People v. Jetter CA1/1

Filed 8/28/23 P. v. Jetter CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A163968
v.
SEAN JETTER, (Alameda County
Super. Ct. No. 18-CR-012936)
Defendant and Appellant.
A jury convicted defendant Sean Jetter of numerous felonies based on
his sexual abuse of his stepson, J. Doe, beginning when Doe was four years
old. The trial court sentenced Jetter to 100 years to life in prison.
On appeal, Jetter’s claims focus primarily on an expert’s testimony
about Child Sexual Abuse Accommodation Syndrome (CSAAS), a model that
describes typical responses by child victims of sexual abuse. Jetter claims
that (1) the trial court erred by denying a mistrial after the expert testified
that “very few children” falsely allege they were sexually abused and false
allegations are “rare”; (2) former CALCRIM No. 1193, the standard jury
instruction on CSAAS testimony, impermissibly allowed the jurors to rely on
such testimony as evidence of guilt; and (3) the cumulative impact of these
errors requires reversal. Jetter also asks that we independently review Doe’s
medical records to determine if the court properly declined to release them to
the defense.
1
Jetter is not entitled to relief. Assuming the challenged CSAAS
testimony was improper, we conclude that the trial court’s instruction to the
jury to disregard both the testimony and the prosecutor’s argument based
upon it was adequate to cure the error.1 We also conclude that the version of
CALCRIM No. 1193 given was not erroneous and there was no cumulative
error. Finally, the trial court did not err by declining to release Doe’s medical
records. We order certain errors in the abstract of judgment corrected but
otherwise affirm.2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Background
Doe was born in March 2001 to A.H. (mother) and her then-husband.
Doe has three full siblings: a sister about nine years older (first sister); a
sister about seven years older (second sister); and a brother about four years
older (brother).
Mother and the children’s father divorced in fall 2004. About a year
later, when Doe was four years old, mother met the 42-year-old Jetter and
began dating him. During the relevant time period, mother was a licensed
marriage and family therapist employed at a jail and worked the night shift,
from approximately 9:00 p.m. to 7:30 a.m. Soon after she and Jetter began
dating, she introduced him to the children, and she, Doe, and brother
sometimes spent the night at Jetter’s home in Hayward. Jetter, who had a
government job with daytime hours, “started offering to baby-sit because
1 As a result of this conclusion, we need not consider Jetter’s
alternative claim that his trial counsel rendered ineffective assistance by
“opening the door” for the prosecution to introduce the challenged testimony.
2 By separate order, we deny Jetter’s related petition for a writ of
habeas corpus. (In re Jetter (Aug. 28, 2023, A167904).)
2
[she] worked at night and [she] had lost her baby-sitter.” He watched the
children “[q]uite frequently” while she was at work.
Mother and Jetter married in September 2006, and she and the
children moved into his two-bedroom mobile home. At first, all four children
slept in one room and the adults slept in the other, but within months, Doe’s
sisters moved into a newly built third bedroom. Doe and brother stayed in
their original bedroom and slept in a bunk bed, with Doe on the bottom and
brother on the top.
B. Jetter’s Abusive Behavior
Doe, second sister, brother, and mother all testified about Jetter’s
physical and verbal abuse of the children. Doe testified that Jetter began
physically abusing him even before the family moved into Jetter’s home.
When mother was not present, Jetter would slap him, throw him against the
wall, and spank him with a belt. Doe was afraid to tell mother what was
happening because Jetter had “a stronghold over [her].”
The physical abuse of Doe continued after Jetter married mother.
Jetter spanked him with a belt “a lot,” causing him to bleed, and punched
him. Second sister witnessed Jetter “spank [Doe], slap him in the back of his
head, and yell at him.” Brother also recalled seeing Jetter “punching and
slapping” Doe starting when Doe was around six years old. Second sister
testified that although Doe was originally an “[e]nergetic” child, he became
much quieter, “wouldn’t really speak,” and seemed “a lot more . . . anxious.”
Brother testified that Jetter “was always rude and inconsiderate” and
none of the children liked him from the first time they met him. After the
family moved in with Jetter, Jetter’s behavior “went from just rude and
condescending to . . . more damaging,” getting “progressively more and more
violent as the years went on.” Jetter tried to teach the boys martial arts and
3
would sometimes hit them with a stick if they made mistakes. He also used
martial arts moves on them.3 He called the boys names like “mother’s boys,
punks, bitches, sissies, [wusses], cowards,” and “faggots.” Doe said that
Jetter called him “an MFer or a dumb [ass],” made fun of him, and “really
belittle[d]” all the children by calling them “stupid” and “worthless.”
Second sister testified that Jetter was “[v]ery controlling, quick to
anger, and unpredictable.” Jetter never physically abused second sister, but
“it got really violent” between Jetter and first sister, who stood up to him.
First sister ultimately moved out of the home when she was about 15 years
old and Doe was about 6, and second sister moved out to go to college when
she was about 18 years old and Doe was about 11.
According to mother, “as time progressed,” Jetter “took over” the
children’s discipline. Brother agreed that Jetter “had all the control over the
discipline” and “whatever he said went.” The children told mother that Jetter
would wait until she left for work “and then wake them up and keep them up
all night just tormenting them physically and saying horrible things to
them.” Although the abuse was worse when mother was not present, she also
witnessed Jetter’s violence against the children. But when she intervened,
she could not stop him and he would become violent with her as well. Mother
never reported this behavior, because Jetter threatened to kill her and the
children and told her no one would believe her.
