People v. Martinez CA2/1

Filed 11/2/22 P. v. Martinez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B316887
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA118790)
v.
JESSE GEORGE MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
A jury convicted Jesse George Martinez (defendant) of
sexual penetration of a child (Pen. Code,1 § 288.7, subd. (b);
count 1 [victim E.J.]), lewd act on a child (§ 288, subd. (a); count 2
[victim J.V.]), and lewd act on a child (§ 288, subd. (a); count 3
[victim E.J.]), and the court sentenced him to 15 years to life in
state prison.
On appeal, defendant contends that the evidence was
insufficient to support the jury’s conviction on count 3. He also
contends that the prosecution was improperly allowed to present
expert witness testimony on Child Sexual Abuse Accommodation
Syndrome (CSAAS), and therefore his convictions on all three
counts should be reversed. Finally, he contends the trial court
failed to apply the correct legal standard on his motion for new
trial, requiring at least a remand to have the court consider the
motion under the correct standard.
We reject all of defendant’s arguments and affirm.
BACKGROUND
I. The Information
In an information filed on August 20, 2019, defendant was
charged with oral copulation/sexual penetration with child under
10 in violation of section 288.7, subdivision (b) (count 1) and lewd
act upon a child in violation of section 288, subdivision (a) (counts
2 and 3).2 Section 667.61, subdivisions (b) and (e) multiple victim
1 All further statutory references are to the Penal Code
unless otherwise noted.
2In the information, the counts were numbered 2, 3 and 4,
and there was no count 1. The superior court later designated
the count identified in the information as number 2 as “count 1,”
the count identified in the information as number 3 as “count 2,”
2
allegations were alleged as to counts 2 and 3. Counts 1 and 3
alleged violations occurring between May 22, 2014, and May 21,
2016, against E.J.; count 2 alleged a violation occurring on
August 5, 2018, against J.J.
Defendant pled not guilty to all counts.
II. The Trial
A. Prosecution Case
1. E.J.’s and J.J.’s Family Was Close to
Defendant’s Family
E.J. was born in 2008 and J.J. was born in 2012.
Defendant was born in 1994. Defendant is known as “Junior.”
Defendant lived with his parents, Rosa and Jesse Martinez,
Sr.; his younger brother and sister also lived in the home. The
Martinez family lived on the same street in Pomona as E.J. and
J.J., and were very close friends with E.J.’s and J.J.’s mother,
Blanca. Rosa and Jesse Martinez, Sr. were godparents to E.J.
and J.J., and Blanca paid Rosa3 to babysit J.J. E.J. and J.J. often
spent time at the Martinez home.
2. E.J.’s and J.J.’s Mother Testifies
According to Blanca, defendant was usually in his room
when she and her daughters visited but he did play with the
girls. Once, when E.J. was about eight, Blanca found her in
and the count identified in the information as number 4 as “count
3.” The parties refer to the counts as 1, 2 and 3, and we will do
the same.
3 Because we refer to several members of the Martinez
family, we will occasionally use only their first names; no
disrespect is intended.
3
defendant’s room; the door was open, and defendant was hugging
E.J. as she was standing between defendant’s legs with her back
to defendant. Blanca told E.J. that she did not like this. After
this incident, Blanca continued to allow the girls to go back to the
house, although she was mostly with them and they did not go
back for a while after the incident.
On many occasions, Blanca had told her children to tell her
if anyone tried to touch them inappropriately.
On August 5, 2018, E.J. and J.J. were at the Martinez
house to have pizza. Blanca got home from work around 6:30
p.m. that evening. Soon after that, E.J. went home from the
Martinez house; she told Blanca that J.J. did not want to come
home, but did not say why. E.J. changed her clothing and told
Blanca that she had wet herself when defendant tickled her.
Blanca thought it was normal for that to occur and was not
troubled by it. Blanca told E.J. to bring J.J. home.
E.J. returned with J.J., and J.J. then sat with Blanca on
the couch and played with Blanca’s phone. After a few moments,
J.J. left to go to the bathroom, and when she returned she said,
“My colita is hurting.” According to Blanca, in their home they
used that word to mean “vagina.” Blanca asked E.J. to go to her
room.
Blanca then questioned J.J. about why her colita hurt. At
first, J.J. did not want to talk further, and said, “Mommy, you’re
going to be upset,” but Blanca reassured her she would take care
of her and would not be upset. J.J. said that she went to
defendant’s room, where defendant asked if she wanted to sit on
his lap and then put his hand into her pants, but not under her
4
underwear, and “tickle[d]” her vagina until she told him to stop.4
J.J. told Blanca that defendant had used two fingers, and she
described how defendant touched her. Blanca started crying, and
J.J. tried to comfort her. E.J. was not present for this
conversation.
A short time later, Blanca went over to the Martinez house,
and told Rosa what J.J. had told her. When Blanca returned
home, she was met by E.J., who immediately informed her that
defendant had grabbed her “colita” when she was between six
and eight years old. Blanca asked her why she had not told her
sooner, and E.J. said, “I was confused.” Blanca returned to the
Martinez house and told defendant’s parents what E.J. had told
her.
3. J.J. Is Examined by Nurse Carolyn Clark
The next day, August 6, 2018, Blanca took E.J. and J.J. to
the hospital. A sexual assault exam was conducted on J.J. by
registered nurse Carolyn Clark at Pomona Valley Medical
Center’s Sexual Assault Response Team room; Clark followed a
standard protocol and documented the examination on a
standardized state form; Clark is a specialist who had conducted
hundreds of such examinations. Clark took genital and anal
photographs. On one of the photos, she observed a white line on
a part of the vagina known as the posterior fourchette; she
thought the white line could have been a labial adhesion, which
is a normal childhood variant, a small healing tear, or linea
4J.J. said she went to “Junior’s room”; Blanca asked J.J.
which “Junior,” and J.J. said it was the one from Nina [Rosa
Martinez], “the big one.” One of E.J.’s and J.J.’s brothers,
Antonio, is also known as “Junior.”
5
vestibularis. When she examined the area, she detected a small
tear, “like a chip of skin taken out.” This tear could have been
caused by the type of rubbing J.J. had described. The tear was
abnormal and would cause pain during urination. There were no
anal injuries. J.J.’s skin in the posterior fourchette split a little
during the examination; this sometimes happens if the tissue is
already weakened; also, a six-year-old girl is less estrogenized
than a woman, making the vaginal/genital area less stretchy.
During the examination, J.J. reported that it hurt when she used
the restroom. Other than a tear of the skin, a urinary tract
infection can make it painful to urinate.
Blanca, E.J., and J.J. also spoke to the police at the
hospital.
