v. Ballard (Tenn. 1993) 855 S.W.2d 557, 562; State v.
J.L.G. (2018) 234 N.J. 265, 90 A.3d 442, 446; Hadden v. State (Fla. 1997)
690 So.2d 573-578.) However, our Supreme Court has expressly approved
26
the admissibility of CSAAS evidence for certain purposes in People v.
McAlpin (1991) 53 Cal.3d 1289, and we are bound by that precedent. (Auto
Equity, supra, 57 Cal.2d at p. 455.) Other California courts have consistently
found expert testimony about CSAAS admissible based on the authority of
McAlpin. (See, e.g., Munch, supra, 52 Cal.App.5th at p. 468; Lapenias, supra,
67 Cal.App.5th at p. 172.) Out-of-state authorities provide us no compelling
reason to depart from established California precedent.
C. Detective Trosper’s expert testimony was not
irrelevant on the ground that the public no longer
harbors misconceptions about the manner in
which child sexual abuse victims disclose the
abuse
Barber also argues that the trial court should have excluded Detective
Trosper’s expert testimony regarding his experiences concerning how child
sexual abuse victims disclose abuse because there is no longer a need to
dispel misconceptions harbored by laypersons about the behavior of victims of
sexual abuse—the purpose for which such evidence has been held to be
admissible. Specifically, Barber contends that the public “no longer harbors
misconceptions about the behavior of sexually abused children.” (Boldface
and capitalization omitted.) We disagree with this assertion.
The appellate court in Munch, supra, 52 Cal.App.5th 464 addressed a
similar argument and rejected it. The defendant in Munch argued that
CSAAS evidence “is irrelevant and ‘the public no longer holds the presumed
misconceptions this testimony purports to address.’ ” (Id. at p. 468.) The
Munch court disagreed with this contention. (Ibid.) Barber again offers out-
of-state authority to argue that “[c]ourts and commentators have questioned
whether the public continues to hold misconceptions about the behavior of
children who have been molested.” We see no reason to depart from the
27
holding in Munch. We are not persuaded that expert evidence regarding the
behavior of child sexual abuse victims does not retain value in disabusing
jurors of misperceptions or misunderstandings with respect to the behaviors
of a child surrounding sexual abuse, including delayed or disjointed
disclosure of the abuse.
D. Detective Trosper’s expert testimony did not
“provide a ‘profile’ of a child abuse victim”
Barber’s final contention related to the admission of Detective Trosper’s
testimony regarding common patterns of disclosure in child sexual abuse
victims is that the trial court erroneously permitted the detective to provide
testimony that “allowed the jury to apply the syndrome to the facts of the
case and conclude that both [Jane Doe 1] and [Jane Doe 2] were sexually
abused,” rather than for the acceptable limited purpose of disabusing the jury
of preconceived ideas of how a sex abuse victim might act. According to
Barber, CSAAS evidence may not be “used to provide a ‘profile’ of a child
abuse victim.” Barber complains that Detective Trosper “testified in a way
that closely tracked the facts of this case,” and he relies on authority that
cautions that where a trial court permits an expert to give what appears to be
“ ‘general’ testimony describing the components of [CSAAS]” (Bowker, supra,
203 Cal.App.3d at p. 393) in a way that too closely tracks the case, the jury
might draw “predictive conclusions” (ibid.) and use the testimony to
determine that the complaining victim was, in fact, sexually abused.
After viewing Detective Trosper’s expert testimony as a whole, we are
not convinced that the jury was likely to misuse his testimony to conclude
that Jane Does 1 and 2 were sexually abused. First, and contrary to Barber’s
assertion otherwise, Detective Trosper did not “describe[ ] CSAAS” at all, in
that he did not purport to set forth a clinical or other psychological theory to
28
explain a variety of behaviors of child victims. Thus, Detective Trosper’s
testimony did not suggest to the jury that it was based on any scientific or
academic authority. Rather, the detective offered his professional experience
about the manner in which the sexual abuse victims whom he had observed
tended to disclose the abuse. Testimony regarding his observations of
patterns in sexual abuse victims’ often delayed disclosures, inconsistent
statements, and disjointed memories of the abuse addressed jurors’ possible
misconceptions that these circumstances might indicate that a victim was
fabricating the asserted abuse. Detective Trosper properly assisted the jury
in understanding that it is not uncommon for victims to delay the reporting of
sexual abuse and that it is also not uncommon for victims’ initial disclosures
to lack details or to be inconsistent with later versions. Further, the
detective’s expert testimony regarding victims’ delayed disclosure and the
manner of disclosure was presented in general terms regarding typical cases
and did not closely track the facts of this case. That some of Detective
Trosper’s general observations about child sexual abuse victims’ disclosures,
as a class, were also reflected in the evidence of the disclosures of Jane Does 1
and 2 does not mean that Detective Trosper engaged in improper “profiling.”