C. The Sexual Abuse of Doe
Doe testified that Jetter began sexually abusing him before the
marriage, while babysitting Doe for mother. Doe recalled that during the
first incident, Jetter woke him up, took him to Jetter’s room, and told Doe to
3 Brother testified that Jetter was six feet tall and weighed 350 pounds
and was “[a] lot bigger” than the brothers.
4
pull down his pants. Jetter made Doe orally copulate him and then forcibly
sodomized Doe. After Jetter ejaculated inside Doe, he told Doe not to tell or
he would kill Doe and his family.
The sexual abuse continued until Doe was in third grade. During “the
normal routine,” Jetter would take Doe from Doe’s bed, bring him into
Jetter’s room, make Doe orally copulate him, and then sodomize Doe.
Sometimes, Jetter put his mouth or hands directly on Doe’s penis. Once,
when Doe was home sick from school, mother made him stay in bed with
Jetter, and Jetter sodomized him. Although Doe initially tried to resist, as
the abuse continued he “stopped fighting back” because he “knew there was
nothing [he] could do about it.”
Doe testified that Jetter both put his penis in Doe’s mouth and
sodomized Doe at least once a month from the time Doe was four years old to
the time he was nine. On several occasions, “a little bit” of blood would be
“dripping” from Doe’s anus as a result of the sodomy. When this happened,
Jetter would put him in the bathtub to clean him and sometimes used
rubbing alcohol on his wounds. Doe testified that Jetter “took breaks” from
abusing him after causing him to bleed, but the injuries were never severe
enough that Doe had to visit the doctor, and he never told mother about
them. The sexual abuse finally stopped when Doe was in third grade, after
he threatened to go to the police.
Neither second sister nor brother was aware of the sexual abuse of Doe
while it was occurring. Second sister testified that early on, while all the
children shared a room, she did not remember Doe getting out of bed during
the night. Brother testified that he never noticed Doe gone from their
bedroom during the night, although brother was “a pretty heavy sleeper [and]
. . . rarely woke up in the middle of the night.” Both siblings agreed,
5
however, that Jetter routinely came in the children’s bedrooms at night and
shined a flashlight on them. And eventually, after second sister moved out of
the home and was “able to process a lot more things about [her] childhood,”
she began to suspect Doe had been sexually abused because “[h]e was just so
shut off and so quiet, so anxious and just so afraid at the time.”
D. The Final Years in Jetter’s Home
Doe testified that after Jetter stopped sexually abusing him, the
physical abuse “got a lot worse.” Once, when Doe was about 13 years old,
Jetter “attacked [him] really, really bad,” punching Doe on the back of his
head. Doe suspected that he suffered a concussion as a result because his
“vision would go black a lot” and he was dizzy.
During a different incident around the same time, Jetter “pinned [Doe]
to the ground,” and brother ran into the room with a baseball bat to stop
Jetter. Doe reported the physical abuse to his school counselor, and the
school called the police. The police contacted brother, who told them that
Jetter was verbally abusive but denied any physical abuse. Brother testified
that he lied because Jetter “always instructed” the boys to say they were fine
if the police asked.
Meanwhile, mother and Jetter’s marriage was disintegrating. She,
Doe, and brother moved out of Jetter’s home in January 2015, and she
ultimately divorced Jetter. Afterward, Doe had little contact with Jetter.
When asked at trial how he felt about his former stepfather, Doe said, “I
strongly, strongly, strongly dislike him, hate him. I think he’s a very bad
person, horrible human being. He’s caused me pain and agony throughout
my life and my childhood. I didn’t really get to enjoy it as much because of
how he was.”
6
E. Doe’s Disclosures and the Police Investigation
The police investigation of Jetter began after Doe became intoxicated in
spring 2017, when he was 16 years old, and disclosed the sexual abuse to
mother. Doe testified that on April 20 of that year, he bought a brownie at
his high school without knowing that it contained marijuana. After school,
while hanging out with a friend at the park, he ate the brownie and became
high.
The friend, who testified for the defense, called into question some of
Doe’s story. The friend claimed he, Doe, and another acquaintance planned
to smoke marijuana at the park. The acquaintance, who also testified for the
defense, corroborated that the three went to the park and smoked marijuana.
The friend stated that afterward, Doe’s behavior became “extreme[],”
swinging from elation to depression. To avoid getting in trouble with mother,
Doe and his friend decided to make up the story about Doe inadvertently
consuming a marijuana brownie.
Consistent with this testimony by the friend, mother testified that the
friend called her and told her he had tricked Doe into eating a marijuana
brownie and “it had a bad [e]ffect on him.” She contacted the police, and Doe
was transported to the hospital, where she met him. Mother testified that
Doe “was really silly, giggl[y], talking really fast,” and “seemed high.” He
was also talking a lot, which was out of character because he was normally
“very quiet” and “very shy.”
After Doe had been “going on and on and on” for a while, he began
“saying bad things about himself like ‘I’m so stupid’ and something about
[Jetter] was right.” According to mother, Doe then told her for the first time
7
that Jetter had molested him.4 Shocked, mother took a video recording of
Doe repeating what he had said. On the recording, which was played for the
jury, Doe stated that Jetter made him grab Jetter’s penis and that Jetter
“play[ed] with” Doe’s penis.
Brother testified that Doe called him from the hospital and told brother
“what [Jetter] . . . did to him,” including oral sex. In the same conversation,
Doe also reported “that [Jetter] said that he would kill [Doe] if [Doe] ever told
anybody.”