4. E.J. Testifies
E.J. testified as follows. On August 5, 2018, she and J.J.
were at the Martinez house to have pizza. Defendant, his
parents, his sister Andrea, and his brother Chris were there; E.J.
could not remember if defendant’s sister Tiffany was there.
Defendant tickled E.J., causing her to wet herself. Defendant
often tickled her, and she enjoyed it. She went home to change.
Blanca asked E.J. where J.J. was. E.J. responded that she had
just come home to change and would go back to get J.J. When
she returned to the Martinez house, E.J. saw J.J. and defendant
emerge from defendant’s bedroom.
Once E.J. and J.J. returned home, J.J. said she needed to
talk to their mother, and their mother told E.J. to leave the room.
E.J. could not hear their conversation and did not know what it
was about. Later, she noticed her mother crying and walking
back and forth between the two houses and talking with her
uncle, who lived with them. When her mother returned to the
6
house, E.J. told her that defendant had touched her in the past.
She did not know what had happened to J.J., but she “had a
feeling” that she should tell her mother about the time defendant
had touched her.
E.J. then testified that she had been abused by defendant
when she was about J.J.’s current age (seven). She had gone over
to the Martinez house and only defendant was there. Defendant
was carrying her and she was “kind of like falling asleep”; she
was not asleep but her eyes were closed. Her head was on
defendant’s shoulder, and he was holding her from her butt. She
felt defendant’s hands going under her shorts and under her
underwear. When she felt defendant feeling around, she moved
and opened her eyes, and defendant froze. E.J. testified that
“then that’s when, like, I just kind of stopped too because I didn’t
know what was going on, and then he kept feeling around after
that.” Defendant started feeling around again a few seconds
after he froze and he moved his hand away a few seconds later.
E.J. felt defendant’s finger in her butt, moving front to back; she
was not sure if it went in but she felt some pressure and pain in
her butt. After defendant moved his hand away, he let E.J.
down. E.J. watched defendant wash his hands, she asked him
why and he said “just because,” and then she went home. Even
though her mother had asked her to tell her if anyone ever
touched her private parts, E.J. did not promptly report the
incident because she did not really understand what had
happened.
On cross-examination, E.J. stated that the incident where
defendant touched her could have happened when she was six,
seven, eight or nine years old. Between that touching and
August 5, 2018, E.J. slept over at defendant’s home.
7
5. J.J. Testifies
J.J. testified at trial as follows. J.J. knew she was in court
because someone had touched her, and she identified defendant
as the person who did it. When asked where defendant had
touched her, she could not respond because she claimed she did
not know the names of body parts. She then demonstrated that
he had touched her vaginal area and described it as “[w]here I
pee.” She explained that defendant touched her when she was in
his room watching him play video games. She was on defendant’s
lap. She demonstrated how defendant touched her by using her
index finger to rub the table in front of her from side to side.
Defendant put his hand or finger inside of her underwear, in the
front. The touching made her feel uncomfortable. She told him
to stop, and he stopped.
J.J. then went home; at home she went to the bathroom
and it burned when she urinated. She told her mother it hurt
when she peed. She said she could not really remember what she
told her mother after that, and did not remember going to the
hospital, being examined, or talking to the police.
On cross-examination, J.J. responded “No” when asked if
she remembered the touching well. She then acknowledged that
she had earlier said she did not remember the touching, and had
spoken with the prosecutor, which helped her remember.5 On re-
5 J.J.’s specific testimony was as follows:
“Q But earlier did you ever say you didn’t remember?
“A Well, my lawyer talked to me.
“Q After that, did it help you remember?
“A Yes.
“Q Okay. If you didn’t talk to her, would you be able to
remember well?
8
direct examination, J.J. again acknowledged she had earlier said
she did not remember, and explained she said that because she
was nervous. She also said that she felt more comfortable
testifying with her aunt as a support person instead of the
support dog she had earlier, and because she had a stuffed
animal with her.
6. Dr. Jayme Jones Testifies Regarding CSAAS
Dr. Jayme Jones, a clinical psychologist, testified regarding
CSAAS. Dr. Jones uses the term “model” instead of “syndrome,”
because the latter term is commonly used to mean that a
diagnosis can be given; she described CSAAS as “a model to help
understand the behavior of children who have been abused.” She
summarized the five components of CSAAS as follows: “There
are two parts of the model that have to do with the context in
which abuse occurs. The third part of the model is called
accommodation and talks about the ways that children cope with
ongoing abuse. The last two parts of the model, delayed
disclosure and retraction, address disclosure patterns in children
who have been abused.”
The first element is secrecy, which refers to the fact that
child sexual abuse commonly occurs when no witnesses are
present. Dr. Jones explained that “[t]he fact that it is happening
in secret without other people aware is an unspoken message to
“A Maybe. What was the question again?
“Q If you didn’t talk to your lawyer, would you have been
able to remember so well?
“A No.”
Defense counsel’s question to J.J. about her not
remembering “earlier” was likely a reference to a hearing held
earlier that day outside the presence of the jury.
9
the child that they are not supposed to talk about it.” Also, the
victim is often expressly or impliedly told to keep the incident a
secret.
The second element, helplessness, refers to the size
disparity between abuser and child, the child’s lack of resources
to avoid or escape the situation, and the fact children are often
taught to listen to adults even if what they are saying does not
make sense.
As to the third element, accommodation, Dr. Jones stated:
“So most people’s expectation is, if a child were abused, they
would fight back. They would immediately say something. The
reality is they rarely fight back. They often freeze or pretend to
be asleep, and the exception is to say something.” Such a
response sometimes is explained by the fact that the child simply
does not fully understand what is going on.
The fourth element is delayed or unconvincing disclosure,
which refers to the fact that child victims commonly do not report
their abuse until long after the fact or report a little bit at a time.
It is also common for child victims to make a limited disclosure to
test the listener’s response. The “most common disclosure” is for
a child to say they do not like a specific person, and then provide
more information depending on the initial response.
Dr. Jones stated that “children disclose for a variety of
reasons, most often they don’t unless something happens. So if
they are in pain, if they are worried about a sibling being abused,
if they no longer have contact with the person abusing them and
now feels safe, there is often, when people disclose, a triggering
event.” She testified it is common for victims to continue
associating with their abuser because they genuinely like other
aspects of the relationship, because they believe the abuse will
10
not recur, or because they do not want to risk upsetting their
environment.
The fifth element of CSAAS, retraction, is common if
something negative occurs after disclosure; an example is that a
child may retract if they believe it might end an ongoing court
process. Stuffed animals or comfort animals can help the child
discuss the abuse in court.