Instead, it demonstrates that the disclosures of the two victims in this case
were not inconsistent with disclosures by other victims of sexual abuse of
which Detective Trosper was aware. Detective Trosper’s testimony did not
suggest that anyone could conclude that the two victims in this case had been
abused, based merely on their lack of immediate disclosure and the existence
of inconsistent disclosures over time. Nor did his testimony suggest that
Jane Does 1 and 2 were being truthful. Rather, Detective Trosper’s
testimony served to prevent jurors from misapprehending that the presence
29
of such factors necessarily indicated that Jane Does 1 and 2 had fabricated
the abuse.
b. Reversal is not required based on the lack of an instruction
limiting the use of Detective Trosper’s expert testimony
regarding his experience with respect to child sexual abuse
victim disclosure patterns
Barber contends that the trial court erred in failing to instruct the jury
as to the limited way in which it was permitted to use CSAAS evidence.6 The
People respond by asserting that Barber has forfeited this contention for
purposes of appeal by failing to object to the trial court’s instruction with
respect to Detective Trosper’s expert testimony. Barber contends, however,
that this court may consider his argument on appeal because, to the extent
his trial counsel failed to seek a limiting instruction or object to the court’s
instructions, his attorney rendered ineffective assistance, warranting
reversal of his convictions. The People assert that Barber cannot
demonstrate either that his attorney’s performance with respect to failing to
request a limiting instruction was deficient, or that there is a reasonable
probability that, but for the purportedly deficient performance, the result of
the trial would have been different. We address these contentions in turn.
i. Additional background
Near the end of trial, the trial court and the attorneys discussed the
proposed jury instructions. The court indicated its intention to “go through”
the packet of instructions provided by the prosecution and indicate whether
the court intended to give, not give, or give a modified version of each
6 Barber does not specify whether he believes that the pattern
instruction (CALCRIM No. 1193) should have been given, or whether he
believes that the court should have devised an instruction tailored to
Detective Trosper’s testimony.
30
proposed instruction. The court stated, “Please stop me, ask me to go back,
interrupt me if you have any input. If I don’t hear from you, that means you
have no objection.” The court also told the attorneys to indicate whether they
believed that additional instructions were needed after the court concluded
its review of the packet of instructions that the prosecutor proposed.
During the discussion, the court indicated that it intended to give
CALCRIM No. 332, regarding expert witness testimony, in light of Detective
Trosper’s expert testimony. Defense counsel did not object to this instruction,
nor did counsel request a limiting instruction. At the end of the discussion,
the court asked defense counsel whether she wanted to request any
additional instructions; defense counsel replied, “Not at this time.” The
following morning, defense counsel indicated that she had no comments or
changes to the revised instructions.
The trial court instructed the jury on the use of expert witness
testimony in a manner consistent with CALCRIM No. 332:
“A witness was allowed to testify as an expert and to give
opinions. You must consider the opinions, but you are not
required to accept them as true or correct. The meaning
and importance of any opinion is for you to decide. In
evaluating the believability of an expert witness, follow the
instructions about the believability of witnesses generally.
In addition, consider the expert’s knowledge, skill,
experience, training, and education, the reasons the expert
gave for any opinion, and the facts or information on which
the expert relied in reaching that opinion. You must decide
whether information on which the expert relied was true
and accurate.
“You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence.”
31
ii. Analysis
A. Courts do not have a sua sponte duty to provide
an instruction limiting the use of CSAAS
evidence; Barber’s failure to request a limiting
instruction forfeits his claim on appeal
“ ‘It is settled that in criminal cases, even in the absence of a request,
the trial court must instruct on the general principles of law relevant to the
issues raised by the evidence. [Citations.] The general principles of law
governing the case are those principles closely and openly connected with the
facts before the court, and which are necessary for the jury’s understanding of
the case.’ [Citation.]” (People v. Najera (2008) 43 Cal.4th 1132, 1136.) An
appellate court reviews independently the issue of whether a trial court has a
duty to give a particular jury instruction. (People v. Guiuan (1998)
18 Cal.4th 558, 569.)
The Legislature has determined that limiting instructions need not be
given sua sponte. “When evidence is admissible as to one party or for one
purpose and is inadmissible as to another party or for another purpose, the
court upon request shall restrict the evidence to its proper scope and instruct
the jury accordingly.” (Evid. Code, § 355.) Thus, it has been repeatedly
stated that “ ‘[a]bsent a request, a trial court generally has no duty to
instruct as to the limited purpose for which evidence has been admitted.’