The following day, mother took Doe to a Hayward police station to
report the sexual abuse. A forensic interview of Doe was conducted on
May 22, 2017, at the Child Abuse, Listening, Interview, and Coordination
center (CALICO). The interview was not admitted into evidence, but Doe
testified that during the interview he was not yet “ready to disclose the full
extent of [Jetter’s] sexual abuse” because it was traumatic and he was “very
embarrassed.” He also indicated during this interview that he first reported
the abuse to mother the previous year at the hospital, referring to the
outpatient program.
After the CALICO interview, Doe made a pretext call to Jetter under
the supervision of a Hayward police officer. During the call, a recording of
which was played for the jury, Doe told Jetter that he was “trying to forgive
[Jetter] and move on.” Jetter responded, “Okay, thank you. Let’s just forgive
each other and move on.” After Doe said he was having trouble sleeping and
Jetter asked what was wrong, Doe responded, “You violated my trust. I
4 Doe testified that he first reported the sexual abuse to an outpatient
program he attended at Fremont Hospital sometime before the marijuana
incident and that mother was present when he did so. He claimed the
program called the police but there was no follow-up. A police officer testified
there was no record of any such complaint.
8
didn’t violate yours.” Jetter said, “Well[,] can you forgive me?,” and Doe said
he could. Jetter apologized and said he “was wrong,” at which point Doe
stated, “You made me touch you.” Jetter indicated he could not hear Doe,
and Doe repeated himself twice. Jetter then said, “What you talking about?”
Doe responded, “You know what I’m talking about,” and Jetter hung up the
phone.5
Doe, whom the police officer described as “uncomfortable and nervous,”
declined to make another pretext call. He was also unsure whether he
wanted to press charges against Jetter. Doe testified that the pretext call
made him “angry” because Jetter would not admit what he had done. Doe
acknowledged that after making the call, he sent Jetter a text message in
which he told Jetter to “fuck off” and “[s]tay away from children.” Doe also
texted Jetter about Jetter’s ex-wife and another woman with whom Jetter
had cheated on mother, telling Jetter he had “really fucked up people’s lives.”
Second sister testified that in 2018, a year after the marijuana incident,
Doe told her that Jetter “had made him give blow jobs and touch [Jetter’s]
penis” and Jetter had also touched his penis. Later, Doe said the sexual
abuse began before mother and Jetter married and “that from the age of four
[Jetter] had been raping [Doe] multiple times a week for years.” Doe testified
that second sister was the first person to whom he recounted the full details
of the sexual abuse.
After talking to second sister, Doe called mother, who was out of the
country, and mother testified that he reported that “he was sodomized
repeatedly and all kinds of horrible things [were] done to him.” She came
home early from her trip, and Doe contacted the same police officer and said
5 A few hours later, Jetter called the Hayward police and reported
having received this call.
9
“he had more information that he wanted to share.” The officer indicated
that “he apologized for not disclosing before” and said “he was ready to talk
about the full extent of his sexual abuse.” As a result, another forensic
interview was conducted at CALICO on February 15, 2018. Again, this
interview was not introduced into evidence, but Doe testified that at this
point he reported all of the sexual abuse Jetter inflicted on him.
A pediatrician with experience in child abuse cases examined Doe the
following month. Doe was “completely physically healthy,” and there were no
remarkable aspects about his buttocks or anus. Given the passage of time
since the reported sexual abuse, this “normal exam” did not prove or disprove
that the abuse happened, and the pediatrician would not have expected to see
any indications of trauma to Doe’s anus area. On cross-examination, the
pediatrician testified that “most acts of sodomy don’t cause physical injury to
the body” and “gushing of blood is uncommon.”
F. The Verdicts and Sentencing
Jetter was arrested in September 2018. He was charged with 12 felony
counts: two counts of aggravated sexual assault of a child (sodomy) and two
counts of aggravated sexual assault of a child (oral copulation), for periods
when Doe was 4 and 5 years old; and four counts of intercourse or sodomy
with a child 10 years of age or younger and four counts of oral copulation or
sexual penetration with a child 10 years of age or younger, for periods when
Doe was 6, 7, 8, and 9 years old.6 The jury convicted Jetter of all these
6 The charges were brought under Penal Code sections 269,
subdivision (a)(3) (aggravated sexual assault – sodomy) and (a)(4)
(aggravated sexual assault – oral copulation), and 288.7, subdivisions (a)
(intercourse or sodomy with child 10 or younger) and (b) (oral copulation or
sexual penetration with child 10 or younger). Jetter was also charged with
one count of continuous sexual abuse under Penal Code section 288.5,
10
charges. In November 2021, the trial court sentenced him to 100 years to life
in prison, composed of four consecutive terms of 15 years to life for the
convictions of aggravated sexual assault, a consecutive term of 25 years to life
for the conviction of intercourse or sodomy with a child 10 years of age or
younger committed when Doe was 6 years old, a consecutive term of 15 years
to life for the conviction of oral copulation or sexual penetration with a child
10 years of age or younger committed when Doe was 6 years old, three
concurrent terms of 25 years to life for the remaining convictions of
intercourse or sodomy with a child 10 years of age, and three concurrent
terms of 15 years to life for the remaining convictions of oral copulation or
sexual penetration with a child 10 years of age or younger.
II.
DISCUSSION
A. Jetter’s Claims Related to the CSAAS Testimony Fail.
Jetter claims the trial court erred by striking the CSAAS expert’s
testimony about the rarity of false allegations and the prosecutor’s related
argument instead of granting a mistrial. He also claims the jury instruction
on CSAAS, former CALCRIM No. 1193, incorrectly stated the law, and the
cumulative effect of these errors requires reversal. We conclude that Jetter is
not entitled to relief.