Dr. Jones explained that it is unusual for children to
remember specific dates and times unless otherwise significant,
such as a birthday.
Dr. Jones agreed that part of the purpose of the model is to
dispel common misperceptions about how children react to sexual
abuse. She also agreed that she was not in court to opine if any
abuse had occurred.
On cross-examination, Dr. Jones agreed that sometimes
parents or other people in the child’s household steer the child to
accuse someone, and she indicated this occurs in divorce cases.
Dr. Jones also stated that, in general, children can be known to
lie, and they often tell lies to get out of trouble.
7. The Jury Hears Forensic Interviews of E.J. and
J.J.
Pomona Police Detective Matt Childers, who handled the
investigation, testified. On August 15, 2018, Childers took E.J.
and J.J. for forensic interviews at the Children’s Advocacy Center
(CAC). As described by Childers, “a forensic interview is an
interview done by a professional interviewer who specializes in
interviewing children who have been victims of child abuse or
sexual abuse. The interview is designed to be non-leading and to
gain factual information about the case from the children to be
used for court purposes, and it’s also recorded.”
11
At CAC, E.J. and J.J. were interviewed by Susy Flores and
the interviews were video-recorded. The video recordings of the
interviews were played at trial.6
During her interview, E.J. talked about two separate
occasions. On one occasion when she was about J.J.’s age,
defendant carried her while she closed her eyes but she did not go
to sleep. Defendant put his finger into her underwear. E.J.’s
head was on defendant’s shoulder, and he was carrying her by
her bottom. Defendant stopped and froze when E.J. moved a bit,
and then started touching her again until she said she needed to
use the bathroom and went home. She said it hurt inside of her
bottom.
E.J. also said that defendant would grab her and sit her on
his lap, and she could feel his “boy private part.” She said it felt
“weird,” and that “[i]t felt like there was like a ball or something.”
E.J. said that she would get up and defendant would just place
her on his lap again.
During her interview, J.J. first disclosed that her uncle hit
her with a belt because she called him dad, but he did not hit her
“that rough.” When Flores asked what J.J. had talked to the
police about, her responses were vague and confusing and she
repeatedly claimed not to remember. After much questioning,
J.J. said that defendant had touched her on her body, but she
was then evasive, claiming she could not describe the body part
he had touched, and saying she had already told her mom and
the police. She asked, “Are we almost done?” and said she was
hungry and thirsty. She was evasive when Flores asked her to
6All of the People’s exhibits were received into evidence
without objection.
12
draw on a picture of a girl’s body where defendant had touched
her.
8. The Jury Hears Excerpts from an Interrogation
of Defendant
The jury also heard evidence regarding what defendant
said during an interview Childers conducted as part of his
investigation. Childers testified that defendant admitted during
the interview that he had J.J. on his lap on August 5, 2018.
Childers also testified that, at first, defendant said he only
carried E.J. and J.J. under their armpits, but he then stated he
carried them by their waists sometimes and he also
acknowledged that his hand could have touched E.J.’s butt.
Childers’s interview of defendant was video-recorded, and
excerpts of the recording were played for the jurors. Later in the
interview, defendant acknowledged he might have touched E.J.’s
and J.J.’s buttocks accidentally while picking them up, but
denied ever inserting his finger or touching their private parts
intentionally or that his finger ever went “into” E.J.’s butt.7
According to defendant, E.J. often wanted to sit in his lap and to
have him pick her up.
7 The excerpts initially shown to the jury included
defendant’s statement he “may” have touched E.J.’s butt, but did
not include the question he was responding to or other portions of
his response in which he denied that he touched E.J.’s butt
intentionally or that he put his finger “into” E.J.’s butt, either
intentionally or accidentally. At the court’s direction, defense
counsel refreshed Childers’s recollection with a transcript of the
additional portions of the interview, and later an audio recording
of the additional portions was played for the jury.
13
B. Defense Case
1. Nurse Nicole Yadon
Nicole Yadon, a forensic nurse who had performed many
sexual assault examinations, testified regarding her review of
Clark’s physical examination of J.J. She stated that the
documentation prepared by Clark should have noted any injury
caused during the examination. On a photograph taken by Clark
of J.J., Yadon saw what looked like a tear or cut or laceration.
Yadon disagreed with Clark’s interpretation of the white line on
one of the photographs, concluding it showed an area of lighter
tissue. She did not believe that the lighter tissue was in the
same area as the injury shown on other photographs. Yadon
opined that it would be unusual to find a healing injury only a
day after the injury occurred. Yadon opined that it was possible
the injuries shown on the photographs occurred during the
examination. She also opined it was possible the apparent wound
could have been caused in some other way, such as rubbing by a
person or the child’s clothing, “vigorous wiping when using the
restroom,” or poor hygiene. She stated that a urinary tract
infection could cause burning during urination.
2. Rosa Martinez
Defendant’s mother Rosa Martinez testified that she did
not allow E.J. and J.J. to play with defendant, and they were
always with her at the house. She never saw defendant
inappropriately touch E.J. or J.J. J.J. would have defendant pick
her up sometimes. She saw E.J. and J.J. sometimes go into
defendant’s bedroom but he would tell them to leave, and it was
the house rule that the girls should not go into that room.
Rosa testified that she left work on August 5, 2018, at
around 6:00 p.m. She testified to a different version of what
14
happened that evening than did Blanca, stating that she and
Blanca ate tacos at a restaurant, while the Martinez children and
E.J. were at the Martinez house, and after she and Blanca
returned they sat and talked in her kitchen until 11:30 p.m.
According to Rosa, at that time J.J. was not at the Martinez
house, and defendant was in his room with the door closed. At
some point J.J. came over and said she was hungry, and Blanca
left with J.J. Blanca came back 20 minutes later; she was crying
and she told Rosa she wanted to talk.
Rosa saw E.J. and J.J. on defendant’s lap on occasion;
defendant would take them off, but J.J. was stubborn and wanted
to play with defendant.
3. Andrea Martinez
Defendant’s sister Andrea Martinez, who was 15 years old
in 2018, testified that on the day in question, she and her family
and E.J. bought pizza at Costco and brought it back to the
Martinez house; while they were eating J.J. came over. She
never saw defendant touch E.J. or J.J. inappropriately. She
stated that defendant was trustworthy around children.
4. Jesse Martinez, Sr.
Defendant’s father Jesse Martinez, Sr. authenticated
photographs of his house, and stated that it was a small house.