[Citation.]” (People v. Murtishaw (2011) 51 Cal.4th 574, 590; see, e.g., People
v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052; People v. Humphrey (1996)
13 Cal.4th 1073, 1088, fn. 5 (Humphrey); People v. Collie (1981) 30 Cal.3d 43,
63; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316-1317.)7
7 A “ ‘possible’ narrow exception” to this rule may occur in the
“ ‘ “occasional extraordinary case” ’ in which the evidence ‘ “is a dominant
part of the evidence against the accused, and is both highly prejudicial and
32
Pursuant to statute, only one instruction need be given sua sponte with
respect to expert testimony: “When, in any criminal trial or proceeding, the
opinion of any expert witness is received in evidence, the court shall instruct
the jury substantially as follows: [¶] Duly qualified experts may give their
opinions on questions in controversy at a trial. To assist the jury in deciding
such questions, the jury may consider the opinion with the reasons stated
therefor, if any, by the expert who gives the opinion. The jury is not bound to
accept the opinion of any expert as conclusive, but should give to it the weight
to which they shall find it to be entitled. The jury may, however, disregard
any such opinion, if it shall be found by them to be unreasonable. [¶] No
further instruction on the subject of opinion evidence need be given.” (§ 1127b,
italics added.)
The trial court instructed the jury consistent with the requirements of
section 1127b by providing the jury with the pattern instruction on expert
testimony, CALCRIM No. 332. Under section 1127b’s terms, no further
limiting instruction on the use of expert testimony—even expert testimony
touching on common patterns in the disclosure of child sexual abuse—was
required. Barber contends, however, that appellate courts “are divided on
whether a trial court is required to sua sponte give a limiting instruction
when expert testimony on CSAAS is introduced at trial.” He contends that
the “better, and more modern, view is that when a court admits CSAAS
testimony, it must instruct the jury sua sponte that it may not use the
evidence to determine whether the victim’s claims are true.” We disagree
with Barber’s assessment of the state of the law.
minimally relevant to any legitimate purpose.” ’ [Citations.]” (People v.
Murtishaw, supra, 51 Cal.4th at p. 590.)
33
One of the most recent published cases to have considered this issue,
People v. Mateo (2016) 243 Cal.App.4th 1063 (Mateo), discusses the purported
division on the question of a sua sponte duty of the court to provide a limiting
instruction on CSAAS evidence and concludes that only a single published
case, People v. Housley (1992) 6 Cal.App.4th 947, 957 (Housley), has expressly
determined that a trial court has a sua sponte duty to provide a limiting
instruction regarding the use of CSAAS evidence. (See Mateo, at pp. 1072-
1073.) The Mateo court explained that although one other decision could be
interpreted as being “arguably consistent with Housley,” that opinion “does
not expressly discuss the point” whether a limiting instruction is required to
be given sua sponte. (Id. at p. 1073, citing Bowker, supra, 203 Cal.App.3d at
p. 394.) The Mateo court further noted that “[a]ny doubt as to the intent of
the Bowker court has been eliminated, because the same court that decided
Bowker held in three subsequent cases that the limiting instruction must be
given [only] ‘if requested.’ ” (Mateo, at p. 1073, quoting and citing People v.
Stark (1989) 213 Cal.App.3d 107, 116; People v. Sanchez (1989)
208 Cal.App.3d 721, 735; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-
588.)
Moreover, as the Mateo court discusses, the Housley approach is “at
odds with our Supreme Court’s decision in Humphrey, supra, 13 Cal.4th
1073,” in which the Supreme Court “repeatedly referred to the trial court’s
duty to give a limiting instruction on the use of battered women’s syndrome
evidence on request.” (Mateo, supra, 243 Cal.App.4th at p. 1073, citing
Humphrey, at p. 1088, fn. 5, pp. 1090-1091 (conc. opn. of Baxter, J.), and
p. 1100 (conc. opn. of Brown, J.).) “The majority opinion in Humphrey does
not require a sua sponte limiting instruction on the use of evidence of
battered women’s syndrome; it suggests that an instruction would be
34
discretionary on request: ‘If the prosecution offers the battered women’s
syndrome evidence, an additional limiting instruction might also be
appropriate on request, given the statutory prohibition against use of this
evidence “to prove the occurrence of the act or acts of abuse which form the
basis of the criminal charge.” [Citations.]’ [Citation.]” (Mateo, at p. 1073.)