1. Additional facts
Before trial, the parties agreed that the expert on CSAAS could not
testify about the statistical probability of false allegations. Consistent with
this agreement, the trial court ruled that there “will be no use of percentages
subdivision (a), but on the People’s motion that count was dismissed before
trial.
11
. . . [or] synonyms [of] percentages, like, Oh, this is extremely rare, that type
of thing.”
The prosecutor noted the caveat, however, that “it’s typically the
defense’[s] questions that . . . open the door to certain testimony,” and the
trial court responded, “If the door’s blown open, the door’s blow open, and . . .
that would have to be a ruling I make at a later point in time. But based on
defense counsel’s representations I think he would probably tread lightly and
carefully as to what he’s doing in cross-examination.” Jetter’s trial counsel
stated that he planned to cross-examine on the idea that certain behavior
CSAAS explains, like retracting allegations, may also be consistent with the
fact the allegations are false, and the court agreed that such cross-
examination would not “open the door to statistics or anything of that
nature.”
The parties and trial court also discussed CALCRIM No. 1193, which
explains the limited purpose of CSAAS testimony. To preserve the issue for
appeal, Jetter’s trial counsel reiterated his position, already rejected by the
court, that the CALJIC instruction on CSAAS should be given instead
because that instruction “more clearly explains that [CSAAS] starts from the
premise that the allegation [of sexual abuse] is true.”
The parties then agreed that CALCRIM No. 1193 should be read both
before the expert witness, Dr. Blake Carmichael, Ph.D., testified and at the
end with the rest of the final instructions. Thus, before Dr. Carmichael was
called as a witness, the trial court instructed under CALCRIM No. 1193 as
follows: “You will hear testimony from Dr. Blake Carmichael regarding
[CSAAS]. Dr. Carmichael’s testimony about [CSAAS] is not evidence that the
defendant committed any of the crimes charged against him. You may
consider this evidence only in deciding whether or not . . . Doe’s conduct was
12
not inconsistent with the conduct of someone who has been molested and in
evaluating the believability of his testimony.”7
Dr. Carmichael, a clinical psychologist, was qualified as an expert on
CSAAS. He explained that CSAAS is “an educational tool to help inform
people about kids who have been sexually abused” and “dispel some of [the]
presumptions” about child victims’ typical behavior. It is not a “diagnostic
tool” and is not used “to determine if a kid was abused.” He had not reviewed
any information about this case, and he could not offer an opinion about
whether Doe was sexually molested, which was “the province of the jury” to
decide.
As described by Dr. Carmichael, CSAAS has five components: secrecy;
helplessness; entrapment or accommodation; delayed, unconvincing, and
conflicted disclosure; and retraction or recantation. These components
explain behavior by sexually abused children that might otherwise seem
inconsistent with their allegations, including not resisting abuse or not
immediately disclosing it.
On cross-examination, Jetter’s trial counsel focused on false allegations
of sexual abuse, eliciting testimony that CSAAS is not based on observations
of children who made false allegations and that such children could display
behavior consistent with various components of CSAAS. In responding to
counsel’s questions, Dr. Carmichael indicated that a “small population of
7 The jury was read the version of the instruction in effect when Jetter
was tried in summer 2021. (CALCRIM No. 1193 (2021 ed.) p. 946.) The
instruction has since been revised to (1) add a paragraph stating that CSAAS
“relates to a pattern of behavior that may be present in child sexual abuse
cases” and CSAAS testimony “is offered only to explain certain behavior of an
alleged victim of child sexual abuse”; and (2) change the final sentence’s
double negative of “not inconsistent” to “consistent.”
13
kids” make false allegations and such allegations occurred in only “a small
minority of situations . . . documented.”
Defense counsel then questioned Dr. Carmichael about the 1983 article
originally describing CSAAS. At one point, counsel asked Dr. Carmichael if
the article’s author “[took] the radical position that there’s no such thing as a
false allegation.” Dr. Carmichael answered in the negative, and counsel
asked him to confirm the following quote was in the article: “ ‘It [has] become
a maxim among child sexual abuse intervention counselors and investigators
that children never fabricate the kind of explicit sexual manipulations they
divulge in complaints or interrogations.’ ” Dr. Carmichael responded, “Well,
he wrote the sentence you read but he did not agree with that. So that’s why
it’s important to understand the context of [it]. So in summary, avoiding—”
Counsel interrupted this response to approach the bench and then said he
had no further questions.
On redirect, the prosecutor asked, “Without getting into any numbers,
percentages, things like that, isn’t it true that very few children have ever
been found to exaggerate or even invent claims of sexual molestation?”
Dr. Carmichael responded, “That is true. That in fact what we’re finding is
that most kids will minimize the [e]ffect [of] having been abused. And that is
something that is reliably found in the literature.” Defense counsel objected
and moved to strike, and the trial court overruled the objection. The
prosecutor continued, “So when asked . . . all those questions related to false
allegations, in fact it’s rare that that happens?” Dr. Carmichael agreed,
stating, “The research in that area shows that it is rare, doesn’t happen with
great frequency.”
During the next break, the trial court and parties discussed the
defense’s motion for a mistrial that was initially made off the record. The
14
motion was based on the prosecutor’s last question on redirect about the
rarity of false allegations, which defense counsel argued violated the pretrial
order limiting Dr. Carmichael’s testimony. The prosecutor responded that
defense counsel opened the door by asking “numerous questions” about false
allegations and reading an out-of-context quotation from the CSAAS article.