On August 5, 2018, at around 5:30 p.m., Jesse, Sr. went with his
daughter Andrea and E.J. to Costco to buy pizza and they
brought it back to the house. When they returned, only
defendant and his brother Christopher Martinez were at the
house. While they were eating J.J. came over. After eating, E.J.
and J.J. played with Andrea in the living room; at some point
E.J. went home to get her tablet, and when she returned about
five minutes later she told J.J. they needed to go home because
15
they were going to buy school supplies. E.J. and J.J. went home
and Jesse, Sr. did not see them again that day. Jesse, Sr.
testified he did not see E.J. or J.J. go into defendant’s room that
day. He believed that defendant was trustworthy around
children. He recalled that defendant did tickle E.J. and J.J. on
occasion, and the girls sought out such attention.
5. Christopher Martinez
Defendant’s brother Christopher Martinez testified he
never saw defendant touch E.J. or J.J. inappropriately.
6. Tiffany Martinez
Defendant’s sister Tiffany Martinez testified that E.J. and
J.J. visited the Martinez house often and never showed any fear
of defendant, and would hug him. She never saw E.J. or J.J. go
into defendant’s room; they would knock on the door and he
would say he was busy. She never saw defendant touch E.J. or
J.J. inappropriately. She considered defendant to be trustworthy
around children. On August 5, 2018, Tiffany was at the Martinez
house until about 3:00 p.m. or 4:00 p.m. and returned between
11:00 p.m. and midnight.
C. Jury Instruction on CSAAS
At the close of evidence, the court instructed the jury
regarding Dr. Jones’ testimony about CSAAS; this version on the
instruction only referred to E.J.8 After the jury was excused, the
8The instruction stated: “You have heard testimony from
Jayme Jones regarding child sexual abuse accommodation
syndrome. Jayme Jones’s testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant
committed any of the charged crimes against him or any conduct
or crimes with which he was not charged. You may consider this
16
prosecutor informed the court the People intended for the CSAAS
testimony to apply to J.J. as well. After considering the issue,
the court indicated it was inclined to have the instruction apply
to J.J. as well, noting the “forensic interview in which she
reluctantly, quite frankly, refused to, again, discuss the issues
regarding the touching that she had earlier disclosed to her
mother.” The court also later referenced defense counsel’s cross-
examination of J.J. based on her remembering the abuse after
speaking with the prosecutor. Defense counsel objected, arguing
that CSAAS did not apply to J.J. because she disclosed “right
away.” The prosecutor argued that J.J. did not immediately
disclose, and instead only did so when her mother talked to her
after she complained it hurt when she went to the bathroom.
The court overruled the defense objection, concluding “it’s
fair game to argue [J.J.’s] subsequent behavior beyond the initial
disclosure in explaining to the jury why there was so much
reluctance on her part to, again, discuss those issues.” The jury
was subsequently instructed under a modified version of
CALCRIM No. 1193 (Testimony on Child Sexual Abuse
Accommodation Syndrome) as to both E.J. and J.J.
III. Conviction and Sentencing
The jury convicted defendant on all three counts. As to
counts 2 and 3, the jury found true the multiple victim allegation
(§ 667.61, subd. (e)(4)).
The trial court denied defendant’s motion for a new trial.
evidence only in deciding whether or not [E.J.’s] conduct was not
inconsistent with the conduct of someone who has been molested
and in evaluating the believability of her testimony.”
17
The court sentenced defendant to 15 years to life in state
prison as to count 1, imposed a concurrent sentence as to count 2,
and stayed the sentence as to count 3 under section 654.
Defendant filed a notice of appeal before he was sentenced,
but we treat the notice as filed immediately after rendition of
judgment. (See Cal. Rules of Court, rule 8.308(c) [“A notice of
appeal filed before the judgment is rendered or the order is made
is premature, but the reviewing court may treat the notice as
filed immediately after the rendition of judgment or the making
of the order”].)
DISCUSSION
I. Substantial Evidence Supports the Conviction on
Count 3
Defendant contends that his conviction on count 3 for a
lewd act on E.J. is based on constitutionally insufficient evidence.
We conclude there was constitutionally sufficient evidence to
support defendant’s conviction on count 3 under two separate
factual theories.
A. Legal Principles and Standard of Review
Section 288, subdivision (a) prohibits “willfully and lewdly
commit[ing] any lewd or lascivious act” on the body of a child
under the age of 14, “with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or
the child.” “ ‘Any touching of a child under the age of 14 violates
this section, even if the touching is outwardly innocuous and
inoffensive, if it is accompanied by the intent to arouse or gratify
the sexual desires of either the perpetrator or the victim.’ ”
(People v. Shockley (2013) 58 Cal.4th 400, 404, quoting People v.
Lopez (1988) 19 Cal.4th 282, 289.) “ ‘[T]he trier of fact looks to all
18
the circumstances, including the charged act, to determine
whether it was performed with the required specific intent.’
[Citations.] Other relevant factors can include the defendant’s
extrajudicial statements [citation], other acts of lewd conduct
admitted or charged in the case [citations], the relationship of the
parties [citation], and any coercion, bribery, or deceit used to
obtain the victim’s cooperation or avoid detection [citation].”
(People v. Martinez (1995) 11 Cal.4th 434, 445.)
A claim of constitutionally insufficient evidence must be
rejected if substantial evidence supports the verdict. (Jackson v.
Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560];
People v. Johnson (1980) 26 Cal.3d 557, 576.)
In reviewing the sufficiency of the evidence under the
substantial evidence standard, an appellate court does not “ ‘ “ask
itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.” [Citation.] Instead, the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’ ” (People v. Boatman (2013) 221 Cal.App.4th
1253, 1262, italics omitted.)
“In determining whether evidence is sufficient to support a
verdict, we examine the entire record, viewing the evidence in the
light most favorable to the judgment and presuming in support of
the verdict the existence of every fact the jury could reasonably
deduce from the evidence. The issue is whether the record so
viewed discloses evidence that is reasonable, credible and of solid
value such that a rational trier of fact could find the elements of
the crime beyond a reasonable doubt.” (People v. Llamas (1997)
51 Cal.App.4th 1729, 1736.) “ ‘A reviewing court neither
19
reweighs evidence nor reevaluates a witness’s credibility.’ ”
(People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
B. Analysis
Defendant contends “[t]he sole factual basis for [the]
conviction on count 3 was [E.J.] telling the forensic interviewer
that she felt [defendant’s] ‘boy private part’ while sitting on his
lap, ‘like about sitting on a ball.’ ” This is not accurate. In fact,
the jury was presented with two factual theories on which to find
defendant guilty on count 3. The prosecutor argued that count 3
could be based on a second touching that occurred when
defendant was holding E.J. and she feigned sleep or the incident
where E.J. was on defendant’s lap and felt his penis.9
It cannot be determined which ground the jury relied
upon.10 In this situation, if there is sufficient evidence to support
either ground, then there is sufficient evidence supporting the
conviction. (People v. Marks (2003) 31 Cal.4th 197, 233 [“Where
9 The court instructed the jury that “[t]he People have
presented evidence of more than one act to prove” count 3, and
that the jury could only convict on this count if they agreed that
defendant had committed at least one of the acts and they agreed
which act.