After concluding that “[b]attered women’s syndrome is analogous to CSAAS,”
in that “[b]oth syndromes explain that victims’ ‘seemingly self-impeaching’
behaviors . . . are consistent with their claims of having been [victimized],”
the Mateo court decided that there is “no reason why a duty to instruct
should be imposed in [the CSAAS] situation and not the [battered women’s
situation.].” (Ibid.) Thus, Mateo holds that a limiting instruction regarding
CSAAS evidence “need only be given if requested.” (Id. at p. 1074.)
We find the Mateo court’s analysis persuasive and conclude that a trial
court does not have a sua sponte duty to provide a limiting instruction to the
jury on the permissible use of CSAAS or related evidence, such as the
testimony provided by Detective Trosper in this case. If Barber wanted the
court to instruct the jury as to the proper use of Detective Trosper’s
testimony, it was incumbent on Barber to request a limiting instruction. His
failure to do so results in the forfeiture of his contention that the trial court
erred in failing to provide a limiting instruction. (See, e.g., People v. Pineda
(2022) 13 Cal.5th 186, 238, fn. 29 [argument that failure to provide limiting
instruction permitted jury to use evidence for improper purposes was
forfeited by failure to request such an instruction in the trial court]; People v.
Vang (2022) 82 Cal.App.5th 64, 92 [defendant’s failure to request a limiting
instruction or remind court of need for one prior to jury deliberations resulted
in forfeiture of claim of instructional error].)
35
B. Barber’s ineffective assistance of counsel
claim is without merit
Barber asserts that if this court concludes that the trial court did not
have a sua sponte duty to provide an instruction limiting the use of Detective
Trosper’s expert testimony, then we should conclude that his trial counsel’s
failure to request such an instruction constituted ineffective assistance of
counsel.
Under Strickland v. Washington (1984) 466 U.S. 668 (Strickland), a
defendant must demonstrate that trial counsel’s performance was deficient,
and that this deficient performance resulted in prejudice, in order to prevail
on a claim of ineffective assistance of counsel. (Id. at p. 687.) With respect to
the performance prong, a reviewing court “indulge[s] a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance” (id. at p. 689), and measures an attorney’s performance against
an “objective standard of reasonableness” (id. at p. 688). In order to establish
that defense counsel rendered deficient performance under Strickland, a
defendant must demonstrate that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” (Id. at p. 687.) “On direct appeal, a finding of deficient
performance is warranted where ‘(1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel’s
trial tactics or strategic reasons for challenged decisions do not appear on the
record, we will not find ineffective assistance of counsel on appeal unless
there could be no conceivable reason for counsel’s acts or omissions.’ ” (People
v. Johnsen (2021) 10 Cal.5th 1116, 1165, italics added; People v. Cunningham
36
(2001) 25 Cal.4th 926, 1003 [“deficient performance [must be] based upon the
four corners of the record”].) Therefore, without some indication in the record
that counsel’s decision was not tactical, a reviewing court is not justified in
finding deficient performance on direct appeal. (See People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266–267; see also People v. Scott (1997) 15 Cal.4th
1188, 1212 [“If the record does not shed light on why counsel acted or failed to
act in the challenged manner, we must reject the claim on appeal unless
counsel was asked for and failed to provide a satisfactory explanation, or
there simply can be no satisfactory explanation”].)
With respect to the prejudice prong, a defendant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland, supra,466 U.S. at p. 694.) A defendant “need not show that counsel’s deficient
conduct more likely than not altered the outcome in the case.” (Id. at p. 693.)
Rather, a defendant must show “a probability sufficient to undermine
confidence in the outcome.” (Id. at p. 694.)
The record in this case sheds no light on why trial counsel did not
request CALCRIM No. 1193 or another instruction limiting the use of
Detective Trosper’s expert testimony. Given the lack of any indication of the
reason for counsel’s omission, Barber cannot prevail on this claim unless
there could be no conceivable reason for failing to request a limiting
instruction. However, there is at least one conceivable reason why trial
counsel may not have requested a limiting instruction: “[C]ounsel could
rationally conclude that it would be counterproductive to request an
instruction highlighting expert testimony supporting the victim’s credibility.”
(Mateo, supra, 243 Cal.App.4th at p. 1076; see People v. Maury (2003)
30 Cal.4th 342, 394 [“A reasonable attorney may have tactically concluded
37
that the risk of a limiting instruction . . . outweighed the questionable
benefits such instruction would provide”].)
Further, Barber has not sufficiently demonstrated that there is a
reasonable probability that, but for counsel’s purported error in failing to
request a limiting instruction, he would have obtained a different result.