The trial court denied the motion for a mistrial. The court
acknowledged its original ruling that no percentages or “synonyms” could be
used when discussing false allegations, but it found that defense counsel
“opened the door” by reading the article quotation. This was because the
immediately preceding sentence in the article read, “[V]ery few children[,] no
more th[a]n two or three per thousand, have ever been found to exaggerate or
to invent claims of sexual molestation.” The court explained that it allowed
the challenged testimony about the rarity of false allegations to provide “the
full context of the document.”
In closing, the prosecutor discussed Dr. Carmichael’s testimony at
length, explaining how the evidence of Doe’s sexual abuse and his reactions
reflected various CSAAS components. Defense counsel emphasized that the
CSAAS testimony was not evidence of guilt and argued that his cross-
examination of Dr. Carmichael showed that “all these behaviors that are not
inconsistent with molestation are also not inconsistent with [being] falsely
accused.”
On rebuttal, the prosecutor explained that the only possible defense in
this case was that Doe was lying, and that was “[s]omething that [the
defense] tried to get Dr. Carmichael to buy into with all those questions about
false allegations.” She continued, “But Dr. Carmichael told you that very few
children have ever been found to exaggerate or invent claims of sexual
15
molestation. That in fact, he said it’s more likely that children downplay or
minimize the full extent of the sexual abuse that they’ve suffered.”
The defense again moved for a mistrial, citing Dr. Carmichael’s
testimony about the rarity of false allegations and the prosecutor’s rebuttal
argument based upon it. The motion relied on People v. Lapenias (2021)
67 Cal.App.5th 162 (Lapenias), a then-recent opinion in which the Fourth
District Court of Appeal held that a trial court erred by permitting
Dr. Carmichael to testify that it was “rare” for children to make false
allegations of sexual abuse. (Id. at pp. 176–177.) Although the motion
emphasized the defense’s position that the evidence’s prejudicial effect could
not be cured, it requested in the alternative that the challenged testimony
and argument be stricken and the jury be instructed to disregard them.
The trial court agreed that the challenged testimony was improper, but
it did not grant the motion for a mistrial. Instead, it concluded that a
curative instruction was appropriate. Before reading the other jury
instructions, which also included another reading of CALCRIM No. 1193, the
court instructed the jury as follows:
“Dr. Carmichael testified that false abuse allegations are
rare. Dr. Carmichael’s statement was improperly admitted into
evidence. You are hereby instructed that Dr. Carmichael’s
statement is stricken from the record and you are not to consider
it or rely on it in any way in forming your verdict in this case.
“During rebuttal argument the prosecution argued you
should consider Dr. Carmichael’s testimony that false abuse
allegations are rare in determining whether . . . Doe is telling the
truth in this case. Because Dr. Carmichael’s statement is not
admissible evidence, any argument made by the prosecution
based on that statement is stricken from the record and you may
not consider the prosecution’s argument on that issue or rely on it
in any way in forming your verdict in this case.
16
“You are further instructed that any argument made by
either party is not evidence in this case. As jurors, you have
heard the evidence in this case. You have seen each witness
testify. It is your duty to assess the credibility of each witness.
Each of you and only you must determine whether the claims of
abuse are true.”
2. The trial court adequately addressed the challenged
CSAAS testimony by giving a curative instruction.
Jetter claims the trial court erred by refusing to grant a mistrial based
on Dr. Carmichael’s testimony about the rarity of false sexual-abuse
allegations. He argues that the court’s instruction to disregard that
testimony and the prosecutor’s subsequent argument was insufficient to fix
the resulting “profound prejudice.” We are not persuaded.
To begin with, although it is true that the trial court initially allowed
Dr. Carmichael’s testimony about the rarity of false allegations to stand, the
court then reversed course and struck both that testimony and the
prosecutor’s rebuttal argument based upon it. Thus, we are puzzled by
Jetter’s extended discussion of his claim that the court abused its discretion
by admitting the challenged testimony, including by relying on the “ ‘open the
door’ fallacy.” There is no real dispute on appeal that if we assume Jetter’s
trial counsel did not “open the door” through his questioning, the testimony
and resulting argument were improper under Lapenias. That decision, which
was filed the day before Dr. Carmichael testified, held that “testimony that it
is ‘rare’ for children to make false allegations of sexual abuse [is]
inadmissible” because it amounts to an opinion on another person’s veracity
and goes “considerably beyond the limited purpose of CSAAS evidence (to
explain the typical behaviors of sexually abused children, such as delayed
17
reporting).”8 (Lapenias, supra, 67 Cal.App.5th at p. 179.) Lapenias extended
prior cases holding it was error to admit testimony about the statistical
frequency of false allegations, concluding “ ‘there [was] no meaningful
distinction between giving a statistic that indicates that false allegations are
rare and stating that children rarely make false allegations without explicitly
quantifying the word “rare.” ’ ” (Id. at pp. 179–180; see People v. Julian
(2019) 34 Cal.App.5th 878, 885–886; People v. Wilson (2019) 33 Cal.App.5th
559, 570–571 (Wilson).)
The main disputed issue on appeal is whether the prejudicial effect of
the challenged testimony and accompanying rebuttal argument could not be
cured, requiring the trial court to grant a mistrial. “ ‘ “A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction.” ’ ” (People v. Dement (2011) 53 Cal.4th 1, 39.) We
review the denial of a mistrial for an abuse of discretion, as “ ‘ “[w]hether a
particular incident is incurably prejudicial is by its nature a speculative
matter” ’ ” that a trial court has “ ‘ “considerable discretion” ’ ” to determine.