10 The trial court stayed the sentence on count 3 pursuant
to section 654 “because it contains the same—essentially, based
upon the same acts, the same victim, and the same time frame
that supported the conviction of the defendant in count [1].” The
parties debate what this ruling suggests about what the trial
court believed was the precise factual basis for the jury’s finding
on count 3, but this is irrelevant because there is no dispositive
indication in the record what the jury actually found was the
basis for its verdict on count 3.
20
the jury considers both a factually sufficient and a factually
insufficient ground for conviction, and it cannot be determined on
which ground the jury relied, we affirm the conviction unless
there is an affirmative indication that the jury relied on the
invalid ground”]; accord, People v. Guiton (1993) 4 Cal.4th 1116,
1128-1129; People v. Llamas, supra, 51 Cal.App.4th at p. 1740.)
We conclude substantial evidence supports defendant’s
conviction on count 3 under the theory that, when defendant
carried E.J. and put his hand under her shorts and underpants,
he touched her twice, once satisfying the elements of a
“penetration” in violation of section 288.7, subdivision (b)11 and a
second time satisfying the elements for lewd conduct under
section 288, subdivision (a). (See People v. Scott (1994) 9 Cal.4th
331, 346-347 [“Each individual act that meets the requirements
of [§] 288 can result in a ‘new and separate’ statutory violation”],
quoting People v. Harrison (1989) 48 Cal.3d 321, 329.) First,
there is substantial evidence that defendant touched E.J. twice
under her underpants in the area of her vagina and anus. E.J.
testified that when she felt defendant feeling around under her
underwear, she moved and opened her eyes, and defendant froze
and “then that’s when, like, I just kind of stopped too because I
didn’t know what was going on, and then he kept feeling around
after that.” (Italics added.) She later stated that defendant
started feeling around again a few seconds after he froze. E.J.
also described during her forensic interview that defendant
11 This is the basis for defendant’s conviction on count 1.
Defendant does not challenge the sufficiency of the evidence on
count 1.
21
stopped and froze when E.J. moved a bit, and then started
touching her again.
There is also substantial evidence that defendant acted
with lewd intent. Under People v. Martinez, supra, 11 Cal.4th at
page 445, lewd intent can be inferred from “ ‘all the
circumstances, including the charged act,’ . . . other acts of lewd
conduct admitted or charged in the case [citations], . . . and any
coercion, bribery, or deceit used to obtain the victim’s cooperation
or avoid detection [citation].” Here, the jury could infer from the
act itself, based on where defendant touched E.J., that he acted
with lewd intent. In addition, the jury could infer that defendant
sought to avoid detection by touching E.J. while he thought she
was asleep. Finally, the jury could infer defendant’s lewd intent
from his similar conduct with J.J.
We also conclude there was substantial evidence
supporting defendant’s conviction on count 3 under the theory he
put E.J. on his lap and she could feel his penis. During the
forensic interview, E.J. stated that defendant would grab her and
sit her on his lap, and she could feel his penis (“boy private part”).
E.J. also stated that she would get up and defendant would just
place her on his lap again. She described the experience as
follows: “It felt weird. It felt like there was like a ball or
something. Like about sitting on a ball.” The jury could
reasonably conclude from this evidence that defendant placed
E.J. on his lap and held her there, and that she could feel his
penis. Combined with the evidence that defendant had felt
around under E.J.’s underwear on a different occasion, and that
he had touched J.J. in her vagina as well, the jury could
reasonably find beyond a reasonable doubt that defendant lewdly
22
touched E.J. when he held her on his lap and she could feel his
penis.
In conclusion, there was substantial evidence supporting
defendant’s conviction on count 3.
II. The Superior Court Did Not Err in Admitting Expert
Testimony Regarding CSAAS
A. Law Governing Admission of CSAAS Evidence
In People v. Bledsoe (1984) 36 Cal.3d 236, 251, the
California Supreme Court held that expert testimony regarding
“rape trauma syndrome,” which explains some common stress
reactions of rape victims such as delaying in reporting the rape,
is inadmissible to prove that a complaining witness has, in fact,
been raped. The court noted, however, that “[i]n a number of the
cases in which the issue has arisen, the alleged rapist has
suggested to the jury that some conduct of the victim after the
incident—for example, a delay in reporting the sexual assault—is
inconsistent with her claim of having been raped, and evidence
on rape trauma syndrome has been introduced to rebut such an
inference by providing the jury with recent findings of
professional research on the subject of a victim’s reaction to
sexual assault. [Citations.]” (Id. at p. 247.) The court implicitly
endorsed this use of expert testimony regarding rape trauma
syndrome, stating “[a]s a number of decisions have recognized, in
such a context expert testimony on rape trauma syndrome may
play a particularly useful role by disabusing the jury of some
widely held misconceptions about rape and rape victims, so that
it may evaluate the evidence free of the constraints of popular
myths.” (Id. at pp. 247-248.)
In People v. McAlpin (1991) 53 Cal.3d 1289, 1300
(McAlpin), the Supreme Court noted that several Courts of
23
Appeal had applied Bledsoe to expert testimony on CSAAS, which
concerns “common stress reactions of children who have been
sexually molested . . . which also may include the child’s failure
to report, or delay in reporting, the abuse.”12 The court
summarized the holdings as establishing the rule that “expert
testimony on the common reactions of child molestation victims is
not admissible to prove that the complaining witness has in fact
been sexually abused; it is admissible to rehabilitate such
witness’s credibility when the defendant suggests that the child’s
conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.”
(McAlpin, supra, at p. 1300, citing People v. Bowker (1988) 203
Cal.App.3d 385, 390-394 (Bowker), People v. Gray (1986) 187
Cal.App.3d 213, 217-220 (Gray), and People v. Roscoe (1985) 168
Cal.App.3d 1093, 1097-1100.)
The court in Bowker identified the critical issue in
admitting CSAAS evidence as follows: “It is one thing to say that
child abuse victims often exhibit a certain characteristic or that a
particular behavior is not inconsistent with a child having been
molested. It is quite another to conclude that where a child
meets certain criteria, we can predict with a reasonable degree of
certainty that he or she has been abused. The former may be
appropriate in some circumstances; the latter . . . clearly is not.”