(See Strickland, supra, 466 U.S. at p. 694.) Detective Trosper’s expert
testimony was brief when considered in the context of the entire trial. The
direct evidence against Barber was strong, in that both Jane Doe 1 and Jane
Doe 2 described abuse that was similar in striking ways to the abuse that
Barber admitted he had committed against Mary Doe. The girls both also
seemed to know details about various sexual acts, and their descriptions of
the abuse was often technically accurate and realistic. And, while the girls’
recollections of the abuse may have involved inconsistencies at the margins,
their stories were generally quite consistent. Other witnesses described
events that supported the girls’ testimony, such as an incident during which
the garage door was locked while Barber and one of the girls were inside, and
despite Barber’s son’s knocking, it took Barber a long time to open the door.
Moreover, Barber conceded that he continued to harbor a “sexual preference”
for girls who appeared to be ten or eleven years old, and admitted that he
continued to seek out and view pornography that was thematically consistent
with that preference. Given this record, our confidence in the outcome is not
undermined by the lack of a limiting instruction regarding the proper use of
Detective Trosper’s expert testimony.
In sum, we conclude that Barber’s contention that his trial counsel
rendered ineffective assistance in failing to request a limiting instruction
regarding the proper use of Detective Trosper’s expert testimony is without
merit.
38
B. Barber’s contention regarding the trial court’s decision to reopen closing
arguments
1. Additional background
The attorneys for the parties presented closing arguments on Friday,
June 11, 2021. Because it was late in the day when the attorneys completed
their closing arguments, the trial court sent the jury home for the weekend
upon the conclusion of the arguments rather than providing jury instructions
at that time.
On Monday, June 14, the trial court instructed the jury, and the jury
began its deliberations.
Two days later, on June 16, the trial court requested that the parties
appear in court to discuss how the court should respond to questions
submitted by the jury. The jury had asked for transcripts of the video
recordings, as well as a readback of the testimony of Jane Doe 1, Jane Doe 2,
Mary Doe, and Barber. Before the readback of the requested testimony was
completed, the jury sent a note to the court asking, “What do we do if we can’t
agree on any of the charges?” The court initially thought that the jury might
be indicating that it was hung on all counts, and called the jury into the
courtroom to inquire. The foreperson indicated that the jury was not hung,
and that the question posed to the court was a “hypothetical question.” When
asked by the court, “So you’re not really telling me the jury is hopelessly
deadlocked,” the foreperson indicated the jury was not hopelessly deadlocked.
The court instructed the jury not to send out “hypothetical questions” and
asked the jury whether it still wanted the readback of the testimony of the
two witnesses that it had yet to receive. The foreman indicated that the jury
still wanted to hear the readback of that testimony. The trial court then sent
the jury back to the jury room for further deliberations.
39
Later that day, the jury sent the court the following question, identified
in the record as “Juror Question #4”: “Why are there multiple counts for one
offense? For example, counts 18-23 the crime of committing a lewd or
lascivious act on a child under the age of 14 against Jane Doe 2. [¶] Why are
there 4 oral copulations with a child 10 years of age or younger for Jane
Doe 2?”8 In the courtroom, outside the presence of the jury, the court stated,
“Before we went on the record, I was informally advising counsel that what I
am thinking -- and I am thinking out loud[,] [a]nd I will certainly hear
suggestion from counsel -- is to finish the readbacks tonight, send them home,
and bring them in [tomorrow].” The court suggested that it would “give each
side whatever time you need, five minutes to half an hour, minimum five
minutes; maximum half an hour,” to “[c]ontinue and redo your closing
arguments and explain to them that it is multiple acts apparently alleged,
number of acts alleged; and that [each charge] go[es] to each act.” The court
then said to the attorneys, “But if you have other suggestions, I [will] listen.”
The attorneys and the court proceeded to discuss possible options for
responding to the jury’s question, including responding in writing or directing
the jury to specific jury instructions. The attorneys and the court indicated
confusion as to why the jury seemed not to comprehend what the attorneys
and court believed was a fairly basic point, and they struggled with how to
respond.9 Ultimately, the trial court offered the following suggestion:
8 Counts 14 through 17 alleged that Barber orally copulated a child
10 years old or younger with respect to Jane Doe 2.
9 For example, defense counsel stated at one point, “I don’t -- and I don’t--
and I am not sure if this is just one person asking this. Why are they asking
this? I am sorry. I am just a little taken aback by the question.” Later, the
court expressed concern about how this particular question did not seem to fit
into the typical framework of jury questions, which usually involve either a
40
“I am willing to give each of you five minutes. I can do it.
But it is not my job to do it. I, this afternoon, I can bring
them right here. You stand up. I give [the prosecutor] five
minutes. And I give [defense counsel] five minutes.