(Id. at pp. 39–40; People v. Clark (2011) 52 Cal.4th 856, 990.)
“ ‘Although most cases involve prosecutorial or juror misconduct as the
basis for the [mistrial] motion, a witness’s volunteered statement can also
provide the basis for a finding of incurable prejudice.’ ” (People v. Dement,
supra, 53 Cal.4th at p. 40.) Jetter does not claim the prosecutor committed
misconduct in eliciting the challenged testimony, which the trial court
originally permitted. Therefore, our analysis proceeds in line with other
cases where a witness’s improper testimony “is not attributable to either
8 The Attorney General creatively claims that the challenged
testimony’s primary effect was to bolster the research supporting the 1983
article on CSAAS, not Doe’s credibility, but he never directly argues that the
testimony or resulting rebuttal argument were proper.
18
party,” in which case “a mistrial is called for only if the [testimony] is so
inherently prejudicial as to threaten [the] defendant’s right to a fair trial
despite admonitions from the court.” (People v. Molano (2019) 7 Cal.5th 620,
675–676.)
Jetter cites several decades-old cases addressing the prejudicial effect
of certain evidence, but none of them involved CSAAS testimony, and he does
not explain why they nonetheless establish that Dr. Carmichael’s testimony
was incurably prejudicial. He also claims the testimony rendered his trial
“fundamentally unfair” in violation of his federal due process rights, but the
admission of CSAAS testimony about the rarity of false allegations is state-
law error, not federal constitutional error. (Wilson, supra, 33 Cal.App.5th at
pp. 571–572; accord Lapenias, supra, 67 Cal.App.5th at p. 180.)
Indeed, both Wilson and Lapenias held that the error in admitting
CSAAS testimony about the rarity of false allegations was harmless under
People v. Watson (1956) 46 Cal.2d 818, 836, even though the jury was
permitted to consider the evidence at trial. (Lapenias, supra, 67 Cal.App.5th
at p. 180; Wilson, supra, 33 Cal.App.5th at p. 572.) Here, in contrast, the
trial court instructed the jury to disregard both the challenged testimony and
the prosecutor’s argument based upon it. Moreover, the jury received other
instructions further minimizing the potential prejudice, including CALCRIM
No. 226 on its duty to judge the credibility of witnesses and CALCRIM
No. 332 on its ability to disregard expert testimony. (See Lapenias, at p. 180;
Wilson, at p. 572.) In the absence of any indication to the contrary, we
generally presume that the jury understood and followed all the court’s
instructions, including the curative instruction. (People v. Ramirez (2021)
10 Cal.5th 983, 1017–1018; Lapenias, at p. 180; People v. Navarette (2010)
181 Cal.App.4th 828, 834.)
19
Jetter also argues that even if the instruction to disregard the
challenged evidence and argument could have otherwise cured the prejudice,
“refusing to give [it] until a full seven days after the impermissible testimony,
and four days after the prosecution relied on it in rebuttal, rendered it
essentially impossible” that the instruction would be effective. Jetter
provides no authority to support this claim, and on this record it is “mere
speculation” to conclude that the jury disregarded the instruction merely
because it was not given immediately. (People v. Wharton (1991) 53 Cal.3d
522, 566 [mistrial properly denied even though jury not admonished to
disregard improper testimony until four days later].)
In short, even assuming that Dr. Carmichael’s testimony about the
rarity of false allegations was improperly admitted, we conclude that the
instruction to the jury to disregard that testimony and the prosecutor’s
related argument was sufficient to address any resulting prejudice. As a
result, the trial court did not err by denying Jetter’s motion for a mistrial.
3. Former CALCRIM No. 1193 accurately stated the law.
Jetter also claims the trial court erred by giving CALCRIM No. 1193
because the instruction misstates the law and reduces the prosecution’s
burden of proof. We are not persuaded.
“CSAAS expert testimony is not admissible to prove the complaining
witness has in fact been sexually abused,” but “[i]t is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the
child’s conduct after the incident is inconsistent with [the child’s] testimony
claiming molestation.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 503
(Gonzales).) “ ‘Such expert testimony is needed to disabuse jurors of
commonly held misconceptions about child sexual abuse, and to explain the
20
emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1301.)
We review de novo whether a jury instruction is legally correct.
(People v. Posey (2004) 32 Cal.4th 193, 218.) “In assessing a claim of
instructional error, we examine the instructions as a whole. The test we
apply is whether there is a reasonable likelihood the jurors would have
understood the instructions in a manner that violated a defendant’s rights.
[Citation.] In this regard, we presume that jurors are intelligent individuals
who are capable of understanding instructions and applying them to the facts
of the case before them.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1246.)
According to Jetter, the challenged instruction’s statement that CSAAS
testimony is not evidence of the defendant’s guilt “cannot be reconciled” with
the immediately following statement that such testimony may be used “in
evaluating the believability of [the victim’s] testimony.” This is so, he claims,
because “[w]hen a witness’s account is the only evidence the defendant
committed the charged offenses, it is not possible to use [CSAAS] testimony
to evaluate his believability, and simultaneously not use the testimony as
evidence that the defendant committed those offenses.”