(Bowker, supra, 203 Cal.App.3d at p. 393.)
12 In McAlpin, the court, analogizing to rape trauma
syndrome and CSAAS, held that expert witness testimony
explaining why a parent might fail to report that their child has
been sexually abused was admissible. (McAlpin, supra, 53 Cal.3d
at p. 1301.)
24
This rule allowing CSAAS evidence to counter a jury’s
misconceptions about how a minor might react to being sexually
abused has been consistently applied by the Courts of Appeal.
Recently, in People v. Lapenias (2021) 67 Cal.App.5th 162, 171,
the court held that “[t]rial courts may admit CSAAS evidence to
disabuse jurors of five commonly held ‘myths’ or misconceptions
about child sexual abuse. [Citation.] While CSAAS evidence is
not relevant to prove the alleged sexual abuse occurred, it is well
established in California law CSAAS evidence is relevant for the
limited purpose of evaluating the credibility of an alleged child
victim of sexual abuse. [Citations.]” In People v. Munch (2020)
52 Cal.App.5th 464, 466 (Munch), the court rejected a broad
challenge to the use of CSAAS evidence and concluded that
“CSAAS evidence is a valid and necessary component of the
prosecution case in matters involving child abuse.”
In Bowker, the court held that “the evidence [regarding
CSAAS] must be targeted to a specific ‘myth’ or ‘misconception’
suggested by the evidence.” (Bowker, supra, 203 Cal.App.3d at
pp. 393-394.) “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. [Citations.]” (People v. Patino (1994) 26
Cal.App.4th 1737, 1744-1745.
In Patino, the court concluded that the prosecution was
properly allowed to introduce CSAAS testimony where it “was
offered for the limited purpose of explaining why [the
complaining witness] did not immediately inform anyone of her
molestation and why she slowly revealed the details of the
25
molestation.” (People v. Patino, supra, 26 Cal.App.4th at
p. 1745.) The court also noted that “the [defendant] did place at
issue [the complaining witness’s] credibility” when defense
counsel asked the complaining witness on cross-examination how
long it took for her to notify authorities about the abuse and why
she returned to the defendant’s house after being molested.
(Ibid.)
In Gray, the court held that expert testimony by a child
psychologist regarding CSAAS was properly admitted “after [the
complaining witness] testified she did not tell anyone about
touching [the defendant’s] penis except in response to [the
detective’s] questioning, she did not tell anyone until she testified
in court that [the defendant] said, at the time, ‘it won't bite you’,
and she told her mother she might have been incorrect about
some incidents but agreed with her father because she feared his
anger.” (Gray, supra, 187 Cal.App.3d at p. 218.) The court noted
that “[t]hrough cross-examination of [the complaining witness]
and other witnesses, [the defendant] suggested that the delay in
reporting the alleged molestation and failure to disclose all
incidents when she finally told her stepmother was inconsistent
with her claim of molestation.” (Ibid.) The psychologist testified
“that delayed reporting and inconsistency is not unusual with
victims of child molestation . . . and explained what causes
children to react differently to molestation than adults might
expect.” (Ibid.; see People v. Harlan (1990) 222 Cal.App.3d 439,
449 [CSAAS evidence admissible based on cross-examination in
which defense counsel “attacked the victim’s credibility by
attempting to show that he had made inconsistent statements
and had delayed in reporting the molestation”].)
26
In Bowker, the court also held that “the jury must be
instructed simply and directly that the expert’s testimony is not
intended and should not be used to determine whether the
victim’s molestation claim is true.” (Bowker, supra, 203
Cal.App.3d at p. 394.) A standard instruction has been developed
for this purpose. (See CALCRIM No. 1193; see also Munch,
supra, 52 Cal.App.5th at p. 474 [rejecting challenge to CALCRIM
No. 1193]; People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504
[same].)
B. Defendant’s General Challenge to Expert
Testimony Regarding CSAAS
Defendant acknowledges that, under McAlpin, supra, 53
Cal.3d 1289, some evidence regarding CSAAS has been
admissible in child sexual abuse prosecutions, but suggests we
should scrutinize the underpinnings of CSAAS testimony because
it has been criticized in the scientific community and courts in
other states, most notably the Supreme Court of New Jersey in
State v. J.L.G. (N.J. 2018) 190 A.3d 442 (J.L.G.). After reviewing
scientific literature, the court in J.L.G. held that only the factor
of delayed disclosure had the kind of “consistent and long-
standing support in the scientific literature and among experts”
that permitted admission into evidence: “[n]one of the other
features that comprise CSAAS have achieved sufficient
acceptance in the scientific community to be considered reliable
evidence . . . .” (Id. at p. 464.) “Nor is it sufficient for the State to
claim that expert evidence is being admitted only to educate
jurors and dispel misconceptions, and not as a diagnostic or
predictive tool. The underlying claims of the syndrome must
themselves be reliable to be admitted . . . .” (Ibid.)
27
Division Six of this court recently rejected a similar
argument in Munch, supra, 52 Cal.App.5th 464. Addressing the
defendant’s argument that some other jurisdictions no longer
admit CSAAS evidence, the court reviewed the law of several
other jurisdictions identified by the defendant—Pennsylvania,
Washington, Ohio, Tennessee, and the Ninth Circuit—and
concluded those jurisdictions in fact do admit CSAAS evidence.
(Id. at pp. 469-470.) The court also thoroughly reviewed the New
Jersey case defendant relies upon here, J.L.G., supra, 190 A.3d
442, and concluded the decision “involves an aberrant view of
CSAAS derived from a contested hearing where four experts
testified.” (Munch, supra, at p. 470.) The court noted that the
New Jersey court applied a “restrictive” test for reviewing the
reliability of scientific evidence, and also analyzed the J.L.G.
court’s conclusions regarding CSAAS with its own summary of
scientific research and opinions. (Munch, supra, at pp. 470-471.)
Concluding this portion of its opinion, the court noted that while
the Kentucky Supreme Court had ruled that CSAAS is not
admissible, there was disagreement among that court’s justices
on the issue. (Id. at pp. 471-472, citing Sanderson v.
Commonwealth (Ky. 2009) 291 S.W.3d 610.)
The Munch court also held that the Kelly/Frye rule13
governing reliability of new scientific evidence “ ‘does not apply’ ”
to expert testimony regarding CSAAS. (Munch, supra, 52
Cal.App.5th at p. 473.) This is because testimony regarding
CSAAS “is ‘based on [the expert’s] clinical experience with child
sexual abuse victims and on [his or] her familiarity with
13People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir
1923) 293 F. 1013.
28
professional literature in the area.’ ” (Ibid., quoting People v.