Explain to them. Just in plain English as you’re teaching a
three-year-old. Just say each count, you heard evidence
that it could have happened hundred times, or three times,
or one time. The D.A. has elected only th[is] many time[s],
[this] many counts, th[is] many times. And then you can
stand up and you say the D.A. didn’t prove any of them. [¶]
But I don’t think it is my job to be giving it to them in
terms of – because it’s, you’re right [defense counsel]. If I
want to repeat the law, I will refer them to that instruction.
Each count is a separate crime. But because they are stuck
and they are stuck in a very fundamental way, I am willing
to give you five minutes.”
Neither attorney objected to the trial court’s suggestion. The bailiff
then notified the court that the readbacks were completed. Because defense
counsel had previously indicated that she was unavailable to do additional
closing argument the following day, the court brought the jury into the
courtroom for further argument that same day.
The prosecutor proceeded first and presented a chart that the
prosecution had used during the original closing arguments. The chart set
out all of the charges against appellant visually. The prosecutor’s argument
was brief, taking up only one and a half pages of reporter’s transcript. The
prosecutor explained that each charge related to a separate alleged act, and
told the jury that if the jury found that Barber had committed the same type
of conduct on multiple occasions, it could find Barber guilty of multiple counts
related to those findings.
legal question or a factual question, stating: “This one is beyond that. This
one is a total lack of comprehension. Because this should be self-evident. It
should be absolutely self-evident.”
41
Defense counsel’s additional closing argument also consists of
approximately one and a half pages of reporter’s transcript. Defense counsel
did not directly address the jury’s question; instead, defense counsel argued
that Barber had not committed any of the alleged acts. Counsel began by
stating: “Good afternoon, once again, ladies and gentlemen. Doesn’t matter
how many times they claimed it happened. It doesn’t matter how many
counts there were. The law told you that you are not supposed to count the
number of witnesses, and that the allegations are not evidence. [¶] What we
know in this case is that it’s not true, and it can’t be true. Not only did you
see them be interviewed at length and tell you in their own words, it did not
happen, you now have several subsequent interviews and testimony that
conflict with their own selves [sic]. [¶] . . . This is all Johnny-come-lately stuff
when we find out grandpa is about to get out of prison.” At that point, the
trial court asked defense counsel to “please limit yourself to answering [the
jury’s] question, if possible.” Defense counsel then reiterated to the jury that
all conflicts in the evidence should be resolved in Barber’s favor, and that any
doubt required a “not guilty” finding. Defense counsel also reminded the jury
of the unanimity requirement: “So not only does the prosecutor have to prove
that an act, a specific act happened that matches a count, all twelve of you
have to agree as to specifically what it was in that time frame. So you can’t
all say well, maybe it all happened one time, but I think it was this, and I
think it was this, I think it was that. You all have to agree exactly what the
act was that would fit the count.” Defense counsel then asked the jury to “do
[its] duty” and “return a not guilty verdict.
Upon the conclusion of defense counsel’s additional closing argument,
the trial court asked the jury foreperson whether the additional closing
arguments had “help[ed] in any way to answer [the jury’s] question.” The
42
foreperson indicated they had. When the court posed a general question to
the jurors regarding whether “[e]verybody agrees,” several jurors “answer[ed]
in the affirmative.” However, Juror No. 7 asked the court the following
question: “I guess the question also was as to the counts [that] were listed --
and I don’t remember the numbers right offhand, but 14, 15, 16, 17, I don’t
recall it saying this one was because it was oral. This one was because it was
-- it didn’t say all of the details that it was saying there as to which one it
was. I think that is --[.]” At that point the court interrupted and said,
“This[,] what you just saw was a closing argument. It is not evidence. We
did that to help you.” Juror No. 7 stated, “Okay,” but Juror No. 9 then said,
“I am hoping I can say this. I mean but we kind of looked at those four oral
[copulation counts] and said well, maybe that was -- did it happen two times
in the bed and two times in the car. And that is not what we were talking
about though; right? We don’t want to do it that way?” The court responded
as follows:
“Okay. Here is the problem. You have the law. You have
the jury instructions. I think you’re on the right track, sir.
Just follow the track.
“The simplest way I can answer your question is if you
believe an act of oral copulation, for example, happened, if
you believe it happened, that is one act. If you believe
another act happened, that is another count. The D.A.
chose to charge four counts of those instead of one hundred
twenty, or one.
“Does that explain it?”
When Juror No. 9 indicated a need for further clarification, the trial
court explained that the location of the act was irrelevant and said, “[B]eyond
that, I cannot give you additional information.” The court reiterated that the
jury’s determination as to any particular count had to be unanimous,
43
clarifying again that “[a]ll twelve of you must agree as to one act.” Because it
was late in the day, at the conclusion of this discussion, the court sent the
jurors home.