The Second District Court of Appeal addressed a similar argument in
Gonzales. There, the defendant argued that former CALCRIM No. 1193 was
“inconsistent” because it was “impossible to use the CSAAS testimony to
evaluate the believability of [the victim’s] testimony without using it as proof
that [the defendant] committed the charged crimes.” (Gonzales, supra,
16 Cal.App.5th at p. 503.) Gonzales disagreed, determining that “[a]
reasonable juror would understand” that the CSAAS testimony could be used
“to conclude that [the victim’s] behavior does not mean she lied when she said
21
she was abused” but not “to conclude [the victim] was, in fact, molested.” (Id.
at p. 504.) In other words, a juror who accepts CSAAS testimony would “find
both that [the victim’s] apparently self-impeaching behavior does not affect
her believability one way or the other, and that the CSAAS evidence does not
show she had been molested.” (Ibid.)
The same division of the Second District adhered to Gonzales in
People v. Munch (2020) 52 Cal.App.5th 464, 474, and the Fourth District
Court of Appeal agreed with Gonzales and Munch that “the official jury
instruction accurately instructs the jury on the law: the proper use—and the
proper limitations on the use—of CSAAS evidence.” (Lapenias, supra,
67 Cal.App.5th at pp. 175–176.) We are persuaded by the reasoning in
Gonzales, and we also conclude that former CALCRIM No. 1193 accurately
states the law.
Jetter argues that “Gonzales is factually distinguishable” because “the
expert there testified more extensively than Dr. Carmichael that CSAAS
could not be used to determine if the defendant was guilty.” In reaching its
holding, Gonzales emphasized that CALCRIM No. 1193 “must be understood
in the context of [the expert’s] testimony. [The expert] testified that CSAAS
is not a tool to help diagnose whether a child has actually been abused. She
said that if it is not known whether a child has been abused, CSAAS is not
helpful in determining whether a child has, in fact, been abused. The purpose
of CSAAS is to understand a child’s reactions when they have been abused.”
(Gonzales, supra, 16 Cal.App.5th at pp. 503–504, italics added.)
Although Jetter is correct that Dr. Carmichael did not make a
statement exactly like the italicized one above, his testimony did not
appreciably differ from that of the expert in Gonzales. Dr. Carmichael
22
likewise testified that CSAAS explains certain behavior “that kids do after
they’ve been abused as opposed to trying to determine [whether] the kid had
been abused or not.” He also repeatedly stated that CSAAS is not “diagnostic
tool” or “checklist” for determining if a child was sexually abused. This
testimony effectively conveyed the same message as that in Gonzales, that
CSAAS is not used to determine whether a child has been sexually abused.
Jetter makes other arguments not raised in Gonzales or the other
decisions following it. He first challenges what he calls “CALCRIM
No. 1193’s most problematic statement: that the jury may use CSAAS
testimony to determine if the complainant’s behavior ‘was not inconsistent
with’ that of a sexual abuse victim.” He contends the instruction thus
“allowed the jury to use CSAAS evidence in a prohibited way, as a diagnostic
tool, by concluding that because [Doe’s] conduct was ‘consistent with’ those of
sexual abuse victims, his claims were true.”
There is no reasonable likelihood that a juror would interpret this
portion of the challenged instruction to permit use of CSAAS as a diagnostic
tool. Dr. Carmichael unambiguously testified that CSAAS is not a diagnostic
tool or checklist for determining whether a child has been sexually abused.
Moreover, although Jetter claims the “not inconsistent” double negative is
“confusing,” it conveyed the basic concept that CSAAS testimony seeks to
explain why certain behavior does not, contrary to common opinion, suggest
that the victim’s allegations are false. Thus, a reasonable juror would
understand this particular statement, like former CALCRIM No. 1193 as a
whole, to mean that the jury could use CSAAS testimony “to conclude that
[the victim’s] behavior [did] not mean [the victim] lied . . . [about being]
abused.” (Gonzales, supra, 16 Cal.App.5th at p. 504.)
23
Jetter also claims that CALCRIM No. 1193 “is fundamentally
argumentative because it expressly permits jurors to use CSAAS evidence to
determine if the complainant’s behavior is consistent with that of a sexual
abuse victim, but ignores the defensive inference that the same behavior
might suggest falsity.” In other words, he attacks the instruction’s failure to
state that the behavior CSAAS explains also supports an inference that the
victim is lying. But the point of CSAAS testimony is to rebut common
misconceptions about how child victims of sexual abuse behave (People v.
McAlpin, supra, 53 Cal.3d at p. 1301), and it is not necessary to instruct on
what those misconceptions are.
In any event, Jetter never sought below to modify the instruction in
this manner, meaning he forfeited this argument. (See People v. Mason
(2013) 218 Cal.App.4th 818, 823 [claim that jury instruction was incomplete
forfeited unless clarifying or amplifying language requested].) He did argue
that CALJIC No. 10.64 should be given instead, but that instruction does not
say anything to the effect that a victim’s behavior may suggest the victim is
lying. (See CALJIC No. 10.64.)
Finally, Jetter also objects that the challenged instruction does not
“offer jurors the option of rejecting CSAAS’s explanation for a witness’s
conduct.” But the jury received other instructions that adequately conveyed
their ability to believe or disbelieve witness, including CALCRIM Nos. 226
and 302. And as to expert witnesses in particular, the jury was instructed
under CALCRIM No. 332, “You must consider the [expert] opinions, but you
are not required to accept them as true or correct. The meaning and
importance of any opinion are for you to decide. . . . [¶] You may disregard
any opinion that you find unbelievable, unreasonable, or unsupported by the
24
evidence.” Thus, the instructions as a whole unambiguously informed jurors
that they were not required to credit Dr. Carmichael’s testimony.