Harlan, supra, 222 Cal.App.3d at p. 449.) Then, quoting People
v. Stoll (1989) 49 Cal.3d 1136, 1161, the court concluded that
expert testimony regarding CSAAS “meets ‘traditional standards
for competent expert opinion, without need for additional
screening procedures [under Kelly/Frye].’ ” (Munch, supra, at
p. 473; accord, Gray, supra, 187 Cal.App.3d at pp. 218-219
[expert’s testimony regarding CSAAS was not subject to review
under Kelly/Frye].)
We agree with the Munch court, and see no grounds for
criticizing the general use of expert testimony regarding CSAAS
to rehabilitate a minor complaining witness’s credibility within
the parameters established by the California courts.
C. Defendant’s Contention CSAAS Evidence Was
Not Relevant
Defendant contends that CSAAS was not relevant because
“there was no appreciable delay in [J.J.’s] disclosure, there was
no recantation by either complainant as recognized by CSAAS,
and the credibility challenges were generic: that [J.J.] was
confused or dissembling as to which Junior did what, or that her
misattribution was due to fear of physical abuse, that [E.J.’s]
belated disclosure was prompted by misrecollection or some other
external pressure, and their accounts were not lies, but attempts
to point a finger in another direction.”
A trial court’s decision to admit evidence is reviewed for an
abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 43.)
Under this standard, different aspects of the trial court’s decision
are subject to different levels of scrutiny. (Haraguchi v. Superior
Court (2008) 43 Cal.4th 706, 711-712.) Specifically, a “trial
court’s findings of fact are reviewed for substantial evidence, its
29
conclusions of law are reviewed de novo, and its application of the
law to the facts is reversible only if arbitrary and capricious.”14
(Ibid., fns. omitted.)
Here Dr. Jones’s testimony regarding CSAAS was relevant
to the credibility of both E.J. and J.J. and therefore the trial court
did not abuse its discretion in admitting the evidence.
As to E.J., CSAAS evidence was relevant because she did
not resist when defendant touched her even though she was
aware it was occurring, she waited years before reporting the
abuse, and she enjoyed going back to the Martinez home and
engaging with defendant even after the abuse. Dr. Jones’s
testimony regarding CSAAS was relevant to rebut any
misconception that this behavior by E.J. was inconsistent with
14 Defense counsel did not object to the introduction of Dr.
Jones’s testimony regarding CSAAS. However, in his trial brief
defense counsel did state his position that CSAAS evidence
should “be limited to the rehabilitation of the victims’ credibility,”
and he reiterated this point during the hearing on the parties’
motions in limine. Later during that hearing, the court stated
regarding CSAAS evidence, “I think the evidence is relevant, and
it is admissible for the People to call this witness and elicit this
information before the jury. Just for the record, it will be over
defense objection.”
During the trial, in discussing closing jury instructions
with the court, defense counsel implicitly acknowledged that
CSAAS testimony was relevant to E.J.’s credibility, but argued
that it was not relevant to J.J.’s credibility. This discussion with
the court regarding jury instructions was the first time defense
counsel was notified that the instruction would apply to both E.J.
and J.J. Given these circumstances, we will consider defendant’s
argument on appeal that the trial court erred in admitting
CSAAS as relevant to E.J.’s and J.J.’s credibility.
30
her being abused. For example, Dr. Jones testified that a
common misperception was that a child victim would resist and
promptly report being abused. She also testified that a child
might disclose only after they gained the ability to understand
and express themselves, or after realizing that someone else had
been victimized.
As to J.J., CSAAS evidence was relevant because she was
evasive and vague during the forensic interview; she did not
bring up the incident involving defendant until the interviewer
asked her a direct question, and then she claimed she could not
describe the body part defendant had touched. She also was
evasive when asked to draw on a diagram of a girl’s body where
defendant had touched her. In addition, in cross-examining J.J.,
defense counsel elicited from her that she had earlier said she did
not remember the abuse, and had spoken with the prosecutor,
which helped her remember. On re-direct examination, J.J.
again acknowledged she had earlier said she did not remember
being touched, and stated she said that because she was nervous.
Finally, J.J. did not immediately disclose the abuse, and did so
only after she told her mother it hurt when she urinated, and her
mother asked her questions about it.
Dr. Jones’s testimony regarding CSAAS was relevant to
rebut any misconception that this behavior by J.J. was
inconsistent with her being abused. For example, Dr. Jones
explained that children might refuse to talk about the abuse if
something negative occurs after disclosure. As an example, she
said this might occur if a child wants to end an ongoing court
process. Finally, Dr. Jones’s testimony that it is common for
children to delay in disclosing, and are more likely to disclose in
response to specific questions, was relevant to J.J.’s credibility.
31
In conclusion, we find that CSAAS was relevant in this case
to E.J.’s and J.J.’s credibility.
D. Defendant’s Contention CSAAS Evidence Was
Not a Proper Subject for Expert Testimony
Defendant contends that Dr. Jones’s testimony that it is
common for children to delay in reporting abuse is not beyond the
understanding of the common juror.
Defendant has forfeited this argument by not objecting on
this ground in the trial court. A party is required to raise
objections to evidence at the trial court level, or their objection is
forfeited. (See Evid. Code, § 353 [defendant must make timely
evidentiary objection on same ground urged on appeal]; People v.
Romero and Self (2015) 62 Cal.4th 1, 24 [failure to object
“ ‘deprives the trial court of the opportunity’ to create a record
and to ‘correct potential error in the first instance’ ”].)
In any case, even if defendant did not forfeit this argument,
it was not an abuse of discretion for the court to conclude that the
elements and application of CSAAS was beyond the common
understanding of jurors. Moreover, even assuming that every
juror was fully aware of all aspects of CSAAS, we would find that
admission of Dr. Jones’s testimony was not prejudicial. (People v.
Watson (1956) 46 Cal.2d 818, 836; see People v. Lapenias, supra,
67 Cal.App.5th at p. 172 [even if CSAAS was not beyond the
understanding of the jurors the admission of expert testimony on
the subject was cumulative and therefore not prejudicial].)
E. Defendant’s Contention the Prosecution Asked
Improper Hypothetical Questions
Defendant argues that it was error to admit Dr. Jones’s
responses to hypothetical questions that “closely track[ed] the
facts of the case.”
32
Defendant has forfeited this argument because defense
counsel did not object at trial. (Evid. Code, § 353; People v.
Romero and Self, supra, 62 Cal.4th at p. 24.) Defendant contends
that it would have been futile to object, but nothing in the record
supports this contention.