The jury continued deliberating on Thursday, June 17, and requested
readback of additional testimony. At close to 2:00 p.m. on Friday, June 18,
the jury advised the trial court that it had reached unanimous verdicts on 21
counts, but was deadlocked on 2 counts. The court inquired of the foreperson
about the jury’s determination that it could not reach verdicts on two counts
and then inquired of the full jury. After doing so, the court declared a
mistrial on those two counts. The court then read the jury’s verdicts on the
remaining 21 counts and polled the jury.
2. Analysis
Barber contends that the trial court abused its discretion in allowing
the parties to reopen their closing arguments when the jury had not indicated
that it had reached an impasse in its deliberations at the time it sent the
court Juror Question #4. Barber relies on the fact that under California Rule
of Court, rule 2.1036 (rule 2.1036), a trial court is authorized to reopen
argument only after a jury has reported that it is at an impasse. The full text
of rule 2.1036 states:
“(a) Determination
“After a jury reports that it has reached an impasse in its
deliberations, the trial judge may, in the presence of
counsel, advise the jury of its duty to decide the case based
on the evidence while keeping an open mind and talking
about the evidence with each other. The judge should ask
the jury if it has specific concerns which, if resolved, might
assist the jury in reaching a verdict.
“(b) Possible further action
44
“If the trial judge determines that further action might
assist the jury in reaching a verdict, the judge may:
“(1) Give additional instructions;
“(2) Clarify previous instructions;
“(3) Permit attorneys to make additional closing
arguments;
“or
“(4) Employ any combination of these measures.”
The rule grants a trial court discretion in “choosing whether to resort to
the tools provided” in rule 2.1036; its decision is reviewed for an abuse of that
discretion. (People v. Salazar (2014) 227 Cal.App.4th 1078, 1088.)
According to Barber, when the jury submitted Juror Question # 4, it
was not reporting that it was at an impasse as to any of the charged counts,
but instead was simply asking the court to answer a question. Thus, Barber
contends, the trial court did not have discretion under rule 2.1036 to reopen
argument in response to the jury’s question.
a. Barber forfeited this contention by failing to register an
objection to the reopening of closing arguments
The People contend that Barber has forfeited his contention regarding
the reopening of closing arguments by failing to register any objection to this
method of addressing the jury’s question. As previously noted, a defendant’s
failure to make a timely and specific objection on a ground raised on appeal
results in forfeiture of an argument based on that ground of error. (See, e.g.,
Demetrulias, supra, 39 Cal.4th at pp. 20-22, Partida, supra, 37 Cal.4th at
pp. 433-434.)
45
The record demonstrates that defense counsel did not object to the trial
court’s suggestion to allow both parties to present additional closing
argument to the jury in response to the jury’s question regarding why “there
[are] multiple counts for one offense.” Barber suggests that the fact that his
attorney at one point offered a suggestion that the court provide a written
response to the jury’s question should be considered to be an objection to the
court’s ultimate determination that it would reopen closing arguments. We
disagree. The court specifically elicited “suggestion[s]” from both attorneys
during the on-the-record discussion regarding Juror Question #4. At that
time, defense counsel offered only, “My suggestion would be to apply the facts
from the trial to the counts,” and then proceeded to make the comment
questioning why the jury was “asking this” and remarking that she was
“taken aback by the question.” She also mentioned that she had doctor
appointments the following day, which meant that she “can’t reargue
tomorrow.” Rather than indicating that she objected to the possibility of
reopening the arguments, counsel appeared to be open to that suggestion but
had a concern regarding when she would be able to present further
argument. In response to defense counsel’s concern about being unavailable
the following day, the prosecutor offered, “Could we try to possibly clarify
with something in writing, and then if that doesn’t clarify it, then --.” Before
the prosecutor finished her sentence, the court asked “How do I propose it?”
Neither of the attorneys offered phrasing to the court. At some point, the
court stated, “This question defies logic. I am sorry. But that is how I feel
after --,” and defense counsel added, “I agree. That is why I am struggling
with a response Your Honor.” The court then suggested that it would give
each attorney “five minutes” for further argument. Defense counsel at no
point objected to this proposal or indicated any disagreement with the court’s
46
approach on the ground that the jury did not appear to be at an impasse.
Thus, defense counsel did not put the court on notice that she believed the
court should not permit the parties to present additional argument in
response to the jury’s question. Barber’s appellate contention that the court
abused its discretion in this respect is therefore forfeited.
b. Barber cannot demonstrate ineffective assistance of counsel
In order to avoid the effects of the forfeiture of his appellate argument
by the failure to object on this basis in the trial court, Barber contends that
his trial attorney’s failure to object constituted ineffective assistance of
counsel. We conclude that Barber has failed to demonstrate that he is
entitled to reversal of his convictions on the basis of his ineffective assistance
of counsel claim with respect to the reopening of closing arguments.