4. There was no cumulative error.
As discussed above, although we have assumed that Dr. Carmichael’s
testimony about the rarity of false allegations was improperly admitted, the
trial court’s curative instruction adequately addressed the error’s prejudicial
effect. In addition, the trial court did not err by giving former CALCRIM
No. 1193. Therefore, Jetter’s claim of cumulative error fails. (See People v.
Capers (2019) 7 Cal.5th 989, 1017 [no cumulative error where “no errors to
aggregate”].)
B. The Trial Court Did Not Err by Refusing to Disclose Certain
of Doe’s Medical Records to the Defense.
At Jetter’s request, and without objection by the Attorney General, we
reviewed medical records of Doe that the trial court placed under seal.
Having done so, we are satisfied that the court correctly declined to provide
the records to the defense.
1. Additional facts
Before trial, Jetter moved to compel the release of Doe’s medical
records “to corroborate or dispel” Doe’s allegations of anal bleeding. Jetter
asked the trial court to conduct an in-camera review of the documents, which
he had subpoenaed, and release any that were relevant “to establish there
was never any treatment of [Doe] for anal bleeding.”9
At a hearing, Jetter’s trial counsel stated that he did not expect the
subpoenaed medical records to contain evidence supporting the allegation
that Doe “was sodomized and repeatedly had massive amounts of blood loss
9 The prosecution subpoenaed Doe’s medical records from the 2017
marijuana incident and the 2018 child-abuse physical examination. Those
documents were disclosed to the defense and are not at issue on appeal.
25
from the anus.” The trial court responded that it had reviewed the records
and could “represent that there [was] no such evidence” in them. The court
described the records as being “more contemporaneous psych records, school
records, things of that nature, a history of [Doe’s] medical health that is
unrelated to any allegations,” and it concluded that Doe’s privacy rights
outweighed Jetter’s interest in disclosure.10 The court noted that its
determination might change if it saw “something that would be useful in
impeachment.”
Defense counsel then asked the trial court “to instruct the jury that you
have gone over his records and found nothing supporting massive anal
bleeding.” The court declined to do so, concluding it would be improper for it
“to make a representation to the jury as to the state of the evidence.”
Counsel could, however, attempt to establish that Doe was not treated for
anal injuries by other means, such as questioning Doe.
After the trial began, the trial court stated that having heard some
evidence and the defense theory of the case, it now believed that one page of
the medical records at issue was relevant. The court disclosed that page to
the defense, but it is unclear from the record what information the document
contained. As mentioned above, Doe ultimately testified that he never sought
medical care for injuries to his anus.
2. The trial court properly declined to disclose the sealed
records to the defense.
Jetter does not specify the legal standards governing whether
confidential medical records must be disclosed to the defense. He states
merely that “his Fourteenth Amendment right to due process and a
10 The trial court also made an in camera record of its reasoning for
denying disclosure of the medical records, during which it said substantially
the same thing.
26
meaningful appeal require” us to review the documents to determine whether
the trial court “abused its discretion” by not releasing them to the defense.
He also states in passing that we must determine whether the court erred by
failing to instruct the jury that the records “did not support [Doe’s]
allegations of ‘massive anal bleeding,’ ” but he fails to provide any authority
governing that issue. Finally, Jetter took no action to have the sealed records
transmitted to this court. Thus, his claim on appeal is forfeited. (See
People v. Chubbuck (2019) 43 Cal.App.5th 1, 12 [failure to provide adequate
record defeats claim on appeal]; Tellez v. Rich Voss Trucking, Inc. (2015)
240 Cal.App.4th 1052, 1066 [claim forfeited if not supported “with reasoned
argument and citations to authority”].)
Nonetheless, we have obtained the sealed medical records and
independently reviewed them. Having done so, we can confirm that the trial
court correctly represented that they do not contain any information about
injuries to Doe’s anus. Moreover, the jury heard Doe’s testimony that he
never sought care for such injuries, making the medical records far less
crucial for establishing that fact. Since Jetter has never identified any other
reason the records should have been disclosed to him, we are satisfied that
the court properly declined his request.
C. The Abstract of Judgment Must Be Corrected.
Finally, we address certain clerical errors in the abstract of judgment,
which all consist of discrepancies with the trial court’s oral pronouncement of
the sentence. Although the parties did not identify them, on our own motion
we may order the abstract corrected to reflect the court’s oral pronouncement.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.)
First, the abstract of judgment incorrectly reflects that Jetter was
sentenced to life without the possibility of parole on all 12 counts, even
27
though he did not receive an LWOP sentence. Second, the length of the
concurrent terms imposed (25 years to life on counts 7, 9, and 11, and
15 years to life on counts 8, 10, and 12) is not indicated, as the abstract
identifies only the indeterminate terms imposed for the first six counts.
Third, the abstract states that both the total and actual custody credits
earned were 1,156 days, but while Jetter did actually serve 1,156 days, as the
trial court stated, he received credit for only 173 days (15 percent of 1,156).
Fourth, the abstract states, “Per order of the court, fines and fees are stayed,”
but the court did not stay any fines and fees at sentencing. And finally, the
court imposed a sex-offender fine of $500 under Penal Code section 290.3,
which the abstract does not reflect. The abstract of judgment must be
amended to fix these inconsistencies.
III.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment
correcting the errors identified above. The amended abstract of judgment
shall be forwarded to the Department of Corrections and Rehabilitation.
Otherwise, the judgment is affirmed.
28
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
People v. Jetter A163968
29