In any event, even if defendant did not forfeit this
argument, the hypothetical questions posed to Dr. Jones by the
prosecution were not improper. “Hypothetical questions must not
be prohibited solely because they track the evidence too closely,
or because the questioner did not disguise the fact the questions
were based on the evidence.” (People v. Vang (2011) 52 Cal.4th
1038, 1051.) Defendant relies on People v. Jeff (1988) 204
Cal.App.3d 309, but that case is distinguishable because the
testimony of the expert clinical psychologist was used to present
evidence to the jury that the complaining witness showed
symptoms of being abused, and thus that she had in fact been
abused. As the court summarized, the expert “in response to . . .
questions, explained to the jury [the complaining witness’s]
emotions, fears, and reactions to others are symptoms exhibited
by a child molest victim.” (Id. at p. 338.) This included testimony
that “most child victims have nightmares in which they dream
they are hurt or killed,” which followed testimony from another
expert, who had counseled the complaining witness, that the
complaining witness had described nightmares of being
kidnapped. (Id. at pp. 335-336.)
In People v. Harlan, supra, 222 Cal.App.3d at page 450, the
court rejected the defendant’s argument that the court erred in
admitting testimony by the prosecution’s CSAAS expert which
incorporated circumstances mirroring the complaining witness’s
life, stating “[t]he testimony [the defendant] has challenged,
33
apart from that his own counsel elicited on cross-examination,
related directly to the popular misconception about delayed
disclosure. We find no error in the admission of such testimony.”
The same is true in this case. The hypothetical questions posed
by the prosecutor concerned the circumstances of disclosure of
abuse and children claiming not to remember abuse even after
having previously disclosed, which relate to common
misconceptions of the behavior of children who have been abused.
Finally, even assuming it was error to allow Dr. Jones’s
response to the prosecutor’s hypothetical questions, we would
find that the error was not prejudicial. (People v. Watson, supra,
46 Cal.2d at p. 836; see People v. Wilson (2019) 33 Cal.App.5th
559, 571 [erroneous admission of expert testimony that “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” was subject to analysis under state law,
and error was harmless]; Bowker, supra, 203 Cal.App.3d at p. 395
[improper admission of expert’s CSAAS testimony that went
beyond rehabilitating the complaining witness’s credibility was
harmless].)
F. Defendant’s Contention the Court Improperly
Allowed Testimony that Having a Stuffed
Animal or Comfort Dog Could Put a Child
Witness at Ease
Defendant contends that it was improper for the CSAAS
expert witness to testify that stuffed animals and comfort
animals can help a child discuss the abuse they suffered, when
combined with the fact that J.J. took a stuffed animal to the
stand and E.J. was accompanied to the stand by a dog.
34
Defendant has forfeited this argument because defense
counsel did not object at trial. (Evid. Code, § 353; People v.
Romero and Self, supra, 62 Cal.4th at p. 24.)
Even if defendant did not forfeit this argument, there was
no error. Dr. Jones opined that using a stuffed animal or comfort
dog could make it easier for a child to talk about abuse. This
opinion was relevant to rehabilitate J.J.’s credibility after she
admitted saying previously that she did not remember the abuse
and that she was able to remember after speaking with the
prosecutor. On re-direct, J.J. brought a stuffed animal with her
and testified that she said she did not remember because she was
nervous, and having the stuffed animal with her made her feel
more comfortable testifying.
Finally, even assuming it was error to allow Dr. Jones’s
testimony regarding the use of stuffed animals or comfort dogs,
we would find that the error was not prejudicial. (People v.
Watson, supra, 46 Cal.2d at p. 836.)
III. The Superior Court Did Not Apply an Incorrect
Standard in Deciding Appellant’s Motion for a New
Trial
Defendant contends that the trial court abused its
discretion in ruling on his motion for a new trial under section
1181 because it failed to apply the correct standard of
independent review.
A. Legal Principles and Standard of Review
Section 1181, subdivision (6) provides that “the court may,
upon [a defendant’s] application, grant a new trial” “[w]hen the
verdict or finding is contrary to law or evidence.”
“In reviewing a motion for a new trial, the trial court must
weigh the evidence independently. [Citation.] It is, however,
35
guided by a presumption in favor of the correctness of the verdict
and proceedings supporting it. [Citation.] The trial court ‘should
[not] disregard the verdict . . . but instead . . . should consider the
proper weight to be accorded to the evidence and then decide
whether or not, in its opinion, there is sufficient credible evidence
to support the verdict.’ [Citation.] [¶] A trial court has broad
discretion in ruling on a motion for a new trial, and there is a
strong presumption that it properly exercised that discretion.
‘ “The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears.” ’ [Citation.]” (People v. Davis (1995) 10 Cal.4th
463, 523-524; accord, People v. Fuiava (2012) 53 Cal.4th 622, 729-
730 [quoting Davis].)
B. Analysis
In announcing its ruling on defendant’s motion for a new
trial, the court articulated the applicable standard, stating, “I
acknowledge that this court does have the authority as being a
13th juror to re-review sufficiency of the evidence to make an
independent finding as to whether or not these charges have been
proven beyond a reasonable doubt in terms of consideration of a
motion for a new trial.” Defendant nonetheless contends that the
court did not apply this standard, and gave “undue deference” to
the jury’s verdict, as evidenced by several comments made by the
court, such as “I can’t give—see a means for the court to interfere
with that jury’s responsibility in rendering the verdict because
they did, in fact, hear the inconsistencies and the conflicts that
the defense has raised in their motions, and they were given a
fair opportunity to evaluate it.”
36
We conclude that the trial court did not abuse its discretion
in denying defendant’s motion for new trial. The trial court
articulated the correct standard, noting that it was required to
review the evidence independently. The trial court’s statements
that it did not see how it could “interfere” with the jury’s verdict
do not show that it applied an incorrect standard. The court’s
statements simply suggest it was not convinced by the points
raised in defendant’s motion, and concluded there was sufficient
evidence supporting the verdict. Moreover, under the applicable
standard the court was properly “guided by a presumption in
favor of the correctness of the verdict.” (People v. Davis, supra,
10 Cal.4th at p. 524.) Defendant relies on People v. Watts (2018)
22 Cal.App.5th 102, but in that case “the court repeatedly
informed [the defendant] it could not reweigh the evidence and
that its only concern was whether the prosecution had presented
sufficient evidence to present the matter to the jury.” (Id. at
p. 113.)
In conclusion, we do not find any “ ‘ “manifest and
unmistakable abuse of discretion” ’ ” by the trial court in denying
defendant’s motion for a new trial. (People v. Davis, supra, 10
Cal.4th at p. 524.)
37
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
BENKE, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
38