We apply the same standards for assessing a claim of ineffective
assistance of counsel set forth in part III.A.2.b.ii.B, ante, to Barber’s
contention that his attorney was ineffective for failing to object to the
reopening of closing arguments. We therefore consider whether Barber has
demonstrated both that trial counsel’s performance was deficient, and that
this deficient performance resulted in prejudice. (Strickland, supra, 466 U.S.
at p. 687.)
We conclude that Barber is unable to satisfy either prong of an
ineffective assistance of counsel claim. First, as to counsel’s performance, we
begin by noting that there is rarely only a single reasonable strategy for a
defense attorney to adopt when representing a client in a criminal case. The
fact that other strategies might exist, or might appear in hindsight to have
possibly had a better chance at success, does not make the strategy employed
by trial counsel unreasonable or render counsel’s performance deficient. (See
Maryland v. Kulbicki (2015) 577 U.S. 1, 4; People v. Jennings (1991)
47
53 Cal.3d 334, 379–380.) In this instance, deciding the best approach for the
defense with respect to addressing the jury’s question was inherently a
tactical decision. Defense counsel could have reasonably concluded that even
though the jury had not indicated that it was at an impasse, the court’s
proposal to reopen closing argument would be beneficial to the defense
because it would allow counsel another opportunity to try to convince the jury
of the defense’s view of the case. And this is precisely what counsel did with
the opportunity. Thus, there is a conceivable reason for trial counsel’s
decision not to object to the court’s decision to reopen closing arguments.
In addition, Barber cannot demonstrate that counsel’s failure to object
to the court reopening closing arguments in response to the jury’s question
about the number of counts prejudiced him. Barber has not even attempted
to set out an argument as to how there is a reasonable probability that, but
for counsel’s failure to object to the reopening of arguments, the result of the
proceeding would have been different. (See Strickland, supra, 466 U.S. at
p. 694.) The trial court had to respond in some fashion to the jury’s inquiry,
and at some point the jury would have been re-instructed that each count
was intended to reflect a different alleged act. This is, effectively, what the
prosecutor’s additional closing argument did, as the prosecutor stated: “The
important thing to know is that each act is a separate count. So, if for
example during the timeframe we know that it could have possibly happened,
oral copulation, hundreds of time[s], we could have charged a separate count
for each act,” and later explained, “[W]e could have charged hundreds. But
we have narrowed it down.” Thus, the additional closing argument by the
prosecutor did not include rearguing the evidence or focusing the jury’s
attention on particular evidence; the prosecutor merely tried to address a
very basic point, raised by the jury, that the court and attorneys believed
48
should have been clear to the jury from the start. The defense, in contrast,
reargued the evidence, and reasserted and highlighted to the jury that all
jurors would have to be unanimous in finding that a particular act of sexual
misconduct occurred with respect to any count.
Barber contends, however, that defense counsel was prevented from
“pointing out the inconsistencies in the girls’ stories” because the trial court
“interrupted and imposed its own objection.” He asserts that this permitted
the prosecutor to “highlight to the jury again [Jane Doe 1] and [Jane Doe 2]’s
testimony and present their testimony as entirely truthful without any
challenge from defense counsel.” This mischaracterizes what occurred. First,
the prosecutor did not “highlight” any of the witness testimony. Instead, the
prosecutor merely explained, using a chart, that each count was intended to
relate to a separate alleged act of sexual misconduct. Further, defense
counsel took the opportunity to reargue that the witnesses had made
inconsistent statements and that the only reason they came up with their
stories was because of Barber’s impending release from prison. Thus,
contrary to Barber’s contention on appeal, the additional argument presented
by the attorneys cannot reasonably be viewed as having “coerced [the juror’s]
guilty verdicts.” Nor did the trial court take any action or make any
statements that could be seen as coercing a verdict; the court did not question
jurors on their views, urge jurors to reach agreement, or indicate a preference
for a particular verdict. Rather, the court provided both sides a very brief
opportunity to present additional closing argument. We therefore conclude
that there is not a reasonable probability that an objection from defense
counsel to the court’s proposal to reopen closing arguments, even assuming
that the court would have decided not to allow further argument from
counsel, would have resulted in a different outcome for Barber.
49
In sum, Barber has not demonstrated that defense counsel’s failure to
object to the trial court’s proposal to reopen arguments fell below an objective
standard of reasonableness or that there is a reasonable probability that, but
for counsel’s allegedly deficient performance, the result of the trial would
have been different. (Strickland, supra, 466 U.S. at pp. 686-687.)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
BUCHANAN, J.
50